sufficient, and what constructive notice shall be given is a question of legislative discretion rather than of power. We see no abuse of Bound discretion in the mode of service prescribed in this statute." In the case of De Meli v. De Meli, 120 N. Y. 485, 17 Am. St. Rep. 652, which was an action by a wife against her husband for separation on the ground of his cruel and inhuman treatment of her, the defendant by his answer denied that he was a resident of New York at the commencement of the action, and alleged that the court was without jurisdiction over him and of the subject matter of the action, for the reason that he and the plaintiff were residents of Dresden in the kingdom of Saxony. The trial court, however, found that at the time of the marriage, which took place in Dresden, and ever thereafter both the parties were, and continued to be, citizens of the state of New York. As against this finding, the defendant contended that although his continued purpose while absent from New York may have been to return thereto, he was nevertheless a resident of Dresden, and not of the state of New York, and that his place of residence was not to be determined by his domicile. The court, however, held that it had jurisdiction over the defendant, because the question before it related to the legal residence of the parties, "and, within the meaning of the statute providing for actions of this character, the place of which the parties are residents is that of their permanent abode, which may be distinguished from their place of temporary residence. The defendant was not without his domicile, and unless another was acquired by him elsewhere, he retained the domicile of his origin. And to effect a change of it, the fact and the intent must concur." The case of Cobb v. Rice, 130 Mass. 231, presented for consideration the validity of proceedings in bankruptcy against one Winslow while not a resident of the county, and therefore not within the jurisdiction of its bankruptcy court. To this objection the court responded: “A sufficient answer to this is, that there is nothing in the case to show that Winslow had lost his domicile in Massachusetts. His domicile, being here, continues here until he acquired one elsewhere. The evidence clearly shows that, at the time of the adjudication and assignment, he was merely a fugitive from justice, who had gained no domicile elsewhere, and therefore he remained a resident with the jurisdiction of the district court of this district, and liable to be proceeded against in bankruptcy." The case of Ayer v. Weeks, 65 N. H. 248, 23 Am. St. Rep. 37, also involved the validity of proceedings in bankruptcy, which were assailed on the ground that the insolvent did not, at the time such proceedings were prosecuted, have a legal residence within the jurisdiction of the court conducting them. The court said: "Although the words 'residence' and 'domicile' are not always convertible terms, and have not always precisely the same meaning, we are of the opinion that the residence upon which jurisdiction depends, under the insolvency statute, is a legal residence equivalent to domicile. And whatsoever rule may be adopted in cases involving questions of pauper settlement, voting, and taxation, the principle is well settled that for purposes of jurisdiction and judicial administration a person must have a domicile somewhere, and that he can have but one, and therefore a domicile once existing continues until another is acquired elsewhere. The case

shows that Weeks' domicile was in Somersworth, and the fact is found that he had not acquired a domicile or residence elsewhere. The fact that he left Somersworth with the intention never to return did not destroy his domicile there. Until he had gained a domicile elsewhere, he remained a resident within the jurisdiction of the insolvency court, and liable to be proceeded against in insolvency." In Henderson v. Staniford, 105 Mass. 504, 7 Am. Rep. 551, which was an action upon a promissory note, the defense was interposed that this note had been merged in a judgment rendered thereon in the state of California, and whether this defense was maintainable necessarily depended upon the further question of whether such alleged judgment was valid. It was recovered in an action in which the process was served by publication while the defendant was not within the limits of the state of California. The court, however, said: "But he had been for a long time before that a citizen of California; the contract was made there; and that continued to be his legal domicile when the judgment was rendered. He was, therefore, upon principles of international right, subject to the laws and to the jurisdiction of the courts of that state.” The plea of the defendant was sustained. The further reason, however, was announced in support of this conclusion, that as long as the defendant asserted the validity of the judgment, its invalidity could not be claimed by the plaintiff. As the opinion of the court is thus placed upon two grounds, it may be said that either of them is sufficient to sustain it, and therefore that it is not necessarily an authority for the proposition that the courts of a state have jurisdiction over a citizen while he is temporarily absent therefrom.

It remains for us to call attention to the only two cases which we have been able to discover in which the question decided in the principal case was necessarily involved. In Huntley v. Baker, 33 Hun, 579, an action in New York upon a judgment rendered in one of the courts of Wisconsin, it appeared that the defendant, Baker, had been a resident of the latter state for several years prior to January, 1881, in which month he obtained employment in the city of Buffalo in the state of New York, and went there for the purpose of accepting it. In May of the same year, he determined to remove his family to New York, and to make that state his place of residence, and in the following month went to his home in Wisconsin, but returned without his family, owing to the condition of his wife's health, and the family remained residents of Wisconsin, and there kept house until November 20th, when they removed to Buffalo. On November 10th, summons was issued in an action commenced in Wisconsin, and was there served upon the defendant by leaving a copy with a member of his family at their place of residence, that mode of serving process being authorized by the laws of the state. A week later judgment by default was entered, the defendant having no actual knowledge of the action against him nor of the judgment rendered therein until December, 1881, in which month an action was commenced against him thereon in the state of New York. The judge delivering the opinion of the supreme court sustaining the action said: "It may be assumed that by reason of the relations between the state and its citizen which affords protection to him and his property, and imposes upon him duties as such,

he may be charged by a judgment in personam, binding on him everywhere, as a result of legal proceedings instituted and carried on in conformity to the statute of the state prescribing a method of service which is not personal, and which, in fact, may not become actual notice to him. And this may be accomplished in his lawful absence from the state. It therefore becomes important to inquire whether the state of Wisconsin was not the domicile of the defendant at the time of constructive service of the summons so made there, because it is upon domicile that his civil status depends." The court then proceeded to consider the question of domicile, and, having as a result of its investigations decided that the domicile of the defendant had not been changed from the state of Wisconsin to that of New York before the service of process upon him, enforced the judgment entered in the former state. The case of Fernandez v. Casey, 77 Tex. 452, is also directly in point. Fernandez and Ackerman had been engaged in business as partners, and, shortly after the dissolution of the firm, an action was begun against them in a justice's court, in which judgment was procured based on service of process by publication, both then being absent from the state. Fernandez afterward returned to the state, and, finding that an execution had been issued upon the judgment, and levied upon real property belonging to him, brought a suit to enjoin the sale, claiming that the judgment was void. In denying the injunction, the supreme court of the state said: "The fact, we think, clearly was that Fernandez was a resident citizen of the state of Texas, and that, though he was temporarily absent from the state, he had never acquired a domicile elsewhere. Under these circumstances, we think that service by publication of process against him, according to the provisions of our statute, conferred upon the justice's court the jurisdiction that it exercised in rendering judgment against him."

In the principal case, it was apparent that the defendant's absence from the state of his domicile was not only temporary, but was also for the express purpose of avoiding the jurisdiction of its courts in a controversy existing between him and his wife involving, among other questions, that of the custody of their children, born within the state, and constituting the issues of a marriage there contracted and solemnized between citizens thereof. It is certainly true that resorting to a state or country for the purpose of giving jurisdiction to courts in cases dependent upon the residence of the parties is unavailing. It is an attempt to practice a fraud upon the law, and the courts will not permit it to be successful: Morris v. Gilmer, 129 U. S. 315; Butler v. Farnsworth, 4 Wash. C. C. 101. For like reasons, it ought to be declared that the fleeing from a state for the purpose of escaping the justice which its triburals are authorized to administer is a fraud which cannot deprive the courts of their power to afford appropriate relief.

Voluntary Appearance. — In all cases where no fraud is contemplated, a voluntary appearance of a nonresident in the courts of another state or country, whether he has ever been therein or not, is binding upon him, and he cannot, if unsuccessful, avoid the effect of the judgment or other decision by urging that he was a nonresident, and that the court pronouncing judgment against him had

no jurisdiction over him. There may be cases in which it is dif ficult to determine whether there has been an appearance, and, if So, whether it was voluntary. Questions of this character do not fall within the purview of this note. If a foreign court has property within its possession, and its owner appears solely for the purpose of protecting it, it may be that such appearance does not confer jurisdiction over his person. If, however, he appears for the purpose of protecting other property, or of litigating an issue between him and his adversary on its merits, the court undoubtedly has jurisdiction to render personal judgment against him: Grubb v. Starkey, 90 Va. 831; Hilton v. Guyot, 159 U. S. 113; De Cosse Brissac v. Rathbone, 6 Hurl. & N. 301; Schilsby v. Westenholz, L. R. 6 Q. B. 162; Vionet v. Barrett, 1 Cal. & S. 554. Perhaps his appearance must be regarded as voluntary in every case in which he does not appear solely to protect property already within the custody of the court, or for the express purpose of urging the want of jurisdiction over him. He cannot seek any relief whatever involving the merits of the controversy or the redress to be granted to the party found to be in fault, and afterward escape from the balance of the judgment on the ground that the court had no jurisdiction over his person: Hausman v. Burnham, 59 Conn. 117; 21 Am. St. Rep. 74; Macon etc. Co. v. Gibson, 85 Ga. 1; 21 Am. St. Rep. 135; German Bank v. American etc. Co., 83 Iowa, 491; 32 Am. St. Rep. 316; Ferguson v. Oliver, 99 Mich. 161; 41 Am. St. Rep. 593; Fairchild v. Fairchild, 53 N. J. Eq. 678; 51 Am. St. Rep. 650; Laing v. Rigney, 160 U. S. 531. If a defendant appear in the case for the express purpose of objecting to the jurisdiction of the court, and his objection is overruled, and he takes no further steps in the case, there is no doubt that his qualified appearance does not confer jurisdiction over his person, where it did not otherwise exist: Jones v. Jones, 108 N. Y. 415; 2 Am. St. Rep. 447; Walling v. Beers, 120 Mass. 548; Harkness v. Hyde, 98 U. S. 476. Whether, after his objection is overruled, his filing an answer and further appearing in the case is a waiver of the objection, and a submission to the jurisdiction of the court is a question still involved in grave doubt. In a case in which a state court denied a right of removal, and the party thereafter appeared and litigated the case, it was said that he was not bound to desert his cause, and to leave the opposite party to take judgment by default, and that he "was at liberty, his right to removal being ignored by the state court, to make defense in that tribunal in every mode recognized by the laws of the state without forfeiting or impairing, in the slightest degree, his right to a trial in the court to which the action had been transferred, or without affecting to any extent the authority of the latter court to proceed": Steamship Co. v. Tugman, 106 U. S. 118, 122. The laws of the state in which the action is pending may prescribe what shall be the effect of filing an answer therein, and, where such is the case, it has been held that the effect so prescribed applies to nonresidents as well as to residents, and therefore that though objection to the jurisdiction of the court was properly made, this obJection was waived by filing an answer and litigating the case on the merits after the overruling of the objection, the statute of the state applicable to proceedings against nonresidents having ex

pressly declared that "the filing of an answer shall constitute an appearance of the defendant so as to dispense with the answer and the service of citation upon him": Jones v. Jones, 108 N. Y. 415; 2 Am. St. Rep. 447.

In many of the states the practice prevails at the time of the execution of contracts for the payment of money of giving a warrant therewith authorizing any attorney to appear for the debtor, and to confess judgment against him for the amount of his obligation, and we apprehend, where the language of the warrant is sufficiently comprehensive, it may authorize such appearance and entry of judgment in a state of which the debtor is not, and never has been, a resident, but, if so, it will not authorize the entry of a personal judgment against him in a mode or by a person not designated in the warrant. Thus it appeared in one case that by the bond in question the debtor had authorized "any attorney of any court of record in the state of New York or any other state to confess judgment for the said sum with release of errors, etc." A judgment was entered in another state by a prothonotary, he being authorized by the laws of such state to enter such a judgment. It was held that a citizen of a state in which this statute was not in force cannot be held presumptively to have knowledge of it, or to authorize proceedings taken under it, and that, as the particular judgment in question was not authorized by the defendant, nor by any attorney of a court of record of any state, it was invalid as against the nonresident defendant: Grover etc. Co. v. Redcliffe, 137 U. S. 287,

297.

MOBEAN v. FRESNO.

[112 CALIFORNIA, 159.]

MUNICIPAL CORPORATIONS, IMPROVEMENTS MADE BEYOND MUNICIPAL LIMITS.-A city having authority to establish, construct, and maintain sewers may contract for the taking care and disposing of sewage after it reaches a point beyond the city limits. The disposition of the outfall is an essential part of the maintenance of a sewer system.

MUNICIPAL INDEBTEDNESS, WHEN AGAINST PROHIBITION.-Under a law forbidding a municipality to incur any liabil ity for any purpose exceeding in any year the income and revenue thereof, and declaring that the trustees shall not audit any liability in excess of the available money in the treasury that may be legally appropriated for such purpose, a contract running over a number of years, and which, in the aggregate, requires the payment of more money than will be in the municipal treasury during any one year, but under which the annual payments do not exceed the income in any year, is valid and enforceable. Under such a law the municipalfty can never be liable for but one year's obligations incurred under the contract, and if they exceed the moneys in the treasury applica ble to their payment, the balance is not a claim against the city. and is lost to the creditor. Therefore, at no time can its obligations under the contract exceed the revenue of any year applicable to their satisfaction.

MUNICIPAL CORPORATIONS, CONTRACTS EXTENDING BEYOND OFFICIAL TERMS OF THE OFFICERS AUTHORIZING THEM.-A contract may be made by a municipal corporation