ties. But, without adopting either of these constructions, we rest the conclusion already indicated upon the broad ground that when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligations of a warranty. The Company cannot justly complain of such a rule. Its attorneys, officers or agents prepared the policy for the purpose, we shall assume, both of protecting the Company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.

clauses of the written agreement, if it be possible to do so consistently with the intention of the parties, to be collected from the terms used. It will be observed, from an examination of the questions propounded to the assured, that, among other things, he was asked whether the building was of stone, brick, or wood; how the premises were warmed; what materials were used for lighting them; whether a watchman was kept during the night; what amount of insurance was already on the property; whether it was mortgaged, etc. These and similar ques tions refer to the matters of which the assured had actual knowledge, or about which he might, with propriety, be required to speak with perfect accuracy. They are matters capable of precise ascertainment, and in no sense depending upon estimate, opinion or mere probability. But his situation and duty were wholly different when required to state the cash value of his property. He was required to give its "estimat ed value." His answers concerning such value were, in one sense, and, perhaps, in every just sense, only the expression of an opinion. The ordinary test of the value of property is the price it will command in the market if offered for sale. But that test cannot, in the very nat ure of the case, be applied at the time applica tion is made for insurance. Men may honestly differ about the value of property, or as to what it will bring in the market; and such differences are often very marked among those whose special business it is to buy and sell property of all kinds. The assured could do no more than estimate such value; and that, it seems, was all that he was required to do in this case. His duty was to deal fairly with the Company in making such estimate. The special finding shows that SYLVESTER PENNOYER, Piff. in Err.,

he discharged that duty and observed good faith. We shall not presume that the Company, after requiring the assured in his application to give the "estimated value," and then to covenant

that he had stated all material facts in regard to such value, so far as known to him, and after carrying that covenant, by express words, into the written contract, intended to abandon the theory upon which it sought the contract, and make the absolute correctness of such estimated value a condition precedent to any insurance whatever. The application, with its covenant and stipulations, having been made a part of the policy, that presumption cannot be indulged without imputing to the Company a purpose, by studied intricacy or an ingenious framing of the policy, to entrap the assured into incurring obligations which, perhaps, he had no thought of assuming.

Two constructions of the contract may be suggested. One is to regard the warranty expressed in the policy as limited or qualified by the terms of the application. In that view, the assured would be held as only warranting that he had stated all material facts in regard to the condition, situation, value and risk of the prop erty, so far as they were known to him. This is, perhaps, the construction most consistent with the literal import of the terms used in the application and the policy. The other construction is, to regard the warranty as relating only to matters of which the assured had or should be presumed to have had distinct, definite knowledge, and not to such matters as values, which depend upon mere opinion or probabiliSee 5 OTTO. U. S., Book 24.

Wherefore, as it does not clearly appear that the parties intended that the validity of the contract of insurance should depend upon the absolute correctness of the estimates of value, and as it does appear that such estimates were made by the assured without any intention to defraud, our opinion is that the facts found do not support the judgment.

The judgment is, therefore, reversed, with directions to enter a judgment upon the special finding for the plaintiff in error.

50 Wis., 536; 40 Ohio St., 217; 48 Am. Rep., 678; 76 Cited.-100 U. S., 617; 111 U. S., 341; 45 Wis., 641: Va., 585; 44 Am. Rep., 180.

v.

MARCUS NEFF.

(See S. C., 5 Otto, 714-748.)

Service of summons by publication-personal
judgment-property of non-resident-substi-
tuted service-process-Oregon law-foreign
tribunals-due process of law.

*1. A Statute of Oregon, after providing for service
of summons in an action upon parties or their rep-
resentatives, personally or at their residence, de-
clares that when service cannot be thus made, and
the defendant, after due diligence, cannot be found
within the State, and "that fact appears, by affida-
and it, in like manner, appears that a cause of ac-
vit, to the satisfaction of the court or judge thereof,
tion 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 or-
der that the service be made by publication of sum-
mons, *** 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,"
where the action is commenced in which the pub-
-the order to designate a newspaper of the county
lication shall be made-and that proof of such pub-
lication shall be "the affidavit of the printer, or his
fects in the affidavit for the order can only be taken
foreman, or his principal clerk:" Held, that de-
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
davit is made by the editor of the paper.
proof of the publication is satisfied when the affi-

2. A personal judgment rendered in a State Court, in an action upon a money demand against a nonresident of the State, without personal service of process upon him within the State or his appearance in the action upon service by publication is without any validity; and no title to property *Head notes by Mr. Justice FIELD.

passes by a sale under an execution issued upon | be attached in the first instance in order to give such a judgment. the court jurisdiction, but a judgment may be rendered against a non-resident defendant upon substituted service, as a means of reaching property situated at the time within the State, or affecting some interest therein.

3. The State, having within its territory property of non-residents, may hold and appropriate it to satisfy the claims of its citizens against them; and its tribunals may inquire into their obligations to the extent necessary to control the disposition of the property. If non-residents have no property in the State, there is nothing upon which the tribunals can adjudicate.

4. Substituted service by publication, or in any other authorized form, is 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 proceeds upon the theory that its seizure will inform him that it is taken into the custody of the court and that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. 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

non-resident is ineffectual for any purpose.

Oregon Code, secs. 55, 56, 116, quoted subsequently; secs. 57, 116-117; sub. 4 of sec. 246, p. 155.

3. That, when the judgment of a court of general jurisdiction is produced in evidence, it cannot be attacked collaterally when the averment of necessary jurisdictional facts appear affirmatively upon the record, no matter how erroneous the judgment may be as to the matter adjudicated.

McCauley v. Fulton, 44 Cal., 355; Hahn v. Kelly, 34 Cal., 402; Sharp v. Brunnings, 35 Cal., 533; Vassault v. Austin, 36 Cal., 695; Quivey v. Porter, 37 Cal., 462; Moore v. Martin, 5. Process from the tribunals of one State can- 38 Cal., 435; Reeve v. Kennedy, 43 Cal., 643; not run into another State, and summon parties there domiciled to leave its territory and respond Galpin v. Page, 18 Wali., 366 (85 U. S., XXI., to proceedings against them; and publication of 962); Nash v. Williams, 20 Wall., 249 (87 U. process or notice within the State in which the tri- S., XXII., 258); Voorhees v. Bk., 10 Pet., 475; bunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him Thompson v. Tolmie, 2 Pet., 166. 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 cases in which 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 non-residents, 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.

4. That, when a judgment of a court of general jurisdiction is produced in evidence, and when the record of a case shows affirmatively that the court adjudged upon the sufficiency of certain affidavits, and the record contains the averments of the necessary facts to give it jurisdiction, no court before which such judgment is produced collaterally has the right to again pass upon the sufficiency of such affidavits, or to determine that the facts were other or different than those found by the court and averred in its record.

Otis v. The Rio Grande, 1 Woods, 279, 593, and other authorities last above quoted. 5. That, in the record of Mitchell v. Neff, the

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 sovereign-State Circuit Court of Oregon, being a court of ty 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.

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 system 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 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.

[No. 669.]

Submitted Nov. 28, 1877. Decided Jan. 21, 1878.

IN States for the District of Oregon.

N ERROR to the Circuit Court of the United

The case is stated by the court.

Mr. W. F. Trimble, for plaintiff in error:
We hold, as propositions of law:

1. That the State has the power to subject the property of the non-residents within its territorial limits to the satisfaction of the claims of its citizens against such non-residents, by any mode of procedure it may deem proper and con venient under the circumstances.

Galpin v. Page, 3 Sawyer, 110; Thomas v. Mahone, 9 Bush (Ky.), 111.

2. That, under the laws of the State of Oregon, it is not required that such property should

general jurisdiction and having jurisdiction over the subject of action, was not required to embody the evidence of the jurisdictional facts upon which it acted in making the order for publication of summons and rendering the judgment therein; and it must be conclusively presumed that it had before it the evidence of every jurisdictional fact required by the statute, because the averments in the record so affirm it, and there is nothing therein to contradict it.

facts necessary to authorize the making of an 6. That, under the statutes of Oregon, the order requiring the publication of the summons against a non-resident, are only required to be shown by affidavit to the satisfaction of the court or judge; and that, in such case, it is not in the power of the U. S. Circuit Court, when the judgment of the State Circuit Court is brought before it collaterally to rejudge the cause or to decide as to the sufficiency or insufficiency of any such affidavit upon which said State Court may have acted.

7. That, in the case of Mitchell v. Neff, in the State Circuit Court, every step to acquire jurisdiction therein was taken in the cause as required by the statute, and the sufficiency of the same was conclusively adjudicated by the court; and its judgment cannot be impeached collaterally: (a) Because the record shows jurisdiction. (b) Because to do so would be to review the judgment of a court of competent

too late,

erty within the State. It also provides, where | York was passed, from which the Oregon law is
the action is for the recovery of money or borrowed, usually included not only the person
damages, for the attachment of the property of who wrote or selected the articles for publica-
the non-resident. And it also declares that no tion, but the person who published the paper
natural person is subject to the jurisdiction of and put it into circulation. Webster, in an early
a court of the State, "unless he appear in the edition of his Dictionary, gives as one of the
court, or be found within the State, or be a definitions of an editor, a person "who super-
resident thereof, or have property therein; and intends the publication of a newspaper." It
in the last case, only to the extent of such is principally since that time that the business
property at the time the jurisdiction attached." of an editor has been separated from that of a
Construing this latter provision to mean that, publisher and printer, and has become an in-
in an action for money or damages where a dependent profession.
defendant does not appear in the court, and is If, therefore, we were confined to the rulings
not found within the State, and is not a resident of the court below upon the defects in the affi-
thereof, but has property therein, the jurisdic- davits mentioned, we should be unable to up-
tion of the court extends only over such prop- hold its decision. But it was also contended in
erty, the declaration expresses a principle of that court, and is insisted upon here, that the
general, if not universal, law. The authority of judgment in the State Court against the plaint-
every tribunal is necessarily restricted by the iff was void for want of personal service of
territorial limits of the State in which it is es- process on him, or of his appearance in the ac-
tablished. Any attempt to exercise authority tion in which it was rendered, and that the
beyond those limits would be deemed in every premises in controversy could not be subjected
other forum, as has been said by this court, an to the payment of the demand of a resident
illegitimate assumption of power, and be resisted creditor except by a proceeding in rem; that is,
as mere abuse. D'Arcy v. Ketchum, 11 How., by a direct proceeding against the property for
165. In the case against the plaintiff, the prop that purpose. If these positions are sound, the
erty here in controversy sold under the judg- ruling of the Circuit Court as to the invalidity
ment rendered was not attached, nor in any way of that judgment must be sustained, notwith-
brought under the jurisdiction of the court. Its standing our dissent from the reasons upon which
first connection with the case was caused by a it was made. And that they are sound would
levy of the execution. It was not, therefore, seem to follow from two well established prin-
disposed of pursuant to any adjudication, but ciples of public law respecting the jurisdiction
only in enforcement of a personal judgment, of an independent State over persons and prop-
having no relation to the property, rendered erty. The several States of the Union are not, it is
against a non-resident without service of proc- true, in every respect independent, many of the
ess upon him in the action, or his appearance rights and powers which originally belonged to
therein. The court below did not consider them being now vested in the government
that an attachment of the property was essen- created by the Constitution. But, except as re-
tial to its jurisdiction or to the validity of the strained and limited by that instrument, they
sale, but held that the judgment was invalid possess and exercise the authority of independ-
from defects in the affidavit upon which the ent States, and the principles of public law to
order of publication was obtained, and in the which we have referred are applicable to them.
affidavit by which the publication was proved. One of these principles is, that every State pos-
There is some difference of opinion among sesses exclusive jurisdiction and sovereignty
the members of this court as to the rulings upon over persons and property within its territory.
these alleged defects. The majority are of opin- As a consequence, every State has the power to
ion that, inasmuch as the statute requires, for determine for itself the civil status and capaci-
an order of publication, that certain facts shall ties of its inhabitants; to prescribe the subjects
appear by affidavit to the satisfaction of the court upon which they may contract, the forms and
or judge, defects in such affidavit can only be solemnities with which their contracts shall be
taken advantage of on appeal, or by some other executed, the rights and obligations arising
direct proceeding, and cannot be urged to im- from them, and the mode in which their valid-
peach the judgment collaterally. The majority shall be determined and their obligations en-
ity of the court are also of opinion that the forced; and also to regulate the manner and
provision of the statute requiring proof of the conditions upon which property situated within
publication in a newspaper to be made by the such territory, both personal and real, may be
"affidavit of the printer, or his foreman, or his acquired, enjoyed and transferred. The other
principal clerk," is satisfied when the affidavit principle of public law referred to follows from
is made by the editor of the paper. The term the one mentioned; that is, that no State can
"printer," in their judgment, is there used not exercise direct jurisdiction and authority over
to indicate the person who sets up the type-he persons or property without its territory. Story,
does not usually have a foreman or clerks-it is Confl. L., ch. 2; Wheat. Int. L., pt. 2, ch. 2.
rather used as synonymous with publisher. The The several States are of equal dignity and au-
Supreme Court of New York so held in one thority, and the independence of one implies
case; observing that, for the purpose of mak- the exclusion of power from all others. And so
ing the required proof, publishers were "with- it is laid down by jurists, as an elementary prin-
in the spirit of the statute." Bunce v. Reed, 16 ciple, that the laws of one State have no oper-
Barb., 350. And, following this ruling, the Su- ation outside of its territory, except so far as is
preme Court of California held that an affidavit allowed by comity; and that no tribunal estab-
made by a "publisher and proprietor" was suf- lished by it can extend its process beyond that
ficient. Sharp v. Daugney, 33 Cal., 512. The territory so as to subject either persons or prop-
term "editor," as used when the Statute of New | erty 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. L., sec. 539.

But as contracts made in one State may be enforceable only in another State, and property may be held by non-residents, 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 prop erty 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 exterritorial 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.

deemed to bind him only 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 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.

Thus the State, through its tribunals, may compel persons domiciled within its limits to These citations are not made as authoritative execute, in pursuance of their contracts re-expositions of the law; for the language was perspecting 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. Ld. Baltimore, 1 Ves., 444; Massie v. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet., 25; Corbett v. Nutt, 10 Wall., 464 [77 U. S., XIX., 976].

So the State, through its tribunals, may subject property situated within its limits owned by non-residents 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 pro tection 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 non-residents to satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that nonresident's obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the prop. erty. If the non resident 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:

haps 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, 308 [77 U. S., XIX., 931], 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 "Where a party is within a territory, he may plaintiff is met at the commencement of his projustly be subjected to its process, and bound per ceedings by the fact that the defendant is not sonally by the judgment pronounced on such within the territorial jurisdiction, and cannot be process against him. Where he is not within served with any process by which he can be such territory, and is not personally subject to brought personally within the power of the its laws, if, on account of his supposed or actual court. For this difficulty the statute has proproperty being within the territory, process by vided a remedy. It says that, upon affidavit bethe local laws may, by attachment, go to coming made of that fact, a writ of attachment may pel his appearance, and for his default to appear be issued and levied on any of the defendant's judgment may be pronounced against him, such property, and a publication may be made warna judgment must, upon general principles, being him to appear; and that thereafter the court