PRACTICE.

Bill of review, pure and simple, will not avail to reverse the decree on the original bill for anything but errors of law, apparent on the record; the decision upon the questions of fact at issue under the original bill and answer, must be assumed to be correct upon the view of the law taken by the court at the time of the original decree, so as to leave nothing for examination but the correctness of the view of the law: Willamette I. B. Co. v. Hatch, S. Ct. U. S., March 19, 1888; 125 U. S. 1.

Bill of review, pure and simple, for the reversal of a decree for apparent errors of law only, may be filed in the Circuit Court, after an appeal has been taken to the Supreme Court, but not prosecuted: Id.

RAILROADS.

Baggagemaster has no authority to invite a person to ride on a train and such person cannot be considered a passenger and cannot recover damages for any act not caused by the negligence or tort of the company: Reary v. L., N. O. & T. R. R. Co., S. Ct. La., January 9, 1888.

Failure to stop, look and listen, is excusable where plaintiff saw a train moving away from the only crossing from one part of the town to another and not knowing that the train was being switched back and forwards, and not being able to see its approach on account of standing cars and a freight house, drove slowly on the crossing and was injured: N. P. R. R. Co. v. Holmes, S. Ct. Wash. Ter., February 2, 1888.

Net earnings of a railroad in the hands of a receiver, appointed in a judgment creditor's suit, are not applicable in discharge of the bonds secured upon the road by a mortgage, where the mortgage trustee has not asked for possession or intervened in the suit: Sage v. M. & L. R. R. R. Co., S. Ct. U. S., March 19, 1888; 125 U. S. 361.

Passing from car to car of a rapidly moving train, to suit the passenger's convenience, is at the risk of the passenger, even though the conductor had remarked to the passenger that he might leave the train at the next station, by taking the rear car; this was not a command on the part of the conductor, for which the company could be held liable: Stewart v. B. & P. R. R. Co., S. Jud. Ct. Mass., May 4, 1888.

STATUTES.

Locality, being limited in an Act of Congress, is not enlarged by an amendment containing language which might have a wider scope; in construing the amendment, the mischief to be remedied should be ascertained and the language used should be restrained to the evident purpose of the legislative will: U. S. v. Crawford, S. Ct. Dist. Columbia, March 12, 1888.

JOHN B. UHLE.

THE

AMERICAN LAW REGISTER.

AUGUST, 1888.

THE TRUE CHARACTER OF DIVORCE SUITS.

I PROPOSE to present what I understand to be the true character of divorce suits, and to account for their admitted peculiarities. I do not offer a mere theory, and seek to support it by showing that it is consonant with legal science; but, taking the law as it is settled by the great majority of decisions, and as recognized and stated by our principal textwriters on the subject in hand, I undertake to relieve it of minor difficulties, to point out some errors in conflicting decisions, and to reconcile with legal science the prevalent theory of divorce suits. In doing this I shall be obliged to expose the misuse of terms frequently found in able treatises, and in leading cases of unquestionable authority on the subjects adjudicated; and I may have to differ with a few decisions. hitherto unchallenged.

I.

1. The right classification of the divorce suit is important. It is wholly personal. One party to the marriage sues the other, and all the requisites of a personal action are apparent. The action manifestly should be classified generally with personal suits.

This class, however, is divisible. The divorce suit, in common with some others, differs from ordinary personal actions in several respects. It has some features so resembling those of the proceeding in rem that they have caused it

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to be mistaken as a member of the latter's family. Treatise writers and courts have frequently said that the divorce suit is in rem, because of the prominent feature-the universal conclusiveness of the decrees-common to both. They have said it incidentally, however, not so as to make the assertion necessary to the argument of the treatise, or to the conclusion of the opinion. The term may have the right one substituted without doing violence to the thought either in the text-books or the decisions where it is thus employed. It is therefore not authoritatively settled that the divorce suit is in rem.

2. Believing that the misapplication of this term tends to error, I call attention to the simple fact that no thing is sued when a husband or wife is sued for divorce. Plainly the action is brought against a person and not against any thing. The true criterion is not universal conclusiveness, but that against which the suit is instituted and prosecuted.

In divorce suits, no property is seized, brought into court, held in custody till condemnation, and made necessary to the court's jurisdiction throughout all the proceedings, while there is no party defendant and not necessarily any party claimant. There is no property-right or interest constructively seized and brought into court and proceeded against in a divorce suit. How can it be said, in any rational sense, that the suit is instituted and prosecuted against any thing?

3. Mr. Bishop, in his good book on Marriage and Divorce, says repeatedly that it is the matrimonial status which gives the divorce suit its character; other text-writers on the subject are in accord; all correctly cite authorities in their support, and Mr. Bishop speaks of the plaintiff as "the proprietor of the status" (Vol. II. sec. 164); but is the status sued? Is that a thing proceeded against, in a divorce suit, like a bale of goods in the actio in rem? The bale, seized and brought into court to be condemned as forfeited, has its status judicially declared by the decree; but there can be no proceeding to declare the status of a status-as would be the case were there proceedings against the marital state of persons and not against the persons. For, all proceedings in rem are to fix status-necessarily, however, that of property actually seized, or property rights and interests constructively seized. They

are "to determine the state or condition of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be:" Woodruff v. Taylor, 20 Vt. 65. Hundreds of decisions accord with this, and none controvert it. There are those which transcend this description by Judge Hall, but none which contradict it; and they are little more than casual expressions, not essential to the decisions rendered, and not designed to settle authoritatively the use of any term. For illustration: there are many cases cited by the annotators of The Duchess of Kingston's Case, and Doe v. Oliver, in Smith's Leading Cases (Vol. II. p. 809, 7th Am. Ed.), which declare all suits to fix personal status to be in rem, when it is apparent that the right term could be substituted for the wrong one used, without changing the logical conclusion sought.

Seeing that the status of the contending parties is not the res, some have said that the bond of matrimony is the subject-matter of the suit, and that the divorce proceeding is in rem, being to dissolve the bond; but, clearly, there is no action against the bond as a fictitious defendant, nor is the subject-matter ever impleaded, condemned, or adjudged against in any way.

"It was the interest of the husband in his wife—his right to exact from her the performance of duties-upon which the decree operated. She was within the jurisdiction," said the Supreme Court of Maine, in the oft-approved case of Harding v. Alden, 9 Greenleaf, 140. If that "interest" was the res, it should have been seized constructively and proceeded against, as an intangible thing may be, so that it could not have been in any other court at the same time. But that a wife may sue her husband for divorce in one State, and the husband sue her for it in another, at the same time, is quite possible. The status, the bond of matrimony, the interest of both parties in their domestic relation, may be pending at once in two different courts, in two different States, so that lis pendens cannot be pleaded in either against the other. Jones, in New York, sued his wife for divorce, and she answered: Jones v. Jones, 36 Hun, 414. She, in Texas, sued him for divorce, while his suit was pending, and he answered:

Jones v. Jones, 60 Tex. 451. The status of both, the matrimonial bond, the conjugal interest, were in both courts simultaneous; but property or a property interest could not have been legally under seizure, actually or constructively, in two courts at once. This is axiomatic.

Mrs. Jones obtained judgment first, amended her pleadings in New York, and set up the Texas decree there, and it was held a bar to further proceeding. There are other like cases.

II.

1. I have said that the divorce suit, though wholly personal in character, differs from ordinary personal actions in features which resemble those of an action against a thing. The two most prominent in both are the fixing of status and the universal conclusiveness of the judgment. When both parties litigant, in a divorce suit, are in court, these two particulars are the most striking differences between such suit and an ordinary personal action; but when only the plaintiff is there, a third resemblance to a proceeding in rem, is equally remarkable: there need be only published invitation to the adverse party in interest.

In these three particulars, the divorce suit is as if against a thing. Still retaining its wholly personal character, it be longs to a sub-division of its class, which embraces many cases other than those of divorce, in which these marked characteristics appear.

2. I am not confounding terms when I say that the divorce suit is in personam yet quasi in rem. All suits quasi in rem are necessarily personal, else they would be simply in rem. We cannot say of the latter that they are like proceedings against things, for they are proceedings against things.

The distinction is not a merely fanciful bandying of terms. It points out an important difference between classes of actions that have been too often confounded to the engendering of error and the denial of justice. The books are full of loose expressions relative to these forms of action, giving abundant apology for this attempt to rectify the misuse of terms, were that the only purpose of this essay. We read of proceedings “purely" in rem, implying that there are those impurely so;