against a foreign corporation or an absent individual who has done business within a state may be rested.

First: The theory that such a corporation or individual is found where his agent regularly and in the course of business acts for him. This was the earliest theory developed to account for actions against a foreign corporation, and has several times been accepted by judges of the Supreme Court of the United States. That it is still active is shown by several late decisions based upon it.47

Second: That a foreign corporation may be allowed by statute to do business within the state only if it consents to be sued, and the doing business is the expression of such consent. This is therefore an instance of jurisdiction by consent. This consent has in course of time come pretty near to being fictitious; it is said to be presumed; but in theory the consent of the corporation is by the prevailing view today regarded as the basis of jurisdiction.48

Third: A theory has lately been suggested by Judge Learned Hand,49 which may be formulated as follows: By causing a particular act to be done within a state, the corporation submits the act to the provisions of the state law with respect to liabilities growing out of the act. One such liability may (if so provided by statute) be the obligation to submit all litigation growing out of the act to the courts of the state.50

There can be no doubt that the first theory is contrary to the principles of law, and in particular to the doctrine that a corporation, being a mere creature of law, cannot exist, as such, outside the state of charter. If indeed we follow Mr. Henderson in his desire to assimilate our corporation to the European "Society," and allow it to stand in justice as a natural associated person, irrespective of incorporation, the difficulty would disappear (though no one has yet reckoned up the other difficulties which might be created); but until we are allowed to deal with a partnership as an existing entity, it seems that the benefits of this theory are barred to us. The second theory, that of consent to jurisdiction expressed

47 Golden v. Connersville Wheel Co., 252 Fed. 904 (1918); Empire Fuel Co. v. Lyons, 257 Fed. 890 (1919).

48 Flinn v. Western M. L. Assoc., 171 N. W. (Ia.) 711 (1919); Citizens' Nat. Bank v. Consolidated Glass Co., 97 S. E. (W. Va.) 689 (1919).

49 Smolik v. Philadelphia & R. C. Co., 222 Fed. 148 (1915).

50 These theories are expounded by Henderson, op. cit., 77-100; Scott, op. cil., 879-884.

by action, must still be regarded as the orthodox theory, though many late decisions are no doubt difficult to reconcile with it. Judge Hand's theory of forced submission to jurisdiction may ultimately prevail; but hitherto the jurisdiction of a court over foreigners has been jealously guarded, and it has been expressly held that the fact that an act has been done within a state does not give that state jurisdiction to render a judgment against the absent doer of the act.51

III. This being the confused state of the authorities as to corporations, what is the power of a state to exercise jurisdiction over an absent individual who has carried on business within the state? On this point there seems to be no difference of opinion in the decisions. The matter has been authoritatively settled by the Supreme Court of the United States in Flexner v. Farson.52 In that case it appeared that a partnership containing Illinois partners was doing business in Kentucky through a resident partner. A Kentucky statute authorized service against absent partners who had done business in the state, by serving on the resident agent. A suit had been brought against the partnership in Kentucky, service made as directed in the statute, and judgment rendered. Suit was brought on the judgment in Illinois and the courts in that state refused to recognize the judgment. On appeal to the Supreme Court of the United States the court upheld the Illinois action.53 The decisions allowing action against foreign corporations were urged as authorities; but Mr. Justice Holmes said:

"The consent that is said to be implied in such cases is a mere fiction, founded upon the accepted doctrine that the States could exclude foreign corporations altogether, and therefore could establish this obligation as a condition to letting them in. . . . The State had no power to exclude the defendants, and on that ground without going farther the Supreme Court of Illinois rightly held that the analogy failed, and that the Kentucky judgment was void."

This decision is criticized, and an attempt made to limit its operation, by Professor Scott,54 who appears to accept Judge Hand's theory of jurisdiction over corporations. And indeed upon that

51 Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670.

52 248 U. S. 289, 39 Sup. Ct. Rep. 97 (1919).

53 A similar decision was reached in Knox v. Wagner, 209 S. W. (Tenn.) 638 (1919). 54 Op. cit. 884-891.

theory there can be no just basis for a distinction between corporations and individuals doing business within the state. It seems that the only theory upon which a distinction may be made is the theory of consent, upon which Mr. Justice Holmes' opinion is based.55

IV. The subject of "Jurisdiction to Annul a Marriage" has been illuminated by an article by Professor Herbert F. Goodrich.56 He finds an irreconcilable conflict in the decisions, both English and American, and makes the interesting suggestion that "nullity of marriage" be abolished, and that all actions to free parties from a marriage, actual or alleged, be actions for divorce.

Theoretically, the law that created the marriage should alone have power to declare effectively and in rem that it never existed. Practically the courts are confused in the matter. In Bays v. Bays,57 where New York parties had been married in Pennsylvania, the court avoided the difficulty:

"The plaintiff has resorted to the courts of this state to determine his rights, and I shall hold that under the laws of this state he has contracted a valid marriage."

V. The jurisdiction to grant judicial separation is quite distinct from jurisdiction either to divorce or to annul. That residence of the applicant is enough, domicil not being necessary, was held in Armytage v. Armytage,58 where also custody of children was awarded. In that case the respondent also resided in England, though his domicil was abroad. The decision was followed in Anghinelli v. Anghinelli.59 In this case it was objected that only the domiciliary court could affect a man's status; but the court replied that a judicial separation does not affect the marital status in any way.

In Wilder v. Wilder 60 the court took jurisdiction of a suit for judicial separation and custody of the children though the respond

55 It is true that Professor Scott points out that while an individual may not be excluded from the state, his actions within the state can be regulated by the state; and that there is no essential difference in this respect between a corporation and an individual. This is true; but it seems important only upon Judge Hand's theory.

ent was a nonresident not served with process. This decision seems a sound one. The court should certainly not hesitate to protect a wife against marital aggression simply because it cannot reach the husband. Yet one is led to ask, What is the nature of the jurisdiction? It cannot be in rem, because it does not affect the marital status; if process against the husband is unnecessary, it cannot be in personam. It is submitted that the jurisdiction is not judicial at all; that the court is in such a case exercising an executive function, that of protecting the woman and preserving her from a breach of the peace. In this aspect the jurisdiction is the same as the jurisdiction of Chancery to adjudge a person insane and appoint a guardian; an exercise of executive power delegated by the king for the protection of his subjects. A court exercising this jurisdiction may appoint a guardian for a nonresident insane person.61

STATUS

I. The question whether marriage could take place when the parties were not in the presence of one another became a very important one during the late war. There were many American soldiers in France who desired to marry women they had left behind in America. The government received various opinions from eminent counsel. One example of such marriage, marriage by proxy, was legal in the Middle Ages; it had been expressly abolished in France, but never in England or America. Professor Lorenzen, in a learned and convincing article,62 argued in favor of its possibility under American law. During the year was decided a case of alleged marriage, where the man in Minnesota framed a written agreement that the parties should thenceforth be married, and mailed it to the woman in Missouri, who signed the agreement and mailed it back. Neither state required any particular form or ceremony for marriage. The court held that the parties were married in Missouri, where the contract was completed by acceptance.63 This decision seems eminently sound. In most states neither a particular ceremony nor the declaration of clergyman or magistrate is needed to create a marriage. If such ceremony is required,

61 Bliss v. Bliss, 104 Atl. (Md.) 467 (1918).

62 32 HARV. L. Rev. 473.

63 Great Northern Ry. v. Johnson, 254 Fed. 683 (1918); for comment see 32 HARV. L. REV. 848.

of course an absent party cannot be married- unless, indeed, he is represented by a proxy. But if no required ceremony demands the presence of both parties, there is no reason for supposing that the medieval doctrine permitting marriage between absent parties does not still prevail.

II. A confusion between a status and the legal incidents of a status is common, and two recent cases seem to illustrate it.

In Coldingham Parish Council v. Smith 64 the father of a Scotch adult lived in England; the son became a pauper. The Scotch poor law makes the parent of an adult pauper liable for his support, but he is not so liable under the English law. The court held that the English father was not bound to support the Scotch pauper, on the ground that "the liability of a father to maintain his son must be determined by the law of the father's domicil."

In Paquin v. Westervelt 65 a husband domiciled in Connecticut was sued by an English corporation for necessaries supplied in London to the wife. The Connecticut law made the husband liable for all goods furnished for the support of any member of his family. The court held this husband liable. The line of argument was that the relation of the parties created a status; that one of the incidents of the status is this obligation of the husband; that if the law did not apply to the transaction in London it would "shift the incidents of the marriage status according to the accident of locality, while the parties all the time remained residents of this state."

These cases seem to the author to be correctly decided, but quite on the wrong ground. Both are cases of alimentation, the Connecticut case being an obligation to support recognized by the common law, the English case a statutory obligation. It is submitted that such an obligation is based upon a local policy looking to the support of helpless persons, and must be created by the law of the place where the support is needed, that is, the place where the dependent resides for the time being. It is not true, in our law, that the domiciliary law creates both status and incidents of the status; the law of the domicil creates the static right, but the enjoyment of this right depends upon the law of the place where the party to the status desires to enjoy it.6 Upon this principle

64 [1918] 2 K. B. 90.

65 106 Atl. (Conn.) 766 (1919).

66 Polydore v. Prince, Ware (U. S.) 402 (1837). See this matter discussed more at large in my TREATISE ON THE CONFLICT OF LAWS, Part I, 182, 183.