iciled in its territory, and prescribe appropriate legal proceedings; (4) juris diction of the subject-matter depends upon the general question involved, and does not depend upon the particular facts of a given case; (5) a judgment of a court having jurisdiction of the general subject and the parties although against or without evidence, is not void for want of jurisdiction and cannot be questioned collaterally in another State; (6) the courts of this State will not consider the constitutionality of a statute of another State, nor the constitutional validity of a divorce granted under it; (7) the courts of every State are exclusive judges of their own jurisdiction, dependent on municipal laws, and of the construction of such laws, and their decision thereon is conclusive in other States; (8) a judgment of divorce, rendered by the court of another State against an absent defendant, upon substituted service of process, effected in accordance with the laws of that State, is valid in personam and conclusive upon such defendant in the courts of this State; (9) the wife's domicile is prima facie that of her husband; (10) the omission from the petition of the allegation of the wife's absence did not impair the judgment, the prescribed mode of substituted service having been pursued; (11) neither that omission nor the husband's letter amounted to fraud, the wife not having been misled; (12) the Louisiana divorce is conclusive in this State, and this action cannot be maintained.*

A

CTION for absolute divorce on the ground of adultery. The defense was a prior divorce obtained by defendant in Louisiana. The defendant had judgment.

The court found the following facts: "That the plaintiff and defendant intermarried on the 2d day of January, 1866, at the city of New Orleans, they, at the time of such intermarriage, both being residents and citizens of said city and State; that after such intermarriage the plaintiff and defendant both continued to reside in said city of New Orleans, and to cohabit as husband and wife at the home and residence of said defendant in said city until about the first day of April, 1869, at which time said plaintiff left the home of her said husband, and left said city and State and has not since returned thereto; that said defendant continued and has ever since resided in said city of New Orleans at his said home and residence, keeping house therein with the members of his family other than said

* A writ of error to the United States Supreme Court in this case was dismissed, on the ground that the provision of the Federal Constitution prohibiting States from passing laws Impairing the obligation of contracts relates only to contracts respecting property or objects of value, and does not restrict the power of State legislatures to enact laws on the subject of divorce. See 19 Alb. L. J. 76. On the general subject of jurisdiction in actions for divorce, see Littowich v. Littowich (19 Kans. 451), 27 Am. Rep. 145; Hood v. State (56 Ind. 263), 26 Am. Rep. 21, and note, 27; Newcomb's Executors v. Newcomb (13 Bush, 544), 26 Am. Rep. 222; on jurisdiction in general, see Ferguson v. Crawford (70 N. Y. 253), 26 Am. Rep. 589; Mastin v. Gray (19 Kans. 458), 27 Am. Rep. 149; Busteed v. Parsons (54 Ala. 393), 25 Am. Rep. 688, and note, 694.

Hunt v. Hunt.

plaintiff; and that by the laws of said State of Louisiana the domicile of both plaintiff and defendant remained and was in said State until the judgment of divorce hereinafter mentioned. That afterward and about the 7th day of April, 1870, the defendant herein commenced an action for divorce against the plaintiff herein in the Fifth District Court of the parish of Orleans, in the State of Louisiana, said court being a court of general jurisdiction, duly created by the laws of said State, and having jurisdiction of all questions relating to marriage and divorce; that such proceedings were afterward had in said action, that on the 16th day of June, 1870, a judgment of divorce was rendered in and by the said court in said action, dissolving the marriage relation theretofore existing between the plaintiff and defendant in said action; that said judgment remains unreversed and of full force and effect, and that the same is, by virtue of the laws of the said State of Louisiana, valid and effectual between the said several parties thereto. That afterward, and on the 1st day of May, 1871, the defendant herein intermarried at said city of New Orleans with another woman, his present wife, which intermarriage was solemnized publicly and in due form, according to the laws of said State of Louisiana; that such marriage was lawful and valid under the laws of said State; that since such marriage the said defendant has lived and cohabited with such woman as his wife and that such cohabitation is the said several acts alleged and set forth as adultery in the complaint in this action." Further facts appear in the opinion.

Samuel Hand, for appellant. The judgment in the former action was assailable collaterally, even in Louisiana, for want of jurisdiction of the person, want of authority in the court to render the judgment, and the procurement of the judgment by fraud. Kerr v. Kerr, 41 N. Y. 272, 275; Noyes v. Butler, 6 Barb. 613, 617; Bradshaw v. Heath, 13 Wend. 407; Holmes v. Holmes, 4 Lans. 388, 391, 392; Phelps v. Baker, 41 How. 237, 241; Bk. of Chemung v. Elmira, 53 N. Y. 49-53; Salters v. Tobias, 3 Paige, 338; 5 id. 299, 354; Crain v. Cavana, 62 Barb. 109. Plaintiff was not bound to appear in the Louisiana court on mere casual information that defendant had commenced an action against her there. Holmes v. Holmes, 4 Lans. 392; Kerr v. Kerr, 41 N. Y. 272, 275; Hoffman v. Hoffman, 46 id. 30, 34; Moe v. Moe, 2 T. & C. 647; McGiffert v. McGuffert, 31 Barb. 69; Vischer v. Vischer, 12 id. 640; Ewer v. Coffin, 1 Cush. 23; D'Arcy v. Ketchum, 11 How. (U. S.)

Hunt v. Hunt.

165, 174; Black v. Black, 4 Bradf. 174; Miller v. Miller, 1 Bailey (S. C.), 242; Maxwell v. Stewart, 22 Wall. 80; Webster v. Reid, 11 How. (U. S.) 437, 459, 460; Vischer v. Vischer, 12 Barb. 640. The Louisiana divorce was inoperative here against plaintiff for want of jurisdiction, she never having been served with process and not having appeared. Simonin v. Mallac, 2 S. & T. Mat. Cas. 67, 85, 86; Shaw v. Gould, 3 L. R. H. of L. 55, 81; Simonds v. Simonds, 103 Mass. 572; Van Storch v. Griffin, 71 Penn. St. 240. The judgment in the suit in Louisiana was void there as unauthorized by and in conflict with the statutes and Constitution of that State. Civil Code of Louisiana, 1870, arts. 139, 143; id. 1838, art. 138. The act of 1870 did not authorize a divorce for misconduct before its passage, and if it assumed to do so, it was retroactive and void under the Constitution of Louisiana. Const. Louisiana, art. 110; Rev. Code of Louisiana, arts. 86, 156, 159; Clark v. Clark, 10 N. H. 380, 391; Given v. Marr, 27 Me. 212, 222; Sherburne v. Sherburne, 6 Greenl. 210, 211; Simonds v. Simonds, 103 Mass. 572. The appointment of the curator ad hoc was void, having been made without evidence that Mrs. Hunt was absent, and without an averment of that fact. Civil Code of Louisiana, arts. 56, 3556, subd. 3; Lawrence's case, 18 Abb. 344; Noyes v. Butler, 6 Barb. 617; Dupuy v. Hunt, 2 La. Ann. 562, 564; McDonald v. Vaughan, 13 id. 405; Seymour v. Cooley, 9 La. 73; George v. Fitzgerald, 12 id. 605. The law making the domicile of the husband that of the wife is applicable only to their relations with third parties, and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage tie by judicial proceedings. Vence v. Vence, 15 How. Pr. 497, 499, 500, 576, note; Schonwald v. Schonwald, 2 Jones' Eq. (N. C.) 367, 369; Irby v. Wilson, 1 D. & B. Eq. 568, 575-582; Cheever v. Wilson, 9 Wall. 109, 123; Brimont v. Penniman, 9 Alb. L. J. 132. New York was plaintiff's domicile of origin, and when she left Louisiana in 1869, under the interdict of her husband never to return, her domicile of origin revived. Story's Conflict of Laws, § 47; The Venus, 8 Cranch, 253; The Indian Chief, 3 Rob. 12; In re Walker, 1 Lowell's Dec. 237–239; Udney v. Udney, 1 L. R. H. of L. Cas. 441; Reed's Appeal, 71 Penn. St. 378, 383; Harris v. Firth, 4 Cranch's C. C. 710; Burnham v. Rangely, 1 W. & M. 7; Ex parte Wiggin, 1 Bk. Reg. 90; La. Code of 1870, arts. 38, 39, 46; La. R. S. of 1870, § 1202. Plaintiff's husband having consented to her

Hunt v. Hunt.

leaving the State is estopped as between them from claiming that she was domiciled with him. Tovey v. Lindsay, 1 Dow's H. of L. R. 138-147 A statutory rule of local law can have no force elsewhere against a wife who has left the State never to return and has become a resident of another State. 4 Lans. 392; 46 N. Y. 43, 44; 1 Abb. U. S. 388; 1 U. S. Stat. at Large, 709; Slaughter House Cases, 16 Wall. 43, 44, 80. The judgment in the former action was void, having been obtained by means in fraud of the legal rights of the wife. State of Michigan v. Phoenix Bk., 33 N. Y. 9, 25, 27; Holmes v. Holmes, 4 Lans. 391; Vischer v. Vischer, 12 Barb. 640; R. S. of Louisiana, § 3961; Civil Code of Louisiana, art. 2281.

G. Tillotson, for respondent.

FOLGER, J. This is a suit in equity, brought by the plaintiff against the defendant, for a divorce a vinculo matrimonii. She alleges that she is now his wife. She bases her right to a dissolution of the marriage on an allegation of adultery committed by him.

That the plaintiff and defendant were once married is admitted. It is also conceded, that since the marriage the defendant has formed a matrimonial alliance in fact, with another woman than the plaintiff, and has lived and cohabited with that woman as his wife. He is therefore guilty of adultery in the eye of the law, and the plaintiff should have the judgment asked by her; unless he can justify his act by showing it to be lawful. The justification set up by him in this suit is, that prior to the commencement of it, and prior to that matrimonial alliance in fact, he had obtained a judgment against the plaintiff of a dissolution of the relation of marriage once existing between them, whereby he was set at liberty to marry again.

That judgment was rendered by a court in the State of Louisiana. From the exemplified copy of the record of it put in evidence, it appears of due formality. The findings of the Special Term, made in the case in hand, state that it remains unreversed, of full force and effect, and by virtue of the laws of Louisiana valid and effectual between the defendant and the plaintiff. If that finding cannot be impeached, that judgment furnishes a complete defense to this suit. For, to state what is familiar, full faith and credit are to be given in each State to the judicial proceedings of every other

Hunt v. Hunt.

prescribed by general laws of Congress has prescribed that

State; and the effect thereof may be Congress. U. S. Const., art. 4, § 1. they shall have such effect in every court within the United States. as they have by law or usage in the courts of the State in which they are taken. Act of Congress, May 26, 1790, chap. 11; U. S. Rev. Stats., p. 170, § 905; Mills v. Duryee, 7 Cranch, 481. However, the jurisdiction of the court of another State in which a judgment has been rendered is always open to inquiry in the courts of this State; and if that court has exceeded its jurisdiction, or has not obtained jurisdiction of the parties, the proceedings are coram non judice and void. Dobson v. Pearce, 12 N. Y. 156; Kinnier v. Kinnier, 45 id. 535; s. c., 6 Am. Rep. 132. Or if the judgment has been procured by fraud upon the legal rights of the party against whom it is rendered, it may be that reason in the courts of this State. Kerr v. Kerr, 41 N. Y. 272.

questioned collaterally for See cases last cited, and

It is claimed by the plaintiff that that judgment was got by fraud upon her and upon the court, and that it is void for want of jurisdiction in the court which assumed to render it, in that the court had neither jurisdiction of the subject-matter nor of the party defendant.

We do not think that the allegation of fraud is maintained. is manifest that the plaintiff, her relatives, and intelligent, experienced and upright counsel retained for her both in this State and in the city where the court sat, had early and ample notice in fact of the commencement of the proceedings, of the nature of them, what judgment was sought, and upon what allegations the alleged right to that judgment was placed. Neither she nor they were deceived or taken by surprise, nor hindered nor debarred from contesting the action of the defendant, nor ignorant at an early day of the rendition of the judgment, and of the ground on which it was placed; nor prevented from taking steps to reverse it for error, or to correct it for irregularity, nor without the power and legal right to do so. With all requisite knowledge of every step taken by the defendant in the case, she and they concluded to rest upon the lack of jurisdiction in the court to entertain the cause and to pronounce judgment in it. That the defendant was admitted to testify in the suit in his behalf was not a fraud upon the plaintiff nor upon the court. In its nature it was a thing patent to the court, which knew as well as the defendant of the occurrence