service of process made in such other and different State than the one in which suit is sought to be brought, and a personal judgment rendered against a defendant who has not personally appeared, or otherwise submitted to the jurisdiction of the court, and upon whom no other service of process than the above has been made, is null and void; for the processes and laws of a State have no extra-territorial operation or force as against citizens or persons residing in a different State. Nor will personal jurisdiction be obtained by publication of notice in newspapers, or other publication of notice against or to such non-resident or absent defendant, so as to justify or sustain a personal judgment against him, but such personal judgment, rendered without other jurisdiction of the person of the defendant than publication, is null and void, as well where rendered as elsewhere, notwithstanding any law of the forum authorizing the same; for such law can have no extra-territorial force to affect the defendant personally outside the jurisdiction of the State wherein the judgment is rendered.* 3. Proceedings in rem. But proceedings in rem, may, for any just cause, be prosecuted against the property of a non-resident, situated in any State, by proceedings in the courts of the State wherein the property is situated, if so allowed by law, upon such publication of notice, or constructive service, as is the practice of such State, and judgment against the property may be rendered accordingly, when otherwise justified in law, for such property being within the actual jurisdiction of the forum, the power of the State and its courts over the same does not depend upon personal service and jurisdiction of the defendant's person; but no personal judgment, in such proceeding, there hav Bates v. Chicago, and N. W. R. R. Co., 19 Iowa, 260; Hakes v. Shupe, 27 Iowa, 465; Weil v. Lowenthal, 10 Iowa, 575; Ableman v. Booth, 21 How. 506; Piatt v. Oliver, 2 McLean, 268; Westervelt v. Lewis, Ibid. 511; Lincoln v. Tower, Ibid. 473; Kendall v. U. S., 12 Pet. 526; Herndon v. Ridg way, 17 How. 424; Griffith v. Frazier, 8 Cr. 9; Freeman on Judgments, §§ 564, 566. Banta . Wood, 32 Iowa, 469; Bates v. Chicago & N. W. R. R. Co., 19 Iowa, 260, 262; Board of Public Works v. Columbia College, 17 Wall. 521; Griffith v. Frazier, 8 Cr. 9; Schwinger v. Hickok, 53 N. Y. 280; Bischoff v. Wethered, 9 Wall. 812; Freeman on Judgments, § 127; Storey's Conf. of Laws, §§ 546 and 546a. 3 Darrance v. Preston, 18 Iowa, 396; Banta . Wood, 32 Iowa, 469; The Globe, 2 Blatchf. 427; Thomas v. Southard, 2 Dana, 475. ing been only such constructive service, will be valid, and no recovery in an action can be had thereon, anywhere. So the same right and liability, of suing and being sued in the circuit courts of the United States, exists between citizens of dif ferent States, where the amount in controversy, and citizenship of the parties, or other legal requisites, are shown, which bring the same within the jurisdiction of said court. But to sustain a judgment in personam, personal service must be had, and a citizen of one State cannot be arrested, in any case, on civil process from such circuit court in a different State than that wherein he resides.2 4. Sealed and Unsealed Instruments. Interesting questions sometimes arise as to the character in which an instrument made in one State, and sued on in the courts of another, is to be regarded in the forum of the latter State; as, for instance, the question as to whether an instrument is sealed or not, will govern the nature of the action brought thereon. Thus, in some States a mere scroll is by law given the import and force of an actual seal; in others an actual or real seal is required, as an impression on wax, or other impressible substance; and yet, in others still, seals are abolished entirely. Now, in an action on such instruments in the courts of the State where made, no difficulty may arise in relation to their true character; but when sued on in the court of a different State, where the rule of local law as to a seal varies from that where the instrument was made, the question arises at once as to whether the local law, that is the law of the forum, shall prevail, or that of the State wherein the instrument was made, shall govern in giving character to it, as a sealed or an unsealed instrument for, if a sealed instrument, it is a deed, or writing obligatory, and suit must be in covenant or debt, but if unsealed, then it is but a simple contract, and assumpsit will lie. The Supreme Court of the United States hold that, notwithstanding the general law, the lex loci contractus governs as to the obligation and character of an instrument, when not made performable elsewhere; that nevertheless, without impairing the obligation 'Boswell v. Otis, 9 How. 336; Lincoln v. Tower, 2 McLean, 473; Warren Manf. Co. v. Etna Ins. Co., 2 Paine, 502; Westervelt v. Lewis, 2 McLean, 511; Banta v. Wood, 32 Iowa, 469. 2 See Revised Statutes of U. S. of 1874, p. 139, § 739. of that rule, in enforcing a remedy on it elsewhere, the law of the forum, or place where the suit is brought, prevails, and it is to be treated as sealed or unsealed accordingly as it would be if made in the State where the suit is pending.1 Thus, the law of New York requires an actual seal of wafer or wax, and, if not so sealed, the form of action on an instrument is assumpsit. By the law of Wisconsin, it is provided that "any instrument to which the person making the same shall affix any device, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed.” In an action in the Circuit Court of the United States for the Southern District of New York, upon an instrument made in Wisconsin, with a view to performance in Wisconsin, as, for instance, a deed of warrantee for Wisconsin lands, suit being brought on the warranty, the action was brought in assumpsit, according to the practice on simple contracts in New York, and it was held that the action was rightfully brought, as to the form thereof, and, the case having gone to the Supreme Court of the United States, that court affirmed the ruling in that respect.4 The Supreme Court of the United States, WOODBURY, J., say of the form of action: "It was obliged to be in assumpsit in the State of New York. *. * * We hold this, too, without impairing at all the principle that in deciding on the obligation of the instrument as a contract, and not the remedy on it elsewhere, the law of Wisconsin, as the lex loci contractus, must govern.”5 5. Non-residents Personally Suable, if Found and Served. It is no objection to the jurisdiction of a State court over the person of a defendant, that he resides in a different State, provided personal service be had upon such defendant in the State where the action or suit is brought, and provided the nature of the action or suit, and the subject-matter thereof, be such as is actionable in that jurisdiction, or may therein be enforced." Every citizen or resident of a State or territory is liable to suit, in personam, in every other State and territory wherein he may 1 Robinson v. Campbell, 3 Wheat. 212; Le Roy v. Beard, 8 How. 451; Meredith v. Hinsdale, 2 Caines, 362. 2 Warren v. Lynch, 5 John. 239. 3 Andrews v. Herriott, 4 Cow. 508; Van Santwood v. Sandford, 12 John. 198; Le Roy v. Beard, 8 How. 451. Le Roy v. Beard, 8 How. 464, 465, Robinson v. Campbell, 3 Wheat. 212. Swan v. Smith, 26 Iowa, 87; Freeman on Judgments, § 566. be found and served with personal notice, on causes of action arising in such State, as also in actions of such a transitory nature that suits may be maintained thereon in the courts of a different State than that wherein the right of action accrued; as, for instance, such causes of action as follow the person of a debtor, or other defendant, as contradistinguished from those of a local character, rendered so by their relation to local things, or by growing out of and dependent upon local statutes, in the State where the cause of action arises other than that wherein the defendant is sued.1 § 6. Jurisdiction Obtained by Fraud. But jurisdiction obtained by fraud is invalid, as where, if by false or fraudulent means, a party is induced to come from another State into the jurisdiction of the court, in order to procure service on him in a judicial proceeding, the court will set the service aside on motion and proof of the improper means thus used.2 Service on a Non-resident, if a Witness. And so, if jurisdiction be obtained of the person of a defendant who is resident of another State, by personal service of process in a suit against him, made upon him whilst attending within the State where thus sued as a witness in a cause pending in the courts of such State, the service of such process will be set aside upor proper application; for it is the policy of the law to protect suitors and witnesses from service of process in civil actions, whether the process be such as required their arrest, or be merely in the nature of a summons. Service in such cases will be set aside, as well upon general principles as upon positive law, if there is such.3 7. Foreign Corporations, Executors, and Administrators. It is not definitely settled whether a corporation may be sued by service on its officers or agents doing business in another State 4 The ruling in Missouri is that a private corporation, incorporated under the laws of another State, is not liable to be sued personally, within the State of Missouri, by ordinary process of sum 'Story's Conf. of Laws, § 538. 2 Carpenter v. Spooner, 2 Sandf. 717; Wanzer v. Bright, 52 Ill. 35. 3 Person v. Grier, 66 N.Y. 124; Norris v. Beach, 2 John. 294; Sanford v. Chase, 3 Cow. 381; Hopkins v. Coburn, 1 Wend. 192; Seaver v. Robinson, 3 Duer, 622; Merrill v. George, 23 How. Pr. 331; Halsey v. Stewart, 4 N. J. 366; Juneau Bank v. McSpedan, 5 Biss. 64; Parker v. Hotchkiss, 1 Wall. jr. 269. 4 St. Louis v. Wiggins Ferry, 40 Mo. 580; Angel and Ames on Corp. $$ 402-407. mons, unless such foreign corporation has its chief office or place of business in said State of Missouri; and that, if such chief' office and place of business be not therein, then proceedings against such foreign corporation can only be had in rem, as by process of attachment. So executors and administrators are not subject to an action or suit against them in their fiduciary capacity in the courts of a State other than the State wherein their authority is granted to them." 8. Service on a Member of a Firm as Against a Non-resident Member Thereof. Service is not good against a non-resident defendant by being made upon a member of a firm, of which firm defendant is also a member; nor is it good against the firm, so as to authorize a declaration and proceeding against the firm, where the præcipe and writ show the origin of the action to be against a natural person as defendant. By such a proceeding and service no jurisdiction of the person of the real defendant is obtained, and no cause is legally instituted, or brought into legal existence, against the firm, upon which to sustain an action or judgment.8 1 Middough v. St. Jos. & Den. R. R. Co., 51 Mo. 520; Same case, 3 Am. Rw. Reps. 461; Farnesworth v. Terre Haute, etc., R. R. Co., 29 Mo. 75; St. Louis v. Wiggins' Ferry Co., 40 Mo. 580; Robb . Chicago & Alt. R. R. Co., 47 Mo. 540. This subject will receive fur. ther treatment. See post, Chap. 25, § 3. Vaughan v. Northup, 15 Pet. 1; Fenwick v. Sears, 1 Cr. 259; Dixon's Execrs. v. Ramsay's Execrs., 3 Cr. 319; Kerr v. Moon, 9 Wheat. 565. See post, Chap. 24. 3 Frink v. Sly, 4 Wis. 310. |