(91 Conn. 608, 101 Atl. 13.) ciple, triumphed in Le Mesurier v. Le Mesurier." On the other hand, it was said in Armytage v. Armytage, L. R. [1898] P. 178, that jurisdiction in a suit for judicial separation need not be referred to the legal domicil of the parties, but that the action might be maintained in and a decree of separation granted by the courts of the place where the parties resided, though that was not their legal domicil. Incidentally the question whether the decree of separation affects the status was discussed. And in speaking of the ecclesiastical divorce a mensa et thoro, the court said (p. 196): A woman divorced from her husband a mensa et thoro and living separate and apart from her husband remained a feme covert. "The effect of the sentence was to leave the legal status of the parties unchanged." The court then discusses the question of whether the Act of 1857, which had the further effect of placing a wife, after a decree of judicial separation, in the position of a feme sole in certain respects, had changed the situation so that a decree of separation did affect status, and reaches the conclusion that the decree of separation does not affect status in the sense that it can only be granted in the courts of the legal domicil. In the present case it does not appear that the New York sentence of separation produced any change at all in the wife's legal capacity or property rights, and so, according to the English view, it stands on the same basis as the old ecclesiastical divorce a mensa et thoro, and does not affect status. In this country there has been some conflict of opinion upon the point, which in England was covered by the act of Parliament, as to whether a divorce a mensa et thoro relieved the wife, temporarily, from the disabilities of coverture; but, with the possible exception of West Virginia, where a peculiar force and effect is apparently given to such divorces by the special provisions of their Code. the reported cases seem to agree that a decree of separation does not affect the marital status. "In our mind the judgment of separation from bed and board is not a final proceeding. The relation of husband and wife still exists. A reconciliation may put an end to the judgment." State ex rel. Stuart v. Ellis, 50 La. Ann. 559, 23 So. 445. "Such a divorce does not dissolve the marriage, though it separates the parties and establishes separate interests between them. The divorce is only a legal separation, terminable at the will of the parties, the marriage continuing in regard to everything not necessarily withdrawn from its operation by the divorce." Dean v. Richmond, 5 Pick. 461. "The decree of divorce a mensa et thoro between these parties did not affect their status of marriage; it merely justified their separation." Drum v. Drum, 69 N. J. L. 557, 55 Atl. 86. "The parties still remained husband and wife in the eye of the law. An action for a limited divorce is really an appeal to a court of equity by one of the parties to a marriage contract for a modification of the marriage relations, duties, and obligations as they exist at common law." People ex rel. Public Charities & C. Comrs. v. Cullen, 153 N. Y. 629, 44 L.R.A. 420, 47 N. E. 894. "The relation of husband and wife is not dissolved. It only undergoes a very inconvenient suspension and which is intended to operate as a continual invitation to the parties to return to their first love." Chancellor Kent, Barrere v. Barrere, 4 Johns. Ch. 187-197. Independently of authority, a decree that simply creates a terminable abnormal relation between husband and wife cannot be said to affect the underlying marital status. At any rate, we give to this decree of separation all the effect the New York courts claim for it when we treat it as a temporary or at least a terminable modification of the personal rights and obligation of the parties arising out of the marriage contract, without the slightest intention of rescinding the contract itself. It leaves the contract and the permanent contractual relation untouched, and it excuses one of the parties from the obligation of cohabitation, while still holding the other party to the performance of his other contractual duties. Such a decree must rest on the jurisdiction of a court of equity to regulate the conduct of the parties before it. From the wife's standpoint it is a personal license to refuse to live with her husband. In theory, a court of equity intervenes to protect her against the assertion of a legal right on the part of the husband on the ground that it is unsafe and improper to require her to submit to cohabitation. From the husband's From the husband's standpoint, he is, in effect, prevented from exercising his right to cohabitation, although, as Chancellor Kent says, the right of cohabitation is not destroyed, but is merely suspended; and in theory a court of equity assumes the right to control his conduct for the time being for the protection of his wife. Such being the nature and effect of the decree when both of the parties are before the court, it is difficult to see upon what theory any extraterritorial effect can be claimed for the decree as against a nonresident, nonappearing defendant, not served with process. Judgmentseparationjustification of desertion. When both parties are before the court, the decree is conclusive as to the issues of fact upon which it is based. Harding v. Harding, supra. But, in so far as it attempts to regulate the future conduct of the par ties, an ex parte decree for judicial separation is necessarily local in its operation on the nonappearing defendant. The state of New York has no right to regulate, and we do not suppose this decree attempts to regulate, the manner in which the nonresident, nonappearing husband should conduct himself toward his wife in Connecticut. The decree does not purport to authorize or require Mr. and Mrs. Pettis to live in Connecticut in a state of marital celibacy unknown to our law. It merely purports to afford the wife a local protection against the assertion by her husband of his right of cohabitation. And, if we assume that in spite of its ex parte character it accomplishes that purpose, we give it all the effect, so far as Mr. Pettis is concerned, which can be claimed for it. We have thus shown that a decree of judicial separation does not affect status; that it is not -judicial a final decree, but is separation- effect. time by the reconciliation of the parties; that it rests upon the jurisdiction of equity to control the conduct of parties before it, and that, in so far as it purports to regulate the conduct of a defendant not within its jurisdiction, it is necessarily local in its operation. Such a decree has no resemblance to a judgment in rem. It is purely personal, and therefore, as against a nonresident, nonappearing defendant, entitled to no extraterritorial effect, by way of comity or otherwise. There is no error. The other judges concur, except Wheeler, J., who dissents. ANNOTATION. Extraterritorial recognition and effect of divorce a mensa et thoro. It will be observed that the court in the reported case (PETTIS V. PETTIS, ante, 852) was not only of the opinion that, New York not being the matrimonial domicil of the parties, the de cree of divorce a mensa et thoro, rendered in that state upon constructive service of process upon the husband, a nonresident, who did not appear, was not within the full faith and credit provision of the Federal Constitution, but also held that it would not, even as a matter of comity, be recognized in Connecticut as a justification for the wife continuing to live apart from her husband, so as to prevent the husband from obtaining a decree of divorce in Connecticut upon the ground of the wife's desertion. The opinion, in effect, concedes that, the other circumstances being the same, the New York decree would have been recognized in Connecticut as a matter of comity, if it had been a decree a vinculo rather than one a mensa et thoro. The court takes the position that as a decree of divorce a mensa et thoro does not affect the status of the parties, it cannot be regarded as a decree in rem or quasi in rem, but must be regarded as a personal decree, which cannot be recognized in another state even as a matter of comity, unless it was based on personal jurisdiction over the defendant, either by personal service within the state or by defendant's appearance. Some doubt is cast upon the correctness of the premise of this conclu sion, that is, the correctness of the position that a divorce a mensa et thoro is necessarily in personam and must therefore rest upon jurisdiction of the person of defendant, and cannot partake of the nature of a decree in rem, which may rest on constructive service-by the case of Thompson v. Thompson (1913) 226 U. S. 551, 57 L. ed. 347, 33 Sup. Ct. Rep. 129 (affirming (1910) 35 App. D. C. 14) which held that a decree of divorce a mensa et thoro, rendered in Virginia, the matrimonial domicil, in favor of the husband upon constructive service of process upon the wife, who had left the jurisdiction, was entitled to full faith and credit under the Federal Constitution and statutes, and was a bar to a suit by the wife in the District for maintenance. It is true that, the divorce a mensa having been rendered at the matrimonial domicil, the case is distinguishable from the reported case so far as the duty to recognize the decree under the full faith and credit provision is concerned. In other words, the facts of the Thomp son Case, apart at least from the fact that the foreign decree was a mensa and not a vinculo, brought it within the doctrine of the Atherton Case (Atherton v. Atherton (1901) 181 U. S. 155, 45 L. ed. 794, 21 Sup. Ct. Rep. 544), and therefore within the full faith and credit provision, whereas the facts of the reported case apparently brought it within the doctrine of the Haddock Case (Haddock v. Haddock (1906) 201 U. S. 562, 50 L. ed. 867, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1), so that, under the present condition of the authorities, at least, it would not come within the full faith and credit clause, even apart from the fact that it was a mensa and not a vinculo. Apparently, however, the theory upon which the doctrine of the Atherton Case proceeds is that a decree of divorce may be regarded as one in rem or quasi in rem, so that it may rest upon constructive service of process upon a nonresident who does not appear. Although the decree involved in that case was an absolute decree, and not a decree a mensa, the Thompson Case in applying the doctrine of the Atherton Case to a decree a mensa apparently assumed that a decree a mensa is not necessarily, from its nature, in personam. The opinion in the Thompson Case, however, though it in another connection mentions the fact that the Virginia decree was a mensa, and not a vinculo, does not discuss, or even suggest, the question as to whether there is any distinction between a decree a mensa and a decree a vinculo so far as its character as a decree in rem or its recognition in other states under the full faith and credit clause is concerned. It is further to be observed that the views of the United States Supreme Court as to the character of such a decree would not be binding upon a state court when, as in the reported case, the facts are not otherwise such as to bring it within the full faith and credit provision, and its recognition depends upon the principles of comity. In Barber v. Barber (1859) 21 How. (U. S.) 582, 16 L. ed. 226, a suit in a Federal district court in Wisconsin to enforce an alimony provision of a de cree of divorce or separation a mensa In Harding v. Harding (1905) 198 U. S. 317, 49 L. ed. 1066, 25 Sup. Ct. Rep. 679, it was held that an Illinois decree in favor of the wife in a suit for her separate maintenance, under the Illinois statute authorizing such relief where the wife is living separate and apart from the husband without her fault, was conclusive upon the husband in the courts of California on the issue whether the separation upon which that decree was based constituted a wilful desertion on her part, and that the California courts violated the full faith and credit provision in refusing to give it such effect as a bar to a suit in the latter state for desertion based upon the same separation. In this case also the Illinois decree rested upon personal jurisdiction over the defendant so that there was no question as to the effect of such a decree rendered upon constructive service of process against a nonresident. In Slade v. Slade (1870) 58 Me. 157, a decree of divorce a mensa et thoro was rendered in Massachusetts upon a libel by the wife after personal service upon and appearance by the hus band, adjudging in effect that the wife In Van Orden v. Van Orden (1899) 58 N. J. Eq. 545, the court in affirming an order which maintained a bill praying that the defendant be compelled to pay the money awarded to the plaintiff by a decree of divorce a mensa et thoro, rendered in New York, said: "The bill is, in substance, one for alimony, the New York decree being merely the evidence (whether conclusive or not we need not now decide) of her right thereto." In this case, also, the New York court seems to have had personal jurisdiction of both parties. The decision in Hill v. Hill (1916) 62 Pa. Super. Ct. 439, that a decree of divorce a mensa et thoro, rendered in Michigan by a court having personal jurisdiction of both parties, would not bar a suit for divorce by the wife in Pennsylvania, was upon the ground that subsequently to the Michigan decree the parties had become reconciled and resumed the relation of husband and wife in Pennsylvania, it being assumed, in the absence of evidence to the contrary, that the law of Michigan in that regard was like the law of Pennsylvania by which the reconciliation of the parties has the effect to restore the marital relation and to annul the decree a mensa et thoro. The decision in McClung v. McClung (1882) 11 W. N. C. (Pa.) 122, to the effect that an allowance of alimony made by a decree of divorce a mensa et thoro in New Jersey would not support an action in Pennsylvania, was upon the ground that, the New Jersey decree having been opened, the order for alimony to remain as before, that order became in effect an interlocutory order, which the court making it might enforce, but which would not support an action in another state. The court conceded that an action would lie upon a final decree. The decision in Henry v. Henry (1914) 74 W. Va. 563, L.R.A.1916B, 1024, 82 S. E. 522, that an order of the New York court, made on a motion in a suit for separation not matured for final hearing, granting to the plaintiff alimony pending suit, and never in any sense carried into final judgment in the cause, was not enforceable in West Virginia even as to instalments for such alimony due and unpaid, was upon the ground that the judgment was not a final one and for that reason was not enforceable, in view of the New York statutory provisions and their interpretation by the courts of that state, under which such an order is wholly discretionary as to its enforcement with the New York court, so that it may be wholly set aside so as to destroy the right to the accrued and unpaid instalments. The court observed that likely the New York court would not, under the cirstances, set it aside; but that was not the test, the question being as to its power and authority over it. In Vischer v. Vischer (1851) 12 Barb. (N. Y.) 640, one of the earliest, if not the earliest case, to adopt the New York doctrine which refuses to recognize a decree of divorce rendered upon constructive service against a nonresident, the wife, while the parties were in New York, had obtained a divorce a mensa et thoro in that state; subsequently the husband went to Michigan and obtained a decree of divorce on a charge of wilful desertion, the wife not having appeared nor having notice except by publication. The court held that the decree a mensa et thoro had the effect to prevent the wife's domicil following the husband's when he went to Michigan; but otherwise that decree does not seem to have cut any figure in the case, the refusal to recognize the Michigan decree, as already stated, having been on the ground that the court of Michigan could not under the circumstances acquire jurisdiction on constructive service against a nonresident to render a decree which a court of New York would recognize. In Zavaglia v. Notarbartolo (1915) 137 La. 722, 69 So. 152, Ann. Cas. 1916B, 924, it was held that if it were otherwise possible for a court of Louisiana to render a judgment, at the instance of a husband, decreeing a separation from bed and board in favor of his wife, who had obtained such a judgment against him in Italy, where they were both domiciled at the time |