to issue the writ of habeas corpus is derived from the constitution, as a general rule, and not from the statutes, and the practice in such cases is governed by the rules of that court, and not by the statutes.43 The supreme court may entertain an appeal upon an injunction suit, whether it involves the merits of the case or not." § 975. Jurisdiction of state courts.-It is not proposed under this heading to discuss the relations between state and federal courts, but merely to note instances in which the state courts have jurisdiction over cases in which the authority of the United States. courts would ordinarily seem to appear. State courts have jurisdiction in the following cases, over subject-matter apparently within the exclusive control of the United States government, or over parties, subjects of foreign governments resident within the state, as in an action for assault and battery in a United States navy yard, although the state ceded exclusive jurisdiction of that place to the United States. So, also, state courts have jurisdiction of crimes committed on the United States military reservation. An act of the New York legislature, ceding the navy yard at Brooklyn to the United States, which act provides that cession "shall not prevent the operation of the laws of the state" within the same, had the effect of preserving the jurisdiction of the state over offenses committed on board the government ship in the navy yard and over the person of the offender.*7 48 49 46 Foreign citizenship does not exempt a person from liability from a breach of the criminal laws. And a foreign consul, in civil and criminal matters, is subject to the local law in the same way as other foreign residents within the country." In cases of tort committed in a foreign state, state courts have jurisdiction where the defendant is served with process within the state.50 So, also, of a fraudulent conspiracy formed in another state." State courts have also jurisdiction in actions against foreign 43 Ex parte Moyer (Colo.), 91 Pac. 738. 44 Rickey Land etc. Co. v. Glader, 6 Cal. App. 113, 91 Pac. 414. 45 Armstrong v. Foote, 11 Abb. Pr. 384. 46 Clay v. State, 4 Kan. 49. 47 People v. Lane, 1 Edm. (N. Y.) 116. 51 48 In re Jugiro, 140 U. S. 297, 35 L. Ed. 510, 11 Sup. Ct. 770. 49 Coppell v. Hall, 7 Wall. 553, 19 L. Ed. 244. 50 Hull v. Vreeland, 18 Abb. Pr. 182; Latourette v. Clarke, 45 Barb. 327. 51 Mussina v. Belden, 6 Abb. Pr. 165. executors or administrators who are residents of the state.52 So of actions on contracts made in a foreign country.53 Foreign governments may sue and be sued in state courts in their federative names.54 State courts having general jurisdiction in actions of trover, may entertain suit for a conversion which would also be cognizable under federal law, in the absence of express prohibition. On this theory the postmaster may be held liable for wrongful detention of mail.55 And state courts have jurisdiction concurrently with federal courts in suits for the infringement of trade-marks,"" and in suits to recover royalties for the privilege of selling or using a patented article.57 A state judicial officer has no jurisdiction to issue habeas corpus for the discharge of a person held under the authority of the United States and by United States officers. When the return of the writ shows that the prisoner is in custody of a federal officer under the authority of the United States, a state court can proceed no further.58 But a state court may determine the legality of the restraint of all persons held within their limits, although depending upon the federal constitution and laws, subject to the exclusive authority of the federal courts to determine the legality of the detention of persons held under federal authority. Property levied upon under a state writ of execution cannot be levied upon by process issuing from a federal court.59 The United States government or a state government may consent to be sued in a state court.60 And actions may be maintained in state courts against officers of the United States government in certain cases. 1 52 Gulick v. Gulick, 33 Barb. 92; Montalvan v. Clover, 32 Barb. 190; Sere v. Coit, 5 Abb. Pr. 482. 53 Skinner v. Tinker, 34 Barb. 333. 54 Republic of Mexico v. Arrangois, 11 How. Pr. 1; Mills v. Thursby, 2 Abb. Pr. 437; Manning v. State of Nicaragua, 14 How. Pr. 517. 55 Teal v. Felton, 12 How. 292, 13 L. Ed. 991. 56 In re Keasbey etc. Co., 160 U. S. 231, 40 L. Ed. 402, 16 Sup. Ct. 273. 57 Felix v. Scharnweber, 125 U. S. 58, 31 L. Ed. 687, 8 Sup. Ct. 759; Pratt v. Paris Gas Light Co., 168 U. S. 259, 42 L. Ed. 458, 18 Sup. Ct. 62. 58 Ableman v. Booth, 21 How. 523, 16 L. Ed. 169; Tarble's case, 13 Wall. 402, 20 L. Ed. 597. 59 Hagan v. Lucas, 10 Pet. 404, 9 L. Ed. 470; Prince v. Bartlett, 8 Cranch, 434, 3 L. Ed. 614. 60 People of Michigan v. Phoenix Bank, 4 Bosw. 363. 61 Ripley v. Gelston, 9 Johns. 201, 6 Am. Dec. 271; In re Stacy, 10 Johns. 328; Hoyt v. Gelston, 13 Johns. 141; Wilson v. MacKenzie, 7 Hill, 95, 42 Am. Dec. 51; Teall v. Felton, 1 N. Y. 537, 49 Am. Dec. 352; McButt v. Murray, 10 Abb. Pr. 196. § 976. Extraterritorial jurisdiction of state courts. It may be stated as an absolute rule that process from a state court cannot, by publication or otherwise, run into another state and summon a person domiciled there to answer in proceedings purely in personam. Suits based upon a money demand or a purely personal contract are in personam, and within the rule above stated, and a defendant in such suit cannot be summoned by constructive service. The rule protects foreign corporations as well as nonresident individuals.68 Service of a foreign corporation doing business within the state may be made upon the secretary of state, if such corporation does not have a designated party to receive service.64 But service of an officer of such a corporation temporarily in the state cannot bind the corporation to appear. And the mere fact that the corporation has property in the state will not give a court jurisdiction in personam. A judgment against a domestic corporation or against a non-resident stockholder cannot fix the latter's individual liability if he did not appear in the suit. Judgment against a firm cannot bind a non-resident partner; nor can service of the agent of a non-resident firm bind the firm."9 67 .68 66 65 Legislatures have power to prescribe the conditions upon which foreign corporations may do business within the state and invoke the jurisdiction of its courts;70 but for defendant to avail himself of the bar, it must be pleaded and proven that plaintiff has not complied with the conditions." However, the California statute seems to impose upon the plaintiff foreign corporation the burden. of pleading and proving that it has complied with the statutory provision.72 62 Pennoyer v. Neff, 95 U. S. 727, 24 L. Ed. 565; Davis v. Wakelee, 156 U. S. 685, 39 L. Ed. 578, 15 Sup. Ct. 555; Brown v. Campbell, 100 Cal. 641, 38 Am. St. Rep. 317, 35 Pac. 434. 63 St. Clair v. Cox, 106.U. S. 653, 27 L. Ed. 222, 1 Sup. Ct. 354. 64 Cal. Civ. Code, § 405. 65 Goldey v. Morning News, 156 U. S. 521, 39 L. Ed. 517, 15 Sup. Ct. 559; Dillard v. Central Virginia etc. Co., 82 Va. 741, 1 S. E. 128. 66 United States v. American Bell Tel. Co., 29 Fed. 32. 67 Wilson v. Seligman, 144 U. S. 44, 36 L. Ed. 338, 12 Sup. Ct. 541; 68 Lackett v. Rumbaugh, 45 Fed. 30; Beck v. Thompson, 22 Nev. 127, 36 Pac. 568. 69 Brooks v. Dun, 51 Fed. 145. 70 International Trust Co. V. Leschen & Sons Rope Co., 41 Colo. 299, 92 Pac. 727. 71 Standard Stock Food Co. V. Jasper, 76 Kan. 926, 92 Pac. 1094. 72 Cal. Civ. Code, §§ 405, 410. Attachment, although a proceeding in rem, will not support a personal judgment against a non-resident.73 Accordingly, if attachment does not entirely satisfy the judgment, the plaintiff has no redress for the unsatisfied part." Upon the same principle, while a court may decree the foreclosure of a mortgage on a nonresident's property, it cannot render a deficiency judgment, unless the defendant appeared." The Colorado courts have held that a suit to foreclose a mechanic's lien is a proceeding in personam, and there can therefore be no service by publication against a nonresident." 76 In no event can the mere rendition of a personal judgment against a non-resident create a lien on his property." Of course, where a non-resident has appeared and answered to the merits, he is deemed to have waived his extraterritorial immunity. So, also, where a non-resident individual is served in a state, jurisdiction is acquired in a suit in personam. In California, constructive service is allowed in a suit against a guardian for an accounting, on the ground of implied consent to such service, in case of removal from the state.s 80 An equally well-settled rule is, that service by publication. against a non-resident will give jurisdiction in a proceeding substantially in rem, property within the state being subject to attachment, and the object of such a suit being to reach and dispose of such property.81 A proceeding for the foreclosure of a mortgage on property within the jurisdiction of the court is of such a nature.82 And proceedings to enforce liens generally are within the meaning of the rule.83 A suit to recover possession of 73 Exchange Bank v. Clement, 109 Ala. 280, 19 So. 817; Cudabac v. Strong, 67 Miss. 709, 7 So. 544. 74 Eastman v. Dearborn, 63 N. H. 366. 75 Blumberg v. Birch, 99 Cal. 417, 37 Am. St. Rep. 68, 34 Pac. 102; Williams v. Follett, 17 Colo. 54, 28 Pac. 331. 76 Davis v. John Mouat etc. Co., 2 Colo. App. 388, 31 Pac. 189; Estey v. Hallack etc. Co., 4 Colo. App. 166, 34 Pac. 1114; Sayre-Newton Co. v. Park, 4 Colo. App. 485, 36 Pac. 447. 77 Denny v. Ashley, 12 Colo. 167, 20 Pac. 332. 78 Vermilya v. Brown, 65 Fed. 150; Epps v. Buckmaster, 104 Ga. 702, 30 79 Sipe v. Copwell, 59 Fed. 971, 8 C. C. A. 419. 80 Spencer v. Houghton, 68 Cal. 87, 8 Pac. 682. 81 Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. 82 Blumberg v. Birch, 99 Cal. 417, 37 Am. St. Rep. 68, 34 Pac. 102; La Fetra v. Gleason, 101 Cal. 248, 35 Pac. 766. 83 Oswald v. Kampmann, 28 Fed. 37; McCarter v. Neil, 50 Ark. 191, 6 S. W. 731; Roller v. Holley, 13 Tex. Civ. App. 636, 35 S. W. 1074; Goodale v. Coffee, 24 Or. 353, 33 Pac. 991. land sold for taxes is also a proceeding in rem,84 as also is a suit to set aside a fraudulent conveyance.s While the attachment of property within the state is insufficient in itself as a basis for a judgment in personam against a nonresident served by publication, the proceedings are so far proceedings in rem as to hold the property actually attached. 86 A state may authorize proceedings to determine the status of one of its citizens toward a non-resident without the jurisdiction of its courts. It is upon this principle that divorce decrees rendered against non-residents have been upheld.88 87 § 977. Jurisdiction determined by amount in controversy.— The constitutions or statutes of the several states usually provide that the jurisdiction of certain courts shall extend only to cases. where the amount in controversy shall exceed or not exceed a certain sum. In such cases it is generally the amount of the plaintiff's claim, as shown by his complaint, or by the summons, which determines the court's jurisdiction. That the ad damnum clause of the plaintiff's complaint determines the question, is a rule of almost universal application. It is the claim as made, and not the claim as decided or allowed, which determines the jurisdiction; hence the term "the amount in controversy." 89 And this is the rule when a suit is for unliquidated damages, irrespective of the nature of the action, whether in contract or in tort." Thus, in replevin, jurisdiction attaches according to the claim made in the affidavit.91 Where the plaintiff in his complaint claims. one hundred dollars, the mere fact that the copy of a note attached to the complaint, and the note itself, was for more than that amount, is no ground for arresting the judgment of a court whose jurisdiction is limited to cases in which the amount in contro 84 Shepherd v. Ware, 46 Minn. 176, 24 Am. St. Rep. 214, 48 N. W. 773. 85 Robinson v. Kind, 23 Nev. 3410, 47 Pac. 1, 977; Loaiza v. Superior Court, 85 Cal. 28, 20 Am. St. Rep. 197, 24 Pac. 710, 9 L. R. A. 376. 86 Anderson v. Goff, 72 Cal. 69, 1 Am. St. Rep. 37, 13 Pac. 75; Brown v. Tucker, 7 Colo. 34, 1 Pac. 224; State v. Eddy, 10 Mont. 318, 25 Pac. 1034. 87 Pennoyer v. Neff, 95 U. S. 734, 24 L. Ed. 565. 88 In re James, 99 Cal. 376, 37 Am. St. Rep. 62, 33 Pac. 1123; Amy v. Amy, 12 Utah, 286, 42 Pac. 1128. 89 Jackson v. Whartenby, 5 Cal. 94; Maxfield v. Johnson, 30 Cal. 545; Der by v. Stevens, 64 Cal. 287, 30 Pac. 870; Plunket v. Evans, 2 S. Dak. 434, 50 N. W. 961; Ebey v. Engle, 1 Wash. T. 72. 90 Bailey v. Sloan, 65 Cal. 387, 4 Pac. 349; Perkins v. Ralls, 71 Cal. 87, 11 Pac. 860; Kleni v. Allenbach, 6 Nev. 159; Corbell v. Childers, 17 Or. 528, 21 Pac. 670. 91 Shealor v. Amador County Sup. Court, 70 Cal. 564, 11 Pac. 653. |