to be affected, and to give him an opportunity to appear and defend. The right of the legislature to prescribe such notice, and to give it effect as process, rests upon the necessity of the case, and has been long recognized and acted upon.1

But such notice is restricted in its legal effect, and cannot be made available for all purposes. It will enable the court to give effect to the proceeding so far as it is one in rem, but when the res is disposed of, the authority of the court ceases. The statute may give it effect so far as the subject-matter of the proceeding is within the limits, and therefore under the control, of the State; but the notice cannot be made to stand in the place of process, so as to subject the defendant to a valid judgment against him personally. In attachment proceedings, the published notice may be sufficient to enable the plaintiff to obtain a judgment which he can enforce by sale of the property attached, but for any other purpose such judgment would be ineffectual. The defendant could not be followed into another State or country, and there have recovery against him upon the judgment as an established demand. The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his appearance to be entered in the attachment proceedings. Where a party has property in a State, and

"It may be admitted that a statute which authorized any debt or damages to be adjudged against a person upon purely ex parte proceedings, without pretence of notice, or any provision for defending, would be a violation of the constitution, and void; but when the legislature has provided a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of opinion that the courts have not the power to pronounce the proceedings illegal. Denio, J., in Matter of Empire City Bank, 18 N. Y. 200. See also, per Morgan, J., in Rockwell v. Nearing, 35 N. Y. 314; Nations v. Johnson, 24 How. 195; Beard v. Beard, 21 Ind. 321; Mason v. Messenger, 17 Iowa, 261; Cupp v.

Commissioners of Seneca Co., 19 Ohio, N. s. 173; Campbell v. Evans, 45 N. Y. 356; Happy v. Mosher, 48 N. Y 317. In Burnam v. Commonwealth, 1 Duv. 210, a personal judgment against the absconding officers of the provisional government was sustained. But in the case of constructive notice, if the party appears, he has a right to be heard, and this cannot be denied him, even though he be a rebel. McVeigh v. United States, 11 Wall. 259, 267.

2 Pawling v. Willson, 13 Johns. 192; Heirs of Holman v. Bank of Norfolk, 12 Ala. 369; Curtis v. Gibbs, 1 Penn. 399; Miller's Ex'r v. Miller, 1 Bailey, 242; Cone v. Cotton, 2 Blackf. 82; Kilburn v. Woodworth, 5 Johns. 37; Robinson v. Ward's Ex'r, 8 Johns. 86; Hall v. Williams, 6 Pick. 232; Bartlet v. Knight, 1

resides elsewhere, his property is justly subject to all [* 405] valid claims that may exist against him there; but beyond this, due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.

The courts of the

The same rule applies in divorce cases. State where the complaining party resides have jurisdiction of the subject-matter; and if the other party is a non-resident, they must be authorized to proceed without personal service of process. The publication which is permitted by the statute is sufficient to justify a decree in these cases changing the status of the complaining party, and thereby terminating the marriage; and it might be sufficient also to empower the court to pass upon the question of the custody and control of the children of the marriage, if they were then within its jurisdiction. But a decree on this subject could only be absolutely binding on the parties while the children remained within the jurisdiction; if they acquire a domicile in another State or country, the judicial tribunals of that State or country would have authority to determine the question of their guardianship there.2

Mass. 401; St. Albans v. Bush, 4 Vt. 58; Fenton v. Garlick, 6 Johns. 194; Bissell v. Briggs, 9 Mass. 462; Denison v. Hyde, 6 Conn. 508; Aldrich v. Kinney, 4 Conn. 380; Hoxie v. Wright, 2 Vt. 263; Newell v. Newton, 10 Pick. 470; Starbuck v. Murray, 5 Wend. 161; Armstrong v. Harshaw, 1 Dev. 188; Bradshaw v. Heath, 13 Wend. 407; Bates v. Delavan, 5 Paige, 299; Webster v. Reid, 11 How. 460; Gleason v. Dodd, 4 Met. 333; Green v. Custard, 23 How. 486. In Ex parte Heyfron, 7 How. (Miss.) 127, it was held that an attorney could not be stricken from the rolls without notice of the proceeding, and opportunity to be heard. And see ante, p. *337, n. Leaving notice with one's family is not equivalent to personal service. Rape v. Heaton, 9 Wis. 329. And see Bimeler v. Dawson, 4 Scam. 536.

1 Hull v. Hull, 2 Strob. Eq. 174; Manley v. Manley, 4 Chand. 97; Hubbell v. Hubbell, 3 Wis. 662; Mans

field v. McIntyre, 10 Ohio, 28; Ditson v. Ditson, 4 R. I. 97; Harrison v. Harrison, 19 Ala. 499; Thompson v. State, 28 Ala. 12; Harding v. Alden, 9 Greenl. 140; Maguire v. Maguire, 7 Dana, 181; Todd v. Kerr, 42 Barb. 317. It is immaterial in these cases whether notice was actually brought home to the defendant or not. And see Heirs of Holman v. Bank of Norfolk, 12 Ala. 369.

2 This must be so on general principles, as the appointment of guardian for minors is of local force only. See Monell v. Dickey, 1 Johns. Ch. 156; Woodworth v. Spring, 4 Allen, 321; Potter v. Hiscox, 30 Conn. 508; Kraft v. Wickey, 4 G. & J. 322. The case of Townsend v. Kendall, 4 Minn. 412, appears to be contra, but some reliance is placed by the court on the statute of the State which allows the foreign appointment to be recognized for the purposes of a sale of the real estate of a ward.

[* 406]

* But in divorce cases, no more than in any other, can the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, which shall be binding upon him personally. It must follow, in such a case, that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs. If the defendant had property within the State, it would be competent to provide by law for the seizure and appropriation of such property, under the decree of the court, to the use of the complainant; but the legal tribunals elsewhere would not recognize a decree for alimony or for costs not based on personal service or appearance. The remedy of the complainant must generally, in these cases, be confined to a dissolution of the marriage, with the incidental benefits springing therefrom, and to an order for the custody of the children, if within the State.1

When the question is raised whether the proceedings of a court may not be void for want of jurisdiction, it will sometimes be important to note the grade of the court and the extent of its authority. Some courts are of general jurisdiction, by which is meant that their authority extends to a great variety of matters; while others are only of special and limited jurisdiction, by which it is understood that they have authority extending only to certain specified cases. The want of jurisdiction is equally fatal in the proceedings of each; but different rules prevail in showing it. It is not to be assumed that a court of general jurisdiction has in any case proceeded to adjudge upon matters over which it had no authority; and its jurisdiction is to be presumed, whether there are recitals in its records to show it or not. On the other hand, no such intendment is made in favor of the judgment of a court of limited jurisdiction, but the recitals contained in the minutes of proceedings must be sufficient to show that the case was one which the law permitted the court to take cognizance

1 See Jackson v. Jackson, 1 Johns. 424; Harding v. Alden, 9 Greenl. 140; Holmes v. Holmes, 4 Barb. 295; Crane v. Meginnis, 1 Gill & J. 463; Maguire v. Maguire, 7 Dana, 181; Townsend v. Griffin, 4 Harr. 440. In Beard v. Beard, 21 Ind. 321, Perkins, J., after a learned and somewhat

elaborate examination of the subject, expresses the opinion that the State may permit a personal judgment for alimony in the case of a resident defendant, on service by publication only, though he conceded that there would be no such power in the case of non-residents.

of, and that the parties were subjected to its jurisdiction by proper process.1

* There is also another difference between these two [* 407] classes of tribunals in this, that the jurisdiction of the one may be disproved under circumstances where it would not be allowed in the case of the other. A record is not commonly suffered to be contradicted by parol evidence; but wherever a fact showing want of jurisdiction in a court of general jurisdiction can be proved without contradicting its recitals, it is allowable to do so, and thus defeat its effect.2 But in the case of a court of special and limited authority, it is permitted to go still further, and to show a want of jurisdiction even in opposition to the recitals contained in the record. This we conceive to be the general rule, though there are apparent exceptions of those cases where the jurisdiction may be said to depend upon the existence of a certain state of facts, which must be passed upon by the courts themselves, and in respect to which the decision of the court once rendered, if there was any evidence whatever on which to base it, must be held final and conclusive in all collateral inquiries, notwithstanding it may have erred in its conclusions.*

1 See Dakin v. Hudson, 6 Cow. 221; Cleveland v. Rogers, 6 Wend. 438; People v. Koeber, 7 Hill, 39; Sheldon v. Wright, 1 Seld. 511; Clark v. Holmes, 1 Doug. (Mich.) 390; Cooper v. Sunderland, 3 Iowa, 114; Wall v. Trumbull, 16 Mich. 228; Denning v. Corwin, 11 Wend. 647; Bridge v. Ford, 6 Mass. 641; Smith v. Rice, 11 Mass. 511; Barrett v. Crane, 16 Vt. 246; Teft v. Griffin, 5 Geo. 185; Jennings v. Stafford, 1 Ired. 404; Hershaw v. Taylor, 3 Jones, 513; Perrine v. Farr, 2 Zab. 356; State v. Metzger, 26 Mo. 65.

2 See this subject considered at some length in Wilcox v. Kassick, 2 Mich. 165. And see Rape v. Heaton, 9 Wis. 329; Bimelar v. Dawson, 4 Scam. 536; Webster v. Reid, 11 How. 437.

Sheldon v. Wright, 5 N. Y. 497; Dyckman v. Mayor, &c. of N. Y., 5 N. Y. 434; Clark v. Holmes, 1 Doug. (Mich.) 390; Cooper v. Sunderland,

3 Iowa, 114; Sears v. Terry, 26 Conn. 273; Brown v. Foster, 6 R. I. 564; Fawcett v. Fowlis, 1 Man. & R. 102. But see Facey v. Fuller, 13 Mich. 527, where it was held that the entry in the docket of a justice that the parties appeared and proceeded to trial was conclusive. And see Selin v. Snyder, 7 S. & R. 72.

432.

Act.

4 Britain v. Kinnard, 1 B. & B. Conviction under the Bumboat The record was fair on its face, but it was insisted that the vessel in question was not a "boat" within the intent of the act. Dallas, Ch. J.: "The general principle applicable to cases of this description is perfectly clear: it is established by all the ancient, and recognized by all the modern decisions; and the principle is, that a conviction by a magistrate, who has jurisdiction over the subject-matter, is, if no defects appear on the face of it, conclusive evidence of the facts stated in it. Such being

[* 408] *When it is once made to appear that a court has jurisdiction both of the subject-matter and of the parties,