(After stating the case.) This record presents two questions, for the consideration of the court.
1. Whether it is competent for the Superior Court, in any case, on granting a bill of divorce, to decree to the wife, she being the innocent parly, the payment of a specific sum of money, as alimony ? And if so,
2. Whether it was competent for the court to do this, in the present case ?
The words of the statute, in relation to this subjecl, arc. “ and it shall be in the power of the Superior Court, to assign to any woman so separated, such reasonable part of the estate of her late husband, as in their discretion, the circumstances of the estate may admit ; not exceeding one third part thereof.” This statute is ancient; for the original phraseology was, “ it shall be in the power of the Court of Assistants, to assign,” &c. The Court of Assistants was superseded by *357ihe establishment of the Superior Court, in May, 1711. This particular section has long received a practical construction, by which, whatever doubts 1 might have, were llie statute ol recent date, 1 now feel myself bound.
The Superior Court, in granting a bill of divorce to the wife, she being the innocent party, Slave, where the situation, of the estate would not, literally, admit ol ail assignment ol a part, uniformly decreed the payment of a sum of money, This practical construction seems, clearly, to be within the equity of the statute ; the object oi which was, a reasonable allowance to the innocent and unfortunate wile, out of the estate of an offending and unprincipled husband. A ditler-ent construction would put it in the power of the husband, owning a large real estate, for the purpose ot defrauding an injured and distressed wife, to dispose of the whole, convert s', into money, and leave nothing for the decree to operate upon.
The second question arises from the objection, that it is not competent for the court, in this case, to grant alimony, for want of jurisdiction ; that the court proceeded as a court of chancery, and that neither person nor property was within its jurisdiction. It is true, that a court of chancery must have, at least, either one or the other. A court of chancery cannot, any more than a court of admiralty, act without having the power to enforce its decrees.
In the anonymous case, I Aik. 19. the lord Chancellor says, 1 have no power over the persons of foreigners, any longer than while they are in England; but I can lay my hand on any properly they may have here.” And in the case of Penn v. Lord Baltimore, 1 Ves. 454. lord Hardmickc says, “ If is no objection against making a decree, because the court cannot enforce in rem, for the strict primary decree of a court of chancery, is in personam.''
It is true, the court find “ that the said Stephen, before, and at the date of said petition, was, and ever since has been an inhabitant and resident of the state of Nem-York, and had no property in this state ; and that he had not been in this state, from the date of the petition, to the time of the decree, and was not then.” But it appears, that he had actual and personal notice of the process, by receiving a true copy of *358ti\e petition. And the record further says, “ that the parties respectively appeared, and were fully heard.'’ Ac.
M is true, that the respondent was not in custody. The court could not, therefore, exercise upon him, an actual, sensible tangibility. But he appeared in court, by attorney, answered to the cause, submitted to the jurisdiction, and proceeded to a hearing on the merits ; which, I apprehend, is conclusive upon him.
The case of Jackson against Jackson, cited in the argument, from 1 Johns. Rep. 424. according to tin: impression I then received, for I have not seen it since, concludes nothing. That decision rests on the ground, that the decree of divorce obtained in Vermont, was void in loto, as being a fraud on the law.
Judgments founded on process of foreign attachment, acts operating in rem, are not conclusive. But, with the decision in the case of Hitchcock & Fitch against Aicken, 1 Now-York Term Rep. 460. I was never satisfied. With great deference for the court, which I certainly have, the opinion of the minority, in my view, contains the better reasoning. The criterion ought to be, has there been a full defence ?
In the present case, the respondent was not iru rely nominally in court; he was actually in court, like any other suitor, by his counsel, an officer of the court, duly retained in the cause. This gave the court jurisdiction, as a court of chancery, to pass a decree in personam. And it ⅛ no objection, that the decree cannot be carried into effect. The only question is, was it properly made ? There may he a natural cause why it cannot be executed. A man may be a bankrupt, or a knave, and abscond, with all bis property.
It must be conceded, on ail hands, that the court had jurisdiction of the cause. The parties were heard upon its merits. It must, therefore, be competent for the court to decide upon it ; and in deciding, to pass such decree as the nature of the case requires.
I am of opinion, therefore, that there is no error.
The other Judges, severally, concurred.Judgment affirmed.