make use of their interesting power to recommend legislation by proposing an amendment on this point. Their draft provides for compensation "though the injury cannot be traced to a definite occurrence which can be located in time and place; nor shall it be a defense that it is, either in whole or in part, a disease." This amendment seems to be an excellent piece of drafting.

The Report as a whole may be commended as a sensible business-like presentation of the work of a great industrial instrumentality.

J. H. B.

WATER: FRENCH LAW AND COMMON LAW. A Reprint from Volume VI of the CALIFORNIA LAW REVIEW. By Samuel C. Wiel of the San Francisco Bar.

In this little book Mr. Wiel makes another real contribution to the law of waters. His "Water Rights in the Western States," now in its third edition, and which deals with the riparian and with the appropriation systems of water law is one of the masterpieces of American legal literature.

In the present book of fifty-two pages, the subject of this review, Mr. Wiel discusses the origin of the riparian doctrine as that doctrine exists in the common law of America and of England, and also makes a comparison between the riparian doctrine of the common law and the riparian doctrine of the French Civil Code.

The essence of the riparian doctrine is the principle that the riparian proprietors along a stream have an equal right to make reasonable use of the waters of the stream. Mr. Wiel's conclusion as to the origin of the riparian doctrine will prove rather startling to American and English lawyers and jurists. With evidence apparently convincing, he shows that the doctrine referred to, as known to American common law, came not, as is usually supposed, from England, but from the French Civil Code, having been introduced into American law by Story and by Kent, and that instead of England having passed the doctrine to America it was passed by America to England. The doctrine, according to Mr. Wiel, was not known to the Roman law, and was not formulated with definiteness in the French civil law until the appearance of the French or Napoleonic Code. A principle which is to be found in the Roman law, and in the French civil law, and in the law of the riparian system of England, and in that of the riparian and appropriation systems of America, is the one to the effect that a water right in respect to a running stream is not a right in the corpus of the water itself while in the stream, but simply a right to make use of the water of the stream. This principle, however, is not to be confused with the riparian doctrine, for it is common to the riparian and to the appropriation systems, the underlying fundamental principles of which are, respectively, equality for the one and discrimination in favor of the first user for the other.

After having traced the riparian doctrine from the English common law back into the American common law, and then on back into the law of the French Civil Code, Mr. Wiel compares various features of the riparian doctrine or system obtaining in America with features existing in the French civil law under the code, with the result that he finds them substantially the same. Thus, they are found to be alike in the following, among other, particulars: use of the water is confined to lands that are riparians; use does not create the water right and nonuse does not extinguish it, for the right exists by virtue of the riparian nature of the land; the right of one riparian proprietor against another is that of equality, not equality in the amount of water used, but in the right to make a reasonable use; excessive use - in other words, the use of an amount of water over and above the amount which equality of right makes reasonable - is unlawful; a riparian, as against himself, may part with his water right to a nonriparian, but not as against other riparians; riparians

-

lands are those which touch or border upon a stream, and the rear portions of such tracts, if sold, cease to be riparian, although becoming again riparian if repurchased; and the riparian right may be lost by prescription.

Mr. Wiel regards his book as exploratory, and wishes for the general subject matter a still further investigation. It is to be hoped that the scholarly author himself will do the further work and then "consolidate the gains.” Meanwhile, the present little book should be on the shelf of every real student of the law of waters. L. WARD BANNISTER.

PERSONAL IDENTIFICATION: METHODS FOR THE IDENTIFICATION OF INDIVIDUALS, LIVING OR DEAD. By Harris Hawthorne Wilder, Ph.D., Professor of Zoology in Smith College, and Bert Wentworth, former Police Commissioner of Dover, New Hampshire. Boston: Richard C. Badger. 1919. pp. 374.

This is a book of absorbing interest, though a purely scientific work, the result of collaboration between scientific research and practical experience. It discusses all methods of personal identification, from Bertillon measurements to the reconstruction of a face upon a skull; identification by birthmarks and scars, by handwriting, voice, habits, by bones and teeth. The principal original work of the authors is their careful detailed study of identification by "friction skin," i. e., by finger prints and by prints of the palm of the hand or the sole of the foot. The anatomical origin of this "friction skin" is found to be the cushions of flesh and folds of skin on the feet of climbing animals such as the rodents and the apes. The practical development and comparison of actual prints, such as might be left by a criminal, is described, and a method of classifying prints for reference is developed. The scientific value of the work is apparent.

The lawyer, who may at any time find it necessary to establish personal identity, should find this book invaluable; and any student of law may profitably use it to become familiar betimes with methods of identification.

J. H. B.

HARVARD

LAW REVIEW

VOL. XXXII

JUNE, 1919

No. 8

JURISDICTION OVER NONRESIDENTS DOING BUSINESS WITHIN A STATE

2

PERSONAL judgment against a defendant over whom the court rendering it has no jurisdiction is invalid. It is not merely reversible on writ of error or appeal, but is wholly void for all purposes.1 An attempt to execute it is without justification; a sheriff levying upon property of the defendant is liable for conversion, and a purchaser of the property on execution sale gets no title to it.3 A court of equity may, where the remedy at law is inadequate, enjoin the execution of the judgment. No action lies upon it either in the state wherein it is rendered 5 or in any other state. It cannot be set up as a bar in a suit upon the original cause of action.7

6

If these fundamental principles of the conflict of laws are disregarded by a state court, they may be vindicated in the federal courts, for they are protected by two provisions of the federal Constitution. If a judgment is rendered in one state and an action is brought thereon in another state, a federal question is involved

1 Pennoyer v. Neff, 95 U. S. 714 (1877); Needham v. Thayer, 147 Mass. 536 (1888). 2 See Elliott v. Peirsol, 1 Pet. (U. S.) 328, 340 (1828).

3 McKinney v. Collins, 88 N. Y. 218 (1882).

Riverside, etc. Mills v. Menefee, 237 U. S. 189 (1915). 'Needham v. Thayer, 147 Mass. 536, 18 N. E. 429 (1888).

Buchanan v. Rucker, 9 East, 191 (1808); Schibsby v. Westenholz, L. R. 6 Q. B. 155 (1870); Pennoyer v. Neff, 95 U. S. 714 (1877); Rand v. Hanson, 154 Mass. 87, 28 N. E. 6 (1891); McEwan v. Zimmer, 38 Mich. 765 (1878); Whittier v. Wendell, 7 N. H. 257 (1834); Price v. Schaeffer, 161 Pa. 530, 29 Atl. 279 (1894).

" McDonald v. Mabee, 243 U. S. 90 (1917).

under the provision of Article IV, section 1, that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State." The enforcement of a judgment against a defendant over whom the court has no jurisdiction involves a violation of the provision of the Fourteenth Amendment that no state shall "deprive any person of life, liberty or property without due process of law." The decisions of the Supreme Court of the United States upon the question of jurisdiction over the defendant are, therefore, under these two provisions, binding upon the states.

"The foundation of jurisdiction is physical power." 10 A state cannot authorize its courts to reach out and impose liabilities upon persons over whom the state has no control. In other jurisdictions such an attempt would be regarded as an impertinence, an unauthorized assumption of power. "Can the island of Tobago pass a law to bind the rights of the whole world?" asked Lord Ellenborough. "Would the world submit to such an assumed jurisdiction?" " In the leading case of Pennoyer v. Neff,12 Mr. Justice Field said:

11

"The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse."

A state cannot compel parties domiciled in another state to leave it and respond to proceedings brought against them, or impose liabilities upon them on their failure to appear. It is immaterial

8 Dull v. Blackman, 169 U. S. 243 (1898); Old Wayne Life Ass'n v. McDonough, 204 U. S. 8 (1907).

• Dewey v. Des Moines, 173 U. S. 193 (1899); Simon v. Southern Ry. Co., 236 U. S. 115 (1915); Riverside, etc. Mills v. Menefee, 237 U. S. 189 (1915). See Pennoyer v. Neff, 95 U. S. 714, 732, 733 (1877).

10 McDonald v. Mabee, 243 U. S. 90 (1917), per Holmes, J.

11 Buchanan v. Rucker, 9 East, 191 (1808).

12 95 U. S. 714, 720 (1877). See also Baker v. Baker, Eccles & Co., 242 U. S. 394 (1917), per Pitney, J.: "To hold one bound by the judgment who has not had such opportunity is contrary to the first principles of justice. And to assume that a party resident beyond the confines of a State is required to come within its borders and submit his personal controversy to its tribunals upon receiving notice of the suit at the place of his residence is a futile attempt to extend the authority and control of a State beyond its own territory."

14

whether or not the claim upon which the judgment is rendered arose within the state wherein the judgment is rendered.13 It is immaterial whether or not the defendant has property in the state, although in a proceeding in rem or quasi in rem, judgment may be given against the property.15 It is immaterial whether or not the defendant had notice of the action and an opportunity to be heard.16 It is indeed necessary to due process that steps should be taken calculated to give the defendant notice and an opportunity to be heard; but something more than notice and an opportunity to be heard is necessary. The judgment is valid only when the state has some power, some control over the defendant.

The state has such control as to justify it in giving judgment in at least three cases: first, when the defendant is present within the state; second, when he has consented to the jurisdiction of the state; and third, when he is a citizen or resident of the state. If the state has control of the defendant at the time when action is

13 Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670; Emanuel v. Symon, [1908] 1 K. B. 302 (C. A.). See Beale, "The Jurisdiction of Courts over Foreigners," 26 HARV. L. REV. 283, 296.

14 Pennoyer v. Neff, 95 U. S. 714 (1877); Dewey v. Des Moines, 173 U. S. 193 (1899); De Arman v. Massey, 151 Ala. 639, 44 So. 688 (1907); Easterly v. Goodwin, 35 Conn. 273 (1868); Eastman v. Dearborn, 63 N. H. 364 (1877).

A few early cases holding that jurisdiction over the defendant's property gives jurisdiction to pronounce a personal judgment against him, have, since the decision in Pennoyer. Neff, been discredited. De Arman v. Massey, supra; Laughlin v. Louisiana, etc. Co., 35 La. Ann. 1184 (1883); Lydiard v. Chute, 45 Minn. 277, 47 N. W. 967 (1891).

15 Pennoyer v. Neff, 95 U. S. 714 (1877); Arndt v. Griggs, 134 U. S. 316 (1890); Dewey v. Des Moines, 173 U. S. 193 (1899); Clark v. Wells, 203 U. S. 164 (1906); De Arman v. Massey, 151 Ala. 639, 44 So. 688 (1907); Cloyd v. Trotter, 118 Ill. 391, 9 N. E. 507 (1886); Beard v. Beard, 21 Ind. 321 (1863); Elmendorf v. Elmendorf, 58 N. J. Eq. 113, 44 Atl. 164 (1899); Schwinger v. Hickok, 53 N. Y. 280 (1873).

But such service is insufficient unless it reasonably tends to give the defendant notice and an opportunity to be heard. Roller v. Holly, 176 U. S. 398 (1900); United States v. Fisher, 222 U. S. 204 (1911).

16 Hence even actual service upon a nonresident defendant outside the jurisdiction is insufficient. Harkness v. Hyde, 98 U. S. 476 (1878); Wilson v. Seligman, 144 U. S. 41 (1892); Denny v. Ashley, 12 Colo. 165, 20 Pac. 331 (1888); Rand v. Hanson, 154 Mass. 87, 28 N. E. 6 (1891); McEwan v. Zimmer, 38 Mich. 765 (1878); Scott v. Streepy, 73 Texas, 547, 11 S. W. 532 (1889). Similarly, service by publication upon a nonresident is insufficient. Freeman v. Alderson, 119 U. S. 185 (1886); Baker v. Baker, Eccles & Co., 242 U. S. 394 (1917); Cocke v. Brewer, 68 Miss. 775, 9 So. 823 (1891); Smith v. McCutchen, 38 Mo. 415 (1866); McKinney v. Collins, 88 N. Y. 216 (1882). Compare D'Arcy v. Ketchum, 11 How. (U. S.) 165 (1850) (service upon a co-debtor).