*675DISSENTING OPINION OF
CIRCUIT JUDGE PERRY.■While concurring in the opinion that a creditor’s bill to subject to the payment of a judgment property which cannot be reached by an execution, is, in the broader meaning of the term, a proceeding in rem, that in proceedings in rem actual personal service on the defendant is not essential, and that in such proceedings substituted service on an absent defendant, whether by publication or in any other authorized form, is sufficient, I respectfully dissent from the conclusion arrived at by the majority of this court, that the Eirst Circuit Court in Equity has authority to order substituted service by publication or otherwise, in this case.
In my opinion, there is in this Republic no statute which authorizes constructive service of summons by publication or otherwise in an equity suit such as the one at bar, and without the aid of such statute a court of equity possesses no inherent power to order such service.
Eirst, as to statutory authority. The only statutes which are claimed by counsel for the complainant to confer upon the court authority to order service as prayed for are Sections 1103 and 1104 of Article 46, and Section 1230 of Article 50, of the Compiled Laws.
Sections 1103 and 1104 do provide for service by publication upon non-resident defendants, but I think that they clearly apply solely to actions at law and that this is the only reasonable construction that can be given to them. The whole chapter in which those sections appear is devoted solely to actions at law, and nothing therein contained will justify the belief that the legislature intended to include suits in equity within the operation of its provisions. The reasons suggested for holding that these sections do apply to suits in equity are, .(1) that the chapter is entitled “Of the Practice of Courts of Record,” (2) that it confers “jurisdiction upon Courts of Record, including courts of law, generally exercised by courts of equity, as in 1119 and *6761120, where in junctions pendente lite are allowed,” and (3) that “the power to order service by publication is given to Judges at Chambers as well as to Courts.” The sub-title of the chapter in question is “Of Civil Suits,” under which expression less certainly is included than in the phrase, “Of the Practice of Courts of Record.” The latter might very properly have included the practice in criminal proceedings, and yet it does not. Is there anything strange in the fact, then, that under the subtitle, “Of Civil Suits,” only actions at law are provided for? There is nothing inconsistent in it. The title of itself cannot, it seems to me, supply the chapter with provisions which it does not either expressly or impliedly contain.
It is true that Sections 1119 and 1120 authorize “any judge of the court at chambers” to issue injunctions pendente lite in certain cases, and that it is in courts of equity that such injunctions are generally issued. But can it be contended for a moment that Sections 1119 and 1120 apply to suits in equity? I think not. The very words of Section 1119 definitely settle that question, for it is therein specifically stated that such injunctions may be issued by the court, upon a proper showing, in eases of ejectment. It is only in those cases that that power can be e'Xercised.
The fact that, under Section 1103, service by publication may be ordered by a “judge at chambers” as well as by the “court,” does not justify the conclusion that the section also applies to suits in equity, any more than does the provision, in Section 1109, that a “judge at chambers” may make an order declaring the defendant in default, lead to the belief that suits in equity are there referred to.
The sections are to be construed as a whole, jointly with the other sections of the same chapter, and each in the light of the other. With the exceptions above named, nothing in the Act has been pointed out as tending to show that equity cases are included within its scope. On the other hand, there is much io show that only actions at law are provided for. Section 1106 *677says: “It stall be incumbent upon every defendant served with process of summons as hereinbefore provided, within the time specified in the summons or order of publication to file with the clerk of the court an answer to the plaintiff’s demand, either admitting all the facts stated in the petition to be true and denying that they are sufficient in law to support the plaintiff’s demand, which shall form an issue of law to be determined by the court, or denying the truth of the facts stated in the petition, which shall form an issue of fact to be determined by the jury.” This section clearly refers to the service by publication provided for in Sections 1103 and 1104, and yet the last part of Section 1106 shows, beyond question, that all the legislature had in mind was an action at law.
A careful examination of the other sections of the chapter in question leads, it seems to me, irresistibly to the conclusion that Sections 1103 and 1104 do not refer to suits in equity.
Further, if Article 46 does direct the mode of service of process in equity cases, then Section 1230 makes an entirely unnecessary repetition of those provisions. On the contrary, I think that the existence of Section 1230 confirms the conclusion already reached by me upon the study of Article 46 itself.
It is also contended that Section 1230 itself confers the desired authority. That section reads: “When process is issued in any such case, it shall be served by delivery of a copy of the petition and of the summons to the defendants, or in case they cannot be found, by leaving such copy with some one upon the premises involved in the controversy, or in such other manner as the court or judge may direct. The officer charged with service of the process shall also, if so directed by the court or. judge, publish in the Government Gazette a notice of such suit or proceeding, calling upon all persons interested to appear and show cause against it, at the time and place of the hearing.”
Section 1228, which is a part of the same chapter, enumerates certain proceedings in equity which are to be instituted by sworn petition, etc. A “Creditor’s Bill” is not one of the pro*678ceedings thus enumerated. But it is claimed by counsel for tbe complainant, that such a bill is specifically provided for in the chapter immediately proceeding Article 50, in the Compiled Laws, and that, “in such case,” in Section 1230, includes all cases mentioned in said preceding chapter. It so happens, however*, that Article 50 was already in existence in 1859, the date of one of our civil codes, and that said preceding chapter was not enacted until 1878, and consequently the earlier statute can possibly refer to the later one.
Again, it is claimed by counsel * ***** courts of equity had, prior to the enactment of the Act of 1878, jurisdiction of creditors’ bills, (in this view I concur) and that “in any such case” means “in any case like those mentioned” in Section 1228, and does not limit the cases to those enumerated therein, and that a creditor’s bill is a case “like those mentioned” in that section. But I think that by the words, “in any such case,” the legislature intended to refer only to those matters which are mentioned in Section 1228; that is the result, if the words are taken in their ordinary meaning. Moreover, the proceedings mentioned in Sections 1235, 1236 and 1237 are “like those mentioned” in Section 1228 and would, upon the theory that “in any such case” means “in any case like those mentioned,” requires no statutory provision as to service, whether personal or otherwise, other than that contained in Section 1230; and yet those three sections (1235-6-7) do set forth specifically how service is to be made in those cases — needless repetition, if Section 1230 is broad enough to cover matters other than those named in Section 1228. In Section 1237 of the same chapter, the words “in any such case” again occur. (The language of that section shows beyond a doubt that they are used solely with reference to the cases mentioned in Section 1235, i. e., suits for foreclosure of any hypothecation or other maritime lien, and that the theory in regard to “cases like those mentioned” can not possibly stand; and if not in this part of the chapter, why in the earlier section?
*679But even granting, for tbe purposes of argument, that to creditors’ bills may be extended the benefit of such provisions as are contained in Section 1230, still I think that constructive service by publication is not authorized by that section. Its last sentence allows merely the publication of notice to all persons interested that the suit is pending, and such notice is undoubtedly intended to be in addition to full and complete legal service upon the defendant. The use of the word “also” in the sentence, “The officer charged with service of the process shall also * * * * * * publish in the Government Gazette,” etc., indicates this.
The clause, “or in such other manner as the court or judge may direct,” does not refer to service by publication. Applications for divorces and separations are of the matters mentioned in Section 1228, and in these proceedings the benefit of constructive service ought to be.had, if that clause just cited is as broad as it is contended to be. In spite of this, we find that in 1870, at least eleven years after the passage of the Act of which Section 1230 is a part, the legislature passed an Act (see p. 435, Compiled Laws) specifically providing for constructive service by publication in libels for divorce — needless repetition again if Section 1230 already conferred the desired authority.
This statute (Section 1230), like all statutes wherein it is sought to legalize modes of service of summons which do not in all cases necessarily result in giving actual notice to defendants of the pendency of proceedings against them, must be construed strictly and not liberally. As far as I can discover, it has been so held in every case in which the question has arisen. See 22 Am. and Eng. Encycl. Law 153; Pollard v. Wegener, 13 Wis. 643; Batt v. Procter, 45 Fed. 517; Oswald v. Kampman, 28 Fed. 37; Swift v. Meyers, 37 Fed. 45; Galpin v. Page, 18 Wall. 350; Likens v. McCormick, et al., 39 Wis. 313. No case has been cited to the contrary.
Second, as to inherent power. At the oral argument and in *680their brief,- counsel for complainant, in endeavoring to- show that a court of equity has inherent power to order service by publication, have relied solely upon those authorities that hold that such court's have vast and expansive power to meet new exigencies, believing, apparently, that we are now confronted with a- new exigency; and no case has been cited by them wherein it has been directly held that, without the existence of a statute, the court has the power now contended- for.
An examination of all the reported cases at hand which I have been able to find, discloses the fact that in almost every State of the American Union statutes have been passed providing for service by publication. This has been done, as stated in the 22 Am. and Eng. Encycl. Law p. 139, in view of the difficulties existing in securing valid service within the state. Such statutes have been held constitutional in proceedings in rem, and to empower the rendering of a valid judgment thereunder, so far as it affects the property attached, but in proceedings in persona/m, where the object is to fix the personal liability of the defendant, such service is of no avail, even if authorized by statute, it having been held that such statute “is viola-tive of the provision of the constitution that no state shall deprive any person of life, liberty or property without due process of law.” Ib. 140. See also Pennoyer v. Neff, 95 U. S. 719.
"Why enact all these statutes throughout the Union if courts already possessed the desired power? Certainly in none of those states was it deemed safe to proceed without statutory authority.
There seems to be no reported case in which the precise question now involved was determined, but remarks made by courts in construing statutes on the subject indicate a very general belief that statutory authority is indispensable.
In Lessee of M. v. Burnet, 18 O. 543, the court said: “The defendants to the chancery suit all resided in Massachusetts, when the proceedings against them were commenced, and until after they were terminated. Jurisdiction over the person, *681therefore, could not have been obtained by the issue and service of a subpoena, the usual mode of bringing defendants into court. But our statute had then, as it has had always since, a provision for making a non-resident a party defendant, and subjecting him to the operation of a decree, without personal service by subpoena, or otherwise. The act gave to the courts power to acquire jurisdiction over non-residents, (even though residents of a foreign country) for all purposes contemplated in the act by the mere publication, as it will be observed of notice in the newspapers.
“It toas indispensable that something of the kind should be done, that some practice should be established by which nonresidents * * * should be made parties to suits * * * without the service of process; for officers could not serve process without the limits of the state.”
“The statute allowing substitute or constructive service, being a departure from the common lato, must be strictly observed and its reqrdrements carefully complied with.” — 22 Am. and Eng. Encycl. 153.
“Service of notice by publication, being a substitute for actual personal service is a pivrely statutory right, and is of such a nature that all the provisions of the statute must be strictly complied with, and courts will not indulge in presumptions to supply apparent defects of failure to meet the requirements of the statute.”—Hartley v. Boynton, 17 Fed. 876.
In Oswald v. Kampman, supra, objection was made by one of the parties that certain proceedings were not in strict conformity to the laws of the state which provided for service by publication; and in this connection, the court said: “I am aware of the rule that when proceedings are instituted not in accordance with the common law, viz.: by actual service, that the provisions of the statute are to be strictly construed.”
“In proceeding to enforce the lien of the mortgage by the sale of the property on a substituted service of summons, the court was not proceeding according to the course of the common *682law, and there is no presumption in favor of its jurisdiction.”— Swift v. Meyers, supra.
In Batt v. Procter, supra, pp. 516-517, the following language is used: “Apart from statutory authorization, it may be said, as a general rule, that courts of equity are without power to direct service upon defendants beyond their territorial jurisdiction. Mr. Foster, in his work on “Federal Practice,” (unfortunately this work is not at hand), “mentions some of the cases where such orders have been made. But he says: ‘Independently of any express statutory authority, there is no power in a court of equity to order actual personal service to be effected upon a defendant beyond its territorial jurisdiction,’ p. 155, Sec. 96. Legislation was evidently thought necessary by congress to supply the defects of existing law, and in 1872 an act was passed similar in many of its features to the present statute, authorizing in certain cases an order of service on non-residents, or publication of the order, where personal service was not practicable.” See also Arndt v. Griggs, 134 U. S. 316; Bennet v. Fenton, 41 Fed. 485-487.
The motion for an order of service by publication was, in my opinion, properly denied by the lower court.
I do not touch upon the question of whether or not a court of equity can, in a suit m rem, acquire jurisdiction and proceed to a final determination solely upon the strength of an attachment or seizure of the property involved, without voluntary appearance of the defendant and without service of process whether personal or substituted, in view of the fact that this question was not referred to or argued by counsel at the hearing, and also because the majority of this court has already held that the lower court has authority to order substituted service of summons.