ticular State he may lawfully appeal to the courts of that State for a dissolution of the marriage tie, for the causes permitted by its statute, and may call in the nonresident defendant by publication.

In many of them the full faith and credit clause of the Constitution does not seem to have been called to the attention of the court, and the case was disposed of upon the principles of comity, which gave to the court a certain latitude of discretion, whereas, under the full faith and credit clause, the consideration given to a decree in the State where it is rendered. is obligatory in every other State.

New York: It is not questioned that the courts of New York are vested by statute with authority to render decrees of divorce where the plaintiff is domiciled within that State, which shall be operative in that State even although the defendant is a nonresident and is proceeded against by constructive service.

Borden v. Fitch, 15 Johns (N. Y.), 121, and Bradshaw v. Heath, 13 Wend. (N. Y.) 407, were decided respectively in the years 1818 and 1835. These cases as declared by the court of appeals of New York in People v. Baker, 76 (N. Y.) 82, upheld the principle that a court of another State could not dissolve the matrimonial relation of a citizen of New York, domiciled in New York, unless he was actually served with notice within the other State or voluntarily appeared in the cause. The doctrine that an action of divorce is one inter partes was thus clearly reiterated by Andrews, J., in Jones v. Jones, 108 N. Y. 415, 424; 15 N. E. Rep. 707.

"The contract of marriage can not be annulled by judicial sanction any more than any other contract inter partes, without jurisdiction of the person of the defendant. The marriage relation is not a res within the State of a party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind the absent party, a citizen of another jurisdiction, by a substituted service or actual notice of the proceedings given without the jurisdiction of the court where the proceedings is pending."

That the principle is still in force by the New York court is shown by recent cases, viz.: Lynde v. Lynde, 162 N. Y. 405, 56 N. E. Rep. 979; Winston v. Winston, 165 N. Y. 553, 59 N.

E. Rep. 273, and it is indubitable that under this doctrine the courts of New York have invariably refused as they have done in the former cases, to treat a divorce granted in another State under the circumstances stated, as entitled to be enforced in New York by virtue of the full faith and credit clause of the Constitution of the United States; and indeed have they refused generally to give effect to such decrees even by State comity:

Massachusetts: Barber v. Root, 10 Mass. 260; Hanover v. Turner, 14 Mass. 227; Hartu v. Hartu, 14 Pick (Mass.) 181, was decided respectively in 1813, 1817 and 1833. In 1835 the Legislature of Massachusetts incorporated into the statutes of that State, following a section forbidding the recognition of divorces obtained in another jurisdiction in fraud of the laws of Massachusetts, a provision reading as follows: A divorce decreed in another State or country according to the laws of the place by a court having jurisdiction of the cause and of both of the parties, shall be valid and effectual in this State. "And it may be observed that this section, when submitted to the Legislature by the commissioners for revising the Massachusetts statute, was accompanied by the following comment (Rep. Com't, pt. 2, p. 23): "This is founded on the rule established by the comity of all civilized nations, and is proposed merely that no doubt should arise on a question so interesting and important as this may sometimes be."

In Lyon v. Lyon (1854), 2 Gray (Mass.) 367, the question was as to the validity in Massachusetts of a divorce decreed in Rhode Island in favor of one party to a marriage against the other who was domiciled in Massachusetts. The court refused to give extra-territorial effect to the Rhode Island decree. In the opinion by Chief Justice Shaw, it was declared that the three cases which I have previously referred to sustains the doctrine, based upon general principles of law, that a decree of divorce rendered in another State without jurisdiction of both of the parties possesses no extra-territorial force.

In Hood v. Hood (1865), 11 Allen (Mass.) 196, the controversy was this: The parties were married in Massachusetts and after a residence in that State moved together to Illinois. The wife left the domicile of the husband in Illinois and returned to Massachusetts. Thereafter in Illinois, the husband

sued the wife for divorce on the ground of her desertion, obtained a decree and married again. The case decided in Massachusetts was a suit brought in that State by the former wife against the former husband for divorce on the ground of adultery alleged to have been committed by him with the person whom he had married after the decree of divorce in Illinois had been rendered. The Illinois decree was pleaded in bar. The question whether the Illinois decree should be given extraterritorial effect in Massachusetts depended upon the rule announced in the previous cases, upon whether both the husband and the wife were parties to the Illinois decree. For the purpose of the determination of this jurisdictional question it was held that it was necessary to ascertain whether the wife was justified, by the fault of the husband in leaving him in Illinois and going back to Massachusetts. It was decided that if she was justified in leaving the husband, her legal domicile was in Massachusetts, and she was not a party to the Illinois decree, and that if she was not justified in living separate from the husband, the ordinary rule being that the domicile of the husband was the domicile of the wife, she was domiciled in Illinois, and must be considered as subject to the jurisdiction of the Illinois court. Applying this legal principle to the facts in the case before it the court held that as there was no evidence showing that the wife had justifiable cause for leaving her husband, the legal presumption that the domicile of the husband. was the domicile of the wife prevailed, and that the Illinois decree was entitled to extra-territorial effect in Massachusetts, and bound the wife, because rendered by a court having jurisdiction over both parties.

In Shaw v. Shaw (1867), 98 Mass. 158, the facts were these: The parties were married in Massachusetts, lived there, and left together for the purpose of settling in Colorado. On the journey, at Philadelphia, the wife was forced by extreme cruelty of the husband to leave him. She returned to Massachusetts while he went on to Colorado. Subsequently the wife sued in Massachusetts for a divorce from bed and board. The husband was brought in by substituted service and defaulted. The court in the most explicit terms recognized that a decree of divorce to have extra-territorial effect must be rendered with jurisdiction over both parties. It said (page 159): "For the

purpose of divorce the general rule of jurisprudence is that a divorce granted in the place of the domicile of both parties, and there valid, is good everywhere." The court came then to consider whether it could render a decree in Massachusetts in favor of the wife. This depended upon a statute of Massachusetts which authorized the granting of divorce where the cause for divorce occurred while the parties had lived together as husband and wife in Massachusetts, and one of them lived in that State when the cause of divorce occurred. It was held that at the time of the commission of the cruelty in Philadelphia charged against the husband, the domicile of the parties in Massachusetts had not been lost and as by that cruelty the wife was justified in returning to Masaschusetts, and the subsequent acquisition of a new domicile by the husband in Colorado did not make such domicile that of the wife, there was justification and the divorce was granted.

Hood v. Hood (1872), 110 Mass. 463, was an attempt again to assail the validity of the Illinois decree of divorce which had been adjudged valid in 11 Allen (Mass.) 196, because it was found that both husband and wife had been parties to the decree. The Massachusetts decree so holding was therefore held to be res judicata as to all persons and to foreclose further inquiry into the validity of the Illinois decree of divorce.

In Burden v. Shannon (1874), 115 Mass. 438, the facts leading up to the controversy and those involved therein were as follows: Shannon and his wife lived together in Massachusetts, where she left him. Without stopping to refer to prior legal controversies which arose between Shannon and his wife and between Shannon and Mrs. Burlen, which are irrelevant to be considered, it sufficeth to say that Mrs. Burlen sued Shannon in 1850 to hold him liable for necessary supplies furnished to the wife. Shannon resisted on the ground that the wife had been living apart from him without his fault or consent, and this defense was maintained. 3 Gray (Mass.), 387. Shannon went to Indiana in 1855 and took up his domicile in that State, where in 1856 he obtained a decree of divorce upon constructive service. Subsequently in Massachusetts Mrs. Burlen again sued Shannon for necessaries furnished to the wife between February 22, 1860, and February 7, 1866. He pleaded the Indiana divorce and the validity of the divorce was assailed

by Mrs. Burlen on the ground that the wife had not been a party to the divorce cause, and therefore the Indiana decree had not extra-territorial effect in Massachusetts. The court in effect after reiterating the previous rulings and referring to the statute concerning the necessity for the presence of both parties within the jurisdiction where a decree for divorce of another State was sought to be given effect in Massachusetts; also reiterating the previous ruling that the wife might acquire a separate domicile from the husband if she lived separate from him for justifiable cause. The court was brought therefor, to consider whether, Mr. and Mrs. Shannon were both parties to the Indiana decree on the ground that the domicile of the husband was the domicile of the wife. The solution of this question depended, as it had depended in Hood v. Hood, II Allen (Mass.), 196 upon whether the wife was absent from her husband because of his fault. On this subject it was decided that the previous judgment in favor of Shannon and against Mrs. Burlen in the prior action between the parties had conclusively determined between them that Mrs. Shannon was absent from her husband without his fault or consent, therefore, under the legal presumption that the domicile of the husband was the domicile of the wife, both, the husband and wife were parties to the Indiana decree and it was not subject to attack in Massachusetts. To cite, as has sometimes been done, the language of the opinion of the court referring to the previous judgments in the earlier action between Mrs. Burlen and Shannon as if that language referred to the Indiana decree of divorce, leading a the implication that that decree was held to be conclusive, even if only one of the parties was domiciled in the State where the decree was rendered, not only is a plain misconception, but is equivalent to asserting that the Massachusetts court had overruled its previous decisions and disregarded the spirit if not the letter of the State statute without the slightest intimation to that effect.

In Cummington v. Belchertown, 149 Mass. 223, 21 N. E. Rep. 435, the facts were these: The parties to a marriage celebrated in Massachusetts, lived together in that State until the wife was taken to a Massachusets asylum for the insane, when the husband abandoned her, acquired a domicile in New York, there brought suit on the ground of fraud for the annulment