Dunn vs. Dunn, 4 Paige Ch. 425

The Chancellor. There is no foundation whatever for the charge, which has been very improperly inserted in the petition in this cause, that the solicitor for the complainant wilfully concealed the fact, in the affidavit of regularity, that the subpoena was served out of the state. From information derived from some of the most respectable solicitors in the city of New-York, within the first two or three years after I came into this court, I know they had been in the habit of considering a personal service of a subpoena out of the state as regular.

I have also reason to believe my immediate predecessor, tacitly at leat, sanctioned this practice; and that during his time many decrees were entered upon the usual affidavits of regularity, which affidavits were founded upon the service of subpoenas in the adjoining states. Moulton, in his practice, says, where the defendant resides abroad, service of a subpoena may be made personally. (1 Moult. Pr. 201.) He cites Scott v. Hough, (4 Bro. C.

C. 213.) And a more recent writer on the practice of this court, whose work is now in the press, after an examination of the cases on this subject, seems to entertain the same opinion. (1 Hoffman’s Ch. Prac. 111, note 1.) Whatever, therefore, may be the ultimate decision of the court upon this question, there can be nó doubt that the solicitor, at the time he drew the affidavit of service, and when he made the affidavit of regularity, honestly believed a personal service of the subpoena at Newark was regular, and according to the settled practice of the court.

And if he entertained that belief, the affidavit would, of course, be in the usual form, in which form the place of service is not mentioned. On the other hand, notwithstanding the affidavit of Mrs. Plum, I cannot believe the solicitor for the defendant wilfully misread the affidavit of the 12th of November to her, for the purpose of making her swear to something which she did not believe to be true.

It is much more charitable to suppose that neither she or the solicitor at'that time understood what the legal meaning of cohabitation was; and that they both understood that voluntary cohabitation meant nothing more than that they slept together in the same bed. There is the more reason to believe he made that mistake, inasmuch as his own client, in her petition, has sworn that-the complainant cohabited with her on the night of the 27th of August, which must have been within a few .hours of the birth of the child.

I will not say that cohabitation under such circumstances is absolutely impossible ; but it is contrary to nature, and wholly improbable. I cannot therefore believe that the solicitor who drew the petition, or the defendant who swore to it, understood the term cohabitation according to its legal meaning as used in the statute. The defendant’s solicitor undoubtedly mistook his duty in taking an affidavit, to bé used in a cause in favor of his own client; and more particularly in administering an oath to the deponent out of the jurisdiction of the state in which he was authorized to act as a commissioner.

I think, however, we ought to presume it was done through ignorance, and not from an intention to do what he knew to be wrong. I shall therefore proceed to inquire whether the service of the subpoena on the defendant in Newark was irregular. • I am not aware'of any reported case in which this question has arisen and been decided, in this state. In England the practice does not appear to have been definitively settled; but from the reports it would seem the last decision was against the validity of a service in a foreign country. In Bourke v.

Lord M’Donald, in 1781, (2 Dickens, 587,) the subpoena was served in Scotland, and the defendant afterwards coming to England, he was taken on an attachment for not appearing. The master of the rolls was clear as to the regularity of the service of the subpoena; but Lord Thurlow doubting, it stood over several times, and finally the process was dropped. A similar doubt as to the right to serve a subpoena in a foreign country had been expressed by Lord Somers in Cowslad v. Cely, in 1698. (Prec, in Ch. 83.) The case of Scott v. Hough, before Lord Thurlow, in 1793, (4 Bro. C.

C. 213,) was disposed of on a mere ex parte application, and upon a misapprehension of what had been the opinion of Lord Thurlow in Bourke v. Lord M’Donald. In the case of Shaw v. Lindsay, as reported in the first edition of Vesey, (18 Vesey, jun. 496,) it appears that Lord Eldon, in 1812, made an order ex parte for an attachment with proclamations upon the service of a subpoena in Scotland; the complainant’s counsel citing Bourke v. Lord M’Donald and Scott v. Hough as authorities in support of the application.

But in a note to a subsequent edition of Vesey, junior, it is said the order applied for in that case was finally refused, the cases cited proving to be misstated. In Nichols v. Gwyn, (1 Sim. R. 389,) an order for an attachment was made by Sir Anthony Hart, vice chancellor, upon a service of the subpoena in Paris, and upon an agreement of the defendant’s solicitor to appear. But in the case of Fernandez v. Corbin, (2 Sim.

Rep. 544,) in which a similar order had been granted ex parte, upon the" service of a subpoena in Guernsy, Sir Lancelot Shadwell, vice chancellor, upon hearing of counsel for both parties, discharged the order. In Ireland, it is settled that the service of the subpoena abroad is not sufficient to authorize any proceedings thereon. (Creed v. Byrne, Hogan’s R. 79. Lord Alborough v.

Paton, Id. 131.) But if the court of chancery has once acquired jurisdiction over the party by the service of original process within the jurisdiction of the court, or by his voluntary appearance, the decree, or any order in the cause, maybe served on the defendant out of the jurisdiction. {Idem, 1.) The statute in this state having provided a mode of proceeding, where the subject matter of the suit is-within the jurisdiction of the court and the defendant is beypnd its jurisdiction, so that he cannot be served with process, there can be no good reason why this court should extend its arm beyond the bounds of the state, for the purpose of acquiring jurisdiction over the person of the defendant.

It is also wrong in principle that a defendant should, by the process of any court, be compelled to appear and answer to a complainant in another state, or country, in order to protect himself from the consequences of a personal decree founded upon such process.

And the supreme court has recently decided, that in the commencement of a suit by the service of a declaration, under the statute, the declaration is in the nature of process to compel the defendant to appear and answer, and cannot therefore be served upon the defendant out of the limits of the jurisdiction of the court in which the suit is to be prosecuted, (Ex parte Green v.

Onondaga Common Pleas, 10 Wendell’s Rep. 592.) In all cases, however, where the court has jurisdiction over the subject matter of the suit, if the defendant who is beyond the limits of the state thinks proper to waive that objection by a voluntary appearance, or by consenting to accept as regular the service of process upon him at thé place where he resides or is found, he cannot afterwards object to the regularity of the proceedings against him, founded on such service. But such agreement, to be binding, must by the rules of the court, be in writing.

The vice chancellor was therefore right, in this case, in deciding that the service of a subpoena upon the defendant, at Newark, was not sufficient to warrant the entry of an order to take the bill as confessed for the want of appearance. And in an ordinary case, it would be a matter of course to set aside the proceedings consequent upon such service. There are, however, some very peculiar features in this case, which induce me to think.the manner in which the defendant has been admitted to come in and defend her rights, if she has any, is not that which is best calculated to do justice to all parties.

The defendant does not state when she received notice that the divorce had been actually obtained. But the complainant swears that he showed it to her, under the seal of the court, on the 16th of October, and before his second marriage; and it appears that she took no steps to set aside the proceedings for nearly a month afterwards. This delay was probably not sufficient to make it the duty of the court to bar her of her rights, if she has any, by leaving the decree to stand as conclusive against her.

But in the mean time the second wife has acquired rights, and from aught that appears, under an honest belief that the divorce of which the complainant had procured an exemplification, was perfectly regular to dissolve the matrimonial connection between the parties to the suit.

If the defendant therefore had no legal defence to the suit at the time the decree was made, although there has been an irregularity, the defendant should not be permitted to bastardize the issue of the second marriage, if such there should be, or release the complainant from such second marriage, if he succeeds in obtaining a dissolution of the first. Such, however, may be the effect of setting aside the decree absolutely in the first instance. The defendant does not deny that she has been guilty of the adultery as charged in the bill.

Probably, under the circumstances, she could not deny it in a petition which was to be sworn to by her. The whole defence, therefore, depends upon the question whether the complainant, with knowledge of the adultery, has forgiven the injury by sexual intercourse with her. The decree should then have been permitted to stand until it could be ascertained whether she had any valid defence. If it turned out that she had, the decree should tlxen have been vacated and the bill dismissed.

If she had not, then the original decree should have been continued in full force, for the protection of the rights of the second wife. The order of the vice chancellor must therefore be reversed. And there must be a reference to a master to inquire and report whether the defendant has been guilty of the adultery charged in the bill; and if she has, whether the complainant has forgiven the injury, either expressly or by a voluntary cohabitation with the defendant after knowledge of the act of adultery.

And upon the coming in and confirmation of the master’s report, if it appears that no adultery has been com-milled, or that there has been a condonation thereof, then the decree is to be set aside, and the bill dismissed, with costs, including the costs of this appeal. Otherwise the decree is to be and remain in full force and effect from the time the same was entered, on the 15th of October, 1833. The reference is to be made to Master Clark, and the proceedings are to be remitted to the vice chancellor.

A commission may issue, under the direction of the master, and upon his certificate, to examine witnesses in the state of New-Jersey, if he shall deem it necessary. See Atkinson’s Ch. Prac. 24, and 1 Malloy’s Rep. 240.