Beard et al. v. Beard.

ments, without actual notice, and claiming that such judgments are not necessarily invalid, it is said:

"The common law proceeding of outlawry was inconsist ent with such an idea to its full extent. The result of this proceeding was, in the first place, a judicial sentence by which the defendant incurred a qualified forfeiture of his lands and goods, and a suspension of his civil rights as a citizen; and in the second place, it enables the plaintiff in a civil action, to the Court of Exchequer, or by petition, when his claim exceeded 50 £s, to obtain satisfaction of his claim by a sale of the property thus seized. And there is a strong case, as to a judgment of outlawry, cited by the Court in the case of McPherson v. Corliff et al., 11 Serg. & Rawle, 438, to sustain the proceedings of the probate courts, as to the sale of real estate, wherein these proceedings were unsuccessfully attacked on the ground that it had proceeded under a total mistake as to the real parties in interest, the Court having proceeded under the idea that a family of children, who were really bastards, were the heirs of the deceased. The case is cited from 10 Vin. (Title Record, c. pl., 2 from Br. E. pl. 78). "Record of outlawry of divers persons was certified in the Exchequer, among whom one was certified outlawed and was not outlawed, and that his goods forfeited were in the hands of I. N., and upon process made against him he came and said he was not outlawed, and parcel of the record came by chancery out of B. R. into the Exchequer; and Green, justice of B. R., came into the Exchequer and said he was not outlawed, but that it was misprison of the clerk. Skipworth said, though all the judges would record the contrary, they shall not be credited, when we have recorded that he is outlawed. Quare, what remedy is for the party? It seems it is a writ of error, inasmuch as there is no original against him, but only record of outlawry without original. (Br. Record, pl. 49.) And in the same book, pl. 4, cites Br. Error, pl. 78, it is said

Beard et al. v. Beard.

the diversity is this, that a man may assign error on a thing separate or out of the record, but he can not falsify it."

In Scotland, there seems to have been a practice, in early times, of summoning debtors to pay debts by blowing a horn, out of which practice arose warrants of horning, and judgments of horning were rendered. Touching these judgments the above case from Arkansas proceeds: "There is a a case in 4 Bing. 686, (Douglass et al., assignees, v. Forest ex. of Hunter,) where, in an action in England, on one of these judgments of horning, it was contended that the judgment should be held as a nullity, upon the principal of universal justice, as the counsel expressed it, there having been no notice previous to the judgment of horning. But the English Court refused to so hold, and said: 'On this question we agree with the defendant's counsel, that if these decrees are repugnant to the principles of universal justice, this Court ought not to give effect to them. But we think these decrees are perfectly consistent with the principles of justice. If we hold that they were not consistent with the principles of justice, we should condemn some of the proceedings of our own Courts." But see 4 Black. Comm. 283, note. But these are judgments obtained, as we take it, against resident citizens of the State, who may be temporarily concealed or absent, so that actual notice can not be given to them. Story, in his Conflict of Laws, shows this. Sec. 557 et seq.

In England

the doctrine of expatriation is not admitted, and the absentees remained British subjects. These judgments against citizens may be valid, and enforced by the judicial tribunals of the State where rendered, and might be respected by other States of the Union, under the constitutional provision requir ing faith to be given in other States to the judgments of each, because, in these judgments, jurisdiction is legally obtained, though they might or might not be respected by the Courts of foreign nations, who act upon international courtesy, not

Beard et al. v. Beard.

upon the binding obligation of law. See Jeter v. Hewitt et al., 22 How. (U. S.) Rep. 352. Thus, Chief Justice Marshall, in Rose v. Himely, 2 Cond. Rep. 98, says: "Of its own jurisdiction, so far as depends on municipal rules, the Court of a foreign nation must judge, and its decision must be respected. But, if it exercises a jurisdiction which, according to the law of nations, its sovereign could not confer, however available its sentences may be within the dominions of the Prince from whom the authority is derived, they are not regarded by foreign courts. This distinction is taken upon this principle, that the law of nations is the law of all tribunals in the society of nations, and is supposed to be equally understood by all."

But, notwithstanding a State may authorize its Courts to render personal judgment, upon constructive notice against its citizens, it can not, as we think, authorize such a judgment, upon such notice, against a citizen of another State, resident in such other State, unless such citizen submits himself to the jurisdiction of the Court in which the action against him is instituted, by voluntarily appearing in person or by agent.

Says Mr. Wheaton: "The practice which prevails, in some countries, of proceeding against absent parties," [foreigners] "by means of some formal public notice, like that of the viis et modis of the Roman civil law, without actual personal notice of the suit, can not be reconciled with the principles of international justice." Law. Wheat. Int. Law, p. 288. Again, he says, "the judicial power of every State may be extended to all controversies respecting personal rights and contracts, or injuries to the person or property, when the party resides within the territory, wherever the cause of action may have originated." Id. 285. And again: "The judicial power of every State extends to all civil proceedings in rem, relating to real or personal property within the territory." Id. 280.

Beard et al. v. Beard.

But a State can not give its laws or jurisdiction an extraterritorial operation upon citizens or property of another State. Sturgis v. Fay, 16 Ind. 429; Roche v. Washington, 19 Ind. p. 59; Eaton and Hamilton, &c., Co. v. Hunt et al., 20 Ind. 457; and see same vol. p. 492. "The authority of every judicial tribunal, and the obligation to obey it, are circumscribed by the limits of the territory in which it is established." 2 Burge Conff. 1044, cited in 2 Am. Leading Cases, at p. 806.

[Now, in the case at bar, John Beard was a non-resident, or he was not. If he was a resident of the State, temporarily absent, notice by publication was not authorized by law, and was, therefore, void, under the State law. In such a case, that is, of temporary absence of a resident of the State, notice must be given by leaving a copy of process at his last place of residence Johnson v. Patterson, 12 Ind. 471; Sturgis v. Fay, supra. If he was a non-resident, then the Courts of this State could render no personal money judgment against him, though the judgment for divorce, acting simply upon the contract, and for its dissolution, would be operative.) Wilcox v. Wilcox, 10 Ind. 436, and cases cited. The plaintiff proceeded against John Beard as a non-resident, he never submitted to the jurisdiction of the Court, and jurisdiction, therefore, to render the judgment for alimony against him was not obtained. 2 Am. Leading Cases, p. 805, et seq.; Harris v. Hardeman, 14 How. (U. S.) Rep. 334; Webster v. Raid, 11 id. 437; Williamson v. Berry, 8 id. 495. John Beard was a non-resident. The right of expatriation exists between the States and the judgment in question would have been worthless in Kansas. Arcy v. Ketchum et al., 11 How. 165. It ought to be here. It was not obtained by due course of law, with right of jury trial. The judgment against John Beard for alimony is reversed, as is also, of consequence, the judgment against the Indiana Central Railway Co. How it

Johnson v. The State.

would have been, had the attachment formed a part of the original suit for divorce, we have not inquired.

Per Curiam.-The judgment is reversed, with costs. Cause remanded.

Newcomb & Tarkington, for the appellant.

JOHNSON V. THE STATE.

CRIMINAL LAW AND PRACTICE EVIDENCE.-In a criminal trial upon indictment, after the State has introduced her testimony, and the defendant has introduced his, but has not attempted to impeach the witnesses produced by the State, it would be error to allow the State to introduce testimony as to the general moral character, or standing for integrity, of her witnesses. The character of a witness is presumed to be good until impeached.

APPEAL from the Knox Circuit Court.

WORDEN, J.-The appellant, together with four others, was indicted for the murder of George Purcell.

The appellant was tried, convicted, and sentenced to imprisonment in the State Prison for life.

On the trial of the cause the State introduced and examined as a witness one William F. Smith. After the defendant's evidence had been introduced, the general character of said Smith not having been impeached, the State, by way of rebutting, introduced a witness who was acquainted with the general moral character of the witness, Smith, and offered to prove what that character was, but this evidence, on objection being made by the defendant, was excluded, and, as we think, rightly. But the Court permitted the same witness and several others, to testify as to Smith's "standing for integrity."