the firm, at some other place than that designated in the statute, is insufficient, although service on the agent, at the proper place, is allowed.' But such a statute has been held not to apply where partners are sued in their individual names.2

Where service of a writ, by copy, is required or authorized, a variance between the original and the copy is usually held to be an irregularity of which advantage must be taken by motion, before judgment, and does not affect the jurisdiction of the court."

Certainly this is the correct doctrine where it does not appear that the defendant was injured by the mistake. And the question whether he was so injured or not could only be determined, properly, upon a direct attack made by him upon the service. But the failure to serve a copy renders the service void.*

Special provisions for service of process on persons laboring under legal disabilities or acting in official capacities are frequently made by statute. And when made they must be followed. It may be well, in this connection, to consider, briefly, these special modes of service.

a. Service on minors.-The most common provision for service on minors is that the writ shall be served, and its contents be made known, to some member of the family of such minor of proper age and discretion.5

A literal compliance with such a statute is not always sufficient. Thus it is held that where the plaintiff in the action is a member of the family of a minor defendant and in all other respects a competent person upon whom to serve the writ, a service upon him is insufficient, because of his adverse interest."

Such a service has been held sufficient where the writ

1 Mitchell & Rammelsburg Fur. Co. v. Simpson, 40 Fed. Rep. 805.

2 Herron r. Cole, 25 Neb. 692; 41 N. W. Rep. 765.

3 Low v. Kalamazoo Circuit Judge, 61 Mich. 35; 27 N. W. Rep. 877.

Wilkinson v. Chilson, 71 Wis. 131; 36 N. W. Rep. 836.

Hemmer v. Wolfer, 11 N. E. Rep. 885.

Hemmer. Wolfer, 11 N. E. Rep. 885; Hemmer v. Wolfer, 124 Ill.

435; 16 N. E. Rep. 652.

was required to be served on the father of the minor and no other mode of service was provided.' But the law which compelled such a decision was subsequently changed." Where a copy is required to be left with the father, if living, and if not with the mother, etc., naming others upon whom service may be made, in their order, a service upon any one of the latter, when one of the former is living, is not a valid service.3

An insufficient service on a minor is not cured by the appointment of a guardian ad litem.*

b. Service on insane persons.-If an insane person has a guardian, provision is usually made for service upon such guardian. If not upon any person having such person in custody. Some of the statutes provide for a commission upon whom service may be made. And where such person has no guardian, a guardian ad litem is appointed to represent him and look after his interests. There is nothing peculiar about service upon an insane person that calls for special consideration in this connection.

c. Service on married women.-As a rule, under the codes, a married woman must be served in the same manner that service is made on other persons.5

Where the action is not to affect the wife's separate property, but her inchoate interest in real estate owned by her husband, service on the husband alone has been held to be sufficient in an action to foreclose a mortgage. But this is not the generally accepted rule at the present day. The rule is that if a wife has such an interest as that an action against her is proper, she is entitled to notice the same as any other person. The common law rule was, in this, as well as in many other respects, that the husband and wife were one, and that service on the husband was, for that reason, service on both, even where the wife was

1 Donaldson v. Stone, 11 S. W. Rep. 462.

Tyler v. Jewell, 11 S. W. Rep. 25.

3 Jenkins v. Crofton, 9 S. W. Rep. 406.

'Hogle v, Hogle, 2 N. Y. Sup. 172; Pinckney v. Smith, 26 Hun, 624. 'Holliday v. Brown, 50 N. W. Rep. 1042.

Feitner v. Lewis, 119 N. Y. 131; 23 N. E. Rep. 296.

an infant or insane. And where the common law disabilities of the wife are still maintained, the doctrine that such a service is binding upon her no doubt still exists, unless abrogated or changed by statute. But in many of the states the disabilities of married women have been entirely removed, and in others very materially modified.

d. Service on persons acting in an official capacity.—What is said in this connection will not include the question of service on corporations through their officers and agents. That subject will be taken up in another section.2

In the absence of some statute requiring a different mode, service upon one acting in an official capacity, and sued as such officer, does not differ from the mode of service required in actions against private individuals. But special provision is sometimes made for service upon public officers, and when such provision is made of course the statute must be followed.

38. CONSTRUCTIVE SERVICE OF PROCESS.-The term constructive notice is usually understood to mean some such notice as may, or may not, come to the actual knowledge of a party as distinguished from actual personal notice, as, for example, publication of a notice in a newspaper or posting the same. But the term has been made to include actual or personal notice, so far as the legal effect of service is concerned, in some cases, as, for example, in case of personal service out of the state in which the court has jurisdiction. This mode of giving notice is exceptional, and the requirements of statutes authorizing it must be complied with in every material respect. The question as to the sufficiency of constructive notice to confer jurisdiction is separated, necessarily, into several divisions, amongst others, the following, which will be considered in this connection: a. In what cases constructive notice is allowed. b. The affidavit. c. The officer's return as a basis for publication. d. The order for publication. e. The

1 Feitner v. Lewis, 119 N. Y. 131; 23 N. E. Rep. 296. 2 Post, sec. 43. 3 Anderson's Dic. of Law, 714. Ante, secs. 13, 14, 32, 33.

5 Ante, sec. 32, 1 Black on Judg., sec. 232.

4

publication. f. Proof of publication. g. Personal service out of the state.

a. In what cases constructive notice is allowed.-As has been said elsewhere, the question as to the kind of notice that shall be given in any class of cases, in actions against its own citizens, is under the control of the state, and so long as the constitutional provision against the taking of property without due process of law is not violated, constructive notice may undoubtedly be substituted for actual notice. But if such power exists in the states, there seems to be no disposition to exercise it. Therefore, the general rule on the subject is, that a purely personal action can not be maintained upon constructive notice, and a personal judgment rendered thereon even against one residing within the state. So in case of a judgment against a non-resident.3

1 Ante, secs. 32, 33.

2

Ante, secs. 13, 32, 33; Quarl v. Abbett, 102 Ind. 233; 52 Am. Rep. 662; Pennoyer v. Neff, 95 U. S. 714; Bardwell v. Anderson, 44 Minn. 97; 46 N. W. Rep. 315; Williams v. Welton, 28 Ohio St. 451, 467; 1 Black on Judg., sec. 220; Winfree v. Bagley, 102 N. C. 515; 9 S. E. Rep. 198.

3

Ante, secs. 13, 32, 33; Eliot v. McCormick, 144 Mass. 10; 10 N. E. Rep. 705; Dearing v. Bank of Charleston, 5 Ga. 497; 48 Am. Dec. 300; Mohr v. Manierre, 101 U. S. 417; Winfree v. Bagley, 102 N. C. 515; 9 S. E. Rep. 198; Farmers, etc., Bank v. Bank of Allen Co., 88 Tenn. 279; 12 S. W. Rep. 545; Beckett v. State, 30 N. E. Rep. 536.

"The framers of the constitution, in establishing the federal judiciary, assumed that it would be governed in the administration of justice by those settled principles then in force in the several states, and prevailing in the jurisprudence of the country from which our institutions were principally derived. Among them none were more important than those determining the manner in which the jurisdiction of the courts could be acquired. This necessarily depended upon the nature of the subject upon which the judicial power was called to act. If it was invoked against the person, to enforce a liability, the personal citation of the defendant or his voluntary appearance was required. If it was called into exercise with reference to real property by proceedings in rem., or of that nature, a different mode of procedure was usually necessary, such as a seizure of the property, with notice, by publication or otherwise, to parties having interests which might be affected. The rules governing this matter in these and other cases were a part of the general law of the land, established in our jurisprudence for the protection of rights of persons and property against oppression and spolia

A personal judgment is one which binds the judgment defendant personally and creates a lien upon his property generally. Therefore, the right to proceed upon constructive process is allowed in cases in rem., or cases in which personal actions are prosecuted and property within the jurisdiction of the court is sought to be reached by attachment or other like process, in which case a personal judgment can not be rendered, but the relief must be confined to an application of the property to the satisfaction of the plaintiff's claim. And the fact that one of the tion. And when the courts of the United States were invested with jurisdiction over controversies between citizens of different states, it was expected that these rules should be applied for the security and protection of the non-resident citizen. The constitutional provision owed its existence to the impression that state prejudices and attachments might sometimes affect injuriously the regular administration of justice in the state courts. And the law of congress which was passed to give effect to the provision, made it optional with the non-resident citizen to require a suit against him, when commenced in a state court, to be transferred to a federal court. This power of removal would be of little value, and the constitutional provision would be practically defeated, if the ordinary rules established by the general law for acquiring jurisdiction in such cases could be thwarted by state legislation or the decision of the local courts. In some instances, the states have provided for personal judgments against non-residents without personal citation, upon a mere constructive service of process by publication; but the federal courts have not hesitated to hold such judgments invalid. Pennoyer ". Neff, 96 U. S. 744. So, on the other hand, if the local courts should hold that certain conditions must be performed before jurisdiction is obtained, and thus defeat rights of non-resident citizens acquired when a different ruling prevailed, the federal courts would be delinquent in duty if they followed the later decision." Mohr v. Manierre, 101 U. S. 421.

1 Quarl v. Abbett, 102 Ind. 233; 52 Am. Rep. 662.

2

Pennoyer v. Neff, 95 U. S. 714, 723; Boswell . Otis, 9 How. 336; Lydiard v. Chute, 45 Minn. 277; 47 N. W. Rep. 967.

3

Ante, secs. 14, 23, 25, 32; Freeman on Judg., sec. 607a; Quarl v. Abbett, 102 Ind. 233; 52 Am. Rep. 662; Pennoyer v. Neff, 95 U. S. 714, 723; Cooper v. Reynolds, 10 Wal. 308; Williams . Welton, 28 Ohio St. 451, 467; 1 Black on Judg., sec. 229, 231; Winfree v. Bagley, 102 N. C. 515; 9 S. W. Rep. 198; Lydiard v. Chute, 45 Minn. 277; 47 N. W. Rep. 967.

In Quarl v. Abbett, 102 Ind. 237, 52 Am. Rep. 662, the court said: "It is a general principle that the process of the courts may reach and seize property within their jurisdiction. A man who brings property within the territorial jurisdiction of a state subjects it to the laws of