which there was no service on the defendant, is simply void for want of jurisdiction.1

Rule of Wife's Domicile when Living Separate from her Husband. The rule that the domicile of the wife is construed to be the same as that of her husband is not recognized in divorce cases as law, when the parties, for cause, are living separate and in different States. In such case, it has been held that a wife residing in a different State than that in which is the residence of the husband, cannot sustain a proceeding for divorce in the courts of the State wherein the husband resides. But, so far as relates to capacity, dependant upon residence, in proceedings for divorce, a wife may acquire a different residence and domicile than that of her husband, and may there maintain proceedings for divorce.4

III. INTER-STATE VALIDITY OF DIVORCE.

Valid where Rendered, Valid Elsewhere. A decree of divorce, valid and effectual, according to the laws of the State in whose courts it is rendered, if jurisdiction attached, is valid and effectual in every other State where it comes in question, properly evidenced under the laws and Constitution of the United States. It is then entitled to the same effect and has the same force which pertains to it in the State where it is rendered. 5

Divorce without Residence of either Party is Void. A decree of divorce by the court of a State wherein neither of the parties to the decree permanently resided at the time of making the same, or resided at the inception of the cause for which there is a commencement of proceedings, is absolutely void for want of jurisdiction, notwithstanding it be stated in the record that the

1 Hoffman v. Hoffman, 46 N. Y. 30; Elder v. Reel, 62 Penn. St. 308; People v. Darrell, 25 Mich. 247.

2 Dutcher v. Dutcher, 39 Wis. 651; Ditson v. Ditson, 4 R. I. 87; Harteau . Harteau, 14 Pick. 181, Harding v. Alden, 9 Greenl. 140; Hopkins v. Hopkins, 35 N. H. 474; Payson v. Payson, 34 N. H. 518; Yates v. Yates, 13 N. J. Eq. 280; Schonwald v. Schonwald, 2 Jones Eq. 367; Jenness v. Jenness, 24 Ind. 355; Phillips v. Phillips, 22 Wis. 256; Shafer v. Bushnell, 24 Wis. 372; Craven o. Craven, 27 Wis.

418; Cheever v. Wilson, 9. Wall. 108; Hanberry v. Hanberry, 29 Ala. 719; Tolen v. Tolen, 2 Blackf. 407.

3 Dutcher v. Dutcher, 39 Wis. 651; This was owing to the statute of Wisconsin, which provides that the plaintiff in a divorce suit must have his domicile there.

4 Craven v. Craven, 27 Wis. 418, and cases cited in note 1 supra.

Cheever v. Wilson, 9 Wall. 108, 123; Slade v. Slade, 58 Maine, 157; 2 Bishop on Marriage and Divorce, § 754

et seq.

plaintiff or complainant had resided in the State for a year next preceding the commencement of the suit.1

Want of Residence and Freud open to Inter-State Inquiry. The law requiring full faith and credit to be given in the courts of each State to the records and judicial proceedings of the courts of other States does not prevent an inquiry into the jurisdiction of a court rendering a judgment or decree, when such judgment or decree emanates from the court of another State. Nor is an investigation precluded thereby as to such judgments or decrees having been obtained by fraud. But when suit is brought on either in a different State than where rendered, both the one and the other may be collaterally inquired into, and if it turn out that jurisdiction was wanting, or that the judgment or decree was obtained by fraud, they will be treated as a nullity. In Massachusetts, it is not only held that marriages celebrated in other States, which are there valid in law, are also valid in Massachusetts, but prior to the passage of the provision of the Revised Statutes, Chapter 75, Sec. 6, on the subject, it was held that such mariages were valid in Massachusetts, although the parties went into another State and were there married, on purpose to evade the law of Massachusetts. Such marriages, however, are, by the statute, declared void, in case a party had previously been divorced for being guilty of adultery.4 And so in said State it is held that a person may lawfully marry in that State who has been divorced from a former marriage in another State for a cause not recognized as sufficient in Massachusetts, and whose companion by the former marriage is still living, if the divorce in the other State be valid where it was obtained. That such divorce, being valid were obtained, must be regarded as valid everywhere, if decreed upon proper jurisdiction of the case; and that the stat

3

1 Kerr v. Kerr, 41 N. Y. (2 Hand.) 272; Hoffman v. Hoffman, 46 N. Y. 30; 2 Bishop on Marriage and Divorce, § 144 et seq. See, also, the very late case of State v. Armington, 17 Alb. Law Jour. 451; Ditson v. Ditson, 4 R. I. 93; Hanover v. Turner, 14 Mass. 227; Cooley's Const. Lim. *400.

2 Kerr v. Kerr, 41 N. Y. (2 Hand.) 272; Berdan v. Fitch, 15 John. 121; Shumway v. Stillman, 4 Cow. 292;

Andrews v. Montgomery, 19 John. 162; Whitcomb . Whitcomb, 46 Iowa, 437; Rush v. Rush, 46 Iowa, 648; 2 Bishop on Marriage and Divorce, § 753 et seq.

3 West Cambridge v. Lexington, 1 Pick. 506; Putnam v. Putnam, 8 Pick. 433; Sutton v. Warren, 10 Met. 451. 4 Commonwealth v. Hunt, 4 Cush. 49.

5 Clark v. Clark, 8 Cush. 385.

ute of Massachusetts disabling a party under certain circumstances not necessary to be here referred to, does not apply to such a case.1

IV. INTER-STATE CUSTODY OF CHILDREN.

ALIMONY.

ENFORCEMENT OF

Decree for Custody of Children. A decree of divorce of a State court of general jurisdiction granting to the party who obtains the same the exclusive custody and control of an infant or minor child of the parties, and over which child the court had actual jurisdiction by its person then being within the jurisdiction and power of the court, will, while it remains in full force, be respected and regarded as binding on the parties, and as conclusive in the courts of all other of the States wherein its validity is brought in question, unless impeached in some way recognized by the law, and this, too, although obtained in a proceeding in rem.2

Action at Law will not lie on Decree for Alimony. Although, as we have seen, an action at law will lie ordinarily on a decree in chancery, for a sum of money certain, of a court of another State, yet it must be a final decree, such as leaves nothing more to be done or liable to be done to alter the status thereof, and, therefore, an action at law cannot be sustained on a decree for alimony made in a case of divorce, for such a decree is in its nature temporary and may be increased as necessity may require and the ability of the husband permit, or it may be diminished or dissolved. It cannot be regarded as a decree final and absolute for a sum certain, and cannot have the force or effect of a judgment at law, but is enforcible in chancery only.3

If Defendant Removes to Another State a Bill of Equity Lies against him on Decree of Alimony. But when the defendant husband in such a decree removes to another State so as to place

1 Clark v. Clark, 8 Cush. 385.

Wakefield v. Ives, 35 Iowa, 238. But see Thorndice v Rice, 24 Am. Law Reporter, 19, 20, where a Massachusetts judge decided on a question of habeas corpus, that the decree of a court of another State awarding the custody of the child to its father was

not a final decree which would be binding in Massachusetts. See, also, 2 Bishop on Marriage and Divorce, § 204.

3 Barber v. Barber, 2 Pinn. 297, 299, 300; Elliott v. Ray, 2 Blackf. 31. See Harrison v. Harrison, 20 Ala. 629; Barber v. Barber, 21 How. 582.

himself beyond the jurisdiction of the court where the decree is made, and thereby render its enforcement impracticable, a bill in equity lies in the State of the husband's residence upon ordinary principles of equity to enforce the same.

When it Lies in United States Court. And in such case, the parties having thus become citizens of different States, such bill for equitable relief, if the sum claimed brings the case within the jurisdiction of the court, will be sustained in the circuit court of the United States upon general principles of affording relief in equity where there is right and yet no remedy at law; but such United States court takes the jurisdiction upon such general principles only and not as a matter of jurisdiction in cases of divorce, which latter the United States courts do not entertain. For although courts of the United States have no jurisdiction upon the subject of divorce or for allowance of alimony, either as an original chancery proceeding or as incident thereto, yet when a divorce has been decreed by a State court of competent jurisdiction, with alimony to the wife, then if such alimony be not paid, and the amount thereof and citizenship of the parties determinable by their respective domiciles be such as in these respects to confer jurisdiction in the circuit court of the United States, and the party liable for the same has placed himself beyond the jurisdiction of the court which decreed the alimony and divorce, so as to render it impracticable for that court to cause its process to act upon his person to enforce payment under the decree, and has no property within the jurisdiction whereof it may be made, then as between the parties, the circuit court has jurisdiction in equity to enforce the decree at the suit of the divorced wife in whatever district the defendant may be found, if at the time they be citizens of different States.

And where such divorce was a divorce a vinculo, and the husband thus departing into a different State and residing there, applied for and got a divorce from the same wife a mensa et thoro, such subsequent divorce does not in any manner discharge him from liability to enforcement of the decree of alimony rendered against him in the first suit for divorce, and it is no defense to a suit on such decree in the State of his subsequent residence or elsewhere when sued thereon. Such judgment or

decree rendered in a State court, with jurisdiction, has the same binding force in courts of any other State of the United States that it has in the State where originally rendered. As to the domicile of the wife after such divorce, the American rule is that when parties are already living under a judicial separation, her domicile no longer follows his. So that a wife so divorced may thereafter establish a domicile of her own.

Prosecution for Bigamy. To sustain a prosecution for bigamy in one State for cohabitation therein with the alleged second wife of the party, where both the marriages are shown to have taken place in another State, it must be alleged in the indictment that the second marriage was unlawful in such other State at the time it was entered into, for if lawful and valid where it occurred it will not sustain a prosecution for bigamy.2

V. INTER-STATE EFFECT OF FORMER ADJUDICATION.

Former adjudication. A former adjudication in another State must, in order to be a bar, be an adjudication of the very point or subject matter involved in the suit wherein it is pleaded, and must be of the principal question and final upon the merits: a merely interlocutory judgment, order or decree, in reference thereto, will not operate as a bar to a subsequent action or suit, having for its object the principal or main purpose of that in which such interlocutory proceeding occurred. The mere denial of such interlocutory order, judgment or decree, in a similar action or suit in another State, as, for instance, the granting or denial of alimony, will not be a bar to the granting thereof in another suit or action in another State, if to such latter suit or action, the principal proceedings in such prior case, and the decision therein be not such as to bar and preclude the plaintiff in the subsequent suit or action, and the right to maintain the same. 4

1 Barber v. Barber, 21 How. 582. State v. Palmer, 18 Vt. 570. Brinkley v. Brinkley, 50 N. Y. 184.

Brinkley . Brinkley, 50 N. Y. 184, 202.