
    Stegall vs. Wyche.
    A judgment rendered in Virginia by default, against a person who was summoned as the garnishee debtor of an insolvent debtor, under the insolvent law (of 1819, eh. 194, sec. 81, 34, 35,) of that State, is conclusive, and cannot he enquired into in a suit upon the same judgment in the courts of this Stale.
    Debt brought by John Wyche, for the use of John Saddler, next friend of Susan F. Saddler and her husband, John Jennings, in the county court of Rutherford. The suit is founded upon a judgment from the records of the county court of Brunswick, in the State of Virginia. The pleas in this suit are, 1st. JVmZ teil record. 2d. That the defendant, Stegall, never did recover against Daniel Middough, in the suit which he had against him. 3d. That the plaintiff, Wyche, who proceeded against the defendant, Stegall, as garnishee, in the suit of Wyche, against Nolly, never had recovered judgment against Nolly. 4th. Payment. 5th. Setoff. 6th. Accord and satisfaction.
    The first plea of nul teil record, concludes with a ver-cification, and then, without any replication, the plaintiff adds a similiter. To the second and third pleas, there is a general demurrer in short. Issue is taken upon the fourth, fifth and sixth pleas,
    
      The jury in both the courts below, found the issuable pjeas jn favor 0p qle plaintifF below; and each court below, sustained his demurrer to the second and third pleas. As to the first plea, the judgment of the county court upon it, was, that “it was insufficient to bar the plaintiff’s recovery.” The judgment of the circuit court upon that plea was, “that there is a record of said plaintiff’s recovery in the commonwealth of Virginia, as said plaintiff in his replication to the first plea has alleged.”
    The record from Virginia consists of a summons, purporting to have been issued by the clerk of Brunswick county court, directed to the sheriff of Lunenburgh county, in the name of John Wyche, (for the use of John Saddler, next friend of Susan Saddler,) against the plaintiff in error, Ralph Stegall, as garnishee, supposed to be indebted to Thomas Nolly; reciting that lately, before the issuance of said summons, Thomás Nolly had taken the oath of an insolvent debtor, and delivered in to two justices of the peace a schedule of his effects, in which schedule he had surrendered up his interest in a suit, Ralph. Stegall vs. Daniel Middough, in which if Stegall should recover, he would owe the said Nolly three hundred dollars, subject to a debt for which Stegall was his surety to one E. B. Hicks, without specifying the amount of that credit. This summons appears to have been served by the sheriff of Lunenburgh, and returned to the ensuing term of the county court of Brunswick, at which time the said Ralph Stegall not appearing to answer-said summons, a judgment final by default was taken against him, for the sum of three hundred dollars. The clerk certifies that it is a just and true transcript of the record. The record has no seal of the court attached to the same.
    
      T. Washington, for plaintiff in error.
    1. When suit is brought upon a judgment of a court of another State, the question as to the jurisdiction of the court rendering a judgment, is always open. And, if that court had not jurisdiction, the judgment is void and inoperative there, and every where else. That court, to make the judgment valid, should have had jurisdiction, both of the subject matter, and of the person of the defendant. The plea of mil tdl record, is the proper plea for the purpose of controverting the validity of such a judgment, or of putting in issue and determining the question of jurisdiction. Bissellvs. Briggs, 9 Massachusetts, 462, 468.
    2. The county court of Brunswick, in the State of Virginia, had not jurisdiction of the subject matter. The subject matter was, the sum that Stegall was supposed to he indebted to Nolly, as having been recovered from Middough. This sum was 'attempted to he reached in the hands of Stegall, as garnishee, by process of attachment, sued out and prosecuted in the name of John Wyche, late sheriff of Brunswick,' for the use of John Saddler, next friend of Susan F. Saddler. That is, such is the designation of the plaintiff, if. we look to the narrative of the clerk,, contained in the preface to that which he gives as a copy of the record. But, if we are to look to that which purports to he a copy of the record, (and certainly we must he confined to that,) that is, to the summons against Stegall as garnishee, and to the judgment against him, then there is no named plaintiff whatever.
    .. To give to the supposed plaintiff, under the act of Virginia, 1819, ch. 134, sec. 31, any right to sue for, or recover the debt alleged to be due from Stegall, it was necessary, that Nolly’s body should have been charged in execution, in a suit commenced or prosecuted in a court of record of the commonwealth of Virginia; that he should have been brought, by virtue of a warrant under the hand and seal of the judge, or of a justice of the court from which the execution against his body issued,either before the court or before the justices of the peace; that he should there have subscribed and delivered in a schedule of his whole estate, under the oath prescribed *n sa^ section of the act; and that he should have transferred and delivered all the personal estate contained in such schedule, and conveyed all the real estate therein, to the sheriff of the county where such personal or real estate lay, or was to’be found. This warrant, the return thereon, the schedule, oath, and all the proceedings relative to the discharge, are required by the same section of the act of Assembly referred to, to be returned to the • court from whence the ca. sa. issued, and therein retained by the clerk, for the information of creditors. This act, and the proceedings under it, as just pointed out, confer on the clerk the power to summon garnishees, and vest in the sheriff the right to proceed against the effects contained in the schedule, and give the whole authority for all the proceedings subsequent to the discharge of the insolvent debtor, and of course, without a compliance with its provisions, the jurisdiction of the court could not attach.
    In the record here presented, there is not a particle in the shape of a record, of any thing done anterior to the issuing of the summons against Stegall as garnishee. Of course, no authority is shown for the issuing of that summons, or for the proceedings done under it. What the clerk states as- introductory to the record, is no part of the record, and cannot be received by the court. 1 Haywood, 410.
    The 31st section of said act requires the property contained in the schedule, to be transferred to the sheriff of the county where the same may be found; and the 34th section vests the same in such sheriff, and requires him to make a certain disposition of it, when it consists of property in specie. The property here sued for, was a debt supposed to be due from Stegall, of the county of Lu-nenburgh, and of course, if due, was to be found in the county of Lunenburgh; and by the terms of the act, must have been transferred to the sheriff of Lunenburgh, in whose name the summons should have issued, and not • m that of the sheriff of Brunswick.
    The 35th section of the same act provides, “that when any insolvent debtor shall be discharged pursuant to this act, and the schedule subscribed and delivered in by such prisoner, shall contain articles of money or tobacco, due to such prisoner, or goods, chattels, or rights belonging to him, in the possession of any other, in that case, the clerk of the court, with whom such schedule is directed to remain, may at the instance of the creditor, issue a summons against each of the persons named as debtors, to have possession of any goods, chattels or estates, of the property of the prisoner, reciting the sum of money, or quantity of tobacco, he or she is charged with,” &c. A subsequent part of the same section provides, “And if the person so summoned, shall fail to attend according to such summons, or to show good cause for his non-attendance, it shall be lawful for the court to enter judgment against every such person, for the money, tobacco, goods or estates in such schedule mentioned, together with costs of suit,” &c. “which judgment shall be entered in the name of the sheriff,” &c. It appears expressly from this section, that there was no authority for issuing the summons against Stegall, as garnishee, unless Nolly had been discharged as an insolvent debtor, pursuant to the act, and unless Stegall had been charged in the schedule with being a debtor to Nolly, or with having property of Nolly’s in his hands; and unless that property, or that debt owing, has been transferred to the sheriff. If this be so, and it undoubtedly is, it does not appear that the county court of Brunswick had jurisdiction of the subject matter, or to take any step in it, unless all the previous proceedings against Nolly had taken place, which shows, that those proceedings ought to be part and parcel of the record upon which Stegall is sued in this State.
    The judgment to be entered up against the garnishee not appearing, is to be a judgment for “the money,” “the tobacco,” “the goods and chattels,” or “the estates,” “in such schedule mentioned.” The subject matter of the-judgment against Stegall, was that for which the judgment was rendered. Now, how could the county court of Brunswick have jurisdiction of that subject matter, which belonged to Nolly, unless by virtue of proceedings pursuant to the act, against Nolly? It is impossible.
    The summons, and the judgment, against Stegall as garnishee, are in the name of John Wyche late sheriff of Brunswick. They should have been in the name of the sheriff in office, at the time of issuing the summons. The act referred to, requires the insolvent debtor seeking his discharge, to transfer the property mentioned in his • schedule, to the sheriff, by his official description; and directs the sheriff, under certain penalties, to distribute th'e property mentioned in the schedule, and provides that summonses against garnishees shall be issued in the name of the sheriff. All this means, as I take it, that the sheriff for the time being, whoever he is, must prosecute' attachments against garnishees, whenever necessary, without regard to who the sheriff was when the schedule was delivered in, inasmuch as the act never could have meant that a person who had been sheriff should be required to perform official acts after he ceased to be sheriff. The conclusion from which is, either that the process against Stegall, by issuing in the name of the late sheriff, instead of the present sheriff, was unauthorized by the act, or that if it might have properly issued in the name of John Wyche, late sheriff, we should have been furnished with a record of the proceedings relative to the discharge of Nolly, and the. transfer of the property in the schedule to the then sheriff, in order that we might see whether John Wyche was that sheriff. So that, either way, it does not appear that the court had jurisdiction.
    The 35th section of said act provides, that when a debtor charged in execution, shall deliver up a schedule, which shall contain debts due, &c., “the clerk of the court with whom such schedule is directed to remain, may, at the instance of the creditor, issue a summons against each person named as debtors,” &c. The creditor here referred to, as being entitled to have the summons issued by the clerk, I understand to mean, him at whose instance the insolvent debtor was charged in execution, at the time of taking the oath, and delivering in his schedule. Hence, it is necessary that we should be supplied with the record of that proceeding, in order to see whether the summons for the garnishe.e, issued at the instance of the proper person, or in other words, whether there was. any author: ity for issuing this summons, which could give jurisdiction to the court of Brunswick, to enter up judgment for a disobedience of it. The summons issued in this case, ' is endorsed, “at the instance and for the benefit of John Saddler, near friend of Susan F. Saddler.” Then, if the provisions of the act were complied with, John Saddler, in his own proper right, must have been the creditor at whose instance Nolly was charged in execution. For, according to the endorsement upon this summons, it was issued at the instance and for the benefit of John Saddler, and then the words, “near friend of Susan F. Saddler,” which came afterwards, are merely descriptive of who John Saddler is. The probability is, that if Nolly was charged in execution as an insolvent debtor, (of which we can know nothing without the record,) it was at the instance of Susan F. Saddler, by her next friend, John Saddler. If so, the endorsement upon the summons should have been, not for the benefit of John Saddler, or at his instance, but for that of Susan F. Saddler, who had sued by her next friend, John Saddler. From the declaration filed against Stegall in this State, this view of the subject would seem to be corroborated.
    The county court of Brunswick, in the state of Virginia, had not jurisdiction of the subject matter of the judgment against Steeall, for the following further* rea-s0ns- As the case is here presented to us, there is nothing anterior to, or behind, the issuing of a summons against Stegall, as garnishee. And yet, the object of the summons is not the recovery of a debt due from Stegall to the plaintiff in that summons, but it is the recovery of a debt due from Nolly to the plaintiff in the summons. Stegall, the garnishee, is called in merely incidentally, for the purpose of effectuating through him, a prior proceeding against Nolly, and of which the garnishment is but a part of a series. This then, is essentially, and to every intent and purpose, a proceeding against Nolly, and the money to be collected by it, is Nolly’s money, adjudged to his creditor. Therefore, it is indispensable to the validity of the judgment against the garnishee, that Nolly should have been before the court, which he does not appear to have been, from the record submitted to us. In Cheatham vs. Trotter, (Peck, 200,) this court say, that attachment is a process to bring the defendant (that is, the debtor of the plaintiff,) into court, and that, when the attachment is served in the hands of a garnishee, there can be no judgment against him, until judgment be first had against the defendant. This is undoubtedly true, and the minds of all men must come to the same conclusion, so long as they keep in view the proposition that an attachment, whether levied on property, or served in the hands of a garnishee, is merely process to compel the appearance of the defendant. It can, therefore, contribute nothing to the validity of the judgment against Stegall, that he was before the court, if Nolly was not. In the same case, this court say, that judgment entered against the defendant, without the ascertained existence of these prerequisites, (that is, the indebtedness of the garnishee to the defendant, and of the defendant to the plaintiff,) is a judgment against one not before the court, and for that reason is void.
    In two cases decided by this court, at the term before the last, it was held, that a judgment obtained by attachment, in another State, where there was no personal service of process, will not sustain a suit here, although it may operate as a general judgment in the State where rendered. This has been shown to be, virtually and really, a judgment against Nolly; and yet, Nolly was not personally served with process, nor was he ever before the court, so far as is shown from this record, but by the service of an attachment in the hands of his garnishee. Upon the analogy of those cases, therefore, this suit against Stegall cannot be sustained, because it effectuates a judgment against Nolly, which this court has said is inoperative here.
    The third plea filed in this cause, brings directly in issue, the necessity of a prior proceeding against Nolly, ' the supposed debtor. And that plea, (with all proper deference to that member of the court who has thrown out a hasty opinion upon this subject,) is drawn out at full length, and wants neither form nor substance; and is demurred to, which admits the facts of the plea to be true. From this state of the case, then, it appears expressly, that there was no proceeding or judgment against Nolly, the debtor or real defendant, in Virginia; and yet this court are taking his effects out of the hands of a third person, and bestowing them upon the plaintiff. Besides, the plea of nul teil record, which is here filed, and drawn out with all due form, puts in issue, according to the view above taken of the nature of proceedings against garnishees, the necessity of prior proceedings against the supposed creditor of a garnishee, and of the regularity, validity, and efficacy of those proceedings, before the garnishee can be affected. So that, whether the said third plea is informal and insufficient or not, the same question attempted to be raised by that plea, comes up under another plea, to which no objection has been made.
    If it were possible, consistently with the nature of this proceeding, to discard the idea, that the garnishee is only a medium through which demands are enforced against cre&tor5 being the debtor of the plaintiff; and if, ira that point of view, the proceeding against the garnishee, can ke considered as a separate and distinct one, independent of that against the principal debtor; such proceeding against the garnishee, is, when taken in such a sense, most emphatically a proceeding in rem. If so, the judgment against the garnishee, is a judgment i» rara; which, if not enforced in the State where rendered, cannot be sued upon in another State, as a general judgment. It remains a judgment in rem still, notwithstanding the removal of the garnishee beyond the limits of the State whose court pronounced the judgment; and cannot be made the foundation of an action against the garnishee, in any foreign State to which he may have removed. If the garnishee has defeated the effect of the judgment in rem, in the State where it was rendered, either by removal or otherwise, he may be sued in a special action on the case, in which the judgment in rem would be but inducement to the action, and not what it is founded upon; nor could a judgment in rem be made the foundation of a new action, but by converting it into a general judgment, which is impossible.
    To say, that if a garnishee is disobedient to the process of the court, he may be fined, and fined to the amount of the plaintiff’s demand against the supposed creditor of the garnishee; and to say further, that that fine when assessed, shall belong to the plaintiff at whose instance the garnishee was sumjnoned, is all intelligible enough, and perfectly within the- competency of the legislative power. But to say, that on account of the misconduct of a third person, that is, the disobedience of the garnishee to the process of the court, Stegall in this case, the money or the property of Nolly, shall be taken out of Stegall’s hands, and given to the plaintiff in the suit prosecuted by attachment, is, as I apprehend, monstrous and absurd, what no court has the power of doing, and what no legislature can confer the power of doing.
    
      Upon the whole face of the record, from one end to the other, it appears that Stegall was- proceeded against, not for a fine, but as one owing, or having in his hands, money belonging to the plaintiif in the suit against Nolly. The summons is against him in that character, and §o is the judgment, and the object of the execution, (as well as the express language of both the judgment and execution,) is to reach in his hands, what he was supposed to owe Nolly, and to appropriate it to the plaintiff. The idea of a fine is never hinted at; and besides, proceeding upon the idea of a contempt, the disobedience of one garnishee to a summons, is precisely as great as that of another, and they ought all to be fined alike; yet, we see that it does not depend upon the nature or aggravation the refusal to appear and testify, but solely upon the amount claimed by the plaintiff.
    The 35th section of said act, in case of the non-appearance of the garnishee who has been summoned, only authorizes judgment against him, “for the money, goods, chattels or estates, in the schedule mentioned.” Now, the schedule in this case, (so far as we can infer, for, as already stated, it is not presented,) does not charge Ste-gall positively with being a debtor of, or with having in his hands any money, goods, chattels or estates belonging to Nolly; but it only says, that if Stegall should succeed in a suit against Daniel Middougli, then he would owe Nolly three hundred dollars, subject to a credit which is not specified. The court had no jurisdiction to enter up judgment but according to the act. If, therefore, it gave judgment for three hundred dollars, or for any sum certain, making Stegall liable at all events for that sum, did it not go beyond the schedule, and consequently beyond the act? If the schedule only charged Stegall contingently, the judgment ought to have been according to the contingency, or it must appear that the contingency had happened, which determined the liability. Suppose the schedule had .charged Stegall with having in his hands a horse belonging to Nolly. In that case udgment could only have been entered up lor the horse, buppose the schedule had charged him with having in his hands a certain horse of his, Nolly’s, provided he, Stegall, had recovered him as an estray, or from another person having an adverse claim to him, or provided he were still alive. In that case, none but a conditional judgment could have been rendered. Or lastly, let us suppose that the schedule had mentioned that Stegall had a given quantity of tobacco belonging to Nolly, in his hands, provided the same had not been refused or condemned at public inspection and ordered to be burnt; or that he had certain bales of merchandize, provided the same had arrived safely from Europe. In that case also, there would not have been any authority for entering up a judgment unconditionally for money, even although the value of -those articles in money, might have been specified. Then, where is the difference between these cases and one where the schedule says that provided Stegall has recovered the money in a suit against Middough, he will owe him who gives in the schedule, three hundred dollars, subject to an undefined credit? There is none in principle, and consequently the judgment cannot be sustained, it not being such an one as the act of assembly authorized. .
    The county court of Brunswick, had not jurisdiction of the person of Stegall. It is true, that the summons appears tó have been served on him; but it was issued to the sheriff of Lunenburgh, by 'the clerk of Brunswick, and executed by the sheriff of the former county, and in that county. There is no authority given in the statute for that; and consequently, the service was void. Ste-gall did not appear in pursuance of the notice, and therefore did not submit to the jurisdiction of the court. It certainly could not have been the intention of the statute, that the clerk of the court, possessing jurisdiction of such small sums as do the county courts of Virginia, and holding monthly sessions, should have the power of summoning men from one extremity of so large a State to the other, in every paltry case of insolvency, and even where the garnishee did not owe more than six and a fourth cents. This construction cannot obtain, for we find no provision made in the act for the travelling expenses of the garnishee; and the correctness of this view would seem to he put beyond doubt by the consideration that by the express language of the 31st section of the act, the effects of the insolvent debtor are required to be transferred to the sheriff of the county, where they respectively may be found. This summons for the garnishee is a new process, the origin of which is to be traced to . the act of assembly in question; and in determining the extent of the operation of new process, I know of no other criterion than the act by which it is devised and created, and the jurisdiction of the officer from whom it emanates. If we look to the first,.we shall find no authority for the summons running from county to county; but on the contrary, much, which by necessary implication, would repel that construction. If we look to the last, we shall discover that he is a mere ministerial officer, of the most inferior court in the State; and as such can possess no jurisdiction, except such as is expressly conferred on him.
    4. The judgment rendered against Stegall is void for uncertainty; it being in favor of no particular plaintiff, and for no particular sum.
    5. The authentication of the record from Virginia, upon which this suit is founded, is insufficient, and ought to have been so held, under the plea of nul teil record. The clerk merely certifies that what he sets forth “is a just and true transcript from the records of said court.” Now, it may be a just and true transcript, if it contained the most garbled statement imaginable, and yet not be a full copy. It should appear, not merely that what is given is true, but that all is given.
    There is no seal of the court attached to the said an-thentication of the clerk, which is expressly required to be done hy the act of Congress, 1790, ch. 38, p. 860, of volume second of Scott’s Revisal.
    
      G. S. Yerger, for defendant in error.
    1. The court were right in sustaining the demurrer to both pleas. Defendant had notice of the suit brought against him in Virginia, as Nolly’s debtor; both these defences, if they were available, might have been relied on there. This not being done, the judgment is conclusive against him. Mills vs. Dwyer, 7 Cranch, 481: Hampton vs. M’Con-nel, 3 Wheaton.
    
      2. It is conclusive in Virginia; the contingency happened, or the judgment could not be obtained; an injunction will not lie on this ground. Allen vs. Phillip, 2 Littell, 1.
    3. The judgment is good; “subject to a credit of-dollars,” is mere surplusage. If there is any thing in the objection, it is only error, for which this court cannot reverse.
   Catron, Ch. J.

delivered the opinion of the court.

There is but one question presented by the record, worthy of notice. Was the judgment rendered in Virginia on which the action is grounded, valid? This depends on the act of that State, concerning, executions and for the relief of insolvent debtors. Revised Code of 1819, ch. 134. The 31st section directs the debtor to make a schedule, transferring and delivering his personal estate to the sheriff of the county, and conveying his real estate. The schedule includes the debts owing. By the 34th section, the title is vested in the sheriff.

The 35thsection provides, thatif the schedule shall contain articles of money due such prisoner in the possession of any other, the clerk of the court with whom the schedule is directed to remain, may, at the instance of the creditor, issue a summons against each of the persons named as debtors, reciting the sum of money he is charged with, and requiring him to appear at the next court, and to declare on oath, whether the money be really due to such prisoner, endorsing on said process at whose instance the same issued. If the person summoned, fail to attend according to the summons, it shall be lawful for the court to enter judgment against him for the money in said schedule mentioned, with costs. If he appear, he shall answer on oath, and judgment shall be rendered for the amount he acknowledges to be due; which judgment shall be entered in the name of the sheriff, and execution may issue thereon.

The summons issued in conformity to the insolvent act, and was executed; the defendant made default, and judgment was entered up against him. The judgment was regular, grounded on notice, and is conclusive.

The second and third pleas demurred to, want both form and substance.

Judgment affirmed.  