558 SNOWDEN v. SNOWDEN.

State. Such precedents are generally considered to be of the
lowest class; but when adduced for the purpose of controlling or
abrogating an act of Assembly, they cannot be allowed the weight
of a feather.

The original act( j) speaks of an infant residing out of the
State; and the mode which it prescribes, for obtaining the answer
of such an infant, is clearly one which may now be, and was for-
merly very commonly pursued for obtaining the answer of an infant
within the State; and therefore, whether the infant is considered as
being at the time a nonresident, in every sense of that term, or
not, is unimportant. It is sufficient, that he is then, when the
answer is taken, in the state or country to which the commission
is directed : for, if he has a guardian appointed by whom his answer
is taken in the most formal manner, so as to warrant its being
received whether he is considered as a resident within or out of
the State; then the answer, being in a form to suit either alterna-
tive, it becomes unnecessary to decide whether he was, at the time
of its being taken, a mere sojourner abroad, or actually " residing
out of the State," or not.

The case of publication against a nonresident, presents an
entirely different question; because the publication is to stand in
the place of actual notice only in case the party be in truth a non-
resident; and therefore, if he does not, in fact, at the time, reside
out of the State, such a substitute for the actual service of process
cannot be resorted to, for the purpose of enabling the court to act
upon the case; and therefore, the decree will be void: since the
publication against a nonresident can, in no way, be fashioned,
like a commission to take the answer of an infant defendant, to suit
both alternatives of a residence, or a non-residence; and conse-
quently, if the publication be not valid upon the ground of the
actual nonresidence of the party, it is a nullity to all intents and
purposes whatever.

Whereupon it is ordered, that a commission issue as prayed by
the said petition of the plaintiffs filed on the 15th instant,

A commission was issued and an answer returned accordingly;
after which, on the 8th May 1829, it was decreed that the real
estate be sold, &c.

(j) 1797, ch 114 s. 5.