Page:Harvard Law Review Volume 32.djvu/911

875 BUSINESS JURISDICTION OVER NONRESIDENTS 875 brought, give a power of attorney to confess judgment,^^ or ap- point an agent to accept service, or agree that service by any other method shall be sufficient.^ The defendant in all these cases has submitted to the control of the state and of the court over him. Again, a state has control over its citizens and over all persons domiciled within the state even when they have gone outside the state. At common law jurisdiction over such persons can be ac- quired by the courts of the state only by personal service within the state, or by consent.^^ But statutes in several states have pro- vided for other methods of service upon citizens and residents. If the methods provided for are such as are reasonably calculated to give notice and an opportunity to defend, they are constitutional.^^ ^ Van Norman v. Gordon, 172 Mass. 576, 53 N. E. 267 (1899); First National Bank V. Garland, 109 Mich. 515, 67 N. W. 559 (1896); Hazel v. Jacobs, 78 N. J. L. 459, 75 Atl. 903 (1910); Ted V. Yost, 128 N. Y. 387, 28 N. E. 353 (1891). The judgment is not valid unless the authority given in the power of attorney is strictly followed. Grover, etc. Co. v. RadcUffe, 137 U. S. 287 (1890); National Exchange Bank v. Wiley, 19s U. S. 257 (1904); Re Raymor's Estate, 165 Mich. 259, 130 N. W. 594 (191 1). ^ Montgomery, Jones & Co. v. Liebenthal & Co., [1898] i Q. B. 487 (C. A.). ^ At common law if no service could be made upon a resident it was possible to outlaw him. 3 Bl. Comm. 283. One result of the outlawry was to forfeit to the Crown the property of the defendant. This did not directly inure to the benefit of the plaintiff but it was a powerful club to force the defendant to appear. The process of outlawry was rejected in the United States as inapplicable to our conditions. Blessing ;;. McLinden, 81 N. J. L. 379, 79 Atl. 347 (191 1); Nathanson v. Spitz, 19 R. I. 70, 31 Atl. 690 (1895); McCall V. Price, i McCord (S. C.) 82 (1821). In European countries jurisdiction is normally based upon allegiance or domicile rather than upon the personal presence of the defendant. Beale, "The Jurisdiction of Courts over Foreigners," 26 Harv. L. Rev. 193. 25 Ouseley v. Lehigh Valley, etc. Co., 84 Fed. 602 (C. C, E. D. Pa., 1897); Bicker- dike V. Allen, 157 111. 95, 41 N. E. 740 (1895) (pubUcation and mailing); Sturgis v. Fay, 16 Ind. 429 (1861) (usual or last place of residence); Bryant v. Shute's Executor, 147 Ky. 268, 144 S. W. 28 (191 2) (last and usual place of abode); Harryman v. Roberts, 52 Md. 64 (1879) (service at residence); Henderson v. Staniford, 105 Mass. 504 (1870) (pubHcation) ; Continental National Bank v. Thurber, 74 Hun (N. Y.) 632, 26 N. Y. Supp. 956 (1893) (service at residence). Cf. Douglas v. Forrest, 4 Bing. 686 (1828) (proclamation in public place); Schibsby v. Westenholz, L. R. 6 Q. B. 155 (1870). But see, contra, Raher v. Raher, 150 Iowa, 511, 129 N. W. 494 (1911) (serv- ice outside the state). A method of service is insufficient when, although it may have a tendency to give notice to the defendant, yet there is another way obviously better calculated to give notice. Service by publication is insufficient therefore when personal service is possible (Bardwell v. Collins, 44 Minn. 97, 46 N. W. 315 (1890)), or where the de- fendant had left the state but his family remained at his last place of abode. McDonald V. Mabee, 243 U. S. 90 (1917). It is doubtful whether service by pubhcation upon a resident is sufficient even when no other method of service is available. See McDonald