#### Robert Wilson and William R. Hallett *versus Thomas N.*Niles, Platt Stratton, and Thos. C. Winthrop.

To an action of debt, on a judgment obtained in the state of Alabama, the defendant pleaded, that he was not within the jurisdiction of the court, at the time the suit, upon which the judgment was obtained, was commenced, nor at any time afterwards ; that he did *not*appear to said suit in person, nor authorize any one to appear for him, and that he had no notice of the pendency of the suit "until after the judgment was obtained.

The plaintiffs replied, that by a law of Alabama, it is enacted, “that when awri- “ shall be issued against *all the partners*of any firm, service of the same on *any “ one*of them, shall be deemed equivalent to a service on *all,*and the plaintiff “ may file his declaration and proceed to judgment, as if the writ had been “ served on each defendant, and the judgment shall be equally valid and effect “ tual on all the defendants.” That the cause of action, upon which said judgment was obtained, was a bill of exchange, drawn by the defendants, under their co-partnership firm; that they were, at the time of the drawing of said bill, co-partners, having a house of trade established at Mobile; that the writ on which said judgment was obtained was issued against all the defendants, as co-partners ; and that it was personally served on the defendant, Niles, in the county of Mobile.

The defendant rejoined, that the co-partnership had been dissolved before the suing out of the writ, and specially traversed the allegation, that the writ was served on Niles during the continuance of the co-partnership. Upon demurrer to the rejoinder, it was held, that the *replication*was bad. That the law of Alabama could not give jurisdiction over the person of the defendant, who was not within that state ; and that the judgment did not, therefore, bind him personally, nor subject his separate property to its power.

Debt on judgment. The declaration contained two counts. The first was upon a judgment obtained by the plaintiffs against the defendants, in the Circuit Court of Law of Mobile county, in the state of Alabama, of November Term, 1828, for 6402 dollars and *75*cents *damages.*The second count was on a similar judgment, for 6402 dollars and 75 cents damages, and 21 dollars and 61 cents costs,—the costs not forming a component part of the record, but appearing in the execution.

*359The defendant, Niles, was returned by the sheriff “ not found ;" but *Stratton*appeared, and pleaded his discharge, under the act “ to abolish imprisonment for debt in certain cases,” in order to protect his person from the effect of a judgment. The plaintiffs replied to this plea, admitting the discharge, and praying judgment for their debt to be levied, not on the person of Stratton, but on his goods, lands, tenements, &c.

The defendant, *Winlhrop,*pleaded to each count of the declaration, “ that he was not within the jurisdiction of the court of Mo- “ bile county, at the time the said suit was brought there, nor at “ any time afterwards, but was, and is a resident of the city of “ New-Yorlc; that he did not appear in person to said suit, or *“*authorize any one to appear for him, nor had he any notice of “ the pendency of the suit, until long after said judgment was “ obtained.” [For the form of the plea, see *Shumwayv. Stillman,*4 *Cowen’s R.*292.]

To this plea the plaintiffs replied, setting forth, in *haec verba,*the 8th section of the act of Alabama, for the better regulation of judicial proceedings, passed the 7th of February, 1818, which enacts, in substance, that when a cause of action exists against co-partners, the plaintiff may sue any one, or more of them. “ *Jlnd when “ a writ shall be issued against all the partners of any firm, service of the*“ *same on any one of them, shall be deemed equivalent to a service on all, “ and the plaintiff-may file his declaration, and proceed to judgment, as “ if the writ had been served on each defendant, and the judgment shall “ be equally valid and effectual against all the*defendants.”

The replication then averred, 1st. That at the time of the drawing of the bill of exchange, thereinafter referred to, the defendants were co-partners, having a house of trade, established at Mobile, under the firm of Thos. N. Niles & Co., within the true intent and meaning of the said act, and that Niles resided there, superintending the affairs of the house.

2d. That the cause of action, upon which the judgment was obtained, was a bill of exchange, drawn by the defendants under their said co-partnership firm, which bill is particularly described in the Judgment.

*3603d. That the *writ*in the suit, in which the judgment was had, . was issued *against all the defendants as such*co-partners, to which writ was subjoined a copy of the bill of exchange, on which the suit was brought, and a written memorandum, stating that the same was brought on said bill; and that said writ was personally served, between its teste and return, on the defendant, Niles, in the county of Mobile.

4th. That at the several times referred to, the act aforesaid was in full force within the state of Alabama, and that the said 8th section, contains all the act relevant to the subject.

To this replication, the defendant rejoined, by setting forth that the co-partnership of the .defendants had been dissolved before the suing out of the writ mentioned in the replication, traversing specially, that the writ was served on Niles during the continuance of the partnership, and concluding with a verification.

The plaintiffs demurred specially to the rejoinder, 1. Because it traverses matter not alleged in the replication. *2.*Because no proper issue could be taken upon the traverse. 3. Because the rejoinder concludes with a verification, and not to the country. 4. Because the special traverse has no apt or proper inducement;— and, 5thly, because the rejoinder does not negative nor confess and avoid the matter contained in the replication, which it purports to answer.

The defendant, *Winthrop,*having joined in the demurrer, the cause was argued, in writing, by *Mr. Geo. W. Strong,*for the plaintiffs, and by *Mr. G. Sullivan,*for Winthrop.

For the plaintiffs it was observed, in the opening argument, that the Alabama act set forth in the replication, as applicable to the case in question, was the same as our act relative to proceedings against joint debtors, where all cannot be taken, (1 *R. L. N.*Y. *ed. of*1813, p. 421, § 13,) the only differences being these:

1st. The Alabama act is restricted to co-partners, while ours extends to joint debtors generally.

2d. The Alabama act gives the *alternative*of proceeding either against *one or more*of the co-partners, or against *all,*and serving the process on *any one*of them.

*361The latter alternative was adopted in the present case, and herein is the propriety of the averment in the replication, that the writ was issued against the defendants, *under the co-partnership firm,*and that a copy of the bill of exchange was subjoined to the writ. At least, such is the form of the writ, as contained in the exemplification of the proceedings; which shows what is the practical construction put upon the act by the courts of Alabama.

1. A plea, like the present to a declaration, on a judgment obtained in one of our own courts upon a contract, would be undeniably bad, *[Bank of Columbia v. Newcomb,*6 *Johns. Rep.*98] and the facts disclosed in the replication, place the Alabama judgment upon the same footing, as if it had been obtained in one of our own courts.

II. The rejoinder is clearly bad. 1. It traverses the continuance of the co-partnership at the time when the writ was served on Niles. There is no such averment in the replication.

The averment there, as to the co-partnership is, that it existed at the time of the contract, viz. the drawing of the bill. A traverse, to be properly taken, must be upon some material averment contained in the antecedent pleading. An issue taken upon this traverse, would obviously be a departure from the replication.

*2.*The continuance or discontinuance of the co-partnership, at the time of the service of process, is not the criterion to test the regularity of the proceedings under the Alabama act.

The language of that act is, “ whenever any *cause of action may*“ *exist*against two or more partners,” &c. It is not, whenever *a right of action does exist against,*&c. The only true criterion, therefore, is the existence or non-existence of the co-partnership, *at the time the contract is entered into,*and to that time the averment of the co-partnership is cautiously restricted by the replication.

Such is not only the necessary legal construction of the act, but it is the judicial interpretation put upon it by the Supreme Court of Alabama, shortly after the act was passed. [*Click v. Click, M. S. Sup. Court of Alabama, Oct. Term,*1822.]

*362*Mr. Sullivan,*for the defendant, Winthrop.

The plaintiffs, merchants of Alabama, were holders of a draft of the defendants;—Thomas N. Niles, residing in Alabama, Stratton and Winthrop, in New-York, but transacting business in Mobile, under the firm of *T. M. Miles § Co.*The plaintiffs commenced a suit on this draft, in an Alabama court, against all the defendants. Niles, residing there, was taken; the other defendants, not being in the state of Alabama, at the time the action was commenced, nor at any time afterwards, were not taken, nor in any manner brought into court. The defendant, *Winthrop,*never was in Alabama at any time, nor does it appear that there was any co-partnership property there, at the time of the commencement of the action, nor any sole property belonging to him. The service of the writ was made on Niles, as one of the firm of T. N. Niles & Co.; but that firm had been dissolved before the service; nevertheless, under an act of the Legislature of the state of Alabama, judgment was entered up, as well against *Winthrop,*on whom no service had been made, and who had not been, in any manner, brought into court, as against Niles. It is on this judgment, that the present action is brought, and the plaintiffs seek to enforce, against *Winthrop*here, the judgment recovered in Alabama, where the court, which rendered it, had no jurisdiction over his person, as is admitted by the pleadings, except by virtue and force of the legislative act of the state of Alabama.

The general question is, whether the court, in Alabama, had such jurisdiction of the person of Winthrop in the original action; that the judgment recovered thereon, is *conclusive*against him; and this question comes up on the plaintiffs’ demurrer.

Upon the pleadings, the court, following the usual course, will look at the pleas, in their order, from the beginning, to discover the first defect. To the declaration, as far as it goes, the defendant has no objection. But under the circumstances of this case, in which it is admitted that no service of the writ was ever made on the defendant, Winthrop, nor any previous or cotemporaneous notice given of the commencement or pendency of the suit, nor of the rendition of the judgment, it is obvious that the plaintiffs, if *363they wished to obtain a judgment on the *merits*of their cause, ought to have declared in such a manner, as to coerce the defendant to put himself on the merits. But as the declaration counts only on the judgment recovered in Alabama, and not on the original cause of action, the defendant was necessarily limited to plead no service of the writ, the want of proper notice of the suit and proceedings in Alabama, and no appearance to the action, in person or by attorney in his behalf. The plea of *nul tiel record*would have been bad, as is decided in *Dando v. Tremper,*[2 *J. R.*87.]

The plaintiffs, by pleading over, admit all that is traversable in the defendant’s pleas to be true,—for “ every pleading is taken to “ confess such traversable matters alleged on the other side, as it “ does not traverse.” *[Com. Dig. Plead. Traverse, C.*2. *Bac. Ab. Pleas,*322. 386. *Hudson v. Jones,*1 *Salk.*91. *Nicholson v. Simpson, Fort.*356. *Wilcox v. Servant of Skipwith,*2 *Mod.*4.]

Now the traversable matters, in this plea, are that the defendant was not within the jurisdiction of the court of Alabama, at the commencement of the plaintiffs’ suit against him; that he hath not been at any time since, but at the time of the commencement of the suit, and the recovery of the judgment, was, and has been, and still is, an inhabitant of, and resident in, the city of New York; and did not appear in person, in the said suit, nor authorize any person to appear as his attorney therein; nor had he any notice of said action being commenced, till after the time of the recovery of said judgment. These are traversable matters; because if true, they constitute a good plea in bar.

The case of *Borden v. Fitch,*[15 *Johns. Rep.*121,] determines the sufficiency of these pleas. And in that case, Judge Thompson, cites with approbation, the case of *Kibbe v. Kibbe, [Kirby’s R.*119,] and the cases of *Phelps v. Halker,*[1 *Dall.*261;] *Kilbourn v. Woodworth,*[5 *J.R.*41;] *Robinson v. executors of Ward,*[8 *J. R.*90 ;] *Fenton v. Garlick,*[8 *J. R.*197 ;] and *Pawling v. Bird’s ex’s.*[13 *J. R.*192.]

In all these cases, the judgments were recovered without actual notice to the defendants. Attachments of personal property were made in some of them ; and, in all, the service of the writ, as be*364tween the parties, was according to the laws of the state where the judgments were recovered; but in none of them, were the judgments held binding as against the defendants, who had had no service or notice, or opportunity of making defence; but if the defendants had been, at the time of the commencement of the suit, resident in such states, or citizens thereof, and so amenable to the laws, or had appeared by attorney, and assumed the defence in said suits, the judgment, recovered against them, must have been held effectual in every state. The case of *Shumway v. Stillman*[4 *Cowen’s R.*292,] settles, definitively the merits of the defendant’s pleas ; for in respect to the sufficiency of the plea of non-residence, and want of notice, and no appearance to the action, &c.,—the court held that the defendant must plead those matters, specially, and aver such facts, as would preclude all legal inference of actual defence, and all opportunity of defence to the suit. If, therefore, the defendant’s pleas exclude all such inference, they are within the rule, in Shumway’s case, and are, therefore, good, and on demurrer must be held so.

But the plaintiffs’ counsel, in their second point, insist that this defendant’s pleas are bad, on the authority of the *Bank of Columbia v. Newcomb &*Stitts, (6 *J. R.*98.) In that case, it appears that Newcomb pleaded *nul tiel record,*and also, that he had not been brought into court, in the original action. The court held, that the want of service on Newcomb, would have been a good defence for him, if properly pleaded, which it was not. This case then sustains the general doctrine, and the converse of the proposition, it was cited to support.

The defendant’s pleas then are good, unless the matter in the replication avoids them. The replication, puts the plaintiffs’ cause on the Alabama act, and endeavors to show that their case is' within it. The Alabama act, as set forth in the replication, is not correctly distinguished in the plaintiffs’ argument, from the New-York law of joint debtors. A. very material difference, omitted in the plaintiff’s argument, is the extent of the liability of the defendants, not taken on the original writs. By the Alabama act, they are liable to the same extent as the partner, who is taken; but by the law of New-York, the defendants, not taken, are never *365liable in their persons, nor is their sole property liable on such a judgment, although judgment may be entered up against joint debtors, so that their joint property may be taken, *(24 Sess. chap.*90. *sect.*13.) On this comparison of the two acts, the second branch of the plaintiffs’ second point, that the Alabama judgment is placed on the same footing, as if it had been obtained in a court of this state, is *“felo de*se.”

But the plaintiffs’ counsel insist, that the Alabama judgments, are to have the same effect in New York, that they would have in Alabama; and therefore, that the defendant is concluded by the judgment, and cannot contest the jurisdiction of the Alabama court. Against this proposition, the defendant’s counsel relies upon the authorities he has heretofore cited, as to the general doctrine of the defendant’s right to contest the jurisdiction of the court.

But the plaintiffs, insisting that their replication is good, demur specially to the defendant’s rejoinder. The rejoinder admits tire Alabama act, but denies that the plaintiffs’ case is within its provisions; because, the defendant insisting that the act has no legal effect, but in suits against co-partners, in a subsisting co-partnership, pleads that the defendants’ co-partnership, had been dissolved before the service of the writ. The plaintiffs, however, seem to insist by their first cause of demurrer, that the continuance of the co-partnership, at the time of the service, is not material. The construction, resulting from the terms of the act, makes this continuance necessary. It is enacted, that whenever any cause of action may exist, against two or more partners, trading in co-partnership, it shall be lawful to prosecute an action against any one, or more of them. Here it is manifest, that the Legislature contemplated, that the cause of action—that is to say, the action itself, and the co-partnership should be co-existent, and this is corroborated by the expression and “ when a writ shall be issued “ against all the partners of any firm, service of the same, on any one of them, shall be equivalent to a service on all.”

The whole scope of the act of Alabama, is to provide' a remedy for the defect of the common law, and enable a creditor to get a judgment which shall be effectual against the property of co-partners, for co-partnership debts. It is obvious, that the policy of the *366act did pot extend to other cases, than those of co-partners; and the Legislature did not mean to extend its operation beyond subsisting co-partnerships. This is sufficiently clear, in the replication, to warrant the necessary implication, that the plaintiffs, in their averment of service on Niles, are to be understood, as averring service on him, *as a*partner, and whatever is necessarily understood, intended, or implied in a plea, is traversable as much as if it were expressly alleged. *[2 Saunders,*207, *notes*21, 22, 29. *Com. Dig. Plead.*2. 2 *Saund.*175, *no.*1.] In Stephen on pleading, the rule is given, that a traverse may be taken upon matter which, though not expressly alleged, is necessarily implied. [1 *Saund.*312. 2 *Salk.*629. 1 *Ld. Raym.*39.] The traverse, therefore, taken by the defendant, that the service was not made on Niles during the continuance of the co-partnership, was well taken, if the continuance of the co-partnership was material, and whether material or not, this court can know only from the replications, which state the law of Alabama ; for if a construction had been given, different from the meaning apparent on the replication, the plaintiffs should have surrejoined. But if, on the face of the replication, the continuance of the co-partnership is *apparently*materia], the allegation of the dissolution is thereby made material; but as the mere allegation of the dissolution, without a denial of the allegation of the service on Niles, as a partner, would be an indirect answer to the replications, it was necessary to take a special or formal traverse, to save the argumentativeness of the plea of dissolution. *[Stephen on Pleading,*220.]

The traverses in the rejoinder must, therefore, be considered well taken, as being of matter that is, by necessary implication, understood to be alleged in the replications. But the plaintiffs seem to pretend that they have not averred the service during the continuance of the partnership; if they have not, and the act requires it, then these replications are bad. If they have not, and the act does *not*require it, then this part of the traverse is immaterial, and the plaintiffs should have taken issue, as they might in that case consistently with their replications, viz. that the writ was personally served on Niles; for they might have regarded the special traverse as limited to the personal service, it being a denial of the service on Niles, in manner and form as the plaintiffs have alledged.

*367The second cause of demurrer may be dismissed with the single remark, that it is included in the first, and is a corrollary from it; for if the traverse of the rejoinders is well taken, an apt issue can be taken thereon.

The third cause is answered by *Chitty*and *Stephen,*who state that a special traverse must always conclude with a verification» where new matter is introduced by inducement. *[Stephen,*221.]

But the plaintiffs, in the fourth cause, say the inducement is not apt or proper. If the continuance of the partnership is made material by the replication, whether it be so by the law or not,' the averment of its dissolution, must be apt and proper.

As to the fifth cause, the rejoinder does confess all that is traversable or material in the replication, except that which it expressly traverses. *[Stephen,*255.]

The principal question is not as to the existence of the rule which has been adopted in this state, in respect to the rights of a defendant, in an action on a judgment recovered in another state, to contest the jurisdiction of the court of that state over his person. That is well settled law ; but the question is, whether any Legislative act of another state, respecting the mode of proceeding against absent debtors, can preclude the citizens or subjects of *this*state from the right of contesting the jurisdiction of other state courts, over their persons in actions *here,*on judgments of such courts. And all the first principles of natural justice, sustained by authority, seem to place this question beyond doubt. The questions of pleading are, in a great measure, subordinate to the determination of the main question, and may or not become material, in the decision.

*Mr. Strong,*in reply.

It is objected, on the part of Winthrop, that the declaration counts only on the judgment recovered in Alabama, and not on the original cause of action; and that, therefore, he was driven to plead no service of the writ, &c.

It is difficult to conceive how the plaintiffs could have declared both upon the judgment and the original cause of action; for if the judgment be valid, the original cause of action is necessarily *368merged in it. And if the original cause of action had been declared upon alone, Winthrop would, doubtless, have pleaded the judgment in bar, and thus have raised the very question which is now presented for decision. The plaintiffs were, therefore, com-polled to select either the one or the other cause of action, and rely upon it alone; and believing the judgment in Alabama to be perfectly valid, *that*was accordingly selected.

An obvious and conclusive answer to all the cases cited on the other side, to show that the court must have jurisdiction of the person, in order to render a valid judgment, is to be found in the fact, that in all those cases, a *sole defendant*was proceeded against. If there be not a broad and perfectly well settled distinction in this respect, between the case of a sole defendant., and the case of two or more defendants, our act, relative to proceedings against joint *debtors,*is a dead *letter,*and every judgment rendered under it, is null and void. This distinction is founded on reasons of natural justice. Where joint debtors are proceeded against, (and it should be remarked that the Alabama act is full as much restricted in this respect, as ours, it being confined to partnership debts alone,) and one defendant only is taken, no recovery can be had, unless a joint cause of action is proved against all. In this way, the defence of one is made to enure to the benefit of all, and as they all jointly entered into the contract, and each became liable to pay the entire debt, or perform the entire duty, it is but right, that a defence made, or default suffered by one, should, at least *prima facie*conclude the rest. But not so with regard to a sole defendant. If he has had no notice of the suit, either by personal service of process, or voluntary appearance to it, he cannot in contemplation of law, be said to have either made, or to have had an opportunity of making a defence ; nor can a judgment, rendered against him, under such circumstances, be justly taken, as a proceeding *in invitum.*

In this view of the subject, it is quite apparent that the main scope of the argument, on the other side, goes to establish that, should the decision in this very case be in favor of the plaintiffs, no judgment should be rendered against the defendant, *Niles,*who, as appears by the record, was returned not found. But if this court *369is authorized by the act relative to proceedings against joint debtors, to render a valid judgment against him, it is not easy to perceive any good reason why the court in Alabama, being author rized by a similar act, should not have had the power to render an equally valid judgment against Winthrop and Stratton, in the suit brought there, notwithstanding the want of personal service of the process on them.

Again: it is said that the replications treat the co-partnership of the defendants as subsisting at the time of the service of the writ on Niles. The necessity, or at least the propriety of this averment, is rendered perfectly obvious, by adverting for a moment to the provisions of the Alabama act. That act, as already observed in the opening, contemplates two modes of proceeding against partners, that is, either against any one or more of them» or against all, by serving the process on any one of them. If the first alternative be adopted, and the process be issued against two or more, it is apprehended that a personal service of the process on each defendant selected, must be effected in order to warrant a proceeding to judgment in that suit. If the other alternative be resorted to, as was done in the present instance, that fact should be indicated by the process, and probably by a statement of the nature of the demand on which the suit is brought, showing that it was for a co-partnership demand, as well to apprize the sheriff that he need not make service of the process on any more than one of the defendants, as to authorize the clerk, upon the return of such process served on any one of the defendants, to enter the appearance of all of them. Such was the sole object of the allegation in question, and was taken from the form of the writ, and the memorandum subjoined to it, as contained in the exemplification of the proceedings in the Alabama judgment, and from whence it is to be fairly inferred that such is the usual course of proceeding in such cases in that state.

The pretended averment in the replication so much relied upon by the other side, is, therefore, nothing more than the description given to the defendants in the process in the Alabama suit. And if traversable at all, the only issue which it tenders, is whether the defendants were described in the process, as stated in the re¿ *370plication. But should it be taken as equivalent to an averment of co-partnership in a declaration, yet that averment is always construed in reference to the cause of action in the particular suit. Where a suit is brought upon a co-partnership debt, and the firm is avowedly dissolved, the defendants are, nevertheless, sued as co-partners, and so averred to be in the declaration, and it would be strange indeed, if the suingthem in that character, must be construed into an admission, or a substantive averment, that they are such partners at the time of suit brought. But going even to this extent, does not aid the other side. The imagination must extend one step further, and infer, that the fact of so suing the defendants as co-partners, is equivalent to an averment, that their co-partnership continues down to the time of the service of the process.

But it is said, the Alabama act differs from our act, relative to proceedings against joint debtors;—in addition to the two particulars noticed in the opening argument,—in this, that the former declares the judgment where one defendant only is taken,to be equally valid and effectual against all the defendants; whereas the latter exempts the person'and separate property of the defendant not taken, from the operation of the judgment. Suppose, then, the two acts to differ in three, instead of two particulars, how does that fact help the defendant’s argument *1*Will it be pretended, that the Alabama act is, therefore, unconstitutional *%*That is no where insinuated by the opposing counsel, and it is respectfully submitted, whether the court would deem it discreet, to question the constitutionality of a law of a sister state, regulating its judicial proceedings, there daily acted upon, and as old as the state itself. But is not the principle of that act essentially the same as ours? For where is the difference in principle, between taking the *joint*or the *separate*property of a defendant not taken *1*True, according to our act, the person and separate property of such a defendant are exempt in that particular suit, but the plaintiff, by bringing a suit on that judgment, can readily subject both, nor could the defendant not taken, avail himself of any matter of defence, in such second suit, except “what he might in his distinct individual capacity have made in the original suit.”

But if the Alabama act be deemed unconstitutional, this court *371surely will not hold it so, except so far as it goes beyond ours. Give it effect then, to that extent, and the plaintiffs are entitled to judgment.

How then stand the merits of the present question *1*for they appear to lie within a nut-shell—no fault is found with the declaration.—Are the replications good in substance *1*If the act of Alabama is to have the same effect given to it here as there, and if the Bank of Columbia v. Newcomb, is to be taken as good law, it is not yet perceived wherein the replications are defective, either in substance or form. The question then turns solely on the sufficiency of the rejoinders. It is confidently believed, that they are decidedly bad, among other reasons, for this, that they specially traverse matter no where alleged in the replication, and that matter, too, tendering an immaterial issue. If correct in this position, it surely requires no authority to support it, for it is an elementary principle in pleading, that a special traverse, in order to be good, must be of material matter previously alleged, as much so as the rule, that when a pleading sets forth new matter, it must conclude with a verification, and not to the country. The case of Click v. Click, in manuscript, decided by the Supreme Court of Alabama, as long ago as 18#2, upon the very act in question, is deemed decisive, to show that the continuance of the co-partnership, at the time of suit brought, or process served, is wholly unnecessary and immaterial. That case will be found among the papers delivered in this cause;

The Court decided, that the replication was bad on the general principle, that the law of Alabama could not give jurisdiction over the person of the defendant, who was not within that state, at the time the suit, upon which the judgment was founded, was commenced, nor at any time afterwards, and who had not in any way submitted himself to the jurisdiction of the court, which rendered the judgment. The judgment, (it was said,) did not bind the defendant *personally,*nor make his *separate*property subject to it. If he could not by plea deny the jurisdiction of the court, the judgment obtained in Alabama would be conclusive, and would in effect become as extensive as a domestic judgment *372subjecting both the person and property of the defendant to its power.

The case was considered as within the principles of the previous ases of *Harrod v. Barretto, [vol.*1 *page 155, and ante page*302.] and as having been decided in effect, by the Supreme Court, in the late cases before *them.—See*6 *Wend. R. 447. Shumway v. Stittman.*

*The court, therefore, gave judgment for the defendant on the demurrer, with leave to the plaintiffs, to withdraw their replication and fimend their pleading.*

[G. W. Strong, *Att’y for the plffs.]*