#### Benjamin Harrod *versus*Francis Barretto, Jun., Charles N. S. Rowland, James B. Murray, and Samuel Wheeler.

Oct. Term, 1828.

In an action upon a judgment obtained in the courts of another state, it is competent for the defendant to show, by a special plea, that the court in which the judgment was rendered had no jurisdiction, either of his person or the subject matter. But every presumption is in favour of the jurisdiction of the court which rendered the judgment; and the plea must negate, by positive averments, every fact from which that jurisdiction might arise.

Where, therefore, to an action of debt on a judgment obtained in the *“*Court of Common Pleas for the county of Suffolk in the commonwealth of Massachuseets,” the defendants pleaded, that at the time of rendering the said judgment, and from the time of the commencement of the action upon which the same was fouuded, up to the time of its rendition, they “ were, and ever since have been, inhabitants and residents of the city of New-York,” and “never were inhabitants of, or residents in, the state of Massachusetts, nor subject or amenable to the laws” of that state, “ nor within the jurisdiction of any of its courts that “ the first process was never served upon them,” “ nor did they, or either of them, ever have any notice of said suit the plea was *held*to be bad upon demurrer, because it did not contain a direct and positive averment, that the defendants *had not appeared*in the suit in which the judgment was obtained.

This was an action of debt on a judgment obtained by the plaintiff against the defendants, in the Court of Common Pleas for the county of Suffolk in the state .of Massachusetts. The defendant Murray suffered judgment to go against him by default, and Wheeler was returned by the sheriff, “ not found.” But Barretto and Rowland appeared and pleaded, “ that they ought not to be charged with the said supposed debt, by virtue of the said supposed judgment in the said declaration mentioned,” because “ at the time of the commencement of the suit in which the said supposed judgment was rendered, and at the time the said supposed judgment was rendered, and during all the time between the time of the commencement of the said suit, and the rendering of the said supposed judgment, the said defendants” “were, and ever since have been, inhabitants and residents of the city of New-York in the state of N. Y. and never were inhabitants *156of, or residents in the state of Massachusetts, nor subject or am enable to the laws of the state of Massachusetts, nor within the j urisdic - ¿ion of any of the courts thereof; and that the *original process*in the suit in which the said supposed judgment was rendered, was no otherwise served upon *these*defendants,” *“ than by attaching a certain steam engine;*and that the said first process xvas not served upon them, or either of them, nor read to them, or either of them; nor xvas any copy thereof left with them, or either of them; nor did they, or either of them, ever have any notice of the said suit.”

To this plea there was a general demurrer.

The cause was argued by *Mr. E. C. Benedict*and *Mr. F. J. Betts,*for the plaintiffj and by *Hugh Maxwell, Esq.*for the defendants,

For the plaintiff it xvas contended,

I. That *ml tiel*record,is the only proper plea to debt on judgment, except matters arising subsequently to the judgment.

II. If any facts may be alleged against a record, the facts set up in this plea are not of that class.

III. If the *principle*of the plea is good in its full extent, the plea itself is bad.

By the constitution of the United States full faith and credit shall be given in each state, to the public acts, records, and judicial proceedings of every other state ; and the congress may prescribe the mode of proving such records, and the effect thereof. This power congress exercised in the act of May 26th, 1790, declaring that records authenticated as there prescribed, shall have such faith and credit given to them in every court xvithin the United States as they have by laxv or usage in the courts of the state from whence they are taken. These provisions have been brought before the Supreme Court of the United States; and that tribunal has. declared, that their letter and their spirit are the same. That the judgment of a court of a sister state is to have the same credit, validity (and effect, when sued upon here, that it xvould have if sued upon in the state xvhere it xvas rendered. And the same rules of pleading are to be applied here, as would be applied there. This court is then, *pro hac vice,*to be *157considered as a Massachusetts court, and its rule of decision is to be sought in the decisions of the Supreme court of Massachusetts, in actions upon the judgments of their own courts. The laws of the United States having declared, that the attributes with which the judgment of any state court may be clothed by the law of that state, shall be acknowledged and remain the same in every other state; the only inquiry is, what those attributes are— “ what is the effect of the judgment in the state where it was rendered.” *[Const. U. S. art.*4. § 1. *Laws U. S. 2d ed. vol. 2. p.*102. 7 *Cranch,*481. 3 *Wheat.*234. 2 *Dall.*302. 1 *Pet. Cir. Court Rep.*74. 155.]

The court of common pleas of Massachusetts is a court of general jurisdiction, and the common law is the law of Massachusetts. By the common law the judgment of a domestic court of general jurisdiction is conclusive upon the parties, and cannot be denied, except by the plea of *nul tiel record.*This results from the nature of a record: it being the highest evidence: its preeminent attribute being that of undeniable truth. The record must be admitted or denied ; if denied it can only be by *nul tiel record ;*if admitted, there can be no defence except matters subsequent to the judg nent; for a party, cannot by his plea admit the existence of the record, and deny the debt. It is conclusive evidence of the existence and justice of the demand, and no averment can be allowed against it, or its obvious meaning ¡—against it, no witness can prevail. Even the want of jurisdiction in the court does not affectit, unless it appear upon the face of ,the record ; and then it is taken advantage of under the plea of *nul tiel record.*Erroneous judgments may be enforced till reversed. They cannot be avoided by plea. *[Cowell’s Law dict. tit. Record. Jac. do. do. Co. Litt.*260. *a.*1 *Chit. Plead.*354. 481. 2 *H. Black.*402. 2 *Bur.*1005. 5 *Mass.*94. 2 *do.*535. 9 *do.*469. 17 *do.*545. 4 *do*303. 5 *do*448. 12 *do.*270. 16 *do.*532. 1 *Pick.*435. 10 *Serg. & Raw.*240. and cases before cited.]

2. But if a special plea may be pleaded to debt on judgment, the matters pleaded must not be such as merely show the judgment erroneous, it being a settled principle, that judgments which are erroneous, stand in force, and may be executed or enforced by action of debt until reversed; and they cannot be avoid*158ed on account of error collaterally, or by plea. Yet the matters get up in this plea, if they affect the judgment at all, merely show ^ £0 pe erroneous. Error lies on a void judgment in any case. That the court had no jurisdiction,—that the defendant was absent, had no notice of the suit, nor any attorney to appear, may be assigned for error:—as error in law, if they appear on the record— as error in fact, if they do not, for any matter of fact, may be assigned for error, which if it appeared upon the record, would have proved it erroneous. The plea is therefore bad.—[13 *Mass.*264. 9 *do.*151. 4*Cow. 457. Bac. Ab. tit. Error. Vin. Ab. do.*2 *Mod.*308. 2 *Cranch*126. 4 *do.*421. 10 *Wheat.*199. 14*Mass. 233.*11 *do. 413. 1 Arch. Prac.*246. 9 *John.*159.]

3. But if the plea be good in principle, it is still insufficient.

The statement in the plea, that “ the defendants were not amenable to the laws or within the jurisdiction of the courts of Massachusetts,” is not a fact: it is a mere inference of law. We could not take issue upon it. If the plea does not contain facts from which that inference necessarily follows, then it is bad. The defendant must set up a defence totally inconsistent with the plaintiff’s right to recover. If this plea maybe true, and the court still have had jurisdiction, the plea is bad ; and as every presumption is in favour of the jurisdiction of the court, the record is conclusive of it, till it be clearly and explicitly disproved. [1 *Chit. Plead.*519. 4 *Cow.*292.]

The appearance of the defendants would give the court jurisdiction : it must be therefore explicitly denied. [4 *Cranch,*428. *15 John.*144. 8 *Cowen,*314. 6*Wheat. 130.]*

The plea should also deny service of process upon, and notice to the *other*defendants, they being partners, it being a general rule, that where several are concerned in partnership, notice to one is notice to all [1 *Camp.*82. 404. *note.*1 *Maule & Sel.*259.]

The case of *Shumway v. Stillman*[4 *Cow.*292.] decides this case. Sutherland, J. there says ,the plea may be literally true, and yet the defendant may have entered special bail in the action, and may have appeared and litigated the cause by attorney upon the trial, *and*the plea is therefore bad. The remark loses none of its force when applied to this case. This plea may be literally *159true, and yet all the defendants may have had notice that the suit would be commenced, and instructed their attorney to appear and confess the action. The other two defendants may have been in Massachusetts, been arrested, and, by virtue of general or special powers, put in bail for the whole, appointed an attorney for the whole, and made the best possible defence to the action. The truth of this plea is then perfectly consistent with the authorised appearance of an attorney for the defendants and with the fullest and most hostile defence of the suit. It is therefore bad.

Mr. *Hugh Maxwell, contra.*

There can be no doubt, that it is competent for a defendant against whom a judgment has been rendered in another state, to plead specially, in an action brought upon that judgment here, that he has never been within the jurisdiction of the court which rendered the judgment, and that he was never summoned by the service of any process upon him personally to appear and answer to the action. The judgment of such a court is conclusive upon the defendant, only when he has been personally notified to appear, or has subsequently submitted to the jurisdiction of the court. Where the action is commenced by the attachment of some article of property belonging to the party, according to laws which are peculiar to certain of the states, and particularly to those of New-England, the process is to be regarded as a proceeding *in rein*merely. The defendant cannot be concluded by it; for it may well be, that he has a good and just defence to the action; and yet, from an entire ignorance of the existence of the suit, all opportunity of interposing such defence may be totally cut off. It was never intended by the constitution of the United States, that “ full faith and credited” should be given to a judgment like this. But where the parties have all appeared, and have had full opportunity to protect their rights, in such cases a judgment rendered in one state of the union, is conclusive evidence in'every other state state. This is not only the true construction of that clause in the constitution upon which the plaintiff relies, but it is in strict accordance with adjudicated cases. Indeed, the question can scarcely be considered as open for discussion in the courts of *160this state. Our decisions have been uniformly in favour of the plea, and our courts have never considered a defendant as conciu¿e¿ by a judgment rendered by a court which had no jurisdict(ori) either of his person, or the subject matter of the controversey. To give this effect to such a judgment, would be in itself highly oppressive and unjust, and is not warranted by any sensible exposition of the constitution. The *principle*of this plea is therefore correct, and well supported by authorities! [15 J. *R.*141. 19 *“Ib.*162.” 4 *Conn. R.*294.]

The defendants are not concluded by the case of *Mills v. Duryee,*for this point is not decided there. The Supreme Court merely ruled that *nil debet*was not a sufficient plea to an actio n brought upon a judgment obtained in another state. But the question, whether the effect of such a judgment might not be avoided by a *special plea,*is expressly reserved. •

The case from Peters’ Reports is not in point; for there the defendant had' *appeared,*and there can be no doubt that a subsequent appearance to the action may be tantamount to a previous personal summons to appear.

As to the plea itself, there is nothing in the record which shows the defendants were partners, and no *presumption*to that effect can be drawn from it. Here is no evidence except that presented by the record, and there is no *averment*that the defendants were partners. They are not therefore to be prejudiced by any inference to be drawn from the facts set forth.

But the plea is sufficient in itself. It denies all personal notice of the action in Massachusetts; it denies the jurisdiction of the courts of that state over the persons of the defendants, and sets forth clearly the manner in which the suit was actually commenced. This, of itself, is sufficient to show, that the action was commenced and prosecuted without personal notice of any kind to the defendants. But the plea goes further, and removes all doubt upon the subject, by averring that the defendants were *never subject or amenable to the laws of the state of Massachusetts, nor within the jurisdiction of its courts.*If the defendants had, sub- ' sequently to the commencement of the action, *appeared*and answered to the suit, then they would have been within the juris*161diction of the courts of Massachusetts, and amenable to the laws of that state. The plea therefore is sufficient, not only to show that the defendants never had personal notice of the action in Massachusetts, but to rebut every presumption of their having submitted to the jurisdiction^ of the court which rendered the judgment.

Oakley, J.

This is an action of debt, on a judgment obtained by the plaintiffs, against the defendants, Barretto and Rowland, together with Murray and Wheeler, in the Court of common Pleas, for the county of Suffolk in the state of Massachusetts.

Barretto and Rowland appear in the suit, and plead, that at the time of the commencement of the suit, in which the said judgment was rendered, and from that time, to the time of rendering the same, they were inhabitants and residents of the state ofNew-York, and never were inhabitants or residents of Massachusetts. That the original process in the said suit, was in no other manner served upon them, than by attaching a steam engine : and that they never had any notice of the said suit.

To this plea there is a general demurrer.

In support of this dumurrer, it is contended, that the plea is bad, because it seeks to draw in question the validity or effect of a judgment; which, it is said, cannot be done, except by a plea of *nul tiel record.*

Previous to the decision of the case of Mills v. Duryee, [7 *Cranch,*481.] the question, arising on this demurrer, repeatedly came under the consideration of the Supreme Court of this state. In Kilburn v. Woodworth, [5 *J. R.*41.] that court held,-that a judgment, like the present, did not bind the defendant personally : that not being in the state of Massachusetts, he could not be served with process under the authority of that state, and that the attachment of his property could be considered only as a proceeding *in rein*and could affect only the property attached.

In Robinson v. Executors of Ward, [8 *J. R.*90.] and in Fenton v. Garlick, *[Ibid.*197.] the same doctrine was laid down, and it was again repeated in Pawling v. Executors of Bird. *162[13 *J.*206.] which appear to have been decided before the publication of the opinion of the Supreme Court of the United States in *Mills v. Duryee.*

It was contended at the bar, that these decisions must be considered as overruled, by the judgment of the Supreme Court of the United States, in *Mills v. Duryee.*In that case it was held, that *nil debet*was not a good plea to an action founded on a judgment of a court of another state. The Supreme Court of this state has had occasion to determine the effect and operation of that decision.

In *Borden v. Fitch,*[15 *John.*140.] all the cases on the subject are reviewed. The decision in *Mills v. Duryee,*was particularly considered ; and it was held, that it decided nothing more, than that a judgment was conclusive, “ where the defendant was arrested, or had in some way appeared.” Again, in *Andrews v. Montgomery,*[19 *J.*164.] the court say, that the case of *Mills v. Duryee,*was never intended to be carried so far as to preclude a party from showing that a judgment against him had been obtained fraudulently; or that the court had. not jurisdiction of his person. And it is declared, that the authority of that case must be received with that qualification. In the mote recent case of *Shumway v. Stillman,*[4 *Cow.*292.] the action was debt, on a judgment obtained in Massachusetts.

The true doctrine, then, as derived from the case of *Mills v. Duryee,*in connexion with these decisions of our Supreme Court, .seems to be, that where it is intended to deny the existence of the judgment in pleading, it must be done by the plea of *nul lid*
      *163
      *record;*that the plea of *nil debet*is not good, and that the consideration on which the judgment was rendered, cannot be enquired into under such a plea; but that, when the record itself is admitted, its effect between the parties in an action on it, in another state, may be defeated by a special plea, denying the jurisdiction of the *court;*or averring fraud in obtaining the judgment.

After such a long and uniform course of decisions on this subject, by a court of supreme jurisdiction, the question as to the general character of this plea, cannot be considered an open one, in this court, and it is unnecessary to enter more minutely into an examination of the numerous cases bearing upon the point. It is sufficient *to*say, that the doctrine of our Supreme Court is in accordance with the uniform course of decisions in the courts of the other states on this subject.

It is contended, in the second place, that if the principle of the plea can be supported, it is defective in its averments, as it does not allege enough to show that the court in Massachsetts had not jurisdiction of the persons of the defendants.

It is said in *Shumway v.*Stillman, (and there can be no question of the correctness of the remark) that every presumption is in favour of the jurisdiction of the court which rendered the judgment. The record is *prima fame*evidence of it. The plea then must negate every fact from which that jurisdiction might arise ; and that by direct averment, and not by way of inference.

The plea in question avers, that the defendants were inhabitants and residents of New-York, during the whole time from the commencement to the termination of the suit in Massachusetts : and that no process in the suit was ever served on them. The latter averment is immaterial. If the defendants were never within the territorial jurisdiction of Massachusetts, no process could have been personally served on them. *In Kilbourn v. Woodworth,*the Supreme Court say, “ the domicil of the defendant was in this state, and being in person here, he was not and could not be served with process from the court in Massachusetts.” The plea also avers that the defendants never had notice of the suit. This, I also consider an immaterial averment. If issue *164were taken on it, and it were found for the plaintiff, it would not follow that jurisdiction of the persons of the defendants would be thereby established, because that notice may have been served upon the defendants while inhabitants and residents of New-York. In that case the actual service of notice would have been a mere nullity. If the court in Massachusetts could not have acquired jurisdiction of the persons of the defendants, by the service of formal process out of the limits of that state ; much less could it have been done by the service of any other notice.

The only material averment, then, in this plea, is that the defendants were inhabitants of New-York, from the commence*meiii to the end of the*suit in Massachusetts. The same averment, in substance, was contained in the plea in *Shumway v.*Stillman; and the Supreme Court held it bad, because it did not aver, that the defendant had not appeared to the action. An appearance by attorney, would have given the court in Massachusetts, jurisdiction of the persons of the defendants. And such may have been the case in the present instance, for any thing alleged in this plea, unless the averment of want of notice of the suit, is equivalent to an averment of no appearance in it. This cannot be, unless by way of inference merely, as it has already been shown, that there may have been actual notice of the suit, under circumstances in which it would have been altogether inoperative.

The plea also contains an averment, that the defendantswere never subject or “ amenable to the laws of the state of Massachusetts, nor within the jurisdiction of any of the courts there- “ of.” This is mere matter of law, and cannot be pleaded. No issue could be taken on such an averment. Whether the court in Massachusetts had, or had not jurisdiction of the persons ofthe defendants, must be determined by the fact, either of their domicil in that state, or by their voluntary appearance to the action commenced there.

This plea, then, ought to have contained a direct and positive averment, that the defendants had not appeared in the suit, in which the judgment in question was obtained. This averment, coupled with that of their residence in the state of New-York, *165would have covered the whole ground of defence, and clearly shown, that the court, rendering the judgment, could not have had jurisdiction of the persons of the defendants.

The result is, that there must be judgment for the plaintiff on the demurrer.

*Judgment for the plaintiff on the demurrer, with leave to the*defendant, *to amend their plea.*

[Betts and Benedict, *attys. for the plff.*W. P. Hawes, *atty. for the dffts. Barretto and Rowland.]*