And where the complaint, or petition, is so amended as to set up a new cause of action, a new notice must be given, or a decree rendered upon such amended pleading will be void for want of jurisdiction.'

Only the rights of such persons as are notified of the proceeding, in the manner provided by law, will be affected by the decree.2

If the proceeding is against the interest of certain per

remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be made warning him to appear; and that, thereafter, the court may proceed in the case whether he appears or not. If the defendant appears the cause becomes, mainly, a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in this latter class of cases is clearly evinced by two well established propositions: First, The judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment, in the same court or in any other, nor can it be used as evidence in any other proceeding not affecting the attached property, nor could the costs in that proceeding be collected of defendants out of any other property than that attached in the suit. Second, The court, in such a suit, can not proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court. Now, in this class of cases, on what does the jurisdiction of the court depend? It seems to us that the seizure of the property, or that which, in this case, is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of plaintiff.” Cooper v. Reynolds, 10 Wall. 317; Pennoyer v. Neff, 95 U. S. 723; Rowley v. Berrian, 12 Ill. 199.

Ante, sec, 13; Stuart v. Anderson, 70 Tex. 588; 8 S. W. Rep. 295. 'Waples' Pro. in Rem., sec. 626.

sons, and the object is to reach that interest alone, the notice should be directed to such persons. But the proceeding may be purely against the thing, in which case it is sometimes said that the proceeding is against all the world, and the notice must necessarily be general. All the world being parties, the notice must be to all the world. Under such a notice any and all persons who claim any interest in the property are called upon to assert such claims; and if they do not, their interests are cut off or made subservient to the decree rendered.2

If the notice is limited to certain persons, made parties to the action, the decree rendered is binding upon the rights of such parties only.'

The fact that the process of a court can not run beyond the territory over which it has jurisdiction, has given rise to the necessity for the substitution of some notice, other than personal notice, on the party, either where the proceeding is strictly against the property, without making any person a party, or where the persons made parties are out of the jurisdiction of the court, and can not, for that reason, be served with personal notice. The notice thus substituted is different in the different states, but usually notice by publication, in some form, is provided for. In some states provision for personal service outside of the state is made, which is the same, in legal effect, as notice by publication. They are both constructive, and not personal or actual notice.*

At common law, and in common law actions, these provisional remedies by which the property of defendants, not personally served, can be reached and applied to the payment of their debts, were unknown. It was, and is, one of the distinguishing features of the common law that no judgment affecting the personal or property rights of a defendant can be rendered except upon personal service. And originally no judgment could be taken, except upon

Waples' Pro. in Rem., sec. 628; Waples' Attach. 314; Cooley's Const. Lim., 5th ed., 497. 4 Ante, sec. 13.

Waples' Pro. in Rem., secs. 628-630.

3 Id.

If he

the actual appearance of the defendant in court. failed to appear, after being served, the plaintiff's only remedy, where the defendant resided out of the jurisdiction, and had property in it, was to have him proclaimed an outlaw, and thus obtain a part of his property forfeited.'

By the common law procedure act of England of 1852, it was provided that upon a proper showing the court or judge might, by order, give the plaintiff leave to proceed without service. And the present judicature acts pro

vide for substituted service.3

In this country, the law regulating the manner of service has, at the present day, become almost if not entirely statutory. Therefore, in attempting to ascertain what notice is sufficient in any case, one must look to the statute of the state in which the question arises. It is not within the scope of this work to attempt to distinguish between these different statutory provisions, or to call attention to

any of them, but to deal with general principles applicable to all of them. It will be found, however, that there is but little difference in principle between the statutory provisions of different states. They differ in details and not in substance. And it will be observed that the lines. that divide actions at law and suits or proceedings in equity with reference to this question are maintained, to a great extent, by statutes relating to the subject.

It is generally held that statutes authorizing notice, other than by personal service, must be strictly pursued in order to give jurisdiction, because the mode provided for is not according to the course of the common law.*

15. TERRITORIAL JURISDICTION. No state or country can exercise direct jurisdiction or authority over persons or

2

Foulke's Ac. in the Sup. Ct. 59.

Day's Com. Law Prac. 40, sec. 17.

Wilson's Jud. Acts, pp. 192, 198, 559.

Jordan v. Giblin, 12 Cal. 100; Ricketson v. Richardson, 26 Cal. 153; Freeman on Judg., sec. 127. See post, sec. 25.

property without its territory.' And the same rule is applicable to smaller subdivisions of government, districts, counties, townships, or cities, and the attempt, on the part of a court, to extend its process beyond the territory over which it has jurisdiction, is the same whether the territory be a state or a county. But every state has authority to prescribe the means by which its own citizens. shall be made subject to the jurisdiction of its own courts. And it may, and frequently the states do, provide that the process of courts whose jurisdiction over the subject

2

1 Story's Conflict of Laws, sec. 20; Pennoyer v. Neff, 95 U. S. 722; People v. Col. Cent. R. R. Co., 42 Fed. Rep. 638; Bartlett v. Knight, 2 Am. Dec. 45, note; Weil v. Lowenthal, 10 Ia. 575.

2

Galpin v. Page, 18 Wall. 367; Phillips v. Thrall, 26 Kan. 780.

In Galpin v. Page, the Supreme Court of the United States said: "The tribunals of one state have no jurisdiction over the persons of other states unless found within their territorial limits; they can not extend their process into other states, and any attempt of the kind would be treated in every other forum as an act of usurpation without any binding efficacy. The authority of every judicial tribunal and the obligation to obey it,' says Burge in his Commentaries, ' are circumscribed by the limits of the territory in which it is established.' 'No sovereignty,' says Story in his Conflict of Laws, 'can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity and incapable of binding such persons or property in any other tribunals.' Section 539. And in Picquet v. Swan, 5 Mass. 40, the same learned justice says: The courts of a state, however general may be their jurisdiction, are necessarily confined to the territorial limits of the state. Their process can not be executed beyond those limits; and any attempt to act upon persons or things beyond them would be deemed a usurpation of foreign sovereignty, not justified or acknowledged by the law of nations. Even the court of King's Bench, in England, though a court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland, or the colonies, to compel an appearance, or justify a judgment against persons residing therein at the time of the commencement of the suit. This results from the general principle that a court created within and for a particular territory is bounded in the exercise of its powers by the limits of such territory. It matters not whether it be a kingdom, a state, a county, or a city, or other local district. If it be the former, it is necessarily bounded and limited by the sovereignty of the government itself, which can not be extra-territorial. If the latter, then the judicial interpretation is that the sovereign has chosen to assign this special limit, short of his general authority.""

matter is confined to a county, or other limited territory within the state, shall extend throughout the state. But no state can, by law or otherwise, give its courts power or authority to extend its process into any other state or country, even as against its own citizens, for any purpose, without the consent of such state or country.1 Such consent is sometimes given, so far as it affects the citizens of the country claiming such privilege, as a matter of comity, but it can not be demanded as even a moral obligation.2

The question whether the courts of one state can entertain jurisdiction of an action to compel the specific performance of a contract to convey real estate situated in another state where it has jurisdiction of the person of the defendant, is not free from doubt. Under the peculiar language of the statutes of some of the states, it has been held that the action is so far an action to determine an interest in land as to render it local and triable where the land is situated.3

But, independent of these statutory provisions, the weight of authority seems to be that the action is one upon contract, affecting the person, and therefore follows the person of the defendant and may be maintained by the courts of a state having jurisdiction of the person of the defendant, although the land is situated in another state. But whether the court can go further and enforce a conveyance is still more doubtful. To allow such a power is to concede to the courts of one state the jurisdiction to render a decree, and enforce a conveyance, which would pass title to real estate outside of its territorial jurisdiction. And yet some of the cases go to that

extent.5

Lutz v. Kelly, 47 Ia. 309. 2 Story's Con. of Laws, sec. 21 et seq. Ante, sec. 12; 1 Work's Ind. Prac. & Pl., sec. 180; Parker v. McAlister, 14 Ind. 12; Vail v. Jones, 31 Ind. 467; Franklin v. Dutton, 79 Cal. 605. Ante, sec. 12; Massie v. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25; Pennoyer v. Neff, 95 U. S. 723; Burnley r. Stevenson, 24 Ohio St. 477; 15 Am. Rep. 621.

Muller v. Dows, 94 U. S. 449; Seixas v. King, 39 La. Ann. 510; 2 Sou. Rep. 416.

The case of Muller . Dows, was an action to foreclose a mortgage