a cause of action. Where the contract has been fulfilled the right of action is gone. Again take the case of a tort feasor who makes good the damage occasioned by his tort; there again the right of action is gone, and there is no right of action into which the insurer can be subrogated; but the insurer could not be subrogated until he had paid the loss, and therefore to confine the doctrine as suggested would take out innumerable cases. If the right exists in the assured, although there may never be a right of action, it seems contrary to the fundamental doctrine to say that the loss is not to be diminished. For myself I cannot see why, if the defendants would have had a right against a third party to enforce the contract of sale, the insurers should not have been subrogated into that right; but Cotton, L. J., is not satisfied as to this, so I will pass by the question, which it is unnecessary to decide, because here there was a right to have the contract fulfilled by the third party, and the assured has received from the third party the money payable under that contract. I cannot conceive any right by which the assured has his loss diminished, which would be other than a right affecting the loss. In the present case the right affects the loss, enabling the assured to get the same money which he would have got notwithstanding the loss. The present case is the case of a contract relating to real property, and therefore is somewhat peculiar in its nature. We are asked to say that where the contract is that a person will pay if the property is lost, that is to be brought into the account, but where it is to pay though the property is lost, that is not to be brought in. I cannot see that it rests on so fine a distinction. In the course of his judgment in the court below, Chitty, J., says (8 Q. B. Div. 617): "I know of no foundation for the right of underwriters, except the well-known principle of law, that where one person has agreed to indemnify another, he will on making good the indemnity be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against, or reimbursed himself for the loss." This passage is quoted from the judgment of Lord Cairns in Simpson v. Thompson, 3 App. Cas. 284. Then Chitty, J., goes on. "What is the principle of subrogation? On payment the insurers are entitled to enforce all the remedies, whether in contract or in tort, which the insured has against third parties, whereby the insured can compel such third parties to make good the loss insured against." It seems to me that he is there confining the principle of subrogation to rights which the insured is entitled to enforce; that is to say, that he is confining it to the remedies of the insured. Then he goes on and gives instances: "Where the owner of a building insures, and the building is destroyed by a riot, the insurers on payment, are subrogated to their right against the hundred. Where the landlord insures, and he has a covenant by the tenant to repair, the insurance office on payment, in like manner succeeds to the right of the lanndlord against the tenant," etc. I would add, that if the tenant repairs the insurer is entitled to receive from the insured a benefit equivalent to that derived by the insured from such repairs. Dealing with Burnand v. Rodocanachi, 6 Q. B. Div. 633, 7 App. Cas. 333, he says: "There the underwriters, under a valued policy on the ship, which was destroyed by the Alabama, a cruiser, paid as on a total loss. The American Government under a treaty with the British Government provided a fund out of which the insured received a sum in respect of the destruction of the ship, and the question was whether that sum was part of the salvage. That point was put very clearly by Bramwell, L. J., in his judgment, and it was held that it was not; that in the circumstances the sum received by the ship owner was but a pure gift, and there was no right on the part of the insur

ers to recover any part of it over against him." I would add to that, because there was no right in the assured to receive the money from the American Government, but their payment to him was a pure gift. The decision in Darrell v. Tibbitts, 5 Q. B. Div. 560, is in favor of the plaintiff in the present case. I shall not retract what I there said. In Darrell v. Tibbitts the insurers were not subrogated into a right of action or a remedy, but into the advantage of the remedy which had been applied, whether it had been enforced or voluntarily administered by the person bound to administer it. I said there: "The doctrine is well established that where something is insured against loss either in a marine or a fire policy, after the assured has been paid by the insurers for the loss, the insurers are put into the place of the assured with regard to every right given to him by the law respecting the subject-matter insured" (5 Q. B. Div. 563): That is one sentence, and is complete in itself, and so I intended it to be; then the same judgment continues: "and with regard to every contract which touches the subject-matter insured, and which contract is affected by the loss or the safety of the subject-matter insured by reason of the peril insured against." I fail to conceive any contract which gives a right which is not affected by the loss or the safety of the subject-matter insured. If it is necessary to bring this payment within those terms, I am of opinion that here the contract is affected because the money is paid in consequence of the contract. In his judgment in the court below, Chitty, J., observes, "that the only principle applicable is that of subrogation, as understood in the full sense of that term, and that where the right claimed is under a contract between the insured and third parties, it must be confined to the case of a contract relating to the subject-matter of the insurance which entitled the insurers to have the damages made good" (8 Q. B. Div. 625): I think it would be better to say, which entitled the insured to be put by such third parties in as good a position as if the damage had not happened." The contract in the present case does enable the insured to be put in such a position, and this arises from the contract alone. For these reasons it seems to me, that according to the true principle of insurance law, and carrying out the fundamental doctrine that a policy is a contract of indemnity and no more, the plaintiff must succeed. I am of opinion that the plaintiff in the present case is entitled to recover, and the judgment appealed from must be reversed.

66

COTTON, L. J. The appellant in this case represents a company, who were insurers of a house. Before any loss took place the house was sold. After the contract of sale was entered into there was a fire, and the insurers made a payment in respect of the loss caused by that fire. The plaintiff now seeks to recover the amount of such payment. Apparently the claim is for money paid, and if it rested on that ground I should be inclined to decide against the plaintiff's right to recover. But the case can be stated in another way, namely, that the payment under the policy has diminished the loss suffered by the assured. Looking at it from this point of view, in my opinion, the plaintiff is in the right. The whole question turns on what a fire policy really is. It is a contract of indemnity, a contract only to pay the exact amount of the loss. To ascertain what that loss is one must take into account all that comes in to diminish it. When the point is stated in this way it is clear that the insurers are entitled to the benefit of any thing received by the assured before the policy is paid. It does not matter, as is shown in Darrell v. Tibbitts, 5 Q. B. Div. 560, that the insurers do not insist on having a calculation made before the sum or benefit is received. If they do not insist on this they can still claim that what is received

surers.

by the insured shall be held for the benefit of the inThe law is thus stated by Lord Blackburn in Burnand v. Rodocanachi, 7 App. Cas. 339: "The general rule of law (and it is obvious justice) is that where there is a contract of indemnity (it matters not whether it is a marine policy or a policy against fire on land, or any other contract of indemnity), and a loss happens, any thing which reduces or diminishes that loss reduces or diminishes the amount which the indemnifier is bound to pay; and if the indemnifier has already paid it, then if any thing which diminishes the loss comes into the hands of the person to whom he has paid it, it becomes an equity that the person who has already paid the full indemnity is entitled to be recouped by having that amount back." In Darrell v. Tibbitts, 5 Q. B. Div. 560, the question was whether the insurers were entitled to the benefit of a covenant to reinstate the damaged building, but it was not intended in that case to limit the rights of the insurers to contracts relating to the same loss which makes them liable. It is true that in that case the contract, to the benefit of which the insurers were held entitled, did relate to the same loss; but the rights of insurers are not limited to that; the principle goes further, and comes to this, that if money or any other benefit comes to the assured, so that the loss is thereby diminished, the insurer who indemnifies against the loss is entitled to that benefit, and in order to ascertain to what the insurer is entitled, it is nec. essary to calculate what the ulterior loss is. The difficulty arises when one has to consider what ought to be taken into account. We were pressed ingeniously with that difficulty in the present case, and it was urged that this payment of the purchase-money had nothing to do with the fire; and it was said, if the money is recoverable, why should not a gift be recoverable? But this question may be answered thus: Generally a gift would be expressed to be for the benefit of the insured, and therefore it would be wrong to divert it from the purpose for which it was intended, and give it to the insurer. This was so in Burnand v. Rodocanachi, ubi sup. As to the case of a gift from the crown, which has been suggested and discussed, it is not necessary now to decide whether the benefit of such a gift could ever in any case be recovered. It may be that the title of the assured to recover is rightly confined to some right or other incident which is incident to the property at the time of the loss. Here we must consider whether this right to receive the purchase-money was incident to property belonging to the owner at the time of the loss. Here property was insured against fire, and was damaged by fire after a contract of sale had been entered into, and the insured afterward received the price. If the insured receives the whole price, it must be brought in for the purpose of ascertaining what the ulterior loss is for which he is to be indemnified. Here the purchasers paid the purchase-money in full, and thus the vendors got the value of the property. It is clear therefore that any thing which they get from the purchaser, and which they receive in addition to the 3301. paid them by the insurance company, must diminish, or (as in the case here) extinguish the loss. The insurers cannot properly be said to be entitled to get back the money which they have paid, but the amount of such money must be taken into account in order to see what is the ulterior loss suffered by the assured. The insurers might have said that there was not any loss against which they were bound to indemnify the owner of the property, and that the amount payable by the purchaser ought to be taken into account in order to ascertain how this question stood; but they were not bound to say so, and their having paid under the policy cannot now affect their rights. The conclusion is, that if there were any doubt as to how far

the loss was diminished, it would be necessary to as. certain it, but if the purchase-money for the property has been paid in full, the insurers are entitled to get back their money, not as recovering back what they have paid, but on the ground that the vendors must bring in the purchase-money because it diminishes the loss against which the insurers covenanted to indemnify them. I am therefore of opinion that the judgment appealed from is erroneous, and ought to be reversed. Chitty, J., said there was no right of subrogation, because the insurance company could not have enforced the contract of sale. This need not be decided, because the vendors have insisted on the completion of the purchase, and the money which they have received must be taken into account in estimating the amount of the loss.

BOWEN, L. J. I am of the same opinion. The answer appears to me to follow as a plain deduction from two propositions; first, that a policy of fire insurance is a contract of indemnity; and secondly, that on a contract of indemnity no more can be recovered than the amount of the loss sustained. It is clear that a fire policy is as much a contract of indemnity as a marine policy; the difference is only in the subjectmatter. In both cases only a person who has an insurable interest can recover. In the able arguments of Mr. Gully and Mr. Kennedy it was sought to establish a distinction. It was said that a fire policy is not quite a contract of indemnity, but there is no justification for that proposition to be found in the authorities, and I can see no reason why it should be so. What is insured in a fire policy? Not the bricks and mortar and timber of the house, but the interest of the owner. Why should this interest be different in a fire policy and in a marine policy? It is a fallacy to suppose that more may be obtained than the amount of the loss. We must recollect the ordinary business rules of insurance. It is well known that a person who has a limited interest in the thing insured may insure and recover the total value, subject to this; first, that the form of the policy is correct; and secondly, he must intend to insure the full value. He may insure to cover his own interest only, or to cover his own interest and that of others, but he can only hold so much as he intended to insure. Take for instance, the cases of carriers and wharfingers, or to illustrate the proposition more exactly, the case of a mortgagee. He is entitled to insure for all the value of the property, but if he only intends to insure his own interest, he can only hold the insurance money to the extent of his own interest. If he intended to insure all the property he can hold the in surance money for the others who are interested in it, but he cannot hold for himself beyoud the value of his own interest. Take the case of a ship. The mortgagee lends 500. on a ship which is worth 10,000., and insures his own interest. Can it be said that he could hold 10,000? That would make the policy a wager policy, and a speculation, not a contract of indemnity. Or take the case of several mortgagees; there each can recover for himself, and hold only the amount of his own loss. Is there any real distinction between such a case and the case of a mortgagee of a house? I can see none. In each case we must go back to the doctrine of indemnity to solve the question. In the case of a tenant from year to year we are asked to believe that he can insure the property to its full value, and recover all the insurance money. There may be some justification for this contention, drawn from the words of James, L. J., in Rayner v. Preston, 18 Ch. Div. 15, where he said: "In my view of the case it is perhaps unnecessary to refer to the act of Parliament as to fire insurance. But that act seems to me to show that a policy of insurance on a house was considered by the Legislature, as I believe it to be considered by the

universal consensus of mankind, to be a policy for the benefit of all persons interested in the property, and it appears to me that a purchaser having an equitable interest under a contract of sale is a person having an interest in the house within the meaning of the act. I believe that there is no case to be found in which the liability of the insurance office has been limited to the value of the interest of the insured in the house destroyed. If a tenant for life, having insured his house, has the house destroyed or damaged by fire, I have never heard it suggested that the insurance office could cut down his claim by showing that he was of extreme old age, or suffering from a mortal disease." I wish to speak with the highest respect and reverence in commenting on any thing said by so great a judge, but I confess I cannot follow those observations. It is true that in practice insurance offices do not take the trouble to inquire as to the interest of persons proposing to insure, but the reason is that generally the policy is intended to cover all interests, and also there usually are covenants to repair, so that there no question can arise. Suppose a weekly tenant insures, only meaning to cover his own interest; could he recover the full value of the house? It is true that the insurer cannot satisfy the claim upon him by handing over to the insured tenant the marketable value of his term; but the reason for this is that the insured loses more. That is all that is meant by Wood, V. C., in Simpson v. Scottish Union Ins. Co., 1 H. & M. 618. I pass on to the case of a life tenant, because it is urged that he does more than insure his own interest. It is important to have the facts before us when we apply the law. Take the hypothesis of a very old man being tenant, and assume that he meant to insure only his own interest. I do not say that he may not have the house put back in the same state in which it was before the fire; but if he insures intending to insure his own interest only, and he dies a week after the fire, I doubt whether the court would give the full value of the house to his representatives. In each case we must go back to the broad principle. Here the case is one of vendor and vendee, and Rayner v. Preston, 18 Ch. Div. 1, was decided on the ground that the vendors were not trustees for the purchasers of the money secured by the policy. What then is the insurable interest of the vendor which entitles him in the first instance to receive the money? It is the beneficial interest of an unpaid vendor, who has agreed to sell the property, but still retains the legal estate, and has not received the price. In the first instance he can obviously recover on the policy, as was decided in Collingridge v. Royal Exchange Assur. Co., 3 Q. B. Div. 173. Then can he keep the whole of the insurance money, having only lost a part, say a half, of what he has insured? Suppose, to take an extreme case, a man were injured to the extent of 50., and he recovered 10,000l. on a policy of insurance; that would be a windfall, coming to him in consequence of the fire; the insurance would be not an indemnity, but a speculation. A person who recovers for a total loss must treat it as a total loss; he cannot take with both hands. In Simpson v. Thompson, 3 App. Cas. 284, Lord Cairus said: "I know of no foundation for the right of underwriters, except the wellknown principle of law that where one person has agreed to indemnify another, he will, on making good the indemnity, be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or reimbursed himself for the loss." Now is there any distinction here on the ground that the present case is one of fire, while that was one of marine insurance? Chitty, J., in the court below, and the judges who decided the American cases, on which he seems to have relied, have fallen into the mistake of relying upon a distinction

between fire and marine insurance, whereas there is no real distinction except in the diversity of the subject-matter insured. In this judgment in the court below, Chitty, J., says (8 Q. B. Div. 618): "An obvious distinction exists between the case of marine insurance and of insurance of buildings annexed to the soil. In the case of marine insurance, where there is a total constructive loss, the thing is considered as abandoned to the underwriters, and as vesting the property directly in them. But this doctrine of abandonment cannot be applied to the insurance of buildings annexed to the soil. Although the buildings annexed are destroyed there cannot be a cession of the right to the soil itself." There seems to be a certain cloudiness in the way in which the learned judge deals with the doctrine of constructive total loss. The practice of abandonment is based on the doctrine of indemnity, and has only become universal since policies have ceased to be wager policies. The same principle applies both to marine and to fire insurance, although it has to be worked out differently in the two cases. If buildings annexed to the soil are destroyed it is not a constructive, but an absolute total loss. The same remarks apply to the language used by Shaw, C. J., in delivering the opinion of the court in King v. State Mutual Fire Ins Co., 7 Cush. (Mass.) 12, where he says (commenting on the cas of Tyler v. Etna Ins. Co., 16 Wend. N. Y. 385: "Looking at the analogies and illustrations on which the reasoning of the learned chancellor is founded, it may be a question whether he has not relied too much on the cases of marine insurance, in which the doctrines of constructive total loss, abandonment, and salvage are fully acknowledged, but which have slight application to insurances against loss by fire." That the cases have only a slight application is true, but that is not because a contract of fire insurance is not a contract of indemnity, but because the subject-matter of the two classes of cases is different. Chitty, J, goes on to consider this question of subrogation. I will add very little to what Brett, L. J., has said on that point. In speaking of the position of insurers, it creates a certain amount of confusion to call them sureties, for sureties guarantee the carrying out of a contract or performance of a duty by some one else. They undertake to answer for the debt, default, or miscarriage of another person,' but the insurer guarantees that no loss shall happen. If there are any means of diminishing the loss the underwriters may pursue them, whether they do so by asking to have a contract carried out or not, whether they are seeking to euforce a contract or are suing to recover damages for a tort. Mr. Gully and Mr. Kennedy say they can only recover in respect of an act arising out of the loss; but I think the true test is, whether the enforcement of the right which they seek to enforce will diminish the loss. If the payment diminishes the loss it comes within the doctrine of indemnity. I will consider the definition given by Brett, L. J. It is just what I want to express, except for one small appendage, viz., that if a case occurs which is outside the definition, regard must be had to the general rule of indemnity. I also think there may be a little difference as to gifts, and as to the true meaning and effect of the decision in Burnand v. Rodocanachi, 7 App. Cas. 333. What has to be considered is, whether the loss is reduced, and although no doubt it is hard to think that a voluntary gift would have the effect of reducing the loss, still it is possible that a case might arise in which it would. I think therefore that the voluntariness of the payment is not the root of the decision in Burnand v. Rodocanachi, but the fact that it did not reduce the loss. Suppose a man loses money by a fire, and his brother writes and sends him a check. In such a case if the person who sends the check knows that his

brother is insured, and sends the check, intending to benefit both the insurer and insured, then I should think the insurer would be entitled to the benefit of the check to the extent to which it had the effect of diminishing the loss falling on the insured; but if he does not know of the insurance, or intend to benefit the insurer, this would not be so. On the other side of the line is the case of Randal v. Cockran, 1 Ves., Sr., 98.

The vendors here have been paid the whole amount of the purchase-money, and having also received the amount secured by the policy; on what principle can they keep it? The lien of the vendors on the property was worth something. As to the right to enforce specific performance of the contract I will not add any thing to what has been said by Cotton, L. J., who understands that subject better than I do. But why should not the insurers insist on the vendors' lien, and say that the vendors shall not let the purchasers off their contract? To hold otherwise would make the contract more than a contract of indemuity. Chitty, J., says (8 Q. B. Div 621): "The contract of sale was not a contract, either directly or indirectly, for the preservation of the buildings insured. The contract of insurance was a collateral contract wholly distinct from and unaffected by the contract of sale." The answer it, what does it matter? For the beneficial interest depends on the contract being fulfilled; its fulfillment diminishes the loss. If we look at the definition given by Brett, L. J., in Darrell v. Tibbitts, 5 Q. B. Div. 563, I think the present case comes within it as it stands, but to the word "affected" I would perhaps add "or which affects." Chitty, J., goes on to say: "The attempt now made is to convert the insurance against loss by fire into an insurance of the solvency of the purchaser." I would answer that in the same way. The insurers do not guarantee the solvency of the purchaser, but it affects the loss against which they have to indemnify the vendor. Again Chitty, J., says (8 Q. B. Div.) 621: "Take the case of a landlord insuring, and the tenant under no obligation to repair, a case which I had before me the other day, where under an informal agreement, evidently drawn by the parties themselves, the large rent of 700l. was reserved, and the tenant, notwithstanding the fire, was bound to pay the rent. I stay here to say that a lease, as has been often held, is but a sale pro tanto. Now assume that the building in such a case was ruinous, and would last the length of the term only. Could the insurers recover a proportionate part of each payment of the rent as it was made, or could they wait until the end of the term, and then say in effect, you have been paid for the whole value of the building, and therefore we can recover against you? Or to vary the case somewhat again, suppose the building at the end of the term was only half the value, could the insurers then recover half of the sum they had paid? I think not. I think all these questions must be answered in the negative, but if the plaintiffs are right in their contention, the insurers could recover in all those cases." The difficulty diminishes if we ask what it is that is insured? Is the learned judge supposing that the insured intend to insure all other interests besides their own? If so, there is no difficulty. If they do not it is an odd case, but to solve it we must try it by the broad principle that the contract is a contract of indemnity, and there is the answer to the difficulty. I have nothing further to add, and I should not have given judgment at such length if it were not for the very great importance of taking the true view of the nature of the contract in such cases as the present.

Judgment reversed.

JUDGMENT WITHOUT PERSONAL SERVICE DOES NOT MERGE CAUSE OF ACTION.

VERMONT SUPREME COURT, MAY TERM, 1883.

NATIONAL BANK OF ST. JOHNSBURY V. PEABODY.* The plaintiff bank was located in Vermont; one of the defendants was and still is a resident of Vermont, and the other of Louisiana. The plaintiff obtained a judgment by default in a court in New Hampshire, having attached the defendant's real estate situated there; but no personal service of process was made, no notice was given except a constructive one by publication according to the laws of New Hampshire, and no appearance by the defendants. In an action brought upon the same cause of action as the former one, held, that the original cause of action was not merged in the New Hampshire judgment; and that this action could be sustained.

ACTION of assumpsit. The opinion states the case.

Belden and Ide, for defendant.
Poland, for plaintiff.

VEAZEY, J. The demurrer to the replication raises the question whether the plaintiff, a national bank located in Vermont, having recovered judgment by default against the defendants, one then and still a resident of Vermont and the other of Louisiana, in a court of New Hampshire, upon the same cause of action upon which the present suit was brought, can maintain this action here, no personal service of the process in the New Hampshire case having been made on the defendants and they not having appeared in the suit, but that suit having been commenced by attach ment of real estate of the defendants situated in New Hampshire, and constructive notice given by publication according to the laws of New Hampshire. There is high authority for holding that if the defendants had been residents of New Hampshire, but temporarily absent from the State, which occasioned the lack of personal service, they would have been upou principles of international law subject to the laws and the jurisdiction of the courts of that State; therefore the plaintiff would also be bound by the New Hampshire judgment. Henderson v. Staniford, 105 Mass. 504. In Freeman on Judgments, section 570 (3d ed.), the rule is thus stated: "The position however which seems to be best sustained, both by reason and by precedents, is that each State has the authority to provide the means by which its own citizens may be brought before its courts; that the courts of other States have no authority to disregard the means thus provided; and finally that every judgment or decree obtained in a State against some of its citizens by virtue of a lawful though constructive service of process should be as obligatory upon such citizen in every other State as it is in the State where it is taken." In this State the law is settled that the New Hampshire judgment, upon the objection of the defendants, would be inoperative as a judgment in personam. Price v. Hickok, 39 Vt. 292.

But it is claimed in behalf of the defendants that as they do not here object to the New Hampshire judg ment, the plaintiff is bound by it; that it was voidable only, not void. The soundness of this claim depends upon the scope and effect of the New Hampshire proceedings. The service in that action was sufficient so far as the action was in the nature of a proceeding in rem. That is, the judgment was effectual to enable the court to reach the property attached and have it applied in satisfaction so far as it went. The amount not being sufficient to satisfy the whole judgment gave occasion for further remedy by *Appearing in 55 Vermont Reports.

this action in Vermont. If the publication of notice had not been preceded by an attachment, the New Hampshire judgment would have been void as a judgment in personam, through the statutes of New Hampshire had provided for notice in this way. This was held in the case of Pennoyer v. Neff, 95 U. S. 714, a leading case where the whole subject of the effect of constructive notice is ably discussed. If the New Hampshire judgment was absolutely void as a personal judgment, then the plaintiff properly disregarded it in bringing this additional action. Treating the case of Pennoyer v. Neff, supra, as controlling where the notice is by publication without attachment of property, then the only question left is whether the attachment added any thing to the personal character of the judgment. This question seems to be well answered by Mr. Justice Miller in Cooper v. Reynolds, 10 Wall. 308, where in discussing the character and effect of the proceeding where there had been an attachment of property of an absent defendant and publication of notice, followed by a judgment by default, he says: "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 considered 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 the defendant out of any other property than that attached in the suit. Second, the court in such a suit cannot proceed unless the officer finds some property of the 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."

In the case of Pennoyer v. Neff, Mr. Justice Field says this doctrine received the approval of all the judges, and after citing and discussing many cases, he adds: "In all the cases brought in the State and Federal courts where attempts have been made under the act of Congress to give effect in one State to personal | judgment rendered in another State against non-residents, without service upon them, or upon substituted service by publication, or in some other form, it has been held without an exception, so far as we are aware, that such judgments were without any binding force except as to property, or interests in property, within the State, to reach and affect which was the object of the action in which the judgment was rendered, and which property was brought under the control of the court in connection with the process against the person. The proceeding in such cases, though in the form of a personal action, has been uniformly treated, where service was not obtained and the party did not voluntarily appear, as effectual and binding merely as a proceeding in rem, and as having no operation beyond the disposition of the property or some interest therein. And the reason assigned for this conclusion has been that the tribunals of one State

have no jurisdiction over persons beyond its limits, and can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over their property within its limits."

Be

This case has been followed by others in the Federal courts to the same effect. See Brooklyn v. Insurance Co., 99 U. S. 370; Empire v. Darlington, 101 id. 92; St. Clair v. Cox, 106 id. 350. To the same purport was the holding in Bissell v. Briggs, 9 Mass. 469. Parsons, Ch. J., says: "If however these goods, effects and credits are insufficient to satisfy the judgment, and the creditors should sue an action on that judgment in this State to obtain satisfaction, he must fail; because the defendant was not personally amenable to the jurisdiction of the court rendering the judgment." Similar citations could be made from our own reports and from those of other States, but the Federal cases are recent and cover the ground. We do not overlook that the precise question involved in the above cases was mainly as to the rights of the defendants as affected by such judgments; but the discussion also involved the general character and effect of the proceedings. The case of McGilvray v. Avery, 30 Vt. 528, most relied on by defendants, was distinguished from this by the fact that the New Hampshire court there had jurisdiction over the defendant as well as the subject-matter of the action. The point here is whether the New Hampshire judgment, as a personal judgment, was void or only voidable. The ground upon which it would be pronounced voidable would be that the court never obtained jurisdiction over the persons of the defendants; but this would make the judgment void. The judgment was rendered by reason of jurisdiction over property of the defendants. In its operation and effect upon that it was neither void nor voidable. yond that it was either valid or invalid, independent of the choice of either party. It was not erroneous. There was no error in it. The proceeding was regular. The court had the right to proceed as it did proceed; and to the extent that the judgment was satisfied by the property attached, the proceeding would bar a recovery in this action. To that extent the judgment there is available here in behalf of the defendants the same as a payment would be. That is, that judgment is conclusive between the parties as to the property of the defendants there attached and appropriated to its satisfaction, but beyond that and as a judgment in personam we think it is a nullity. The court having no jurisdiction of the defendants, had no power to adjudge as against them upon the amount of the plaintiff's claim, no power to pass upon the defendant's personal rights and obligations; therefore a judgment in form against them, as an incident of the proceeding against the property attached, could not operate as a merger of the original claim. We think the proceedings had no further force or effect than to enable the New Hampshire court to apply the property there attached, or its proceeds, on the plaintiff's claim as established in that proceeding; that beyond this it created no right either against the defendants or in behalf of the plaintiff. It therefore furnished no basis upon which to bring a suit. We do not think the effect of the attachment was to aid the constructive service of the process so as to make it equivalent to personal service, except to the extent that the court was reaching after property within its jurisdiction. "Jurisdiction of the property does not draw after it jurisdiction of the