Page:Harvard Law Review Volume 32.djvu/851

815 JURISDICTION TO ANNUL A MARRIAGE 815 as in any other action in rem, service on the respondent being neces- sary only for due process. The res would be the question of the marriage status, maritatus vel non. When the vaHdity of a will is estabHshed by a court having jurisdiction, its determination is conclusive.**' So here the existence or nonexistence of the marriage relation would be settled. Condemnation of goods in a revenue case, a grant of probate, and a decree in a matrimonial suit are all said to be judgments in rem, though the proceedings in form are in personam}^ When the authorities are examined, the conclusion is that the basis of jurisdiction has not been clearly enough marked out to establish any definite rule. Statements may be found to the effect that in annulment, as in divorce, jurisdiction depends on domicile.*^ These statements are practically all based on the same small group of cited cases, which will be examined in more detail. English authorities state that the EngHsh courts have jurisdic- tion to declare a marriage a nuUity in two situations: first, when the marriage was celebrated in England; second, where the respondent is resident in England at the date of the petition. The various text- writers state the rule in almost identical language and cite the same authorities in its support.*^ That the state where the marriage was celebrated has authority to declare it a nulHty was the view con- tended for above. It is supported by the text-writers just cited and several English decisions squarely on the point. In Linke v. Van Aerde^ the parties were not citizens, nor was either domiciled there when suit was brought, yet the court was clear it had jurisdiction. To the same effect are Simonin v. M alloc, '^^ where both parties were French, and Sottomayor v. De Barros,^^ where they were Wharton on the Conflict of Laws, 3 ed., §§ 595, 644. Wells, I Lev. 235 (1667); for matrimonial decree, Dacosta v. Villa Real, 2 Str. 961 (1734), and Bater v. Bater, [1906] P. 209. Eng. Encyc. Law, 2 ed., 12 19; 26 Cyc. 908. ^ Dicey on the Conflict of Laws, 2 ed., 268; Westlake's Private Int. Law, S ed., § 49; Foote's Private Int. Jurisprudence, 4 ed., 123; 6 Halsbury's Laws OF England, 265. « 10 T. L. R. 426 (1894). « 2 Sw. & Tr. 67 (i860). « 3 P. D. I (1877).
 * " Whicker v. Hume, 7 H. L. C. 124 (1858); Thomas v. Morrisett, 76 Ga. 384 (1886);
 * ^ I Halsbxtry's Laws of England, 48, citing for probate proceeding Noell v.
 * ^ Bishop, supra, note 2; Keezer on Marriage and Divorce, § 56; 19 Am. and