1

Conflict of laws
Hilton v. Guyot, 159 U.S. 113 (1895)
A citizen and resident of this country who has his principal place of business here
but has an agent in a foreign country and is accustomed to purchase and store
large quantities of goods there, and, in a suit brought against him by a citizen and
in a court of that country, appears and defends with the sole object of preventing
his property within the jurisdiction, but not in the custody of that court, from being
taken in satisfaction of any judgment that may be recovered against him there
cannot, in an action brought against him in this country upon such a judgment,
impeach it for want of jurisdiction of his person.
The admission at the trial in a court of a foreign country, according to its law and
practice, of testimony not under oath and without opportunity of crossexamination, and of documents with which the defendant had no connection and
which by our law would not be admissible against him, is not of itself a sufficient
ground for impeaching the judgment of that court in an action brought upon it in
this country.
When an action is brought in a court of this country by a citizen of a foreign
country against one of our own citizens to recover a sum of money adjudged by a
court of that country to be due from the defendant to the plaintiff, and the foreign
judgment appears to have been rendered by a competent court, having
jurisdiction of the cause and of the parties, and upon due allegations and proofs
and opportunity to defend against them, and its proceedings are according to the
course of a civilized jurisprudence, and are stated in a clear and formal record,
the judgment is prima facie evidence, at least, of the truth of the matter adjudged,
and the judgment is conclusive upon the merits tried in the foreign court unless
some special ground is shown for impeaching it, as by showing that it was
affected by fraud or prejudice or that, by the principles of international law and by
the comity of our own country, it is not entitled to full credit and credit.
A judgment for a sum of money, rendered by a court of a foreign country, having
jurisdiction of the cause and of the parties, in a suit brought by
one of its citizens against one of ours, is prima facie evidence only, and not
conclusive of the merits of the claim in an action brought here upon the judgment
if by the law of the foreign country, as in France, judgments of our own courts are
not recognized as conclusive.

The first of these two cases was an action at law, brought December 18, 1885, in
the Circuit Court of the United States for the Southern District of New York, by
Gustave Bertin Guyot, as official liquidator of the firm of Charles Fortin & Co., and
by the surviving members of that firm, all aliens and citizens of the Republic of
France, against Henry Hilton and William Libbey, citizens of the United States
and of the State of New York and trading as copartners in the cities of New York
and Paris and elsewhere under the firm name of A. T. Stewart & Co. The action
was upon a judgment recovered in a French court at Paris, in the Republic of
France, by the firm of Charles Fortin & Co., all of whose members were French
citizens, against Hilton & Libbey, trading as copartners, as aforesaid, and citizens
of the United States and of the State of New York.
The complaint alleged that in 1886 and since, during the time of all the
transactions included in the judgment sued on, Hilton and Libbey, as successors
to Alexander T. Stewart and Libbey, under the firm name of A. T. Stewart & Co.,
carried on a general business as merchants in the Cities of New York and Paris
and elsewhere, and maintained a regular store and place of business at Paris;
that during the same time, Charles Fortin & Co. carried on the manufacture and
sale of gloves at Paris, and the two firms had there large dealings in that
business, and controversies arose in the adjustment of accounts between them.
The complaint further alleged that between March 1, 1879, and December 1,
1882, five suits were brought by Fortin & Co. against Stewart & Co. for sums
alleged to be due, and three suits by Stewart & Co. against Fortin & Co., in the
Tribunal of Commerce of the Department of the Seine, a judicial tribunal or court
organized and existing under the laws of France, sitting at Paris and having
jurisdiction of suits and controversies between merchants or traders growingout
of commercial dealings between them; that Stewart & Co. appeared by their
authorized attorneys in all those suits, and that, after full hearing before an
arbitrator appointed by that court and before the court itself, and after all the suits
had been consolidated by the court, final judgment was rendered on January 20,
1883, that Fortin & Co. recover of Stewart & Co. various sums, arising out of the
dealings between them, amounting to 660,847 francs, with interest, and
dismissed part of Fortin & Co.'s claim.
The complaint further alleged that appeals were taken by both parties from that
judgment to the Court of Appeal of Paris, Third Section, an appellate court of
record organized and existing under the laws of the Republic of France and
having jurisdiction of appeals from the final judgments of the Tribunal of
Commerce of the Department of the Seine, where the amount in dispute

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Conflict of laws
exceeded the sum of 1,500 francs, and that the said Court of Appeal, by a final
judgment rendered March 19, 1884, and remaining of record in the office of its
clerk at Paris, after hearing the several parties by their counsel, and upon full
consideration of the merits, dismissed the appeal of the defendants, confirmed
the judgment of the lower court in favor of the plaintiffs, and ordered, upon the
plaintiffs' appeal, that they recover the additional sum of 152,528 francs, with
182,849 francs for interest on all the claims allowed, and 12,559 francs for costs
and expenses.
The complaint further alleged that Guyot had been duly appointed by the Tribunal
of Commerce of the Department of the Seine official liquidator of the firm of Forth
& Co., with full powers, according to law and commercial usage, for the
verification and realization of its property, both real and personal, and to collect
and cause to be executed the judgments aforesaid.
The complaint further alleged that the judgment of the Court of Appeals of Paris,
and the judgment of the Tribunal of Commerce, as modified by the judgment of
the appellate court, still remain in full force and effect; that the said courts
respectively had jurisdiction of the subject matter of the controversies so
submitted to them, and of the parties, the said defendants having intervened, by
their attorneys and counsel, and applied for affirmative relief in both courts; that
the plaintiffs have hitherto been unable to collect the said judgments or any part
thereof, by reason of the absence of the said defendants, they having given up
their business in Paris prior to the recovery of the said judgment on appeal, and
having left no property within the jurisdiction of the Republic of France out of
which the said judgments might be made;"and that there are still justly due and
owing from the defendants to the plaintiffs upon those said judgments certain
sums, specified in the complaint, and amounting in all to 1,008,783 francs in the
currency of the Republic of France, equivalent to $195,122.47.
The defendants, in their answer, set forth in detail the original contracts and
transactions in France between the parties and the subsequent dealings between
them modifying those contracts, and alleged that the plaintiffs had no just claim
against the defendants, but that, on the contrary, the defendants, upon a just
settlement of the accounts, were entitled to recover large sums from the plaintiffs.
The answer admitted the proceedings and judgments in the French courts and
that the defendants gave up their business in France before the judgment on
appeal, and had no property within the jurisdiction of France out of which that
judgment could be collected.

The answer further alleged that the Tribunal of Commerce of the Department of
the Seine was a tribunal whose judges were merchants, ship captains,
stockbrokers, and persons engaged in commercial pursuits, and of which
Charles Fortin had been a member until shortly before the commencement of the
litigation.
The answer further alleged that in the original suits brought against the
defendants by Fortin & Co., the citations were left at their storehouse in Paris;
that they were then residents and citizens of the State of New York, and neither
of them at that time, or within four years before, had been within, or resident or
domiciled within, the jurisdiction of that tribunal or owed any allegiance to France,
but that they were the owners of property situated in that country which would by
the law of France have been liable to seizure if they did not appear in that
tribunal, and that they unwillingly, and solely for the purpose of protecting that
property, authorized and caused an agent to appear for them in those
proceedings, and that the suits brought by them against Fortin & Co. were
brought for the same purpose, and in order to make a proper defense, and to
establish counterclaims arising out of the transactions between the parties, and
to compel the production and inspection of Fortin & Co.'s books, and that they
sought no other affirmative relief in that tribunal.
The answer further alleged that, pending that litigation, the defendants
discovered gross frauds in the accounts of Fourtin & Co., that the arbitrator and
the tribunal declined to compel Fortin & Co. to produce their books and papers
for inspection, and that, if they had been produced, the judgment would not have
been obtained against the defendants.
The answer further alleged that without any fault or negligence on the part of the
defendants, there was not a full and fair trial of the controversies before the
arbitrator, in that no witness was sworn or affirmed; in that Charles Fortin was
permitted to make, and did make, statements not under oath containing many
falsehoods; in that the privilege of cross-examination of Fortin and other persons
who made statements before the arbitrator was denied to the defendants, and in
that extracts from printed newspapers, the knowledge of which was not brought
home to the defendants, and letters and other communications in writing
between Fortin & Co. and third persons, to which the defendants were neither
privy nor party, were received by the arbitrator; that without such improper
evidence, the judgment would not have been obtained, and that the arbitrator
was deceived and misled by the false and fraudulent accounts introduced by
Fortin & Co. and by the hearsay testimony given, without the solemnity of an oath

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Conflict of laws
and without cross-examination, and by the fraudulent suppression of the books
and papers.
The answer further alleged that Fortin & Co. made up their statements and
accounts falsely and fraudulently, and with intent to deceive the defendants and
the arbitrator and the said courts of France, and those courts were deceived and
misled thereby; that owing to the fraudulent suppression of the books and papers
of Fortin & Co. upon the trial and the false statements of Fortin regarding matters
involved in the controversy, the arbitrator and the courts of France "were
deceived and misled in regard to the merits of the controversies pending before
them, and wrongfully decided against said Stewart & Co., as hereinbefore stated;
that said judgment, hereinbefore mentioned, is fraudulent, and based upon false
and fraudulent accounts and statements, and is erroneous in fact and in law, and
is void; that the trial hereinbefore mentioned was not conducted according to the
usages and practice of the common law, and the allegations and proofs given by
said Fortin & Co., upon which said judgment is founded, would not be competent
or admissible in any court or tribunal of the United States, in any suit between the
same parties involving the same subject matter, and it is contrary to natural
justice and public policy that the said judgment should be enforced against a
citizen of the United States, and that, if there had been a full and fair trial upon
the merits of the controversies so pending before said tribunals, no judgment
would have been obtained against said Stewart & Co."
"Defendants, further answering, allege that it is contrary to natural justice that the
judgment hereinbefore mentioned should be enforced without an examination of
the merits thereof; that by the laws of the Republic of France, to-wit, article 181
[121] of the Royal Ordinance of June 15, 1629, it is provided namely:"
"Judgments rendered, contracts or obligations recognized, in foreign kingdoms
and sovereignties, for any cause whatever shall give rise to no lien or execution
in our Kingdom. Thus, the contracts shall stand for simple promises, and,
notwithstanding such judgments, our subjects against whom they have been
rendered may contest their rights anew before our own judges."
"And it is further provided by the laws of France, by article 546 of the Code de
Procedure Civile, as follows:" " Judgments rendered by foreign tribunals shall be
capable of execution in France only in the manner and in the cases set forth by
articles 2123 and 2128 of the Civil Code."
"And it is further provided by the laws of France, by article 2128 [2123] of the
Code de Procedure Civile [Civil Code]:" " A lien cannot, in like manner, arise from

judgments rendered in any foreign country, save only as they have been declared
in force by a French tribunal, without prejudice, however, to provisions to the
contrary, contained in public laws and treaties."
"[And by article 2128 of that Code: 'Contracts entered into in a foreign country
cannot give a lien upon property in France if there are no provisions contrary to
this principle in public laws or in treaties.']"
"That the construction given to said statutes by the judicial tribunals of France is
such that no comity is displayed towards the judgments of tribunals of foreign
countries against the citizens of France, when sued upon in said courts of
France, and the merits of the controversies upon which the said judgments are
based are examined anew, unless a treaty to the contrary effect exists between
the said Republic of France and the country in which such judgment is obtained.
That no treaty exists between the said Republic of France and the United States,
by the terms or effect of which the judgments of either country are prevented
from being examined anew upon the merits, when sued upon in the courts of the
country other than that in which it is obtained. That the tribunals of the Republic
of France give no force and effect, within the jurisdiction of the said country, to
the duly rendered judgments of courts of competent jurisdiction of the United
States against citizens of France, after proper personal service of the process of
said courts is made thereon in this country."
The answer further set up, by way of counterclaim and in detail, various matters
arising out of the dealings between the parties, and alleged that none of the
plaintiffs had since 1881 been residents of the State of New York, or within the
jurisdiction of that state, but the defendants were, and always had been,
residents of that state.
The answer concluded by demanding that the plaintiffs'complaint be dismissed,
and that the defendants have judgment against them upon the counterclaims,
amounting to $102,942.91.
The plaintiffs filed a replication to so much of the answer as made counterclaims,
denying its allegations and setting up in bar thereof the judgment sued on. The
defendants, on June 22, 1888, filed a bill in equity against the plaintiffs setting
forth the same matters as in their answer to the action at law and praying for a
discovery and for an injunction against the prosecution of the action. To that bill a
plea was filed setting up the French judgments, and upon a hearing, the bill was
dismissed. 42 F. 249. From the decree dismissing the bill an appeal was taken,
which is the second case now before this Court.

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Conflict of laws
The action at law afterwards came on for trial by a jury, and the plaintiffs put in
the records of the proceedings and judgments in the French courts, and evidence
that the jurisdiction of those courts was as alleged in the complaint and that the
practice followed and the method of examining the witnesses were according to
the French law, and also proved the title of Guyot as liquidator.
It was admitted by both parties that for several years prior to 1876, the firm of
Alexander T. Stewart & Co., composed of Stewart and Libbey, conducted their
business as merchants in the City of New York, with branches in other cities of
America and Europe; that both partners were citizens and residents of the City
and State of New York during the entire period mentioned in the complaint, and
that in April, 1876, Stewart died, and Hilton and Libbey formed a partnership to
continue the business under the same firm name, and became the owners of all
the property and rights of the old firm.
The defendants made numerous offers of evidence in support of all the specific
allegations of fact in their answer, including the allegations as to the law and
comity of France. The plaintiffs, in their brief filed in this Court, admitted that most
of these offers "were offers to prove matters in support of the defenses and
counterclaims set up by the defendants in the cases tried before the French
courts, and which, or most of which, would have been relevant and competent if
the plaintiffs in error are not concluded by the result of those litigations, and have
now the right to try those issues, either on the ground that the French judgments
are only prima facie evidence of the correctness of those judgments, or on the
ground that the case is within the exception of a judgment obtained by fraud."
The defendants, in order to show that they should not be concluded by having
appeared and litigated in the suits brought against them by the plaintiffs in the
French courts, offered to prove that they were residents and citizens of the State
of New York, and neither of them had been, within four years prior to the
commencement of those suits, domiciled or resident within the jurisdiction of
those courts; that they had a purchasing agent and a storehouse in Paris, but
only as a means or facility to aid in the transaction of their principal business,
which was in New York, and they were never otherwise engaged in business in
France; that neither of them owed allegiance to France, but they were the owners
of property there which would, according to the laws of France, have been liable
to seizure if they had not appeared to answer in those suits; that they unwillingly,
and solely for the purpose of protecting their property within the jurisdiction of the
French tribunal, authorized an agent to appear, and he did appear in the
proceedings before it, and that their motion to compel an inspection of the
plaintiffs' books, as well as the suits brought by the defendants in France, were

necessary by way of defense or counterclaim to the suits there brought by the

plaintiffs against them.
Among the matters which the defendants alleged and offered to prove in order to
show that the French judgments were procured by fraud were that Fortin & Co.,
with intent to deceive and defraud the defendants, and the arbitrator and the
courts of France, entered in their books, and presented to the defendants, and to
the French courts, accounts bearing upon the transactions in controversy which
were false and fraudulent, and contained excessive and fraudulent charges
against the defendants in various particulars, specified; that the defendants made
due application to the Tribunal of Commerce to compel Fortin & Co. to allow their
account books and letter books to be inspected by the defendants, and the
application was opposed by Fortin & Co., and denied by the tribunal; that the
discovery and inspection of those books were necessary to determine the truth of
the controversies between the parties; that before the Tribunal of Commerce,
Charles Fortin was permitted to and did give in evidence statements not under
oath relating to the merits of the controversies there pending, and falsely
represented that a certain written contract made in 1873 between Stewart & Co.
and Fortin & Co. concerning their dealings was not intended by the parties to be
operative according to its terms, and in support of that false representation made
statements as to admissions by Stewart in a private conversation with him, and
that the defendants could not deny those statements, because Stewart was
dead, and they were not protected from the effect of Fortin's statements by the
privilege of cross-examining him under oath, and that the French judgments were
based upon false and fraudulent accounts presented and statements made by
Fortin & Co. before the Tribunal of Commerce during the trial before it.
The records of the judgments of the French courts, put in evidence by the
plaintiffs, showed that all the matters now relied on to show fraud were contested
in and considered by those courts. The plaintiffs objected to all the evidence
offered by the defendants on the grounds that the matters offered to be proved
were irrelevant, immaterial, and incompetent; that in respect to them the
defendants were concluded by the judgment sued on and given in evidence, and
that none of those matters, if proved, would be a defense to this action upon that
judgment.
The court declined to admit any of the evidence so offered by the defendants,
and directed a verdict for the plaintiffs in the sum of $277,775.44, being the
amount of the French judgment and interest. The defendants, having duly
excepted to the rulings and direction of the court, sued out a writ of error.

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Conflict of laws
The writ of error in the action at law and the appeal in the suit in equity were
argued together in this Court in January, 1894, and, by direction of the Court,
were reargued in April, 1894, before a full Bench.

G.R. No. L-18164

January 23, 1967

WILLIAM F. GEMPERLE, plaintiff-appellant,

vs.
HELEN SCHENKER and PAUL SCHENKER as her husband, defendantsappellees.
CONCEPCION, C. J.:
Appeal, taken by plaintiff, William F. Gemperle, from a decision of the Court of
First Instance of Rizal dismissing this case for lack of jurisdiction over the person
of defendant Paul Schenker and for want of cause of action against his wife and
co-defendant, Helen Schenker said Paul Schenker "being in no position to be
joined with her as party defendant, because he is beyond the reach of the
magistracy of the Philippine courts."
The record shows that sometime in 1952, Paul Schenker-hereinafter referred to
as Schenker acting through his wife and attorney-in-fact, Helen Schenker
herein-after referred to as Mrs. Schenker filed with the Court of First Instance
of Rizal, a complaint which was docketed as Civil Case No. Q-2796 thereof
against herein plaintiff William F. Gemperle, for the enforcement of Schenker's
allegedly initial subscription to the shares of stock of the Philippines-Swiss
Trading Co., Inc. and the exercise of his alleged pre-emptive rights to the then
unissued original capital stock of said corporation and the increase thereof, as
well as for an accounting and damages. Alleging that, in connection with said
complaint, Mrs. Schenker had caused to be published some allegations thereof
and other matters, which were impertinent, irrelevant and immaterial to said case
No. Q-2796, aside from being false and derogatory to the reputation, good name
and credit of Gemperle, "with the only purpose of attacking" his" honesty, integrity
and reputation" and of bringing him "into public hatred, discredit, disrepute and
contempt as a man and a businessman", Gemperle commenced the present

action against the Schenkers for the recovery of P300,000 as damages, P30,000
as attorney's fees, and costs, in addition to praying for a judgment ordering Mrs.
Schenker "to retract in writing the said defamatory expressions". In due course,
thereafter, the lower court, rendered the decision above referred to. A
reconsiderating thereof having been denied, Gemperle interposed the present
appeal.
The first question for determination therein is whether or not the lower court had
acquired jurisdiction over the person of Schenker. Admittedly, he, a Swiss citizen,
residing in Zurich, Switzerland, has not been actually served with summons in
the Philippines, although the summons address to him and Mrs. Schenker had
been served personally upon her in the Philippines. It is urged by plaintiff that
jurisdiction over the person of Schenker has been secured through voluntary
appearance on his part, he not having made a special appearance to assail the
jurisdiction over his person, and an answer having been filed in this case, stating
that "the defendants, by counsel, answering the plaintiff's complaint, respectfully
aver", which is allegedly a general appearance amounting to a submission to the
jurisdiction of the court, confirmed, according to plaintiff, by a P225,000
counterclaim for damages set up in said answer; but this counterclaim was set up
by Mrs. Schenker alone, not including her husband. Moreover, said answer
contained several affirmative defenses, one of which was lack of jurisdiction over
the person of Schenker, thus negating the alleged waiver of this defense.
Nevertheless, We hold that the lower court had acquired jurisdiction over said
defendant, through service of the summons addressed to him upon Mrs.
Schenker, it appearing from said answer that she is the representative and
attorney-in-fact of her husband aforementioned civil case No. Q-2796, which
apparently was filed at her behest, in her aforementioned representative capacity.
In other words, Mrs. Schenker had authority to sue, and had actually sued on
behalf of her husband, so that she was, also, empowered to represent him in
suits filed against him, particularly in a case, like the of the one at bar, which is
consequence of the action brought by her on his behalf.
Inasmuch as the alleged absence of a cause of action against Mrs. Schenker is
premised upon the alleged lack of jurisdiction over the person of Schenker, which
cannot be sustained, it follows that the conclusion drawn therefore from is,
likewise, untenable.

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Wherefore, the decision appealed from should be, is hereby, reversed, and the
case remanded to the lower court for proceedings, with the costs of this instance
defendants-appellees. It is so ordered.

Pennoyer v. Neff, 95 U.S. 714 (1878)

1. A statute of Oregon, after providing for service of summons upon parties or
their representatives, personally or at their residence, declares that, when service
cannot be thus made, and the defendant, after due diligence, cannot be found
within the State, and "that fact appears, by affidavit, to the satisfaction of the
court or judge thereof, and it, in like manner, appears that a cause of action
exists against the defendant, or that he is a proper party to an action relating to
real property in the State, such court or judge may grant an order that the service
be made by publication of summons . . . when the defendant is not a resident of
the State, but has property therein, and the court has jurisdiction of the subject of
the action," -- the order to designate a newspaper of the county where the action
is commenced in which the publication shall be made -- and that proof of such
publication shall be "the affidavit of the printer, or his foreman, or his principal
clerk."
Held, that defects in the affidavit for the order can only be taken advantage of on
appeal, or by some other direct proceeding, and cannot be urged to impeach the
judgment collaterally, and that the provision as to proof of the publication is
satisfied when the affidavit is made by the editor of the paper.
2. A personal judgment is without any validity if it be rendered by a State court in
an action upon a money demand against a nonresident of the State who was
served by a publication of summons, but upon whom no personal service of
process within the State was made, and who did not appear; and no title to
property passes by a sale under an execution issued upon such a judgment.

3. The State, having within her territory property of a nonresident, may hold and
appropriate it to satisfy the claims of her citizens against him, and her tribunals
may inquire into his obligations to the extent necessary to control the disposition
of that property. If he has no property in the State, there is nothing upon which
her tribunals can adjudicate.
4. Substituted service by publication, or in any other authorized form, is sufficient
to inform a nonresident of the object of proceedings taken where property is once
brought under the control of the court by seizure or some equivalent act, but
where the suit is brought to determine his personal rights and obligations, that is,
where it is merely in personam, such service upon him is ineffectual for any
purpose.
5. Process from the tribunals of one State cannot run into another State and
summon a party there domiciled to respond to proceedings against him, and
publication of process or of notice within the State in which the tribunal sits
cannot create any greater obligation upon him to appear. Process sent to him out
of the State, and process published within it, are equally unavailing in
proceedings to establish his personal liability.
6. Except in cases affecting the personal status of the plaintiff, and in those
wherein that mode of service may be considered to have been assented to in
advance, the substituted service of process by publication allowed by the law of
Oregon and by similar laws in other States where actions are brought against
nonresidents is effectual only where, in connection with process against the
person for commencing the action, property in the State is brought under the
control of the court and subjected to its disposition by process adapted to that
purpose, or where the judgment is sought as a means of reaching such property
or affecting some interest therein; in other words, where the action is in the
nature of a proceeding in rem.
7. Whilst the courts of the United States are not foreign tribunals in their relations
to the State courts, they are tribunals of a different sovereignty, and are bound to
give a judgment of a State court only the same faith and credit to which it is
entitled in the courts of another State.

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8. The term "due process of law," when applied to judicial proceedings, means a
course of legal proceedings according to those rules and principles which have
been established by our jurisprudence for the protection and enforcement of
private rights. To give such proceedings any validity, there must be a competent
tribunal to pass upon their subject matter, and if that involves merely a
determination of the personal liability of the defendant, he must be brought within
its jurisdiction by service of process within the State, or by his voluntary
appearance.
This action was brought by Neff against Pennoyer for the recovery of a tract of
land situated in Multnomah County, Oregon. Pennoyer, in his answer, denied
Neff's title and right to possession, and set up a title in himself.
By consent of parties, and in pursuance of their written stipulation filed in the
case, the cause was tried by the court, and a special verdict given, upon which
judgment was rendered in favor of Neff; whereupon Pennoyer sued out this writ
of error.
The parties respectively claimed title as follows: Neff under a patent issued to
him by the United States, March 19,1866; and Pennoyer by virtue of a sale made
by the sheriff of said county, under an execution sued out upon a judgment
against Neff, rendered Feb. 19, 1866, by the Circuit Court for said county, in an
action wherein he was defendant and J. H. Mitchell was plaintiff. Neff was then a
nonresident of Oregon.
In Mitchell v. Neff, jurisdiction of Neff was obtained by service of summons by
publication. Pennoyer offered in evidence duly certified copies of the complaint,
summons, order for publication of summons, affidavit of service by publication,
and the judgment in that case, to the introduction of which papers the plaintiff
objected because, 1, said judgment is in personam, and appears to have been
given without the appearance of the defendant in the action or personal service
of the summons upon him, and while he was a nonresident of the State, and is,
therefore, void; 2, said judgment is not in rem, and therefore constitutes no basis
of title in the defendant; 3, said copies of complaint, &c., do not show jurisdiction
to give the judgment alleged, either in rem or personam; and, 4, it appears from
said papers that no proof of service by publication was ever made, the affidavit

thereof being made by the "editor" of the "Pacific Christian Advocate," and not by
"the printer, or his foreman or principal clerk." The court admitted the evidence
subject to the objections.
The finding of the court in regard to the facts bearing upon the asserted
jurisdiction of the State court is as follows: --That, on Nov. 13, 1865, Mitchell
applied to said Circuit Court, upon his own affidavit of that date, for an order
allowing the service of the summons in said action to be made upon Neff by
publication thereof, whereupon said court made said order, in the words
following: "Now, at this day, comes the plaintiff in his proper person, and by his
attorneys, Mitchell and Dolph, and files affidavit of plaintiff, and motion for an
order of publication of summons, as follows, to wit:"
"Now comes the plaintiff, by his attorneys, and upon the affidavit of plaintiff,
herewith filed, moves the court for an order of publication of summons against
defendant, as required by law, he being a nonresident;" "and it appearing to the
satisfaction of the court that the defendant cannot, after due diligence, be found
in this State, and that he is a nonresident thereof, that his place of residence is
unknown to plaintiff, and cannot, with reasonable diligence, be ascertained by
him, and that the plaintiff has a cause of action of action against defendant, and
that defendant has property in this county and State, it is ordered and adjudged
by the court that service of the summons in this action be made by publication for
six weeks successively in the 'Pacific Christian Advocate,' a weekly newspaper
published in Multnomah County, Oregon, and this action is continued for such
service."
That the affidavit of plaintiff, referred to in said order, is in the words following:
"I, J. H. Mitchell, being first duly sworn, say that the defendant, Marcus Neff, is a
nonresident of this State; that he resides somewhere in the State of California, at
what place affiant knows not, and he cannot be found in this State; that plaintiff
has a just cause of action against defendant for a money demand on account;
that this court has jurisdiction of such action; that the defendant has property in
this county and State."

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That the complaint in said action was verified and filed on Nov. 3, 1865, and
contained facts tending to prove that, at that date, said Mitchell had a cause of
action against said Neff for services as an attorney, performed "between Jan. 1,
1862, and May 15, 1863." That the entry of judgment in said action contained the
following averments:
"And it appearing to the court that the defendant was, at the time of the
commencement of this action, and ever since has been, a nonresident of this
State; and it further appearing that he has property in this State, and that
defendant had notice of the pendency of this action by publication of the
summons for six successive weeks in the 'Pacific Christian Advocate,' a weekly
newspaper of general circulation published in Multnomah County, State of
Oregon, the last issue of which was more than twenty days before the first day of
this term."
That the affidavit showing the publication of the summons in the "Advocate"
aforesaid was made as stated therein by the "editor" of that paper. That said
complaint, summons, affidavit of Mitchell and of the "editor" of the "Advocate"
aforesaid, and entry of judgment, were in the judgment roll, made up by the clerk
in the case, but the order for publication of the summons aforesaid was not
placed in said roll by said clerk, but remains on the files of said court; and that,
when said court made said order for publication, and gave said judgment against
Neff, the only evidence it had before it to prove the facts necessary to give it
jurisdiction therefor, and particularly to authorize it to find and state that Neff's
residence was unknown to Mitchell, and could not, with reasonable diligence, be
ascertained by him, and that Neff had notice of the pendency of said action by
the publication of the summons as aforesaid, was, so far as appears by the said
roll and the records and files of the said court, the said complaint and affidavits of
Mitchell and the editor of the "Advocate."
The statute of Oregon at the time of the commencement of the suit against Neff
was as follows: -- "SECT. 55. When service of the summons cannot be made as
prescribed in the last preceding section, and the defendant, after due diligence,
cannot be found within the State, and when that fact appears, by affidavit, to the
satisfaction of the court or judge thereof, or justice in an action in a justice's court,
and it also appears that a cause of action exists against the defendant, or that he

is a proper party to an action relating to real property in this State, such court or
judge or justice may grant an order that the service be made by publication of
summons in either of the following cases: . . ."
"3. When the defendant is not a resident of the State, but has property therein,
and the court has jurisdiction of the subject of the action."
"SECT. 56. The order shall direct the publication to be made in a newspaper
published in the county where the action is commenced, and, if no newspaper be
published in the county, then in a newspaper to be designated as most likely to
give notice to the person to be served, and for such length of time as may be
deemed reasonable, not less than once a week for six weeks. In case of
publication, the court or judge shall also direct a copy of the summons and
complaint to be forthwith deposited in the post office, directed to the defendant, at
his place of residence, unless it shall appear that such residence is neither
known to the party making the application, nor can, with reasonable diligence, be
ascertained by him. When publication is ordered, personal service of a copy of
the summons and complaint out of the State shall be equivalent to publication
and deposit in the post office. In either case, the defendant shall appear and
answer by the first day of the term following the expiration of the time prescribed
in the order for publication; and, if he does not, judgment may be taken against
him for want thereof. In case of personal service out of the State, the summons
shall specify the time prescribed in the order for publication."
"SECT. 57. The defendant against whom publication is ordered, or his personal
representatives, on application and sufficient cause shown, at any time before
judgment, shall be allowed to defend the action; and the defendant against whom
publication is ordered, or his representatives, may in like manner, upon good
cause shown, and upon such terms as may be proper, be allowed to defend after
judgment, and within one year after the entry of such judgment, on such terms as
may be just; and, if the defence be successful, and the judgment or any part
thereof have been collected or otherwise enforced, such restitution may
thereupon be compelled as the court shall direct. But the title to property sold
upon execution issued on such judgment to a purchaser in good faith shall not be
thereby affected."

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"SECT. 60. Proof of the service of summons shall be, in case of publication, the
affidavit of the printer, or his foreman, or his principal clerk, showing the same."
MR. JUSTICE FIELD delivered the opinion of the court.
This is an action to recover the possession of a tract of land, of the alleged value
of $15,000, situated in the State of Oregon. The plaintiff asserts title to the
premises by a patent of the United States issued to him in 1866, under the act of
Congress of Sept. 27, 1850, usually known as the Donation Law of Oregon. The
defendant claims to have acquired the premises under a sheriff's deed, made
upon a sale of the property on execution issued upon a judgment recovered
against the plaintiff in one of the circuit courts of the State. The case turns upon
the validity of this judgment.
It appears from the record that the judgment was rendered in February, 1866, in
favor of J. H. Mitchell, for less than $300, including costs, in an action brought by
him upon a demand for services as an attorney; that, at the time the action was
commenced and the judgment rendered, the defendant therein, the plaintiff here,
was a nonresident of the State; that he was not personally served with process,
and did not appear therein; and that the judgment was entered upon his default
in not answering the complaint, upon a constructive service of summons by
publication.
The Code of Oregon provides for such service when an action is brought against
a nonresident and absent defendant who has property within the State. It also
provides, where the action is for the recovery of money or damages, for the
attachment of the property of the nonresident. And it also declares that no natural
person is subject to the jurisdiction of a court of the State
"unless he appear in the court, or be found within the State, or be a resident
thereof, or have property therein; and, in the last case, only to the extent of such
property at the time the jurisdiction attached."
Construing this latter provision to mean that, in an action for money or damages
where a defendant does not appear in the court, and is not found within the
State, and is not a resident thereof, but has property therein, the jurisdiction of

the court extends only over such property, the declaration expresses a principle
of general, if not universal, law. The authority of every tribunal is necessarily
restricted by the territorial limits of the State in which it is established. Any
attempt to exercise authority beyond those limits would be deemed in every other
forum, as has been said by this Court, an illegitimate assumption of power, and
be resisted as mere abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case
against the plaintiff, the property here in controversy sold under the judgment
rendered was not attached, nor in any way brought under the jurisdiction of the
court. Its first connection with the case was caused by a levy of the execution. It
was not, therefore, disposed of pursuant to any adjudication, but only in
enforcement of a personal judgment, having no relation to the property, rendered
against a nonresident without service of process upon him in the action or his
appearance therein. The court below did not consider that an attachment of the
property was essential to its jurisdiction or to the validity of the sale, but held that
the judgment was invalid from defects in the affidavit upon which the order of
publication was obtained and in the affidavit by which the publication was proved.
There is some difference of opinion among the members of this Court as to the
rulings upon these alleged defects. The majority are of opinion that, inasmuch as
the statute requires, for an order of publication, that certain facts shall appear by
affidavit to the satisfaction of the court or judge, defects in such affidavit can only
be taken advantage of on appeal, or by some other direct proceeding, and
cannot be urged to impeach the judgment collaterally. The majority of the court
are also of opinion that the provision of the statute requiring proof of the
publication in a newspaper to be made by the "affidavit of the printer, or his
foreman, or his principal clerk" is satisfied when the affidavit is made by the editor
of the paper. The term "printer," in their judgment, is there used not to indicate the
person who sets up the type -- he does not usually have a foreman or clerks -- it
is rather used as synonymous with publisher. The Supreme Court of New York so
held in one case; observing that, for the purpose of making the required proof,
publishers were "within the spirit of the statute." Bunce v. Reed, 16 Barb. (N. Y.)
350. And, following this ruling, the Supreme Court of California held that an
affidavit made by a "publisher and proprietor" was sufficient. Sharp v.
Daugney, 33 Cal. 512. The term "editor," as used when the statute of New York
was passed, from which the Oregon law is borrowed, usually included not only
the person who wrote or selected the articles for publication, but the person who
published the paper and put it into circulation. Webster, in an early edition of his

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Dictionary, gives as one of the definitions of an editor, a person "who
superintends the publication of a newspaper." It is principally since that time that
the business of an editor has been separated from that of a publisher and printer,
and has become an independent profession.
If, therefore, we were confined to the rulings of the court below upon the defects
in the affidavits mentioned, we should be unable to uphold its decision. But it was
also contended in that court, and is insisted upon here, that the judgment in the
State court against the plaintiff was void for want of personal service of process
on him, or of his appearance in the action in which it was rendered and that the
premises in controversy could not be subjected to the payment of the demand
of a resident creditor except by a proceeding in rem, that is, by a direct
proceeding against the property for that purpose. If these positions are sound,
the ruling of the Circuit Court as to the invalidity of that judgment must be
sustained notwithstanding our dissent from the reasons upon which it was made.
And that they are sound would seem to follow from two well established
principles of public law respecting the jurisdiction of an independent State over
persons and property. The several States of the Union are not, it is true, in every
respect independent, many of the right and powers which originally belonged to
them being now vested in the government created by the Constitution. But,
except as restrained and limited by that instrument, they possess and exercise
the authority of independent States, and the principles of public law to which we
have referred are applicable to them. One of these principles is that every State
possesses exclusive jurisdiction and sovereignty over persons and property
within its territory. As a consequence, every State has the power to determine for
itself the civil status and capacities of its inhabitants; to prescribe the subjects
upon which they may contract, the forms and solemnities with which their
contracts shall be executed, the rights and obligations arising from them, and the
mode in which their validity shall be determined and their obligations enforced;
and also the regulate the manner and conditions upon which property situated
within such territory, both personal and real, may be acquired, enjoyed, and
transferred. The other principle of public law referred to follows from the one
mentioned; that is, that no State can exercise direct jurisdiction and authority
over persons or property without its territory. Story, Confl. Laws, c. 2; Wheat. Int.
Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the
independence of one implies the exclusion of power from all others. And so it is

laid down by jurists as an elementary principle that the laws of one State have no
operation outside of its territory except so far as is allowed by comity, and that no
tribunal established by it can extend its process beyond that territory so as to
subject either persons or property to its decisions. "Any exertion of authority of
this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding
such persons or property in any other tribunals." Story, Confl.Laws, sect. 539.
But as contracts made in one State may be enforceable only in another State,
and property may be held by nonresidents, the exercise of the jurisdiction which
every State is admitted to possess over persons and property within its own
territory will often affect persons and property without it. To any influence exerted
in this way by a State affecting persons resident or property situated elsewhere,
no objection can be justly taken; whilst any direct exertion of authority upon them,
in an attempt to give ex-territorial operation to its laws, or to enforce an exterritorial jurisdiction by its tribunals, would be deemed an encroachment upon
the independence of the State in which the persons are domiciled or the property
is situated, and be resisted as usurpation.
Thus the State, through its tribunals, may compel persons domiciled within its
limits to execute, in pursuance of their contracts respecting property elsewhere
situated, instruments in such form and with such solemnities as to transfer the
title, so far as such formalities can be complied with; and the exercise of this
jurisdiction in no manner interferes with the supreme control over the property by
the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v.
Watts, 6 Cranch 148; Watkins v. Holman, 16 Pet. 25; Corbett v. Nutt, 10 Wall.
464.
So the State, through its tribunals, may subject property situated within its limits
owned by nonresidents to the payment of the demand of its own citizens against
them, and the exercise of this jurisdiction in no respect infringes upon the
sovereignty of the State where the owners are domiciled. Every State owes
protection to its own citizens, and, when nonresidents deal with them, it is a
legitimate and just exercise of authority to hold and appropriate any property
owned by such nonresidents to satisfy the claims of its citizens. It is in virtue of
the State's jurisdiction over the property of the nonresident situated within its
limits that its tribunals can inquire into that nonresident's obligations to its own

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Conflict of laws
citizens, and the inquiry can then be carried only to the extent necessary to
control the disposition of the property. If the nonresident have no property in the
State, there is nothing upon which the tribunals can adjudicate.
These views are not new. They have been frequently expressed, with more or
less distinctness, in opinions of eminent judges, and have been carried into
adjudications in numerous cases. Thus, in Picquet v. Swan, 5 Mas. 35, Mr.
Justice Story said:-- "Where a party is within a territory, he may justly be
subjected to its process, and bound personally by the judgment pronounced on
such process against him. Where he is not within such territory, and is not
personally subject to its laws, if, on account of his supposed or actual property
being within the territory, process by the local laws may, by attachment, go to
compel his appearance, and, for his default to appear, judgment may be
pronounced against him, such a judgment must, upon general principles, be
deemed only to bind him to the extent of such property, and cannot have the
effect of a conclusive judgment in personam, for the plain reason, that, except so
far as the property is concerned, it is a judgment coram non judice."
And in Boswell's Lessee v. Otis, 9 How. 336, where the title of the plaintiff in
ejectment was acquired on a sheriff's sale under a money decree rendered upon
publication of notice against nonresidents, in a suit brought to enforce a contract
relating to land, Mr. Justice McLean said:-"Jurisdiction is acquired in one of two modes: first, as against the person of the
defendant by the service of process; or, secondly, by a procedure against the
property of the defendant within the jurisdiction of the court. In the latter case, the
defendant is not personally bound by the judgment beyond the property in
question. And it is immaterial whether the proceeding against the property be by
an attachment or bill in chancery. It must be substantially a proceeding in rem."
These citations are not made as authoritative expositions of the law, for the
language was perhaps not essential to the decision of the cases in which it was
used, but as expressions of the opinion of eminent jurists. But in Cooper v.
Reynolds, reported in the 10th of Wallace, it was essential to the disposition of
the case to declare the effect of a personal action against an absent party,
without the jurisdiction of the court, not served with process or voluntarily

submitting to the tribunal, when it was sought to subject his property to the
payment of a demand of a resident complainant; and, in the opinion there
delivered, we have a clear statement of the law as to the efficacy of such actions,
and the jurisdiction of the court over them. In that case, the action was for
damages for alleged false imprisonment of the plaintiff; and, upon his affidavit
that the defendants had fled from the State, or had absconded or concealed
themselves so that the ordinary process of law could not reach them, a writ of
attachment was sued out against their property. Publication was ordered by the
court, giving notice to them to appear and plead, answer or demur, or that the
action would be taken as confessed and proceeded in ex parte as to them.
Publication was had, but they made default, and judgment was entered against
them, and the attached property was sold under it. The purchaser having been
put into possession of the property, the original owner brought ejectment for its
recovery. In considering the character of the proceeding, the Court, speaking
through Mr. Justice Miller, said:-"Its essential purpose or nature is to establish, by the judgment of the court, a
demand or claim against the defendant, and subject his property lying within the
territorial jurisdiction of the court to the payment of that demand. But the plaintiff
is met at the commencement of his proceedings by the fact that the defendant is
not within the territorial jurisdiction, and cannot be served with any process by
which he can be brought personally within the power of the court. For this
difficulty, the statute has provided a remedy. It says that, upon affidavit's being
made of that fact, a writ of attachment may be issued and levied on any of the
defendant's property, and a publication may be made warning him to appear; and
that thereafter the court may proceed in the case, whether he appears or not. 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 established 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

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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 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 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."
The fact that the defendants in that case had fled from the State, or had
concealed themselves, so as not to be reached by the ordinary process of the
court, and were not nonresidents, was not made a point in the decision. The
opinion treated them as being without the territorial jurisdiction of the court, and
the grounds and extent of its authority over persons and property thus situated
were considered when they were not brought within its jurisdiction by personal
service or voluntary appearance.
The writer of the present opinion considered that some of the objections to the
preliminary proceedings in the attachment suit were well taken, and therefore
dissented from the judgment of the Court, but, to the doctrine declared in the
above citation, he agreed, and he may add that it received the approval of all the
judges. It is the only doctrine consistent with proper protection to citizens of other
States. If, without personal service, judgments in personam, obtained ex
parte against nonresidents and absent parties, upon mere publication of process,
which, in the great majority of cases, would never be seen by the parties
interested, could be upheld and enforced, they would be the constant
instruments of fraud and oppression. Judgments for all sorts of claims upon
contracts and for torts, real or pretended, would be thus obtained, under which
property would be seized, when the evidence of the transactions upon which they
were founded, if they ever had any existence, had perished.
Substituted service by publication, or in any other authorized form, may be
sufficient to inform parties of the object of proceedings taken where property is
once brought under the control of the court by seizure or some equivalent act.
The law assumes that property is always in the possession of its owner, in

person or by agent, and it proceeds upon the theory that its seizure will inform
him not only that it is taken into the custody of the court, but that he must look to
any proceedings authorized by law upon such seizure for its condemnation and
sale. Such service may also be sufficient in cases where the object of the action
is to reach and dispose of property in the State, or of some interest therein, by
enforcing a contract or a lien respecting the same, or to partition it among
different owners, or, when the public is a party, to condemn and appropriate it for
a public purpose. In other words, such service may answer in all actions which
are substantially proceedings in rem. But where the entire object of the action is
to determine the personal rights and obligations of the defendants, that is, where
the suit is merely in personam, constructive service in this form upon a
nonresident is ineffectual for any purpose. Process from the tribunals of one
State cannot run into another State, and summon parties there domiciled to leave
its territory and respond to proceedings against them. Publication of process or
notice within the State where the tribunal sits cannot create any greater
obligation upon the nonresident to appear. Process sent to him out of the State,
and process published within it, are equally unavailing in proceedings to establish
his personal liability.
The want of authority of the tribunals of a State to adjudicate upon the obligations
of nonresidents, where they have no property within its limits, is not denied by the
court below: but the position is assumed, that, where they have property within
the State, it is immaterial whether the property is in the first instance brought
under the control of the court by attachment or some other equivalent act, and
afterwards applied by its judgment to the satisfaction of demands against its
owner; or such demands be first established in a personal action, and the
property of the nonresident be afterwards seized and sold on execution. But the
answer to this position has already been given in the statement that the
jurisdiction of the court to inquire into and determine his obligations at all is only
incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot
be made to depend upon facts to be ascertained after it has tried the cause and
rendered the judgment. If the judgment be previously void, it will not become
valid by the subsequent discovery of property of the defendant, or by his
subsequent acquisition of it. The judgment, if void when rendered, will always
remain void; it cannot occupy the doubtful position of being valid if property be
found, and void if there be none. Even if the position assumed were confined to
cases where the nonresident defendant possessed property in the State at the

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commencement of the action, it would still make the validity of the proceedings
and judgment depend upon the question whether, before the levy of the
execution, the defendant had or had not disposed of the property. If, before the
levy, the property should be sold, then, according to this position, the judgment
would not be binding. This doctrine would introduce a new element of uncertainty
in judicial proceedings. The contrary is the law: the validity of every judgment
depends upon the jurisdiction of the court before it is rendered, not upon what
may occur subsequently. In Webster v. Reid, reported in 11th of Howard, the
plaintiff claimed title to land sold under judgments recovered in suits brought in a
territorial court of Iowa, upon publication of notice under a law of the territory,
without service of process; and the court said:
"These suits were not a proceeding in rem against the land, but were in
personam against the owners of it. Whether they all resided within the territory or
not does not appear, nor is it a matter of any importance. No person is required
to answer in a suit on whom process has not been served, or whose property has
not been attached. In this case, there was no personal notice, nor an attachment
or other proceeding against the land, until after the judgments. The judgments,
therefore, are nullities, and did not authorize the executions on which the land
was sold. "
The force and effect of judgments rendered against nonresidents without
personal service of process upon them, or their voluntary appearance, have been
the subject of frequent consideration in the courts of the United States and of the
several States, as attempts have been made to enforce such judgments in States
other than those in which they were rendered, under the provision of the
Constitution requiring that "full faith and credit shall be given in each State to the
public acts, records, and judicial proceedings of every other State;" and the act of
Congress providing for the mode of authenticating such acts, records, and
proceedings, and declaring that, when thus authenticated, "they shall have such
faith and credit given to them in every court within the United States as they have
by law or usage in the courts of the State from which they are or shall or taken."

court rendering the judgment had jurisdiction of the parties and of the subject
matter, and not to preclude an inquiry into the jurisdiction of the court in which the
judgment was rendered, or the right of the State itself to exercise authority over
the person or the subject matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case
of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with
great clearness. That was an action in the Circuit Court of the United States for
Louisiana, brought upon a judgment rendered in New York under a State statute,
against two joint debtors, only one of whom had been served with process, the
other being a nonresident of the State. The Circuit Court held the judgment
conclusive and binding upon the nonresident not served with process, but this
Court reversed its decision, observing, that it was a familiar rule that countries
foreign to our own disregarded a judgment merely against the person, where the
defendant had not been served with process nor had a day in court; that national
comity was never thus extended; that the proceeding was deemed an illegitimate
assumption of power, and resisted as mere abuse; that no faith and credit or
force and effect had been given to such judgments by any State of the Union, so
far as known; and that the State courts had uniformly, and in many instances,
held them to be void. "The international law," said the court, "as it existed among
the States in 1790, was that a judgment rendered in one State, assuming to bind
the person of a citizen of another, was void within the foreign State, when the
defendant had not been served with process or voluntarily made defence,
because neither the legislative jurisdiction nor that of courts of justice had binding
force."
And the Court held that the act of Congress did not intend to declare a new rule,
or to embrace judicial records of this description. As was stated in a subsequent
case, the doctrine of this Court is that the act "was not designed to displace that
principle of natural justice which requires a person to have notice of a suit before
he can be conclusively bound by its result, nor those rules of public law which
protect persons and property within one State from the exercise of jurisdiction
over them by another."
The Lafayette Insurance Co. v. French et al., 18 How. 404.

In the earlier cases, it was supposed that the act gave to all judgments the same
effect in other States which they had by law in the State where rendered. But this
view was afterwards qualified so as to make the act applicable only when the

This whole subject has been very fully and learnedly considered in the recent
case of Thompson v. Whitman, 18 Wall. 457, where all the authorities are

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carefully reviewed and distinguished, and the conclusion above stated is not only
reaffirmed, but the doctrine is asserted that the record of a judgment rendered in
another State may be contradicted as to the facts necessary to give the court
jurisdiction against its recital of their existence. 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 judgments rendered in another
State against nonresidents, 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 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 which we have already stated -- 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. In Bissell v. Briggs, decided by the Supreme Court of
Massachusetts as early as 1813, the law is stated substantially in conformity with
these views. In that case, the court considered at length the effect of the
constitutional provision, and the act of Congress mentioned, and after stating
that, in order to entitle the judgment rendered in any court of the United States to
the full faith and credit mentioned in the Constitution, the court must have had
jurisdiction not only of the cause, but of the parties, it proceeded to illustrate its
position by observing, that, where a debtor living in one State has goods, effects,
and credits in another, his creditor living in the other State may have the property
attached pursuant to its laws, and, on recovering judgment, have the property
applied to its satisfaction, and that the party in whose hands the property was
would be protected by the judgment in the State of the debtor against a suit for it,
because the court rendering the judgment had jurisdiction to that extent; but that,
if the property attached were insufficient to satisfy the judgment, and the creditor
should sue on that judgment in the State of the debtor, he would fail because the
defendant was not amenable to the court rendering the judgment. In other words,
it was held that over the property within the State the court had jurisdiction by the

attachment, but had none over his person, and that any determination of his
liability, except so far as was necessary for the disposition of the property, was
invalid.
In Kilbourn v. Woodworth, 5 Johns. (N.Y.) 37, an action of debt was brought in
New York upon a personal judgment recovered in Massachusetts. The defendant
in that judgment was not served with process, and the suit was commenced by
the attachment of a bedstead belonging to the defendant, accompanied with a
summons to appear, served on his wife after she had left her place in
Massachusetts. The court held that the attachment bound only the property
attached as a proceeding in rem, and that it could not bind the defendant,
observing, that to bind a defendant personally when he was never personally
summoned or had notice of the proceeding would be contrary to the first
principles of justice, repeating the language in that respect of Chief Justice
DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also
Borden v. Fitch, 15 Johns. (N. Y.) 121, and the cases there cited, and Harris v.
Hardeman et al., 14 How. 334. To the same purport, decisions are found in all the
State courts. In several of the cases, the decision has been accompanied with
the observation that a personal judgment thus recovered has no binding force
without the State in which it is rendered, implying that, in such State, it may be
valid and binding. But if the court has no jurisdiction over the person of the
defendant by reason of his nonresidence, and consequently no authority to pass
upon his personal rights and obligations; if the whole proceeding, without service
upon him or his appearance, is coram non judice and void; if to hold a defendant
bound by such a judgment is contrary to the first principles of justice -- it is
difficult to see how the judgment can legitimately have any force within the State.
The language used can be justified only on the ground that there was no mode of
directly reviewing such judgment or impeaching its validity within the State where
rendered, and that therefore it could be called in question only when its
enforcement was elsewhere attempted. In later cases, this language is repeated
with less frequency than formerly, it beginning to be considered, as it always
ought to have been, that a judgment which can be treated in any State of this
Union as contrary to the first principles of justice, and as an absolute nullity,
because rendered without any jurisdiction of the tribunal over the party, is not
entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo.
415; Darrance v. Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465; Mitchell's
Administrator v. Gray, 18 Ind. 123.

15
Conflict of laws
Be that as it may, the courts of the United States are not required to give effect to
judgments of this character when any right is claimed under them. Whilst they
are not foreign tribunals in their relations to the State courts, they are tribunals of
a different sovereignty, exercising a distinct and independent jurisdiction, and are
bound to give to the judgments of the State courts only the same faith and credit
which the courts of another State are bound to give to them.
Since the adoption of the Fourteenth Amendment to the Federal Constitution, the
validity of such judgments may be directly questioned, and their enforcement in
the State resisted, on the ground that proceedings in a court of justice to
determine the personal rights and obligations of parties over whom that court has
no jurisdiction do not constitute due process of law. Whatever difficulty may be
experienced in giving to those terms a definition which will embrace every
permissible exertion of power affecting private rights, and exclude such as is
forbidden, there can be no doubt of their meaning when applied to judicial
proceedings. They then mean a course of legal proceedings according to those
rules and principles which have been established in our systems of jurisprudence
for the protection and enforcement of private rights. To give such proceedings
any validity, there must be a tribunal competent by its constitution -- that is, by the
law of its creation -- to pass upon the subject matter of the suit; and if that
involves merely a determination of the personal liability of the defendant, he must
be brought within its jurisdiction by service of process within the State, or his
voluntary appearance.
Except in cases affecting the personal status of the plaintiff and cases in which
that mode of service may be considered to have been assented to in advance, as
hereinafter mentioned, the substituted service of process by publication, allowed
by the law of Oregon and by similar laws in other States, where actions are
brought against nonresidents, is effectual only where, in connection with process
against the person for commencing the action, property in the State is brought
under the control of the court, and subjected to its disposition by process adapted
to that purpose, or where the judgment is sought as a means of reaching such
property or affecting some interest therein; in other words, where the action is in
the nature of a proceeding in rem. As stated by Cooley in his Treatise on
Constitutional Limitations 405, for any other purpose than to subject the property
of a nonresident to valid claims against him in the State, "due process of law

would require appearance or personal service before the defendant could be

personally bound by any judgment rendered."
It is true that, in a strict sense, a proceeding in rem is one taken directly against
property, and has for its object the disposition of the property, without reference
to the title of individual claimants; but, in a larger and more general sense, the
terms are applied to actions between parties where the direct object is to reach
and dispose of property owned by them, or of some interest therein. Such are
cases commenced by attachment against the property of debtors, or instituted to
partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect
property in the State, they are substantially proceedings in rem in the broader
sense which we have mentioned.
It is hardly necessary to observe that, in all we have said, we have had reference
to proceedings in courts of first instance, and to their jurisdiction, and not to
proceedings in an appellate tribunal to review the action of such courts. The latter
may be taken upon such notice, personal or constructive, as the State creating
the tribunal may provide. They are considered as rather a continuation of the
original litigation than the commencement of a new action. Nations et al. v.
Johnson et al., 24 How. 195.
It follows from the views expressed that the personal judgment recovered in the
State court of Oregon against the plaintiff herein, then a nonresident of the State,
was without any validity, and did not authorize a sale of the property in
controversy.
To prevent any misapplication of the views expressed in this opinion, it is proper
to observe that we do not mean to assert by anything we have said that a State
may not authorize proceedings to determine the status of one of its citizens
towards a nonresident which would be binding within the State, though made
without service of process or personal notice to the nonresident. The jurisdiction
which every State possesses to determine the civil status and capacities of all its
inhabitants involves authority to prescribe the conditions on which proceedings
affecting them may be commenced and carried on within its territory. The State,
for example, has absolute right to prescribe the conditions upon which the
marriage relation between its own citizens shall be created, and the causes for

16
Conflict of laws
which it may be dissolved. One of the parties guilty of acts for which, by the law
of the State, a dissolution may be granted may have removed to a State where
no dissolution is permitted. The complaining party would, therefore, fail if a
divorce were sought in the State of the defendant; and if application could not be
made to the tribunals of the complainant's domicile in such case, and
proceedings be there instituted without personal service of process or personal
notice to the offending party, the injured citizen would be without redress. Bish.
Marr. and Div., sect. 156.

In the present case, there is no feature of this kind, and consequently no

consideration of what would be the effect of such legislation in enforcing the
contract of a nonresident can arise. The question here respects only the validity
of a money judgment rendered in one State in an action upon a simple contract
against the resident of another without service of process upon him or his
appearance therein.

Neither do we mean to assert that a State may not require a nonresident entering
into a partnership or association within its limits, or making contracts enforceable
there, to appoint an agent or representative in the State to receive service of
process and notice in legal proceedings instituted with respect to such
partnership, association, or contracts, or to designate a place where such service
may be made and notice given, and provide, upon their failure, to make such
appointment or to designate such place that service may be made upon a public
officer designated for that purpose, or in some other prescribed way, and that
judgments rendered upon such service may not be binding upon the
nonresidents both within and without the State. As was said by the Court of
Exchequer in Vallee v. Dumergue, 4 Exch. 290,

Pennoyer vs Neff

"It is not contrary to natural justice that a man who has agreed to receive a
particular mode of notification of legal proceedings should be bound by a
judgment in which that particular mode of notification has been followed, even
though he may not have actual notice of them."
See also The Lafayette Insurance Co. v. French et al., 18 How. 404,
and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201.
Nor do we doubt that a State, on creating corporations or other institutions for
pecuniary or charitable purposes, may provide a mode in which their conduct
may be investigated, their obligations enforced, or their charters revoked, which
shall require other than personal service upon their officers or members. Parties
becoming members of such corporations or institutions would hold their interest
subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex.
345.

Judgment affirmed.

Facts. Mitchell, a lawyer, sued Defendant, his client, in Oregon state court for
unpaid legal fees. At the time Defendant was a non-resident of the state who was
not personally served with process. Constructive service was issued upon
Defendant by publication. Defendant did not come to court or otherwise resist the
lawsuit, and default judgment was entered against him. After the default
judgment, Defendant acquired 300 acres of land in Oregon. To satisfy his
judgment against Defendant, Mitchell had the sheriff seize and sell Defendants
land. The land was purchased by Plaintiff, who received a sheriffs deed as
evidence of title. The sheriff then turned the sale proceeds over to Mitchell.
Shortly after the sheriffs sale, Defendant discovered what had happened to his
land and brought suit against Plaintiff to recover the land. This appeal followed
after Defendant lost his suit against Plaintiff.
Issue. Can judgments obtained against non-residents who fail to appear in court
be sustained by default judgments where service of process is accomplished
solely through publication (i.e. constructive service)?
Is constructive service sufficient notice to attach property within the forum state
owned by a non-resident?
Held. No. The personal judgment recovered in the state court of Oregon against
Plaintiff was without validity, and the decision of the Court of Appeals overturning
that
judgment
was
affirmed.
When a suit is merely in personam (i.e. against a person), constructive service
through publication upon a non-resident is ineffective.

17
Conflict of laws
No state can exercise direct jurisdiction and authority over persons or property
without its territory. However, a state may subject property within its boundaries
to the payments of its citizens, even when the land is owned by a non-resident,
without infringing upon the sovereignty of the state of residency of the landowner.

A statute of the State requires employers to pay into the state unemployment
compensation fund a specified percentage of the wages paid for the services of
employees within the State.
Held:

Discussion. Here the Supreme Court of the United States is distinguishing

between suits in personam, and in rem. An in personam suit is a suit against a
person, whose purpose is to determine the personal rights and obligations of the
defendant. An in rem action, meanwhile, is an action where jurisdiction pertains
to property. Thus the court reasoned that constructive service is sufficient to
inform parties of action taken against any properties owned by them within the
forum state, because property is always in possession of the owner, and seizure
of the property will inform the owner of legal action taken against him.

1. In view of 26 U.S.C. 1606(a) , providing that no person shall be relieved from

compliance with a state law requiring payments to an unemployment fund on the
ground that he is engaged in interstate commerce, the fact that the corporation is
engaged in interstate commerce does not relieve it from liability for payments to
the state unemployment compensation fund. P. 326 U. S. 315.
2. The activities in behalf of the corporation render it amenable to suit in courts of
the State to recover payments due to the state unemployment compensation
fund. P. 326 U. S. 320.
(a) The activities in question established between the State and the corporation
sufficient contacts or ties to make it reasonable and just, and in conformity to the
due process requirements of the Fourteenth Amendment, for the State to enforce
against the corporation an obligation arising out of such activities. P. 326 U. S.
320.
(b) In such a suit to recover payments due to the unemployment compensation
fund, service of process upon one of the corporation's salesmen within the State,
and notice sent by registered mail to the corporation at its home office, satisfies
the requirements of due process. P. 326 U. S. 320.

International Shoe v. State of Washington, 326 U.S. 310 (1945)

Activities within a State of salesmen in the employ of a foreign corporation,
exhibiting samples of merchandise and soliciting orders from prospective buyers
to be accepted or rejected by the corporation at a point outside the State, were
systematic and continuous, and resulted in a large volume of interstate business.

3. The tax imposed by the state unemployment compensation statute -construed by the state court, in its application to the corporation, as a tax on the
privilege of employing salesmen within the State -- does not violate the due
process clause of the Fourteenth Amendment. P. 326 U. S. 321.
22 Wash.2d 146, 154 P.2d 801, affirmed.
APPEAL from a judgment upholding the constitutionality of a state unemployment
compensation statute as applied to the appellant corporation.

18
Conflict of laws
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
The questions for decision are (1) whether, within the limitations of the due
process clause of the Fourteenth Amendment, appellant, a Delaware corporation,
has, by its activities in the State of Washington, rendered itself amenable to
proceedings in the courts of that state to recover unpaid contributions to the state
unemployment compensation fund exacted by state statutes, Washington
Unemployment Compensation Act, Washington Revised Statutes, 9998-103a
through 9998-123a, 1941 Supp., and (2) whether the state can exact those
contributions consistently with the due process clause of the Fourteenth
Amendment.
The statutes in question set up a comprehensive scheme of unemployment
compensation, the costs of which are defrayed by contributions required to be
made by employers to a state unemployment compensation fund.
The contributions are a specified percentage of the wages payable annually by
each employer for his employees' services in the state. The assessment and
collection of the contributions and the fund are administered by appellees.
Section 14(c) of the Act (Wash.Rev.Stat., 1941 Supp., 9998-114c) authorizes
appellee Commissioner to issue an order and notice of assessment of delinquent
contributions upon prescribed personal service of the notice upon the employer if
found within the state, or, if not so found, by mailing the notice to the employer by
registered mail at his last known address. That section also authorizes the
Commissioner to collect the assessment by distraint if it is not paid within ten
days after service of the notice. By 14e and 6b, the order of assessment may
be administratively reviewed by an appeal tribunal within the office of
unemployment upon petition of the employer, and this determination is, by 6i,
made subject to judicial review on questions of law by the state Superior Court,
with further right of appeal in the state Supreme Court, as in other civil cases.
In this case, notice of assessment for the years in question was personally
served upon a sales solicitor employed by appellant in the State of Washington,
and a copy of the notice was mailed by registered mail to appellant at its address
in St. Louis, Missouri. Appellant appeared specially before the office of
unemployment, and moved to set aside the order and notice of assessment on

the ground that the service upon appellant's salesman was not proper service
upon appellant; that appellant was not a corporation of the State of Washington,
and was not doing business within the state; that it had no agent within the state
upon whom service could be made; and that appellant is not an employer, and
does not furnish employment within the meaning of the statute.
The motion was heard on evidence and a stipulation of facts by the appeal
tribunal, which denied the motion and ruled that appellee Commissioner was
entitled to recover the unpaid contributions. That action was affirmed by the
Commissioner; both the Superior Court and the Supreme Court affirmed. 22
Wash.2d 146, 154 P.2d 801. Appellant in each of these courts assailed the
statute as applied, as a violation of the due process clause of the Fourteenth
Amendment, and as imposing a constitutionally prohibited burden on interstate
commerce. The cause comes here on appeal under 237(a) of the Judicial
Code, 28 U.S.C. 344(a), appellant assigning as error that the challenged
statutes, as applied, infringe the due process clause of the Fourteenth
Amendment and the commerce clause.
The facts, as found by the appeal tribunal and accepted by the state Superior
Court and Supreme Court, are not in dispute. Appellant is a Delaware
corporation, having its principal place of business in St. Louis, Missouri, and is
engaged in the manufacture and sale of shoes and other footwear. It maintains
places of business in several states other than Washington, at which its
manufacturing is carried on and from which its merchandise is distributed
interstate through several sales units or branches located outside the State of
Washington.
Appellant has no office in Washington, and makes no contracts either for sale or
purchase of merchandise there. It maintains no stock of merchandise in that
state, and makes there no deliveries of goods in intrastate commerce. During the
years from 1937 to 1940, now in question, appellant employed eleven to thirteen
salesmen under direct supervision and control of sales managers located in St.
Louis. These salesmen resided in Washington; their principal activities were
confined to that state, and they were compensated by commissions based upon
the amount of their sales. The commissions for each year totaled more than
$31,000. Appellant supplies its salesmen with a line of samples, each consisting

19
Conflict of laws
of one shoe of a pair, which they display to prospective purchasers. On occasion,
they rent permanent sample rooms, for exhibiting samples, in business buildings,
or rent rooms in hotels or business buildings temporarily for that purpose. The
cost of such rentals is reimbursed by appellant.
The authority of the salesmen is limited to exhibiting their samples and soliciting
orders from prospective buyers, at prices and on terms fixed by appellant. The
salesmen transmit the orders to appellant's office in St. Louis for acceptance or
rejection, and, when accepted, the merchandise for filling the orders is shipped
f.o.b. from points outside Washington to the purchasers within the state. All the
merchandise shipped into Washington is invoiced at the place of shipment, from
which collections are made. No salesman has authority to enter into contracts or
to make collections.
The Supreme Court of Washington was of opinion that the regular and
systematic solicitation of orders in the state by appellant's salesmen, resulting in
a continuous flow of appellant's product into the state, was sufficient to constitute
doing business in the state so as to make appellant amenable to suit in its courts.
But it was also of opinion that there were sufficient additional activities shown to
bring the case within the rule, frequently stated, that solicitation within a state by
the agents of a foreign corporation plus some additional activities there are
sufficient to render the corporation amenable to suit brought in the courts of the
state to enforce an obligation arising out of its activities there. International
Harvester Co. v. Kentucky, 234 U. S. 579, 234 U. S. 587; People's Tobacco Co.
v. American Tobacco Co., 246 U. S. 79, 246 U. S. 87; Frene v. Louisville Cement
Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 516. The court found such additional
activities in the salesmen's display of samples sometimes in permanent display
rooms, and the salesmen's residence within the state, continued over a period of
years, all resulting in a substantial volume of merchandise regularly shipped by
appellant to purchasers within the state. The court also held that the statute, as
applied, did not invade the constitutional power of Congress to regulate interstate
commerce, and did not impose a prohibited burden on such commerce.
Appellant's argument, renewed here, that the statute imposes an unconstitutional
burden on interstate commerce need not detain us. For 53 Stat. 1391, 26 U.S.C.
1606(a) provides that

"No person required under a State law to make payments to an unemployment

fund shall be relieved from compliance therewith on the ground that he is
engaged in interstate or foreign commerce, or that the State law does not
distinguish between employees engaged in interstate or foreign commerce and
those engaged in intrastate commerce."
It is no longer debatable that Congress, in the exercise of the commerce power,
may authorize the states, in specified ways, to regulate interstate commerce or
impose burdens upon it. Kentucky Whip & Collar Co. v. Illinois Central R.
Co., 299 U. S. 334; Perkins v. Pennsylvania, 314 U.S. 586; Standard Dredging
Corp. v. Murphy, 319 U. S. 306,319 U. S. 308; Hooven & Allison Co. v. Evatt, 324
U. S. 652, 324 U. S. 679; Southern Pacific Co. v. Arizona, 325 U. S. 761,325 U.
S. 769.
Appellant also insists that its activities within the state were not sufficient to
manifest its "presence" there, and that, in its absence, the state courts were
without jurisdiction, that, consequently, it was a denial of due process for the
state to subject appellant to suit. It refers to those cases in which it was said that
the mere solicitation of orders for the purchase of goods within a state, to be
accepted without the state and filled by shipment of the purchased goods
interstate, does not render the corporation seller amenable to suit within the
state. See Green v. Chicago, B. & Q. R. Co., 205 U. S. 530, 205 U. S.
533; International Harvester Co. v. Kentucky, supra, 234 U. S. 586587; Philadelphia & Reading R. Co. v. McKibbin, 243 U. S. 264, 243 U. S.
268; People's Tobacco Co. v. American Tobacco Co., supra, 246 U. S. 87. And
appellant further argues that, since it was not present within the state, it is a
denial of due process to subject it to taxation or other money exaction. It thus
denies the power of the state to lay the tax or to subject appellant to a suit for its
collection.
Historically, the jurisdiction of courts to render judgment in personam is grounded
on their de facto power over the defendant's person. Hence, his presence within
the territorial jurisdiction of a court was prerequisite to its rendition of a judgment
personally binding him. Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 733. But now
that the capias ad respondendum has given way to personal service of summons
or other form of notice, due process requires only that, in order to subject a

20
Conflict of laws
defendant to a judgment in personam, if he be not present within the territory of
the forum, he have certain minimum contacts with it such that the maintenance of
the suit does not offend "traditional notions of fair play and substantial
justice." Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463. See Holmes, J.,
in McDonald v. Mabee, 243 U. S. 90, 243 U. S. 91. Compare Hoopeston Canning
Co. v. Cullen, 318 U. S. 313, 318 U. S. 316, 318 U. S. 319. See Blackmer v.
United States, 284 U. S. 421; Hess v. Pawloski, 274 U. S. 352; Young v.
Masci, 289 U. S. 253. ,

isolated items of activities in a state in the corporation's behalf, are not enough to
subject it to suit on causes of action unconnected with the activities there. St.
Clair v. Cox, supra, 106 U. S. 359, 106 U. S. 360; Old Wayne Life Assn. v.
McDonough, 204 U. S. 8, 204 U. S. 21; Frene v. Louisville Cement Co.,
supra, 515, and cases cited. To require the corporation in such circumstances to
defend the suit away from its home or other jurisdiction where it carries on more
substantial activities has been thought to lay too great and unreasonable a
burden on the corporation to comport with due process.

Since the corporate personality is a fiction, although a fiction intended to be acted

upon as though it were a fact, Klein v. Board of Supervisors, 282 U. S. 19, 282 U.
S. 24, it is clear that, unlike an individual, its "presence" without, as well as within,
the state of its origin can be manifested only by activities carried on in its behalf
by those who are authorized to act for it. To say that the corporation is so far
"present" there as to satisfy due process requirements, for purposes of taxation
or the maintenance of suits against it in the courts of the state, is to beg the
question to be decided. For the terms "present" or "presence" are used merely to
symbolize those activities of the corporation's agent within the state which courts
will deem to be sufficient to satisfy the demands of due process. L. Hand, J.,
in Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141. Those demands may be met
by such contacts of the corporation with the state of the forum as make it
reasonable, in the context of our federal system of government, to require the
corporation to defend the particular suit which is brought there. An "estimate of
the inconveniences" which would result to the corporation from a trial away from
its "home" or principal place of business is relevant in this
connection. Hutchinson v. Chase & Gilbert, supra, 141.

While it has been held, in cases on which appellant relies, that continuous activity
of some sorts within a state is not enough to support the demand that the
corporation be amenable to suits unrelated to that activity, Old Wayne Life Assn.
v. McDonough, supra; Green v. Chicago, B. & Q. R. Co., supra; Simon v.
Southern R. Co., 236 U. S. 115; People's Tobacco Co. v. American Tobacco Co.,
supra; cf. Davis v. Farmers Co-operative Co., 262 U. S. 312, 262 U. S. 317, there
have been instances in which the continuous corporate operations within a state
were thought so substantial and of such a nature as to justify suit against it on
causes of action arising from dealings entirely distinct from those activities. See
Missouri, K. & T. R. Co. v. Reynolds, 255 U.S. 565; Tauza v. Susquehanna Coal
Co., 220 N.Y. 259, 115 N.E. 915; cf. St. Louis S.W. R. Co. v. Alexander, supra.

"Presence" in the state in this sense has never been doubted when the activities
of the corporation there have not only been continuous and systematic, but also
give rise to the liabilities sued on, even though no consent to be sued or
authorization to an agent to accept service of process has been given. St. Clair v.
Cox, 106 U. S. 350, 106 U. S. 355; Connecticut Mutual Co. v. Spratley, 172 U. S.
602, 172 U. S. 610-611; Pennsylvania Lumbermen's Ins. Co. v. Meyer, 197 U. S.
407, 197 U. S. 414-415; Commercial Mutual Co. v. Davis, 213 U. S. 245, 213 U.
S. 255-256; International Harvester Co. v. Kentucky, supra; cf. St. Louis S.W. R.
Co. v. Alexander, 227 U. S. 218. Conversely, it has been generally recognized
that the casual presence of the corporate agent, or even his conduct of single or

Finally, although the commission of some single or occasional acts of the

corporate agent in a state sufficient to impose an obligation or liability on the
corporation has not been thought to confer upon the state authority to enforce
it, Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516, other such acts,
because of their nature and quality and the circumstances of their commission,
may be deemed sufficient to render the corporation liable to suit. Cf. Kane v. New
Jersey, 242 U. S. 160; Hess v. Pawloski, supra; Young v. Masci, supra. True,
some of the decisions holding the corporation amenable to suit have been
supported by resort to the legal fiction that it has given its consent to service and
suit, consent being implied from its presence in the state through the acts of its
authorized agents. Lafayette Insurance Co. v. French, 18 How. 404, 59 U. S.
407; St. Clair v. Cox, supra, 106 U. S. 356; Commercial Mutual Co. v. Davis,
supra, 213 U. S. 254; Washington v. Superior Court, 289 U. S. 361, 289 U. S.
364-365. But, more realistically, it may be said that those authorized acts were of
such a nature as to justify the fiction. Smolik v. Philadelphia &Reading Co., 222 F.

21
Conflict of laws
148, 151. Henderson, The Position of Foreign Corporations in American
Constitutional Law, 94-95.
It is evident that the criteria by which we mark the boundary line between those
activities which justify the subjection of a corporation to suit and those which do
not cannot be simply mechanical or quantitative. The test is not merely, as has
sometimes been suggested, whether the activity, which the corporation has seen
fit to procure through its agents in another state, is a little more or a little less. St.
Louis S.W. R. Co. v. Alexander, supra, 227 U. S. 228; International Harvester Co.
v. Kentucky, supra, 234 U. S. 587. Whether due process is satisfied must
depend, rather, upon the quality and nature of the activity in relation to the fair
and orderly administration of the laws which it was the purpose of the due
process clause to insure. That clause does not contemplate that a state may
make binding a judgment in personam against an individual or corporate
defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v.
Neff, supra; Minnesota Commercial Assn. v. Benn, 261 U. S. 140.
But, to the extent that a corporation exercises the privilege of conducting
activities within a state, it enjoys the benefits and protection of the laws of that
state. The exercise of that privilege may give rise to obligations, and, so far as
those obligations arise out of or are connected with the activities within the state,
a procedure which requires the corporation to respond to a suit brought to
enforce them can, in most instances, hardly be said to be undue. Compare
International Harvester Co. v. Kentucky, supra, with Green v. Chicago, B. & Q. R.
Co., supra, and People's Tobacco Co. v. American Tobacco Co., supra. Compare
Connecticut Mutual Co. v. Spratley, supra, 172 U. S. 619, 172 U. S. 620, and
Commercial Mutual Co. v. Davis, supra, with Old Wayne Life Assn. v.
McDonough, supra. See 29 Columbia Law Review, 187-195.
Applying these standards, the activities carried on in behalf of appellant in the
State of Washington were neither irregular nor casual. They were systematic and
continuous throughout the years in question. They resulted in a large volume of
interstate business, in the course of which appellant received the benefits and
protection of the laws of the state, including the right to resort to the courts for the
enforcement of its rights. The obligation which is here sued upon arose out of
those very activities. It is evident that these operations establish sufficient

contacts or ties with the state of the forum to make it reasonable and just,
according to our traditional conception of fair play and substantial justice, to
permit the state to enforce the obligations which appellant has incurred there.
Hence, we cannot say that the maintenance of the present suit in the State of
Washington involves an unreasonable or undue procedure.
We are likewise unable to conclude that the service of the process within the
state upon an agent whose activities establish appellant's "presence" there was
not sufficient notice of the suit, or that the suit was so unrelated to those activities
as to make the agent an inappropriate vehicle for communicating the notice. It is
enough that appellant has established such contacts with the state that the
particular form of substituted service adopted there gives reasonable assurance
that the notice will be actual. Connecticut Mutual Co. v. Spratley, supra, 172 U. S.
618, 172 U. S. 619; Board of Trade v. Hammond Elevator Co., 198 U. S.
424, 198 U. S. 437-438; Commercial Mutual Co. v. Davis, supra, 213 U. S. 254255. Cf. Riverside Mills v. Menefee, 237 U. S. 189, 237 U. S. 194, 237 U. S.
195; See Knowles v. Gaslight & Coke Co., 19 Wall. 58, 86 U. S. 61; McDonald v.
Mabee, supra; Milliken v. Meyer, supra. Nor can we say that the mailing of the
notice of suit to appellant by registered mail at its home office was not reasonably
calculated to apprise appellant of the suit. Compare Hess v. Pawloski, supra,
with McDonald v. Mabee, supra,243 U. S. 92, and Wuchter v. Pizzutti, 276 U. S.
13, 276 U. S. 19, 276 U. S. 24; cf. Becquet v. MacCarthy, 2 B. & Ad.
951; Maubourquet v. Wyse, 1 Ir.Rep.C.L. 471. See Washington v. Superior Court,
supra, 289 U. S. 365.
Only a word need be said of appellant's liability for the demanded contributions to
the state unemployment fund. The Supreme Court of Washington, construing and
applying the statute, has held that it imposes a tax on the privilege of employing
appellant's salesmen within the state measured by a percentage of the wages,
here, the commissions payable to the salesmen. This construction we accept for
purposes of determining the constitutional validity of the statute. The right to
employ labor has been deemed an appropriate subject of taxation in this country
and England, both before and since the adoption of the Constitution. Steward
Machine Co. v. Davis, 301 U. S. 548, 301 U. S. 579, et seq. And such a tax
imposed upon the employer for unemployment benefits is within the
constitutional power of the states. Carmichael v. Southern Coal Co., 301 U. S.
495, 301 U. S. 508, et seq.

22
Conflict of laws
Appellant having rendered itself amenable to suit upon obligations arising out of
the activities of its salesmen in Washington, the state may maintain the present
suit in personam to collect the tax laid upon the exercise of the privilege of
employing appellant's salesmen within the state. For Washington has made one
of those activities which, taken together, establish appellant's "presence" there
for purposes of suit the taxable event by which the state brings appellant within
the reach of its taxing power. The state thus has constitutional power to lay the
tax and to subject appellant to a suit to recover it. The activities which establish
its "presence" subject it alike to taxation by the state and to suit to recover the
tax. Equitable Life Society v. Pennsylvania, 238 U. S. 143, 238 U. S. 146; cf.
International Harvester Co. v. Department of Taxation, 322 U. S. 435, 322 U. S.
442, et seq.; Hoopeston Canning Co. v. Cullen,supra, 318 U. S. 316-319; see
General Trading Co. v. Tax Comm'n, 322 U. S. 335.
Affirmed.
International Shoe Co. vs Washington
Facts. International Shoe Co., Defendant, was a company based in Delaware
with an office in St. Louis, Missouri. Defendant employed salesmen that resided
in Washington to sell their product in the state of Washington. Defendant
regularly shipped orders to the salesmen who accepted them, the salesmen
would display the products at places in Washington, and the salesmen were
compensated by commission for sale of the products. The salesmen were also
reimbursed for the cost of renting the places of business in Washington.
Washington sued Defendant after Defendant failed to make contributions to an
unemployment compensation fund exacted by state statutes. The Washington
statute said that the commissioner could issue personal service if Defendant was
found within the state, or by mailing it to Defendant if Defendant was not in the
state. The notice of assessment was served upon Defendants salesperson and a
copy of the notice was mailed to Defendant. Defendant appeared specially,
moving to set aside the order that service upon the salesperson was proper
service. Defendant also argued that it did not do business in the state, that
there was no agent upon which service could be made, and that Defendant did
not furnish employment within the meaning of the statute. Defendant also argued
that the statute violated the Due Process Clause of the Fourteenth Amendment

and imposed a prohibitive burden of interstate commerce. The trial court found
for Washington and the Supreme Court of Washington affirmed, reasoning that
the continuous flow of Defendants product into Washington was sufficient to
establish personal jurisdiction. Defendant appealed.
Issue. Is service of process upon Defendants agent sufficient notice when the
corporations activities result in a large volume of interstate business so that the
corporation receives the protection of the laws of the state and the suit is related
to the activities which make the corporation present?
Held. Yes. Affirmed. The general rule is that in order to have jurisdiction with
someone outside the state, the person must have certain minimum contacts with
it such that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice. For a corporation, the minimum contacts required
are not just continuous and systematic activities but also those that give rise to
the liabilities sued on. Defendant could have sued someone in Washington. It
was afforded the protection of the laws of that state, and therefore it should be
subject to suit.
Discussion. This decision articulates the rule for determining whether a state
has personal jurisdiction over an absent defendant via the minimum contacts
test. In general, International Shoe demonstrates that contacts with a state
should be evaluated in terms of how fair it would be to exercise jurisdiction over
an absent defendant.

23
Conflict of laws
299 N.Y. 697, 87 N.E.2d 73, reversed.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)
A trust company in New York which had exclusive management and control of a
common trust fund established by it under 100-c of the New York Banking Law
petitioned under that section for a judicial settlement of accounts which would be
binding and conclusive as to any matter set forth therein upon everyone having
any interest in the common fund or in any participating trust. In this common
fund, the trust company had invested assets of numerous small trusts of which it
was trustee and of which some of the beneficiaries were residents, and some
nonresidents, of the State. The only notice of this petition given beneficiaries was
by publication in a local newspaper pursuant to 100-c(12).
Held:
1. Whether such a proceeding for settlement of accounts be technically in
personam, in rem, or quasi in rem, the interest of each state in providing means
to close trusts that exist by the grace of its laws and are administered under the
supervision of its courts is such as to establish beyond doubt the right of its
courts to determine the interests of all claimants, resident or nonresident,
provided its procedure accords full opportunity to appear and be heard. Pp. 339
U. S. 311-313.
2. The statutory notice by publication is sufficient as to any beneficiaries whose
interests or addresses are unknown to the trustee, since there are no other
means of giving them notice which are both practicable and more effective.
Pp. 339 U. S. 313-318.
3. Such notice by publication is not sufficient under the Fourteenth Amendment
as a basis for adjudication depriving of substantial property rights known persons
whose whereabouts are also known, since it is not impracticable to make serious
efforts to notify them at least by ordinary mail to their addresses on record with
the trust company. Pp. 339 U. S. 318-320.

Overruling objections to the statutory notice to beneficiaries by publication

authorized by 100-c of the New York Banking Law, a New York Surrogate's
Court entered a final decree accepting an accounting of the trustee of a common
trust fund established pursuant to that section. 75 N.Y.S.2d 397. This decree was
affirmed by the Appellate Division of the Supreme Court of New York (see 274
App.Div. 772, 80 N.Y.S.2d 127), and the Court of Appeals of New York (229 N.Y.
697, 87 N.E.2d 73). On appeal to this Court, reversed, p. 339 U. S. 320.
Mr. Justice JACKSON delivered the opinion of the Court.
This controversy questions the constitutional sufficiency of notice to beneficiaries
on judicial settlement of accounts by the trustee of a common trust fund
established under the New York Banking Law, Consol.Laws, c. 2. The New York
Court of Appeals considered and overruled objections that the statutory notice
contravenes requirements of the Fourteenth Amendment, and that, by allowance
of the account, beneficiaries were deprived of property without due process of
law. 299 N.Y. 697, 87 N.E.2d 73. The case is here on appeal under 28 U.S.C.
1257.
Common trust fund legislation is addressed to a problem appropriate for state
action. Mounting overheads have made administration of small trusts undesirable
to corporate trustees. In order that donors and testators of moderately sized
trusts may not be denied the service of corporate fiduciaries, the District of
Columbia and some thirty states other than New York have permitted pooling
small trust estates into one fund for investment administration. * The income,
capital gains, losses and expenses of the collective trust are shared by the
constituent trusts in proportion to their contribution. By this plan, diversification of
risk and economy of management can be extended to those whose capital
standing alone would not obtain such advantage.
Statutory authorization for the establishment of such common trust funds is
provided in the New York Banking Law, 100-c, c. 687, L.1937, as amended by
c. 602, L.1943 and c. 158, L.1944. Under this Act, a trust company may, with
approval of the State Banking Board, establish a common fund and, within

24
Conflict of laws
prescribed limits, invest therein the assets of an unlimited number of estates,
trusts or other funds of which it is trustee. Each participating trust shares ratably
in the common fund, but exclusive management and control is in the trust
company as trustee, and neither a fiduciary nor any beneficiary of a participating
trust is deemed to have ownership in any particular asset or investment of this
common fund. The trust company must keep fund assets separate from its own,
and, in its fiduciary capacity, may not deal with itself or any affiliate. Provisions
are made for accountings twelve to fifteen months after the establishment of a
fund, and triennially thereafter. The decree, in each such judicial settlement of
accounts, is made binding and conclusive as to any matter set forth in the
account upon everyone having any interest in the common fund or in any
participating estate, trust or fund.

Thus, the only notice required, and the only one given, was by newspaper
publication setting forth merely the name and address of the trust company, the
name and the date of establishment of the common trust fund, and a list of all
participating estates, trusts or funds.

In January, 1946, Central Hanover Bank and Trust Company established a

common trust fund in accordance with these provisions, and, in March, 1947, it
petitioned the Surrogate's Court for settlement of its first account as common
trustee. During the accounting period, a total of 113 trusts, approximately
half inter vivos and half testamentary, participated in the common trust fund, the
gross capital of which was nearly three million dollars. The record does not show
the number or residence of the beneficiaries, but they were many, and it is clear
that some of them were not residents of the State of New York.

Included in the notice was a copy of those provisions of the Act relating to the
sending of the notice itself and to the judicial settlement of common trust fund
accounts.

The only notice given beneficiaries of this specific application was by publication
in a local newspaper in strict compliance with the minimum requirements of
N.Y.Banking Law 100-c(12):
"After filing such petition [for judicial settlement of its account], the petitioner shall
cause to be issued by the court in which the petition is filed and shall publish not
less than once in each week for four successive weeks in a newspaper to be
designated by the court, a notice or citation addressed generally, without naming
them, to all parties interested in such common trust fund and in such estates,
trusts or funds mentioned in the petition, all of which may be described in the
notice or citation only in the manner set forth in said petition and without setting
forth the residence of any such decedent or donor of any such estate, trust or
fund."

At the time the first investment in the common fund was made on behalf of each
participating estate; however, the trust company, pursuant to the requirements of
100-c(9), had notified by mail each person of full age and sound mind whose
name and address was then known to it and who was "entitled to share in the
income therefrom . . . (or) . . . who would be entitled to share in the principal if the
event upon which such estate, trust or fund will become distributable should have
occurred at the time of sending such notice."

Upon the filing of the petition for the settlement of accounts, appellant was, by
order of the court pursuant to 100-c(12), appointed special guardian and
attorney for all persons known or unknown not otherwise appearing who had or
might thereafter have any interest in the income of the common trust fund, and
appellee Vaughan was appointed to represent those similarly interested in the
principal. There were no other appearances on behalf of anyone interested in
either interest or principal.
Appellant appeared specially, objecting that notice and the statutory provisions
for notice to beneficiaries were inadequate to afford due process under the
Fourteenth Amendment, and therefore that the court was without jurisdiction to
render a final and binding decree. Appellant's objections were entertained and
overruled, the Surrogate holding that the notice required and given was sufficient.
75 N.Y.S.2d 397. A final decree accepting the accounts has been entered,
affirmed by the Appellate Division of the Supreme Court, In re Central Hanover
Bank & Trust Co., 275 App.Div. 769, 88 N.Y.S.2d 907, and by the Court of
Appeals of the State of New York, 299 N.Y. 697, 87 N.E.2d 73.

25
Conflict of laws
The effect of this decree, as held below, is to settle "all questions respecting the
management of the common fund." We understand that every right which
beneficiaries would otherwise have against the trust company, either as trustee of
the common fund or as trustee of any individual trust, for improper management
of the common trust fund during the period covered by the accounting is sealed
and wholly terminated by the decree. See Matter of Hoaglund's Estate, 194 Misc.
803, 811-812, 74 N.Y.S.2d 156, 164, affirmed, 272 App.Div. 1040, 74 N.Y.S.2d
911, affirmed, 297 N.Y. 920, 79 N.E.2d 746; Matter of Bank of New York, 189
Misc. 459, 470, 67 N.Y.S.2d 444, 453; Matter of Security Trust Co. of
Rochester, 189 Misc. 748, 760, 70 N.Y.S.2d 260, 271; Matter of Continental Bank
& Trust Co., 189 Misc. 795, 797, 67 N.Y.S.2d 806, 807-808.
We are met at the outset with a challenge to the power of the State -- the right of
its courts to adjudicate at all as against those beneficiaries who reside without
the State of New York. It is contended that the proceeding is one in personam, in
that the decree affects neither title to nor possession of any res, but adjudges
only personal rights of the beneficiaries to surcharge their trustee for negligence
or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer v.
Neff, 95 U. S. 714, the Surrogate is without jurisdiction as to nonresidents upon
whom personal service of process was not made.
Distinctions between actions in rem and those in personam are ancient, and
originally expressed in procedural terms what seems really to have been a
distinction in the substantive law of property under a system quite unlike our own.
Buckland and McNair, Roman Law and Common Law, 66; Burdick, Principles of
Roman Law and Their Relation to Modern Law, 298. The legal recognition and
rise in economic importance of incorporeal or intangible forms of property have
upset the ancient simplicity of property law and the clarity of its distinctions, while
new forms of proceedings have confused the old procedural classification.
American courts have sometimes classed certain actions as in rem because
personal service of process was not required, and, at other times, have held
personal service of process not required because the action was in
rem. See cases collected in Freeman on Judgments, 1517 et seq. (5th ed.).
Judicial proceedings to settle fiduciary accounts have been sometimes termed in
rem, or, more indefinitely, quasi in rem, or more vaguely still, "in the nature of a

proceeding in rem." It is not readily apparent how the courts of New York did or
would classify the present proceeding, which has some characteristics, and is
wanting in some features of, proceedings both in rem and in personam. But, in
any event, we think that the requirements of the Fourteenth Amendment to the
Federal Constitution do not depend upon a classification for which the standards
are so elusive and confused generally, and which, being primarily for state courts
to define, may and do vary from state to state. Without disparaging the
usefulness of distinctions between actions in rem and those in personam in many
branches of law, or on other issues, or the reasoning which underlies them, we
do not rest the power of the State to resort to constructive service in this
proceeding upon how its courts or this Court may regard this historic antithesis. It
is sufficient to observe that, whatever the technical definition of its chosen
procedure, the interest of each state in providing means to close trusts that exist
by the grace of its laws and are administered under the supervision of its courts
is so insistent and rooted in custom as to establish beyond doubt the right of its
courts to determine the interests of all claimants, resident or nonresident,
provided its procedure accords full opportunity to appear and be heard.
Quite different from the question of a state's power to discharge trustees is that of
the opportunity it must give beneficiaries to contest. Many controversies have
raged about the cryptic and abstract words of the Due Process Clause, but there
can be no doubt that, at a minimum, they require that deprivation of life, liberty or
property by adjudication be preceded by notice and opportunity for hearing
appropriate to the nature of the case.
In two ways, this proceeding does or may deprive beneficiaries of property. It
may cut off their rights to have the trustee answer for negligent or illegal
impairments of their interests. Also, their interests are presumably subject to
diminution in the proceeding by allowance of fees and expenses to one who, in
their names but without their knowledge, may conduct a fruitless or
uncompensatory contest. Certainly the proceeding is one in which they may be
deprived of property rights and hence notice and hearing must measure up to the
standards of due process.
Personal service of written notice within the jurisdiction is the classic form of
notice always adequate in any type of proceeding. But the vital interest of the

26
Conflict of laws
State in bringing any issues as to its fiduciaries to a final settlement can be
served only if interests or claims of individuals who are outside of the State can
somehow be determined. A construction of the Due Process Clause which would
place impossible or impractical obstacles in the way could not be justified.

"The criterion is not the possibility of conceivable injury, but the just and
reasonable character of the requirements, having reference to the subject with
which the statute deals."American Land Co. v. Zeiss, 219 U. S. 47, 219 U. S.
67, and see Blinn v. Nelson, 222 U. S. 1, 222 U. S. 7.

Against this interest of the State, we must balance the individual interest sought
to be protected by the Fourteenth Amendment. This is defined by our holding that
"[t]he fundamental requisite of due process of law is the opportunity to be
heard." Grannis v. Ordean, 234 U. S. 385, 234 U. S. 394. This right to be heard
has little reality or worth unless one is informed that the matter is pending and
can choose for himself whether to appear or default, acquiesce or contest.

But when notice is a person's due, process which is a mere gesture is not due
process. The means employed must be such as one desirous of actually
informing the absentee might reasonably adopt to accomplish it. The
reasonableness, and hence the constitutional validity of, any chosen method may
be defended on the ground that it is, in itself, reasonably certain to inform those
affected, compare Hess v. Pawloski, 274 U. S. 352, with Wuchter v. Pizzutti, 276
U. S. 13, or, where conditions do not reasonably permit such notice, that the form
chosen is not substantially less likely to bring home notice than other of the
feasible and customary substitutes.

The Court has not committed itself to any formula achieving a balance between
these interests in a particular proceeding or determining when constructive notice
may be utilized, or what test it must meet. Personal service has not, in all
circumstances, been regarded as indispensable to the process due to residents,
and it has more often been held unnecessary as to nonresidents. We disturb
none of the established rules on these subjects. No decision constitutes a
controlling, or even a very illuminating, precedent for the case before us. But a
few general principles stand out in the books.
An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections. Milliken v. Meyer, 311 U. S.
457; Grannis v. Ordean, 234 U. S. 385; Priest v. Las Vegas, 232 U. S. 604; Roller
v. Holly, 176 U. S. 398. The notice must be of such nature as reasonably to
convey the required information, Grannis v. Ordean, supra, and it must afford a
reasonable time for those interested to make their appearance, Roller v. Holly,
supra, and cf. Goodrich v. Ferris, 214 U. S. 71. But if, with due regard for the
practicalities and peculiarities of the case, these conditions are reasonably met,
the constitutional requirements are satisfied.

It would be idle to pretend that publication alone, as prescribed here, is a reliable

means of acquainting interested parties of the fact that their rights are before the
courts. It is not an accident that the greater number of cases reaching this Court
on the question of adequacy of notice have been concerned with actions founded
on process constructively served through local newspapers. Chance alone brings
to the attention of even a local resident an advertisement in small type inserted in
the back pages of a newspaper, and, if he makes his home outside the area of
the newspaper's normal circulation, the odds that the information will never reach
him are large indeed. The chance of actual notice is further reduced when, as
here, the notice required does not even name those whose attention it is
supposed to attract, and does not inform acquaintances who might call it to
attention. In weighing its sufficiency on the basis of equivalence with actual
notice, we are unable to regard this as more than a feint.
Nor is publication here reinforced by steps likely to attract the parties' attention to
the proceeding. It is true that publication traditionally has been acceptable as
notification supplemental to other action which, in itself, may reasonably be
expected to convey a warning. The ways of an owner with tangible property are
such that he usually arranges means to learn of any direct attack upon his
possessory or proprietary rights. Hence, libel of a ship, attachment of a chattel or
entry upon real estate in the name of law may reasonably be expected to come

27
Conflict of laws
promptly to the owner's attention. When the state within which the owner has
located such property seizes it for some reason, publication or posting affords an
additional measure of notification. A state may indulge the assumption that one
who has left tangible property in the state either has abandoned it, in which case
proceedings against it deprive him of nothing, cf. Anderson National Bank v.
Luckett, 321 U. S. 233; Security Savings Bank v. California, 263 U. S. 282, or that
he has left some caretaker under a duty to let him know that it is being
jeopardized. Ballard v. Hunter, 204 U. S. 241; Huling v. Kaw Valley R. Co., 130 U.
S. 559,. As phrased long ago by Chief Justice Marshall in The Mary, 9 Cranch
126, 13 U. S. 144,
"It is the part of common prudence for all those who have any interest in [a thing]
to guard that interest by persons who are in a situation to protect it."In the case
before us, there is, of course, no abandonment. On the other hand, these
beneficiaries do have a resident fiduciary as caretaker of their interest in this
property. But it is their caretaker who, in the accounting, becomes their
adversary. Their trustee is released from giving notice of jeopardy, and no one
else is expected to do so. Not even the special guardian is required or apparently
expected to communicate with his ward and client, and, of course, if such a duty
were merely transferred from the trustee to the guardian, economy would not be
served and more likely the cost would be increased.
This Court has not hesitated to approve of resort to publication as a customary
substitute in another class of cases where it is not reasonably possible or
practicable to give more adequate warning. Thus, it has been recognized that, in
the case of persons missing or unknown, employment of an indirect, and even a
probably futile, means of notification is all that the situation permits, and creates
no constitutional bar to a final decree foreclosing their rights. Cunnius v. Reading
School District, 198 U. S. 458; Blinn v. Nelson, 222 U. S. 1; and see Jacob v.
Roberts, 223 U. S. 261.

Those beneficiaries represented by appellant whose interests or whereabouts

could not, with due diligence, be ascertained come clearly within this category. As
to them, the statutory notice is sufficient. However great the odds that publication
will never reach the eyes of such unknown parties, it is not in the typical case,
much more likely to fail than any of the choices open to legislators endeavoring
to prescribe the best notice practicable.
Nor do we consider it unreasonable for the State to dispense with more certain
notice to those beneficiaries whose interests are either conjectural or future or,
although they could be discovered upon investigation, do not, in due course of
business, come to knowledge of the common trustee. Whatever searches might
be required in another situation under ordinary standards of diligence, in view of
the character of the proceedings and the nature of the interests here involved, we
think them unnecessary. We recognize the practical difficulties and costs that
would be attendant on frequent investigations into the status of great numbers of
beneficiaries, many of whose interests in the common fund are so remote as to
be ephemeral, and we have no doubt that such impracticable and extended
searches are not required in the name of due process. The expense of keeping
informed from day to day of substitutions among even current income
beneficiaries and presumptive remaindermen, to say nothing of the far greater
number of contingent beneficiaries, would impose a severe burden on the plan,
and would likely dissipate its advantages. These are practical matters in which
we should be reluctant to disturb the judgment of the state authorities.
Accordingly we overrule appellant's constitutional objections to published notice
insofar as they are urged on behalf of any beneficiaries whose interests or
addresses are unknown to the trustee.
As to known present beneficiaries of known place of residence, however, notice
by publication stands on a different footing. Exceptions in the name of necessity
do not sweep away the rule that, within the limits of practicability, notice must be
such as is reasonably calculated to reach interested parties. Where the names
and post office addresses of those affected by a proceeding are at hand, the
reasons disappear for resort to means less likely than the mails to apprise them
of its pendency.

28
Conflict of laws
The trustee has on its books the names and addresses of the income
beneficiaries represented by appellant, and we find no tenable ground for
dispensing with a serious effort to inform them personally of the accounting, at
least by ordinary mail to the record addresses. Cf. Wuchter v. Pizzutti,
supra. Certainly sending them a copy of the statute months, and perhaps years,
in advance does not answer this purpose. The trustee periodically remits their
income to them, and we think that they might reasonably expect that, with or
apart from their remittances, word might come to them personally that steps were
being taken affecting their interests.
We need not weigh contentions that a requirement of personal service of citation
on even the large number of known resident or nonresident beneficiaries would,
by reasons of delay, if not of expense, seriously interfere with the proper
administration of the fund. Of course, personal service, even without the
jurisdiction of the issuing authority, serves the end of actual and personal notice,
whatever power of compulsion it might lack. However, no such service is required
under the circumstances. This type of trust presupposes a large number of small
interests. The individual interest does not stand alone, but is identical with that of
a class. The rights of each in the integrity of the fund, and the fidelity of the
trustee, are shared by many other beneficiaries. Therefore, notice reasonably
certain to reach most of those interested in objecting is likely to safeguard the
interests of all, since any objections sustained would inure to the benefit of all.
We think that, under such circumstances, reasonable risks that notice might not
actually reach every beneficiary are justifiable.

the fact that the trust company has been able to give mailed notice to known
beneficiaries at the time the common trust fund was established is persuasive
that postal notification at the time of accounting would not seriously burden the
plan.
In some situations, the law requires greater precautions in its proceedings than
the business world accepts for its own purposes. In few, if any, will it be satisfied
with less. Certainly it is instructive, in determining the reasonableness of the
impersonal broadcast notification here used, to ask whether it would satisfy a
prudent man of business, counting his pennies but finding it in his interest to
convey information to many persons whose names and addresses are in his
files. We are not satisfied that it would. Publication may theoretically be available
for all the world to see, but it is too much, in our day, to suppose that each or any
individual beneficiary does or could examine all that is published to see if
something may be tucked away in it that affects his property interests. We have
before indicated, in reference to notice by publication, that "Great caution should
be used not to let fiction deny the fair play that can be secured only by a pretty
close adhesion to fact." McDonald v. Mabee, 243 U. S. 90, 243 U. S. 91.
We hold the notice of judicial settlement of accounts required by the New York
Banking Law 100-c(12) is incompatible with the requirements of the Fourteenth
Amendment as a basis for adjudication depriving known persons whose
whereabouts are also known of substantial property rights. Accordingly, the
judgment is reversed, and the cause remanded for further proceedings not
inconsistent with this opinion.

"Now and then, an extraordinary case may turn up, but constitutional law, like
other mortal contrivances, has to take some chances, and, in the great majority
of instances, no doubt, justice will be done."
Mullane vs Central Hanover Bank
Blinn v. Nelson, at 222 U. S. 7.
The statutory notice to known beneficiaries is inadequate not because, in fact, it
fails to reach everyone, but because, under the circumstances, it is not
reasonably calculated to reach those who could easily be informed by other
means at hand. However it may have been in former times, the mails today are
recognized as an efficient and inexpensive means of communication. Moreover,

Facts. Appellee, Central Hanover Bank & Trust, set up common fund pursuant to
a New York statute allowing the creation of common funds for distribution of
judicial settlement trusts. There were 113 participating trusts. Appellee petitioned
for settlement of its first account as common trustee. Some of the beneficiaries
were not residents of New York. Notice was by publication for four weeks in a
local newspaper. Appellee had notified those people by mail that were of full age

29
Conflict of laws
and sound mind who would be entitled to share in the principal if the interest they
held became distributable. Appellant was appointed as special guardian and
attorney for all persons known or unknown not otherwise appearing who had or
might thereafter have any interest in the income of the common trust fund.
Appellee was appointed to represent those interested in the principal. Appellant
appeared specially, objecting that notice by publication, permitted under the
applicable statute was inadequate to afford t
he beneficiaries due process under the Fourteenth Amendment and that
therefore jurisdiction was lacking.
Issue. Is notice by publication of a judicial settlement to unknown beneficiaries of
a common trust reasonable notice under the due process requirements of the
Fourteenth Amendment?
Is notice by publication to all of the beneficiaries of a common trust whose
residences are known reasonable notice under the due process requirements of
the Fourteenth Amendment?

The New York Banking Law, however, that does not require notice to all persons
whose whereabouts are known, violates the due process clause of the
Fourteenth Amendment because contacting beneficiaries by mail at their last
known address is not particularly burdensome.
Discussion. The majoritys opinion illustrates that notice by publication will not
suffice only because it would be burdensome for the plaintiff to notify all parties
involved. If the plaintiff knows of a way to contact the parties, then the plaintiff
must bear that expense. Mailing notice to an address, if known, will suffice.
Notice by publication will suffice only if there is no practical way of knowing the
identity or location of the party.

Held. First
issue:
Yyes.
Second
issue:
Nno.
Whether or not the action is in personam or in rem, the court can determine the
interests of all claimants as long as there is a procedure allowing for notice and
an opportunity to be heard.
There has to be notice and opportunity for a hearing appropriate to the nature of
the case. The claimants at issue could potentially be deprived of property here,
as the proposed disposition cuts off their rights to sue for negligent or illegal
impairments of their interests. In addition, the courts decision appoints someone
who, without their knowledge, could use the trust to obtain the fees and
expenses necessary for a sham proceeding.
There need not be personal service because the state has an interest in settling
trusts. Notice has to be reasonably calculated, under all the circumstances, to
apprise interested parties of the pending action and afford them an opportunity to
present their objections. You do not have to notify all the beneficiaries when the
trust concerns many small interests. Sending notice to most of them will protect
their interests sufficiently.

G.R. No. 47517

June 27, 1941

IDONAH SLADE PERKINS, petitioner,

vs.
MAMERTO ROXAS, ET AL., respondents.
On July 5, 1938, the respondent Eugene Arthur Perkins, filed a complaint in the
Court of First Instance of Manila against the Benguet Consolidated Mining

30
Conflict of laws
Company for the recovery of the sum of P71,379.90, consisting of dividends
which have been declared and made payable on 52,874 shares of stock
registered in his name, payment of which was being withheld by the company,
and for the recognition of his right to the control and disposal of said shares, to
the exclusion of all others. To the complaint, the company filed its answer,
alleging, by way of defense, that the withholding of plaintiff's right to the disposal
and control of the shares was due to certain demands made with respect to said
shares by the petitioner herein. Idonah Slade Perkins, and by one George H.
Engelhard. The answer prays that the adverse claimants be made parties to the
action and served with notice thereof by publication, and that thereafter all such
parties be required to interplead and settle the rights among themselves.
On September 5, 1938, the trial court ordered the respondent, Eugene Arthur
Perkins, to include in his complaint as parties defendants petitioner, Idonah Slade
Perkins, and George H. Engelhard. The complaint was accordingly amended and
in addition to the relief prayed for in the original complaint, respondent Perkins
prayed that petitioner Idonah Slade Perkins and George H. Engelhard be
adjudged without interest in the shares of stock in question and excluded from
any claim they assert thereon. Thereafter, summons by publication were served
upon the non-resident defendants, Idonah Slade Perkins and George H.
Engelhard, pursuant to the order of the trial court. On December 9, 1938,
Engelhard filed his answer to the amended complaint, and on January 8, 1940,
petitioner's objection to the court's jurisdiction over her person having been
overruled by the trial court and by this court in G. R. No. 46831, petitioner filed
her answer with a cross-complaint in which she sets up a judgment allegedly
obtained by her against respondent, Eugene Arthur Perkins, from the Supreme
Court of the State of New York, wherein it is declared that she is the sole legal
owner and entitled to the possession and control of the shares of stock in
question together with all the cash dividends declared thereon by the Benguet
Consolidated Mining Company, and prays for various affirmative reliefs against
the respondent. To the answer and cross-complaint thus filed, the respondent,
Eugene Arthur Perkins, filed a reply and an answer in which he sets up several
defenses to the enforcement in this jurisdiction of the judgment of the Supreme
Court of the State of New York above alluded to. Instead of demurring to the
reply on either of the two grounds specified in section 100 of the Code of Civil
Procedure, petitioner, Idonah Slade Perkins, on June 5, 1940, filed a demurrer
thereto on the ground that "the court has no jurisdiction of the subject of the

action," because the alleged judgment of the Supreme Court of the State of New
York is res judicata.
Petitioner's demurrer having been overruled, she now filed in this court a petition
entitled "Certiorari, Prohibition and Mandamus," alleging that "the respondent
judge is about to and will render judgment in the above-mentioned case
disregarding the constitutional rights of this petitioner; contrary to and annulling
the final, subsisting, valid judgment rendered and entered in this petitioner's favor
by the courts of the State of New York, ... which decision is res judicata on all the
questions constituting the subject matter of civil case No. 53317, of the Court of
First Instance of Manila; and which New York judgment the Court of First
Instance of Manila is without jurisdiction to annul, amend, reverse, or modify in
any respect whatsoever"; and praying that the order of the respondent judge
overruling the demurrer be annulled, and that he and his successors be
permanently prohibited from taking any action on the case, except to dismiss the
same.
The only question here to be determined, therefore, is whether or not, in view of
the alleged judgment entered in favor of the petitioner by the Supreme Court of
New York, and which is claimed by her to be res judicata on all questions raised
by the respondent, Eugene Arthur Perkins, in civil case No. 53317 of the Court of
First Instace of Manila, the local court has jurisdiction over the subject matter of
the action in the said case. By jurisdiction over the subject matter is meant the
nature of the cause of action and of the relief sought, and this is conferred by the
sovereign authority which organizes the court, and is to be sought for in general
nature of its powers, or in authority specially conferred. In the present case, the
amended complaint filed by the respondent, Eugene Arthur Perkins, in the court
below alleged the ownership in himself of the conjugal partnership between him
and his wife, Idonah Slade Perkins; that the petitioner, Idonah Slade Perkins, and
George H. Engelhard assert claims to and interests in the said stock adverse to
Eugene Arthur Perkins; that such claims are invalid, unfounded, and made only
for the purpose of vexing, hindering and delaying Eugene Arthur Perkins in the
exercise of the lawful control over and use of said shares and dividends
accorded to him and by law and by previous orders and decrees of this court;
and the said amended complaint prays, inter alia, "that defendant Benguet
Consolidated Mining Company be required and ordered to recognize the right of
the plaintiff to the control and disposal of said shares so standing in his name to

31
Conflict of laws
the exclusion of all others; that the additional defendants, Idonah Slade Perkins
and George H. Engelhard, be each held to have no interest or claim in the
subject matter of the controversy between plaintiff and defendant Benguet
Consolidated Mining Company, or in or under the judgment to be rendered herein
and that by said judgment they, and each of them be excluded therefrom; and
that the plaintiff be awarded the costs of this suit and general relief." The
respondent's action, therefore, calls for the adjudication of title to certain shares
of stock of the Benguet Consolidated Mining Company, and the granting of
affirmative reliefs, which fall within the general jurisdiction of the Court of First
Instance of Manila. (Vide: sec. 146, et seq., Adm. Code, as amended by
Commonwealth Act No. 145; sec. 56, Act No. 136, as amended by Act No. 400.)
Similarly, the Court of First Instance of Manila is empowered to adjudicate the
several demands contained in petitioner's cross-complaint. The cross-complaint
sets up a judgment allegedly recovered by Idonah Slade Perkins against Eugene
Arthur Perkins in the Supreme Court of New York and by way of relief prays:
(1) Judgment against the plaintiff Eugene Arthur Perkins in the sum of
one hundred eighty-five thousand and four hundred dollars ($185,400),
representing cash dividends paid to him by defendant Benguet
Consolidated Mining Co. from February, 1930, up to and including the
dividend of March 30, 1937.
(2) That plaintiff Eugene Arthur Perkins be required to deliver to this
defendant the certificates representing the 48,000 shares of capital stock
of Benguet Consolidated Mining Co. issued as a stock dividend on the
24,000 shares owned by this defendant as described in the judgment
Exhibit 1-A.
(3) That this defendant recover under that judgment Exhibit 1-A interest
upon the amount of each cash dividend referred to in that judgment
received by plaintiff Eugene Arthur Perkins from February, 1930, to and
including the dividend of March 30, 1937, from the date of payment of
each of such dividends at the rate of 7 per cent per annum until paid.

(4) That this defendant recover of plaintiff her costs and disbursements in
that New York action amounting to the sum of one thousand five hundred
eighty-four and 20/00 dollars ($1,584.20), and the further sum of two
thousand dollars ($2,000) granted her in that judgment Exhibit 1-A as an
extra allowance, together with interest.
(5) For an order directing an execution to be issued in favor of this
defendant and against the plaintiff for amounts sufficient to satisfy the
New York judgment Exhibit 1-A in its entirety, and against the plaintiff and
the defendant Benguet Consolidated Mining Co. for such other amounts
prayed for herein as this court may find to be due and payable by each of
them; and ordering them to comply with all other orders which this court
may issue in favor of the defendant in this case.
(6) For the costs of this action, and
(7) For such other relief as may be appropriate and proper in the
premises.
In other words, Idonah Slade Perkins in her cross-complaint brought suit against
Eugene Arthur Perkins and the Benguet Consolidated Mining Company upon the
alleged judgment of the Supreme Court of the State of New York and asked the
court below to render judgment enforcing that New York judgment, and to issue
execution thereon. This is a form of action recognized by section 309 of the Code
of Civil Procedure (now section 47, Rule 39, Rules of Court) and which falls
within the general jurisdiction of the Court of First Instance of Manila, to
adjudicate, settled and determine.
The petitioner expresses the fear that the respondent judge may render judgment
"annulling the final, subsisting, valid judgment rendered and entered in this
petitioner's favor by the courts of the State of New York, ... which decision is res
judicata on all the questions constituting the subject matter of civil case No.
53317," and argues on the assumption that the respondent judge is without
jurisdiction to take cognizance of the cause. Whether or not the respondent judge
in the course of the proceedings will give validity and efficacy to the New York
judgment set up by the petitioner in her cross-complaint is a question that goes to

32
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the merits of the controversy and relates to the rights of the parties as between
each other, and not to the jurisdiction or power of the court. The test of
jurisdiction is whether or not the tribunal has power to enter upon the inquiry, not
whether its conclusion in the course of it is right or wrong. If its decision is
erroneous, its judgment case be reversed on appeal; but its determination of the
question, which the petitioner here anticipates and seeks to prevent, is the
exercise by that court and the rightful exercise of its jurisdiction.
The petition is, therefore, hereby denied, with costs against the petitioner. So
ordered.
Shaffer vs Heitner
Facts. Plaintiff, a stockholder for Greyhound Corp., a company incorporated in
Delaware with its principal place of business in Arizona, sued Greyhound Corp.,
Greyhound Lines, Inc., (a subsidiary of Greyhound Corp.) and present and
former officers of the two companies for violating duties to Greyhound Corp. by
causing it to be liable for damages in an antitrust suit and a fine in a criminal
contempt action in Oregon. Plaintiff filed a motion for sequestration of the officers
stock. Under a Delaware statute, Delaware is the situs of all stock in Delaware
corporations. The stock was seized. Defendants were notified by certified mail of
the sequestration and notice was published in a Delaware newspaper.
Defendants entered a special appearance so they could move to quash service
of process and vacate the sequestration order. Defendant argued that the order
violated due process and therefore the property could not be attached in
Delaware. In addition, Defendants argued that they did not have the minimum
contacts with Delaware required to establish jurisdiction under International Shoe
Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In addition,
Defendants argued that the sequestration procedures were inconsistent with the
Sniadach cases (see Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.
1820, 23 L.Ed.2d 349 (1969)). The Court of Chancery found for Plaintiff and the
Supreme Court of Delaware affirmed the Court of Chancery. The Supreme Court
of Delaware reasoned that the Sniadach cases involved default judgments and
not compelling a party to appear. This court furthered reasoned that
sequestration procedures help to adjudicate claims of mismanagement against
Delaware companies, and do not cause permanent deprivation of property to

their shareholders. Defendants appealed.

Issue. In order for the forum state to exercise in rem jurisdiction on a nonresident, must
the nonresident have minimum contacts with the forum state such that the defendant has
purposefully availed itself of the benefits of that states laws? If so, must the cause of
action be sufficiently related to the contacts the nonresident has with the forum state?

Held. Yes to both. Judgment reversed. In rem is not a proceeding against the
property, it is a proceeding against a persons interest in the property. You need
to give an owner of property reasonable and appropriate notice of an in rem
proceeding so that he or she recognizes that such a proceeding directly affects
his or her interests. Having property in a state does not give the state jurisdiction
over causes of action unrelated to the property unless the person also passes
the minimum contacts test articulated in the International Shoe decision. If it is
unconstitutional to exercise jurisdiction over the person directly then it should be
unconstitutional to assert jurisdiction indirectly. Plaintiffs argument that Delaware
has an interest in asserting jurisdiction over corporate fiduciaries is not
established by Delaware law. Delaware law determines that it has jurisdiction
over Defendants because Defendants property is in Delaware; and not due to
their status as corporate fiduciaries. First, the statute authorizing jurisdiction does
not specifically apply to stockholder derivative actions. Moreover, Plaintiffs
inability to secure jurisdiction over seven of the defendants because they didnt
have property in Delaware shows that there is no necessary relationship between
corporate fiduciaries and stockholders. In addition, Plaintiff has not demonstrated
that Delaware is a fair forum. Plaintiff must demonstrate more than the
applicability of Delawares laws to the controversy to establish a basis for
jurisdiction. Plaintiffs argument that Defendants have received benefits from
Delaware laws only demonstrates that it would be appropriate for Delaware law
to govern obligations between Defendant and stockholders. This argument does
not require that Delaware be permitted to exercise jurisdiction, especially
considering its lack of a long-arm statute. Concurrence. Justice Stevens: The
majority should not broadly eliminate in rem jurisdiction by stating that there is no
personal jurisdiction if the only contact the defendant has with the forum state is
property located in the state. There are other means of acquiring jurisdiction over
local actions that may be unintentionally limited by this broad language. Justice
Brennan (concurring in part and dissenting in part): The Delaware sequestration
statute embodies quasi in rem jurisdiction that is no longer valid. The parties did

33
Conflict of laws
not make the minimum contacts test an issue so the court should not have
decided this issue. There is no proper factual record for determining the level of
contacts in this case. This is also a constitutional question, and this decision will
reach to all the state statutes that permit quasi in rem action through
sequestration of property. The general rule is that the forum state has jurisdiction
over the directors and officers of a corporation chartered by the state in a
shareholder derivative action. A states valid substantive interests are
considerations in assessing the constitutionality of exercising jurisdiction.
Delaware has interests in preventing local corporations from being victims of
foreign stockholders and in regulating its own corporations. In addition,
jurisdiction can be based on out-of-state activities that have foreseeable effects in
the forum state. Delawares failure to express an interest in corporate fiduciaries
does not pertain to the minimum contacts analysis. In addition, there was
purposeful availment of the forums laws because the corporate officers entered
business relationships with Greyhounds stockholders pursuant to the laws of
Delaware.
Discussion. As the concurring opinions illustrate, it is highly unlikely a court has personal
jurisdiction over a non-resident defendant that is absent from the forum state when the
only contact is property owned by the defendant located within the forum state. Even if the
property is connected to the suit, minimum contacts must still be established in
compliance with the International Shoe test.

Hene vs New York Life insurance

The agency in Germany was established as a distinct entity, a German creation
under German law. A reserve fund was made and all premiums received were
placed in that fund and invested in Germany under German official approval.
Upon creation of "Kronos," all funds and property of appellee in Germany were
delivered to and supervision and execution of power assumed by the German
Federal Insurance Board, and additional deposits made by the appellee, as
required by the German valorization laws, in accordance with the decisions of the
German Federal Insurance Board. The laws in relation thereto have been
interpreted to apply to like policies, and many similar cases are now pending
before the German courts, they being open, able, competent, and efficient, and
the German Federal Insurance Board being active and fully functioning.

It is obvious that this litigation is not the normal outgrowth of usual business
activity and relation, but that it is the creation of activity to secure representation
of some 28,000 insurance policies executed in Germany by American
companies, written in the German language, in the relation of collection agent or
agencies, and file actions thereon in the state and federal courts of the United
States, an indirect appeal from the German judiciary and the German Federal
Insurance Board.
Incidentally, it may be said that the courts of the United States have uniformly
applied the law of the place to insurance contracts. Orient Insurance Co. v.
Daggs, 172 U.S. 557, 19 S. Ct. 281, 43 L. Ed. 552; Mutual Life Ins. Co. of N. Y. v.
Cohen, 179 U.S. 262, 21 S. Ct. 106, 45 L. Ed. 181; Mutual Life Ins. Co. v.
Hill, 193 U.S. 551, 24 S. Ct. 538, 48 L. Ed. 788; Northwestern Mut. Life Ins. Co. v.
McCue, 223 U.S. 234, 32 S. Ct. 220, 56 L. Ed. 419, 38 L. R. A. (N. S.)
57. *386 And, when suit was entertained, the cause of which arose in a foreign
country, the courts granted relief according to the laws of the country where the
action arose. Slater v. Mexican Nat. Ry. Co., 194 U.S. 120, 24 S. Ct. 581, 48 L.
Ed. 900. It has been held that discharge under a foreign obligation in accordance
with the foreign law is a complete defense. Zimmerman v. Sutherland, 274 U.S.
253, 47 S. Ct. 625, 71 L. Ed. 1034. It has also been held that the courts of the
United States will not inquire into the validity, wisdom or justice of the laws of a
foreign country, or the administration of foreign agencies. League v. De Young,
52 U. S. (11 How.) 185, 13 L. Ed. 657; Canada Southern Ry. Co. v. Gebhard, 109
U.S. 527, 3 S. Ct. 363, 27 L. Ed. 1020; Underhill v. Hernandez, 168 U.S. 250, 18
S. Ct. 83, 42 L. Ed. 456; Hewitt v. Speyer (C. C. A.) 250 F. 367.
Nor does it appear that enlarged rights may be obtained over the German law
should a suit by a policyholder be entertained by the courts of the United States.
Sutherland v. Mayer, 271 U.S. 272, 46 S. Ct. 538, 70 L. Ed. 943; Deutsche Bank
v. Humphrey, 272 U.S. 517, 47 S. Ct. 166, 71 L. Ed. 383; see, also, Zimmerman
v. Sutherland, supra. Such holding is in harmony with other courts. See,
Chesterman's Trust, (1923) 2 Chancery 466, where the court had before it a debt
payable in German marks which had greatly depreciated, and it was held that it
might be paid in the depreciated marks or in their exchange value converted into
British currency. The same rule was applied in British Bank v. Russian Bank,
(1921) 38 Times Law Reports 65, in which Mr. Justice Russell said that he "had
great sympathy with the defendants, but it must be remembered that the same

34
Conflict of laws
causes that caused the fall in the value of roubles had produced great
depreciation in the plaintiff's securities." This was approved in Anderson v.
Equitable Assurance Society, (1926) 134 Law Times 557.
It is asserted by appellant that, jurisdiction being apparent on the face of the
record, it may not be challenged by motion but must be by plea, and that when,
as here, jurisdiction is challenged by plea, by the answer, and put in issue by the
reply, issue must be submitted to the jury for decision on the merits, and that
there is no precedent for the order of the trial court.
As to the last objection, to have a precedent there must be an antecedent case;
but the lack thereof does not defeat a right or privilege. No fault can be found
with the cases cited by the appellant, the following of which are the more
prominent: Farmington v. Pillsbury, 114 U.S. 138, 5 S. Ct. 807, 29 L. Ed. 114;
Hartog v. Memory, 116 U.S. 588, 6 S. Ct. 521, 29 L. Ed. 725; Mexican Central
Railway Co. v. Pinkney, 149 U.S. 194, 13 S. Ct. 859, 37 L. Ed. 699; City Railway
Co. v. Citizen's Street Railroad Co., 166 U.S. 557, 17 S. Ct. 653, 41 L. Ed. 1114;
Union Mutual Life Insurance Co. v. Kirchoff, 169 U.S. 103, 18 S. Ct. 260, 42 L.
Ed. 677; York County Sav. Bank v. Abbot (C. C.) 131 F. 980. These cases do not
point the way. One sustains dismissal when the fact appears to a legal certainty;
another, where a party is collusively added; another holds that the evidence
considered must be pertinent to the issue, or to the inquiry by the court; another
holds that where there is reasonable plausibility of bona fide claim, jurisdiction
will be passed to trial on the merits, and another is one where the court holds that
claim rightly viewed unfounded must be denied.
Every requirement appears to be met substantially by the record. Process in this
case was served upon the statutory agent of the appellee in Oregon, appointed
as a condition to do business in that state and for the convenience and protection
of residents to whom policies may be issued and afford them access to the courts
of the state or district.

The appellant contends that, notwithstanding the agreement that the German
courts shall have exclusive jurisdiction, such agreement is not binding on the
federal courts, vested with their jurisdiction by the United States Constitution, of
which they cannot be deprived by foreign laws or agreement. The appellant also
contends that these are not actions upon the policies. But, whatever the
designation may be, the basis is the policies.
No alien has a constitutional right to sue in the United States courts. Kline v.
Burke Construction Co., 260 U.S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R.
1077. The United States District Courts have such jurisdiction as the Congress
confers. 28 USCA 41, grants jurisdiction as follows:
"First. Of all suits of a civil nature, at common law or in equity * * * between
citizens of a State and foreign States, citizens, or subjects. * * *
"Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors
in all cases the right of a common-law remedy. * * *"
*387 Civil cases and actions in admiralty and maritime jurisdiction have equal
status, and the courts have uniformly, where the question has arisen, declined to
entertain jurisdiction in admiralty suits by nonresidents when in the discretion of
the court it would be inconvenient and inexpedient to do so. And no distinction
has been made to civil cases.
Nor is the right to challenge the jurisdiction or to invite the discretion of the court
waived or forfeited by removal from the state to the federal court, or the right of
the court, after issue joined, to make investigation on notice and, in its discretion,
decline jurisdiction after such inquiry. 28 USCA, 81, provides that in all suits
removed the court shall proceed as if the suit had been originally commenced in
the district court and the same proceedings had been taken in such suit in said
district court as shall have been had therein in said state court prior to its
removal.
Upon the face of the record the district court had jurisdiction when the case came
to it from the state court. When the issue first came to its attention, and upon
inquiry and examination, the court became cognizant of the status and relation

35
Conflict of laws
and no doubt had inherent power to protect itself from a deluge of litigation by
nonresidents, inspired by contingent retainers to avoid or overcome foreign laws
and interpretation and application thereof by foreign courts of the country of the
situs of the contract; and it had the power to prefer resident litigants of the district
in access to overcrowded calendars, for, as Justice Holmes said in Douglas v.
New York, N. H. & H. R. Co., 279 U.S. 377, 387, 49 S. Ct. 355, 356, 73 L. Ed.
747: "There are manifest reasons for preferring residents in access to often
overcrowded Courts, both in convenience and in the fact that broadly speaking it
is they who pay for maintaining the Courts concerned"; and it had the power to
prevent imposition upon its jurisdiction and use of the court as a "cover for
injustice to the defendants" (Cuba R. Co. v. Crosby, 222 U.S. 473, 479, 32 S. Ct.
132, 133, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40) by reason of the enormous
expense involved in bringing across the continent witnesses from Germany and
New York and the records of appellee which plaintiff demands as necessary in
another case and, if so, must also be necessary in this case, the removal of
which would destroy the ability of the appellee, representing more than 2,500,000
policyholders, to function.
Comity between the United States and Germany should also have consideration.
With the foregoing, nothing can be added to the opinion of Judge Robert S.
Bean, who at the time of his recent demise was the dean of the American bench,
and whose death terminated a creditable judicial career of more than forty-eight
years on the state and federal bench. His opinion is reported in (D. C.) 45 F.(2d)
426, and is adopted as a part of the opinion of the court. Affirmed.
In Re: Union Carbide Gas Plant Disaster
Facts On the night of 23 December 1984, a gas leak occurred at the pesticide
plant of Union Carbide India Limited (UCIL) in Bhopal, India resulting in the
deaths of more than 2,000 people and injuries to more than 200,000 others. .
Thereafter, the India passed a law giving the Indian government the exclusive
right to represent the victims of the disaster. As thus, the Indian government filed
a complaint before a New York district court. The Union Carbide Corporation
(UCC) filed a motion to dismiss on the ground of forum non conveniens and lack
of personality. The district court granted the motion on three conditions, namely,
that UCC: (1) consent to the jurisdiction of Indian courts and waive defenses
based on the Statute of Limitations; (2) agree to the satisfy the judgement of the
Indian court, provided it complied with the requirements of due process; and (3)

be subject to discovery under the Federal Rules of Civil Procedure of the US.
Consequently, the Indian government filed sued the UCIL and the UCC before
the a district court in India. The UCC appealed the conditions.
Arguments for the Defendant
While Indian courts may provide an adequate alternative forum, they adhere to
standards of due process much lower than that followed in the US. Hence, US
courts must supervise the proceedings before Indian courts.
Issue: Whether or not the dismissal on the ground of forum non conveniens is
proper.
Held Yes. The Indian courts are adequate alternative fora.
Ratio Decidendi
Almost all of the estimated 200,000 plaintiffs are citizens and residents of India
who have revoked their representation by an American counsel in favor of the
Indian government, which now prefers Indian courts. Further, the UCC has
already consented to the assumption of jurisdiction by the Indian courts. All the
witnesses and evidence are likewise in India.
As to the conditions, the first is valid in order to secure the viability of the Indian
courts as alternate fora. The second is problematic as it gives the impression that
foreign judgments the UCC's consent is necessary in order for the judgement of
the Indian courts to be enforceable in New York. The laws of New York, in fact,
recognizes that a judgment rendered by a foreign court may be enforced in that
State except if such judgment was rendered in violation of due process or without
jurisdiction over the person of the defendant. The request of UCC of supervision
by US courts of Indian courts is untenable. The power of US courts cannot
extend beyond their territorial jurisdiction. Moreover, once US courts dismiss a
case on the ground of forum non conveniens, they lose any further jurisdiction
over the case, except in case of an action for enforcement later on. Denial of due
process may, however, constitute a defense against the enforcement of the
Indian judgment. The third condition is likewise invalid. Basic justice dictates that
both parties must be given equal access to evidence in each other's possession.
Hence, both parties maybe subjected to the modes of discovery under the
Federal Rules of Civil Procedure on equal terms subject to approval by Indian
courts.

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G.R. No. L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
The special administrator of the estate of Edward Randolph Hix appeals from a
decision of Judge of First Instance Tuason denying the probate of the document
alleged to by the last will and testament of the deceased. Appellee is not
authorized to carry on this appeal. We think, however, that the appellant, who
appears to have been the moving party in these proceedings, was a "person
interested in the allowance or disallowance of a will by a Court of First Instance,"
and so should be permitted to appeal to the Supreme Court from the
disallowance of the will (Code of Civil Procedure, sec. 781, as amended;
Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction,
and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2,
1914, p. 1690, and as certified to by the Director of the National Library. But this
was far from a compliance with the law. The laws of a foreign jurisdiction do not
prove themselves in our courts. the courts of the Philippine Islands are not
authorized to take American Union. Such laws must be proved as facts. (In re
Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were
not met. There was no was printed or published under the authority of the State
of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor
was the extract from the law attested by the certificate of the officer having
charge of the original, under the sale of the State of West Virginia, as provided in
section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the alleged
will was executed.

In addition, the due execution of the will was not established. The only evidence
on this point is to be found in the testimony of the petitioner. Aside from this,
there was nothing to indicate that the will was acknowledged by the testator in
the presence of two competent witnesses, of that these witnesses subscribed the
will in the presence of the testator and of each other as the law of West Virginia
seems to require. On the supposition that the witnesses to the will reside without
the Philippine Islands, it would then the duty of the petitioner to prove execution
by some other means (Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile
in West Virginia and not establish this fact consisted of the recitals in
the CATHY will and the testimony of the petitioner. Also in beginning
administration proceedings orginally in the Philippine Islands, the petitioner
violated his own theory by attempting to have the principal administration in the
Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant
presented an unverified petition asking the court to accept as part of the
evidence the documents attached to the petition. One of these documents
discloses that a paper writing purporting to be the was presented for probate on
June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in
vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L.
MAdden, the subscribing witnesses thereto , and ordered to be recorded and
filed. It was shown by another document that, in vacation, on June 8, 1929, the
clerk of court of Randolph Country, West Virginia, appointed Claude W. Maxwell
as administrator, cum testamento annexo, of the estate of Edward Randolph Hix,
deceased. In this connection, it is to be noted that the application for the probate
of the will in the Philippines was filed on February 20, 1929, while the
proceedings in West Virginia appear to have been initiated on June 8, 1929.
These facts are strongly indicative of an intention to make the Philippines the
principal administration and West Virginia the ancillary administration. However
this may be, no attempt has been made to comply with Civil Procedure, for no
hearing on the question of the allowance of a will said to have been proved and
allowed in West Virginia has been requested. There is no showing that the
deceased left any property at any place other than the Philippine Islands and no
contention that he left any in West Virginia.

37
Conflict of laws
Reference has been made by the parties to a divorce purported to have been
awarded Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in
the State of West specific pronouncements on the validity or validity of this
alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the
costs of this instance against the appellant.

G.R. No. L-12105

January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST

CO., executor-appellee,
vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA
BOHANAN, oppositors-appellants.
Jose D. Cortes for appellants.
Ohnick, Velilla and Balonkita for appellee.
LABRADOR, J.:
Appeal against an order of the Court of First Instance of Manila, Hon. Ramon
San Jose, presiding, dismissing the objections filed by Magdalena C. Bohanan,
Mary Bohanan and Edward Bohanan to the project of partition submitted by the
executor and approving the said project.
On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo,
presiding, admitted to probate a last will and testament of C. O. Bohanan,
executed by him on April 23, 1944 in Manila. In the said order, the court made the
following findings:

According to the evidence of the opponents the testator was born in

Nebraska and therefore a citizen of that state, or at least a citizen of
California where some of his properties are located. This contention in
untenable. Notwithstanding the long residence of the decedent in the
Philippines, his stay here was merely temporary, and he continued and
remained to be a citizen of the United States and of the state of his
pertinent residence to spend the rest of his days in that state. His
permanent residence or domicile in the United States depended upon his
personal intent or desire, and he selected Nevada as his homicide and
therefore at the time of his death, he was a citizen of that state. Nobody
can choose his domicile or permanent residence for him. That is his
exclusive personal right.
Wherefore, the court finds that the testator C. O. Bohanan was at the
time of his death a citizen of the United States and of the State of
Nevada and declares that his will and testament, Exhibit A, is fully in
accordance with the laws of the state of Nevada and admits the same to
probate. Accordingly, the Philippine Trust Company, named as the
executor of the will, is hereby appointed to such executor and upon the
filing of a bond in the sum of P10,000.00, let letters testamentary be
issued and after taking the prescribed oath, it may enter upon the
execution and performance of its trust. (pp. 26-27, R.O.A.).
It does not appear that the order granting probate was ever questions on appeal.
The executor filed a project of partition dated January 24, 1956, making, in
accordance with the provisions of the will, the following adjudications: (1) onehalf of the residuary estate, to the Farmers and Merchants National Bank of Los
Angeles, California, U.S.A. in trust only for the benefit of testator's grandson
Edward George Bohanan, which consists of several mining companies; (2) the
other half of the residuary estate to the testator's brother, F.L. Bohanan, and his
sister, Mrs. M. B. Galbraith, share and share alike. This consist in the same
amount of cash and of shares of mining stock similar to those given to testator's
grandson; (3) legacies of P6,000 each to his (testator) son, Edward Gilbert
Bohana, and his daughter, Mary Lydia Bohanan, to be paid in three yearly
installments; (4) legacies to Clara Daen, in the amount of P10,000.00; Katherine
Woodward, P2,000; Beulah Fox, P4,000; and Elizabeth Hastings, P2,000;

38
Conflict of laws
It will be seen from the above that out of the total estate (after deducting
administration expenses) of P211,639.33 in cash, the testator gave his grandson
P90,819.67 and one-half of all shares of stock of several mining companies and
to his brother and sister the same amount. To his children he gave a legacy of
only P6,000 each, or a total of P12,000.

that there exists no community property owned by the decedent and his former
wife at the time the decree of divorce was issued. As already and Magdalena C.
Bohanan may no longer question the fact contained therein, i.e. that there was
no community property acquired by the testator and Magdalena C. Bohanan
during their converture.

The wife Magadalena C. Bohanan and her two children question the validity of
the testamentary provisions disposing of the estate in the manner above
indicated, claiming that they have been deprived of the legitimate that the laws of
the form concede to them.

Moreover, the court below had found that the testator and Magdalena C.
Bohanan were married on January 30, 1909, and that divorce was granted to him
on May 20, 1922; that sometime in 1925, Magdalena C. Bohanan married Carl
Aaron and this marriage was subsisting at the time of the death of the testator.
Since no right to share in the inheritance in favor of a divorced wife exists in the
State of Nevada and since the court below had already found that there was no
conjugal property between the testator and Magdalena C. Bohanan, the latter
can now have no longer claim to pay portion of the estate left by the testator.

The first question refers to the share that the wife of the testator, Magdalena C.
Bohanan, should be entitled to received. The will has not given her any share in
the estate left by the testator. It is argued that it was error for the trial court to
have recognized the Reno divorce secured by the testator from his Filipino wife
Magdalena C. Bohanan, and that said divorce should be declared a nullity in this
jurisdiction, citing the case of Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz.,
(Sup, 12) 315, Cousins Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42
Phil., 855 and Gorayeb vs. Hashim, 50 Phil., 22. The court below refused to
recognize the claim of the widow on the ground that the laws of Nevada, of which
the deceased was a citizen, allow him to dispose of all of his properties without
requiring him to leave any portion of his estate to his wife. Section 9905 of
Nevada Compiled Laws of 1925 provides:
Every person over the age of eighteen years, of sound mind, may, by last
will, dispose of all his or her estate, real and personal, the same being
chargeable with the payment of the testator's debts.
Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a
share in the testator's estafa had already been passed upon adversely against
her in an order dated June 19, 1955, (pp. 155-159, Vol II Records, Court of First
Instance), which had become final, as Magdalena C. Bohanan does not appear
to have appealed therefrom to question its validity. On December 16, 1953, the
said former wife filed a motion to withdraw the sum of P20,000 from the funds of
the estate, chargeable against her share in the conjugal property, (See pp. 294297, Vol. I, Record, Court of First Instance), and the court in its said error found

The most important issue is the claim of the testator's children, Edward and Mary
Lydia, who had received legacies in the amount of P6,000 each only, and,
therefore, have not been given their shares in the estate which, in accordance
with the laws of the forum, should be two-thirds of the estate left by the testator.
Is the failure old the testator to give his children two-thirds of the estate left by
him at the time of his death, in accordance with the laws of the forum valid?
The old Civil Code, which is applicable to this case because the testator died in
1944, expressly provides that successional rights to personal property are to be
earned by the national law of the person whose succession is in question. Says
the law on this point:
Nevertheless, legal and testamentary successions, in respect to the
order of succession as well as to the extent of the successional rights
and the intrinsic validity of their provisions, shall be regulated by the
national law of the person whose succession is in question, whatever
may be the nature of the property and the country in which it is found.
(par. 2, Art. 10, old Civil Code, which is the same as par. 2 Art. 16, new
Civil Code.)

39
Conflict of laws
In the proceedings for the probate of the will, it was found out and it was decided
that the testator was a citizen of the State of Nevada because he had selected
this as his domicile and his permanent residence. (See Decision dated April 24,
1950, supra). So the question at issue is whether the estementary dispositions,
especially hose for the children which are short of the legitime given them by the
Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada
allow a testator to dispose of all his properties by will (Sec. 9905, Complied
Nevada Laws of 1925, supra). It does not appear that at time of the hearing of
the project of partition, the above-quoted provision was introduced in evidence,
as it was the executor's duly to do. The law of Nevada, being a foreign law can
only be proved in our courts in the form and manner provided for by our Rules,
which are as follows:
SEC. 41. Proof of public or official record. An official record or an entry
therein, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy tested by the officer having the
legal custody of he record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer
has the custody. . . . (Rule 123).
We have, however, consulted the records of the case in the court below and we
have found that during the hearing on October 4, 1954 of the motion of
Magdalena C. Bohanan for withdrawal of P20,000 as her share, the foreign law,

especially Section 9905, Compiled Nevada Laws. was introduced in evidence by

appellant's (herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II, and t.s.n. pp.
24-44, Records, Court of First Instance). Again said laws presented by the
counsel for the executor and admitted by the Court as Exhibit "B" during the
hearing of the case on January 23, 1950 before Judge Rafael Amparo (se
Records, Court of First Instance, Vol. 1).
In addition, the other appellants, children of the testator, do not dispute the
above-quoted provision of the laws of the State of Nevada. Under all the above
circumstances, we are constrained to hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken
judicial notice of by us, without proof of such law having been offered at the
hearing of the project of partition.
As in accordance with Article 10 of the old Civil Code, the validity of testamentary
dispositions are to be governed by the national law of the testator, and as it has
been decided and it is not disputed that the national law of the testator is that of
the State of Nevada, already indicated above, which allows a testator to dispose
of all his property according to his will, as in the case at bar, the order of the court
approving the project of partition made in accordance with the testamentary
provisions, must be, as it is hereby affirmed, with costs against appellants.