that, as the divorce was granted to one who had never obtained a bona fide domicil, the court of South Dakota never acquired jurisdiction, and hence the due faith and credit clause of the Constitution did not require the enforcement of the decree in Massachusetts against the public policy of that state as expressed in its statutes. It is to be noticed that both the first and second marriages involved in that case took place in Massachusetts. And as to the invalidity of the divorce, it is clear that different considerations apply to the determination of the validity of divorces than to the validity of marriages procured in evasion of the law of the domicil. Bishop, supra, §§ 836, 837.

marriage, entered into between British sub- | domicil should be invalid; and it was held jects in a country where the marriage was not forbidden, was absolutely void in England. We consider these cases inconclusive. Most of them, if not all, fall within a wellrecognized exception to the general rule laid down above, namely, that, if a marriage is odious by the common consent of nations, or if its influence is thought dangerous to the fabric of society, so that it is strongly against the public policy of the jurisdiction, it will not be recognized there, even though valid where it was solemnized. Thus a polygamous marriage, although valid and binding in the country where it was contracted, would probably be denied validity in all countries where such unions are prohibited. See Re Bethell, L. R. 38 Ch. Div. 220. Probably the rule would be the same in case of an incestuous marriage, although valid in the place where contracted. See Bishop, supra, §§ 858 et seq.; Com. v. Lane, 113 Mass. 458, 463, 18 Am. Rep. 509. The cases cited from Louisiana, North Carolina, and Virginia may be explained, then, on the ground that the tendency of such unions in those states was considered destructive of society; and their apparent conflict with Medway v. Needham rests, not upon any conflict of opinion regarding the general principle governing foreign marriages, but only upon the different conceptions of the courts regarding the importance of the public policy forbidding such marriages. The first two cases cited by counsel for the respondent guardian are harder to distinguish, although we think that here, again, the difference in the result is attributable to the same difference in the conception of the public policy regarding such marriages. But if the cases really are in conflict, we believe that the current of authority is in favor of the principle already enunciated. It is true that in the important case of Brook v. Brook, 9 H. L. Cas. 193, decided by the House of Lords, a contrary position was taken, and the Massachusetts cases were expressly disapproved. That case, however, although of great weight, has been considerably criticised, and is believed to be contrary to the weight of American authority. For a learned criticism of the case, see the opinion of Gray, Ch. J., in Com. v. Lane, 113 Mass. 467, et seq., 18 Am. Rep. 509. See also Bishop, supra, § 827. The case of Andrews v. Andrews, 188 U. S. 14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237, has no bearing upon the question at issue. In that case the only question was whether the court of Massachusetts constitutionally could refuse to recognize a divorce granted by the court of South Dakota, in view of a Massachusetts statute providing that a divorce obtained in fraud of the laws of the

Coming now to the case in hand, it requires no argument to show that, even if the marriage might have been void if solemnized in this state, it is nevertheless not such a union that it can in any sense be considered so subversive of good morals, or so threatening to the fabric of society, as to fall within the exception to the general rule regarding foreign marriages. In other words, if valid in Massachusetts, it is equally valid here. As to its validity in Massachusetts, no authorities were cited by counsel, and we have not succeeded in discovering any Massachusetts statute or decision which would tend to show that the marriage is not valid there. Indeed, the only authorities we have found which seem to bear upon the point look the other way. In Parton v. Hervey, 1 Gray, 119, 121, the facts were in some respects similar to those in the case at bar. The petitioner had married a female infant of the age of thirteen years, with the free assent of said infant, but without the knowledge or consent of her mother, whe was her only surviving parent. The latter, claiming that the marriage was invalid without her consent, locked her daughter up, and refused to allow her husband to have the custody of her person. The petitioner was allowed a writ of habeas corpus against the mother. The court says on page 122: "But in the absence of any provision declaring marriages not celebrated in a prescribed manner, or between parties of certain ages, absolutely void, it is held that all marriages regularly made according to the common law are valid and binding, although had in violation of the specific regulations imposed by statute." And in Milford v. Worcester, 7 Mass. 48, 54, 55, Parsons, Ch. J., said: "When a justice or minister shall solemnize a marriage between parties who may lawfully marry, although without publication of the banns of marriage, and without the consent of the parents or guardians, such marriage would unquestionably be lawful, although the of

ficer would incur the penalty of £50 for a breach of his duty." See 2 Parsons, Contr., 9th ed. p. 93. In the absence, then, of any showing that Mr. Chace was either an idiot or lunatic at the time of the marriage, we are of opinion that the marriage in Massachusetts was valid.

It is argued by counsel for the petitioner that, as there was at least the form of a marriage in this case, it cannot be collaterally attacked, but must, for the purposes of this proceeding, be considered valid and binding. As the respondent's counsel took no notice of this point in his brief, however, and relies chiefly upon the invalidity of the marriage, we prefer to express no opinion upon that question, but to decide this branch of the case upon the ground selected by the respondent for his defense.

Having, now, as we think, established the validity of the marriage, we proceed briefly to inquire whether the facts of the case warrant the issuing of the writ.

guardian of the person and estate of a married woman could properly be appointed on the ground that she, for want of discretion in managing her estate, was likely to bring herself to want. It was held, in a learned opinion by Brayton, J., that such an appointment was valid. On page 250 he says: "Neither do we think that it is any sufficient objection to the decree that the guardianship of the property is coupled with the guardianship of the person. It is not necessary, in the exercise of any of the guardian's powers, to invade any of the rights of the husband, either in the disposition and control of the property of the wife, or the custody of her person. Whatever control of her person may be necessary for her protection and for the assertion of her just rights must necessarily be given to the guardian, but this may be, and would be, in subordination to every just right of the husband. The custody of her person would not be taken from him, unless for her protection." In view of this decision, the remainder of the case is free from difficulty, and may be decided without

writers cited by petitioner, or of the decision last cited. If the marriage terminated the guardianship of the person, the petitioner is obviously entitled to the relief she seeks. If the guardianship is not thus terminated, yet, under our own decision, the control exercised by the guardian must be in subordination to every just right of the wife. It needs no argument nor citation of authority to show that, in the absence of very exceptional circumstances, a wife is entitled to the society of her husband, free from the restraint of any third person. No such circumstances appear in this case. And, taking the facts above recited as true, as they must be assumed to be in the absence of anything to the contrary, it ap pears that the wife of the ward is prohibited by the guardian from enjoying the society of her husband, and that he is being restrained of his liberty in a way which calls for the interference of this court. See Whitten v. Tomlinson, 160 U. S. 231, 242, 40 L. ed. 406, 412, 16 Sup. Ct. Rep. 297. Whether the guardianship is terminated or not, therefore, the petitioner's right to a writ of habeas corpus is made out.

In the first place, it is clear that the husband or wife of a person illegally restrained of his liberty is a proper person to petition for a writ of habeas corpus. Parton v. Her-questioning the authority, either of the textvcy, 1 Gray, 119, 121; 15 Am. & Eng. Enc. Law, 2d ed. p. 181, and cases cited; Id. p. 193. As to the effect of the marriage upon the status of guardian and ward, it is strenuously argued on the part of the petitioner that the marriage relation is inconsistent with the guardianship, and that, as marriage is paramount to any other social status, the guardianship, at least of the person of Mr. Chace, terminated upon his marriage. In support of this proposition he cites a number of authorities of great weight, including Woerner, American Law of Guardianship, 335, 336; Schouler, Dom. Rel. 5th ed. § 313; Reeve, Dom. Rel. 4th ed. 409; and 2 Kent, Com. 12th ed. *226. None of these authorities, however, cites any decided case in support of this proposition, save in the case of the marriage of a female ward. Counsel for respondent, on the other hand, maintains that, if the guardianship can be terminated by the ward's own act, without any action by the probate court, then, although he is incompetent, and has been so adjudged, he immediately becomes competent to remove his own disability, while still incompetent for every other purpose; and it must be admitted that this argument is a very cogent one. Fortunately, however, we are not under the necessity of deciding the question thus raised, for, even granting that the marriage of the ward did not terminate the guardianship of his person, the petitioner is still, under our own decision, entitled to the relief she prays. In Tillinghast v. Holbrook, 7 R. I. 230, the court passed upon the question whether a

Blodgett, J., concurring:

I concur in the conclusion reached in the foregoing opinion, for the reason that the appointment of a guardian in Rhode Island had no effect upon the person or property of the ward in Massachusetts. Mitchell v. People's Sav. Bank, 20 R. I. 500, 40 Atl. 502. And such is the law in Massachusetts. Woodworth v. Spring, 4 Allen, 321; Milli

Briggs v. Titus, 13 R. I. 138; Quidnick Co. v. Chafee, 13 R. I. 388; Stillwell v. Bertrand, 22 Ark. 380; Selz v. Collins, 55 Mo. App. 63; Welch v. Seligman, 72 Hun, 138, 25 N. Y. Supp. 363.

Douglas, J., delivered the opinion of the court:

ken v. Pratt, 125 Mass. 374, 28 Am. Rep. | several suits against joint and several 241, and cases cited. And see Hoyt v. makers of a note. Sprague, 103 U. S. 613, 26 L. ed. 585; Morgan v. Potter, 157 U. S. 195, 39 L. ed. 670, 15 Sup. Ct. Rep. 590; Wuesthoff v. Germania L. Ins. Co. 107 N. Y. 580, 14 N. E. 811. The ward, Henry C. Chace, when in Massachusetts, was not under the disability of guardianship there, and was accordingly sui juris in that state. And certainly, in the absence of affirmative proof of fraud upon our law, he is entitled to the benefit of the maxim, Nullus videtur dolo facere qui suo jure utitur. Since this is decisive of the question, I prefer to withhold an expression of opinion as to whether the rule in Medway v. Needham (decided in 1819) 16 Mass. 157, 8 Am. Dec. 131, upon the validity of a marriage celebrated prior to 1770, and which has been much criticised, or the opposing view taken by the House of Lords nearly fifty years later, in Brook v. Brook, 9 H. L. Cas. 193, which has been also much questioned, shall be held to be the law of this state, until such time as a case shall arise in which it shall affirmatively appear that there was a deliberate attempt to evade the provisions of our law, and it shall become necessary to determine between them. The writ will issue as prayed.

ΟΝ

(November 25, 1904.)

N MOTION by respondent to compel petitioner to elect as to which remedy he would pursue, where he was proceeding to enforce a mechanic's lien, and to recover the amount of his claim from the principal contractor. Denied.

The facts are stated in the opinion. Mr. Terence M. O'Reilly, for petitioner:

There is no more reason why the petitioner should be compelled to elect than there would be in a case of a plaintiff in

NOTE. For a collection of authorities upon the subject of the enforcement of mechanics' liens. see note to Farmers' Loan & T. Co. v. Canada & St. L. R. Co. 11 L. R. A. 740.

These are petitions for mechanics' liens, brought by subcontractors to recover for work and materials performed and used in the construction of buildings for the respective respondents. In each case the respondent has filed a motion alleging "that said petitioner has commenced an action at law against the original contractors, in the common pleas division of this court, for the recovery of the same sum of money, for the same materials, labor, etc., mentioned in the petition, and has in said action at law attached the fund from which said lien might be satisfied, to wit, the last payment due under said original contract, which suit is still pending," etc., and praying that the petitioner may be required to elect between the two remedies.

The question is thus presented whether a petition for a mechanic's lien may be prosecuted simultaneously with a suit at common law to recover the same debt from the contractor. It is a corollary from the maxim, Nemo debet bis vexari pro eadem causa, that, if a complainant sues a defendant at the same time in law and in equity to enforce the same obligation, the court in equity will require him to elect which remedy he will pursue. 1 Foster, Fed. Pr. § 295; Fletcher, Eq. Pl. & Pr. § 365, note 1; Quidnick Co. v. Chafee, 13 R. I. 367. If he chooses to proceed in equity, the court will enjoin his suit at law; and, if he elects to proceed at law, it will dismiss his bill, but without prejudice. Mitford & T. Eq. Pl. 340; Dan. Ch. Pr. *817, note 9; Royle v. Wynne, Craig & P. 252. The courts, however, exercise a wide discretion in applying this rule, and are careful not to make it an instrument of oppression by enforcing it where both remedies sought may be necessary to complete satisfaction of the claim. Dan. Ch. Pr. *634, note 3; Story, Eq. Pl. § 742a. Lord Cranworth says in Ostell v. Le Page, 21 Eng. L. &. Eq. 640: "But when the court interferes upon motion to stop the plaintiff from proceeding, it is taking upon itself a very delicate jurisdiction, and one in which it ought to see that by no possibility can it be doing injustice." Thus, in the absence of a statute to the contrary, the holder of a bond or note secured by mortgage may sue the parties to the instrument at common

In every case, if the owner is so fortunate or has been so prudent as to hold in his hands money due to the contractor, he can charge against such sum any payments which he may be obliged to make to satisfy mechanics' liens; but the workman has no lien upon such fund, and is not pursuing it by this proceeding. Even if the owner has no such fund, such payments would constitute a debt from the contractor to him, so that the rights of the parties in these cases are not different from their respective rights in all cases of petitions for mechanics' liens by subcontractors or workSo, in the case of the sale of mortgaged land, the parties to the sale may make such arrangement between them as they please with respect to the mortgage debt, but the holder of the mortgage may pursue his several remedies notwithstanding.

law, and may at the same time maintain of the parties which we have to consider. his suit for foreclosure. Dunkley v. Van Buren, 3 Johns. Ch. 330; Mundy v. Whittemore, 15 Neb. 650, 19 N. W. 694; Aylet v. Hill, 2 Dick. 551; Perry v. Barker, 13 Ves. Jr. 198; Priddy v. Hartsook, 81 Va. 67; Central R. Co. v. New Jersey West Line R. Co. 32 N. J. Eq. 67; Jones v. Conde, 6 Johns. Ch. 77; Way v. Bragaw, 16 N. J. Eq. 214, 84 Am. Dec. 147; 20 Enc. Pl. & Pr. p. 271. In Jones v. Conde, 6 Johns. Ch. 77, Chancellor Kent says: "The one remedy is in rem, and the other in personam; and the general rule, to which this case is an exception, applies only to cases where the demand at law and in equity are equally personal, and not where the cumulative remedy is in personam, while the other remedy is upon the pledge;" citing Booth v. Booth, 2 Atk. 343; Schoole v. Sall, 1 Sch. & Lef. 176; Lord Kenyon in Smart v. Wolfe, 3 T. R. 342; Boyd v. Heinzelman, 1 Ves. & B. 381; Jackson ex dem. Ireland v. Hull, 10 Johns. 481; Lord Erskine in Perry v. Barker, 13 Ves. Jr. 205; and Dunkley v. Van Buren, 3 Johns. Ch. 330. The distinction drawn by Chancellor Kent applies as reasonably to the present cases as to the case of a mortgage.

A mechanic's lien is additional security given by statute upon certain conditions, but does not in any way abrogate the contract between the workman and his employer. It has been held that, like a mortgage, the liability to a mechanic's lien is an obligation voluntarily assumed by the owner when he engages a builder. Briggs v. Titus, 13 R. I. 136. The lien proceedings are in rem against the land, and the common-law action is in personam against the employer. In some cases both remedies may be required, to procure full payment of the debt, and in some cases part of the claim only may be enforceable as a lien against the land. The defendants are not the same any more than in the case of a mortgagor who is also the maker of a note which is secured by it. The land is the real defendant in this proceeding, whoever actively represents it in the trial of the case, and the contractor is the defendant in the common-law action, no matter on what fund attachment may have been laid, as the land is responsible in the foreclosure of a mortgage, whether it is still owned by the maker of the note, or has been transferred to a new owner.

It is represented to us in these cases that the owners hold a certain part of the contract price of the building, out of which they may satisfy any mechanics' liens which may exist, and that they have left to the contractor the defense of these suits. We do not see how that alters the relations

men.

A mechanic's lien is more nearly analo gous to a maritime lien even than to a mort gage, and it is held that a lien may be prosecuted in admiralty while a suit for the debt is pending at common law. Russell v. Alvarez, 5 Cal. 48; People ex rel. Granger v. Wayne Circuit Judge, 27 Mich. 406, 15 Am. Rep. 195, and cases cited.

Following these analogies, we must deny the motions. If the petitioners should elect to discontinue the common-law actions, they could not renew their attachments if their liens should prove insufficient; and, if they should elect to abandon their liens, these would be wholly lost if the attachments should not satisfy the claims. It is manifestly impossible to discontinue a petition for a mechanic's lien without prejudice. From the fact that the garnishee in each of these common-law cases cannot answer as to the amount of his debt to the contractor until the claims for liens are settled to which he has a right to devote the funds in his hands, the common-law suits cannot probably be satisfied until these proceedings are terminated; but we see no reason why they should not proceed to judgment simultaneously, if the plaintiff's desire to press them.

Counsel have not cited to us any cases directly in point, but those which we have found sustain the view we have expressed. It is held in Bates v. Santa Barbara County, 90 Cal. 543, 547, 27 Pac. 438, the right to a money judgment against the person who employs the mechanic or purchases the materials is not lost or waived by a proceeding to enforce the lien, or recover from the owner the balance of the contract price remaining in his hands. In West v. Flemming, 18 Ill. 248, 68 Am. Dec. 539, it was held that a party may proceed to col

lect his debt by attachment and by enforcing a mechanic's lien, as concurrent remedies, and the lien is not waived by so doing. The court says: "The proceeding under the statute is additional or cumulative of such other remedies for enforcement of the contract out of which the lien arises as the party may have either against person or property. He may therefore at the same time pursue several remedies for satisfaction of one debt, which are not substantially the same in their nature and effect, as a proceeding against property and an action against the person, or two proceedings against different properties or things, but can have one satisfaction only;" citing 1 Chitty, Pl. 212, 254; Delahay v. Clement, 4 Ill. 201; Branigan v. Rose, 8 Ill. 123. This case is cited with approval in Olson

v. O'Malia, 75 Ill. App. 387. In Massachusetts it is provided by Pub. Stat. chap. 191, § 46, that a person having a mechanic's lien may maintain also an action at common law; and it was accordingly held in Angier v. Bay State Distilling Co. 178 Mass. 163, 59 N. E. 630, that a building contractor does not waive his lien by bringing an action at law attaching the real estate. The same doctrine is held in Brennan v. Swasey, 16 Cal. 140, 76 Am. Dec. 507; Salt Lake Lithographing Co. v. Ibex Mine & Smelting Co. 15 Utah, 440, 62 Am. St. Rep. 944, 49 Pac. 768, and in Roberts v. Wilcoxson, 36 Ark. 356, 363, without reference to any statute.

The motions are denied, and the cases will stand for hearing upon the merits.

SOUTH DAKOTA SUPREME COURT.

George KERR, Sheriff of Beadle County,
Respt.,

บ.

John MURPHY et al., Appts.

(........ S. D.........)

Sioux Falls Nat. Bank v. McKee, 3 S. D. 1, 50 N. W. 1057; Quarl v. Abbett, 102 Ind. 233, 52 Am. Rep. 662, 1 N. E. 476; Brown v. Goble, 97 Ind. 86; Terre Haute v. Beach, 96 Ind. 143; McCormick v. Webster, 89 Ind. 107; Oppenheim v. Pittsburgh, C. & St. L. R. Co. 85 Ind. 471; Stout v. Woods, 79 Ind.

A judgment of a justice of the peace, 108; McAlpine v. Sweetser, 76 Ind. 78;

A

rendered within less than the time prescribed by statute after service of summons, is not so far void that its execution can be enjoined; but the defendant must take the proper steps to obtain a review on appeal.

(March 1, 1905.)

PPEAL by defendants from a judgment of the Circuit Court for Beadle County in favor of plaintiff in a suit to enjoin the execution of certain judgments. Reversed. The facts are stated in the opinion. Messrs. Kelley & Chamberlain, for appellants:

Freeman, Judgm. § 126: 1 High, Inj. §§ 225, 229, 231; Leonard v. Sparks, 117 Mo. 103, 38 Am. St. Rep. 646, 22 S. W. 899.

Where service is in some respect deficient or irregular jurisdiction attaches subject to be defeated by objections to the irregularity, interposed in some direct manner.

2

Pico v. Sunol, 6 Cal. 295; Moyer v. Bucks, Ind. App. 571, 16 L. R. A. 231, 50 Am. St. Rep. 253, 28 N. E. 992; Schee v. LaGrange, 78 Iowa, 101, 42 N. W. 618; Freeman, Judgm. § 126; Gandy v. Jolly, 35 Neb. 711, 37 Am. St. Rep. 463, 53 N. W. 658; Injunction does not lie against an exe- Campbell Printing Press & Mfg. Co. v. Marcution issued upon a void or voidable judg-der, L. & Co. 50 Neb. 283, 61 Am. St. Rep. ment rendered by a justice of the peace. St. Louis & S. F. R. Co. v. Lowder, 138 Mo. 533, 60 Am. St. Rep. 565, 39 S. W. 799; St. Louis, I. M. & S. R. Co. v. Reynolds, 89 Mo. 146, 1 S. W. 208.

573, 69 N. W. 774; Whitwell v. Barbier, 7 Cal. 57; Drake v. Duvenick, 45 Cal. 463; Low v. Mills, 61 Mich. 35, 27 N. W. 880; 1 Black, Judgm. § 223; 1 High, Inj. 3d ed. p. 126, §§ 165-169; Carney v. Marseilles, 136 Ill. 401, 29 Am. St. Rep. 328, 26 N. E. 491; Lucas v. Spencer, 27 Ill. 15; Smith v. Powell, 50 Ill. 21; Allen v. Smith, 72 Ill. 331; Clark v. Ewing, 93 Ill. 572; Beaudry v. Felch, 47 Cal. 183; 17 Am. & Eng. Enc. Law, 2d ed. p. 1067; Harrington v. Wofford, 46 Miss. 31; Leonard v. Sparks, 117 Mo. 103, 38 Am. St. Rep. 646, 22 S. W. 899; Capwell v. Sipe, 51 Fed. 667, 8 C. C. A. 419, 16 U. S. App. 704, 59 Fed. 970; St. Louis, I. M. & S. R. Co. v. State, 55 Ark.