
    Town of St. Albans and others vs. Jotham Bush.
    Franklin,
    January, 1832.
    A Circuit Court of the United States is not a foreign court, nor a court of inferior jurisdiction, ancf nil debet is nota good plea toa judgement renderedby such court.
    Where an attorney, without any license or authority, instituted a suit against A in favor of B, and judgement was rendered therein for the defendant to recover his costs, —it was held, in an action broughtbyA againstB on said judgement, that B was bound thereby, and could not plead the want of authority in the attorney.
    This was- an action of debt on a judgement rendered by the circuit court of the United States for the district of Vermont. The defendants pleaded, firstly, Mul tiel record' r secondly,- That at the time of the commencement of the suit' in which said judgement was rendered, he was, and ever since has - been, an inhabitant of Boylston, in the state of Massachusetts-, not-subject or-arne-n-able to- th© jurisdiction of said court j- tbat-he nev-er was-serv-ed with process in said suit, was not notified of it, and had no knowledge of the pendency of the same ; -and that he never appeared' in the suit to prosecute or defend the same : thirdly, Mil debit. The plaintiffs joined -issue on the first plea. To the second- plea-* they replied as-follows :■
    “And nowibe said' plaintiffs as to the said second plea of the defendant,' as above pleaded, say, that they from having and maintaining their aforesaid action thereof against the defendant, ought not to be barred, because, That, although, true it is, that the time of the commencement of the suit in which the said recovery of the judgement mentioned in the plaintiffs’ declaration was obtained, and during all the time between the time of the commencemeatof¡ the said suit and the recovery of the said judgement mentioned' m-the plaintiff’s declaration, the said'defendant was an inhabitant and resident of Boylston, in the commonwealth of'Massachusetts; yet the plaintiffs say, that the said suit in which the- judgement mentioned.in the. plaintiffs’ declaration, was obtained,.as aforesaid, was duly and legally brought and commenced by the said defendant,, in- his own name,, wlio then was a citizen of said state ofc Massachusetts, against the said plaintiffs and one Silas Robinson, late of St- Albans, deceased, who then were citizens of Vermont, returnable before the said circuitcourtat thefterm holden at sor, within and for the District of Vermont, on the 21st day May, 1827, to recover of the said plaintiffs and the said Silas Robinson the seizin and peaceable possession of a certain tract or parcel of land, lying and being in St. Albans, in the county of Franklin, and State of Vermont,known and described as lot no. 81; and that the said suit was duly entered in said circuit court, at the term last aforesaid,by the said defendant, and by him prosecuted in said court from term to term, until the term of said circuit court, holden at Rutland, within and for said district of Vermont, on the 3d day of October, 1827, at which term the plaintiffs,by the consideration of said court,recovered of the defendant the said judgement mentioned in the said declaration, as by the records of said circuit court will more fully appear; all which the plaintiffs are ready to verify-
    To the plea of wii debet the plaintiffs demurred.
    
      Defendant's Rejoinder. — And now the defendant by his attor-nies rejoins to the said plaintiffs’ replication, and says, that the said plaintiffs ought not, by reason of any thing by the said plaintiffs in said replication alleged,to have and maintain their aforesaid action thereof against said defendant, because he says, that one Cornelius P. Van Ness, formerly of Burlington, in the county of Chit-tenden, and state of Vermont, without the authority, license, consent, permission or knowledge, of the said defendant, did commence and prosecute said suit in said circuit court in the name of said defendant, against said plaintiffs, and that the said Cornelius P. Van Ness, or any other person, was never, either before or after the commencement of said suit, directed, authorized, licensed, or permitted, by the said defendant, to sue and prosecute said suit in said circuit court in the name of the defendant, against the said plaintiffs ; without this, that the said suit, in which the said supposed judgement in the plaintiffs’ declaration mentioned, was obtained, was duly and legally brought, and commenced by the said defendant, in his own name, in said circuit court, for the district of Vermont, and was by him, the said defendant, prosecuted in the said circuit court from term to term, or at any other time or term, in manner and form as the same in said replication is alleged ; all which he the said defendant is ready to verify.
    To this rejoinder the plaintiffs demurred.
    The county court rendered judgement for the plaintiffs, and the case was reserved for the opinion of this Court. -*
    
      Smalley and Adams,for the defendant.
    
    I. The first question arising in this case is on the validity of the plea in bar. Is it a b.ar to the action ? The averments therein show a total want of jurisdiction in the court rendering the judgement-
    
      ]. The circuit court, as to a state court, is a foreign ° court. — It derives its authority from, and is established and sup-by, a power independent of any one state. Its judgements cannot be enjoined or revised by the state courts: nor can it enjoin, revise, or in any way disturb the judgements of state courts. This constitutes them, as respects each other, foreign courts.— “A judgement of an unconnected, independent jurisdiction is what the law calls a foreign judgement.” If a foreign judgement, it is only prima facie evidence of a debt. — Baldwin vs. Hale, 17 Johns. 272 ; Me Kim v s. Voorhees, 7 Branch, 279; Diggs vs. Keith, 4 CranckT 179'; Philips vs. Hunter, 2 Ii. B. 402; Walker vs. Witter, 1 1, in notes.
    
    2’. The circuit court is an inferior court of special and limited jurisdiction. Its jurisdiction is limited by the matter in dispute, and restricted to persons-of a particular description or local residence. — On general principles, where the judgements or decrees of such a court are submitted to an independent tribunal, the jurisdiction of the court mustbe established before its judgements can be noticed. — The rule applied to courts of limited jurisdiction, is that every -case is presumed to be without their jurisdiction till the contrary appears.— Constitution of U. S. Art. 2d. Sec. 2d ; Graydoids Digest, 241 ; 1 Saunders, 74, in notes ; Marshalsea case, Coke’s Mr. 300; Godwin vs» Gibbons, 4 Bur. 2108; Latham vs. Egerton, 9 Cowen, 227.
    3. But granting that the judgements of the circuit court are not to be subjected to the common law rules, by which the validity of judgements of inferior courts in the technical sense of the term,, are tested; that the presumption is in favor of jurisdiction in all cases where it has attempted to exercise it ; is this presumption too strong to be repelled ? Is there any peculiarity in the constitution of a circuit court, or in the mode in which it exercises its authority, which shields its judgements from all exceptions ? To say of a court, that it is of special and limited jurisdiction, and has cognisance, not ofcauses generally, but only of a few specially circumstanced, and yet in all cases where it assumes jurisdiction, the party whose rights are affected by the assumption shall not be permitted to repel it, would be to state an inexplicable enigma. A tribunal of defined and limited forms, with the privilege of assuming whatever it might see fit, would be intolerable, and without precedent in the judiciary of any country. Yet this must be the circuit court, unless its want of jurisdiction in a particular case can be shown by plea. For its judgements cannot be reversed in the state courts; it cannot be restrained from proceeding by the supreme court of the United States; nor its judge-ments be there reversed, except in cases where the matter in dis-St pute exceeds two thousand dollars. — Graydon, 243,245. Here then,is a court of defined and limited jurisdiction, exercising with impunity unlimited jurisdiction over all persons, whether within reach of its process or not — a court, the judgements of which, except in a few specially circumstanced cases, cannot be reversed on error ; and yet, if this plea cannot avail the defendant, they are of a character too sacred to be questioned.
    4. The maxims, “that nothing can be assigned for error, nor can any averment be admitted which contradicts a record j” “'a record imports in itself such incontrovertible credit and verity that it admits of no averment, plea, or proof to the contrary,” are but idle truisms in reference to the question before the court. — 9 Cowen’s R. 227 ; 19 Johns. R. 7 ; Elliott vs. Per sol et al. 1 Peters, 328-40; 15 Johns. 121. They import nothing more than what is expressed in the rule, that a" subject once adjudicated upon by a tribunal of competent jurisdiction, can never again be litigated between the same parties. We do not controvert this doctrine. The questions are,can the jurisdiction of the circuit court be inquired into ? Does the plea negative its jurisdiction in the case under consideration ? We take the affirmative of both these questions. We insist that a judgement of the circuit court is not of irresistable validity ; that it may be impeached, its enforcement resisted, or a title under it defeated,by shewing that the court had not jurisdiction over the process, the subject matter, or the person. This proposition rests upon principles universally received and acknowledged to be obligatory upon all courts. Whenever a right is claimed in one undefined jurisdiction, by virtue of the acts of another, the jurisdiction of the court, under which the right is claimed, is directly putin issue. Thus, courts of admiralty acting in rem proceed according to the law of nations, and their judgements are binding on all the world. — 1 Phil. Evi. 267 to IS’, 1 StarJcie, 238. Yet, where, a title is .asserted under a decree of a court of admiralty, the question whether it had jurisdiction is open ; and not only the constitutional power of the court is examinable,but the state of the thing, to assertain whether it was in such a situation that the court professing to pass sentence upon it, could lawfully exercise jurisdiction over it. — Rose vs. Himley, 4 Crunch, 241. And if the court from its constitutional power had not jurisdiction, or the thing was not in a si.tu.ation to enable it to exercise jurisdiction upon it, the decree condemning it is coram non judice,and void. — Slocum vs. Wheeler, 1 Conn. R. 429 ; 19 Johns. 7 ; Rider vs. Alexander, l D. Chip. 267.
    5. The judgements of the circuit court of the United States cannot stand on a better fooling than the judgements of state courts. The plea would be a bar to a judgement of one state court when prosecuted in the courts of another. — 4 Cow. Rep. 292; 4 Conn. Rep. 380 ; 15 Johns. Rep. 121 ; 6 Pick. Rep. 232. Questions as to the validity and effect of the judgements of one state court, when sought to be enforced in another, have been variously determined in the courts of the several states of the Union. But the universally received opinion at present, is, that their operation and enforcement may be resisted by plea, shewing the want of jurisdiction of the court in the particular case. — 6 Conn. Rep. 508 ; 1 Caines, 461: 9 Mass. 462, and cases already died ; also, 9 East, 192; 1 Term Rep. 32 or 55. The governing principle of all the cases both in England and this country is, that a party can never be bound by the judgement of a court when he has had no opportunity to be heard in his defence. Can any satisfactory reason be assigned why this principle should be abrogated as to judgements of the circuit court?
    6. Jf it be urged that the defendant, in the introduction to his traverse of the replication, admits that one C. P. Van Ness commenced and prosecuted the suit in the circuit court, how can it avail the plaintiffs ? It is not admitted that this Van Ness had authority to commenee or prosecute the suit : on the contrary, it is expressly denied him. Neither is it admitted that he was an attorney of the circuit court. The record of that court is not a part of the record before this court. It is not then easy to comprehend how this admission can have any bearing upon the questions in this case.
    7. A judgement obtained by fraud or imposition is void. — Fer-mor’s case, 3 Co. 78. Fraud vitiates all acts. “ But although such sentences [judicial] are conclusive, and cannot be impeached from within, yet like all other acts of the highest judicial authority, they are impeachable from without.” — 1 Philip’sEv. 261; 1 StarJcie, 253. Fraud is an extrinsic collateral act, which vitiates alljudicial acts whether ecclesiastical or temporal.
    II. The plea of nil debet is a proper general issue in this case.
    
      I. JYul tiel record is the proper general issue only in those cas■es, where the party merely denies the existence of the record set ¡forth, and where the .identity of the record declared on with the one offered in proof, must be determined by the court,-on inspection of the original record, or of its tenor brought in by mittimus or certiorari. Com. Dig. Plead.- 2 W 13; 1 Chitly, 537.
    _ _ 2. The rule that nul tiel record is the only proper genera] issue to debt on judgement, would be absurd, if applied to records of courts of limited jurisdiction. The principle of the ruléis said to be, that the binding force of the instrument declared cm must determine what the plea shall be. But neither the Court nor the pleader can judge whether the instrument — if it be the judgement of a court of limited jurisdiction — is binding or not, till it is produced. If when produced it appears that the court rendering the judgement had not jurisdiction,the judgement is a nullity. Hence the case must be tried, before any general issue could safely be found.
    3. The circuit court is a foreign court. — 17 Johns. 272 ; 2 H.B. 402; 9 East, 192.
    4. The plea ofm’Z debet on judgement of one stale court, when sought to-be enforced in the courts of another,- is sanctioned by a series of decisions irom the organisation of the confederation to this time. — -Bartlet vs-. Knight, 1 Mass. 491 ; Bissel vs. Briggs,-9 Mass. 462; Q> Pick.. 232; 1 Caines’ Rep.-4Q1 ; Kilburn vs.-Woodworth, 5 Johns. 37 ; Taylor vs. Bryden, 8 Johns. 133 ;: Fenton vs. Carlick, 8 Johns. 150 ; 15 Johns. 121 ; 12 Mass. 25, It is a convenient general issue founded on ah intelligible princi--ple, and ought not to be departed from without substantial reason-.. The case of Mills vs. Durkee is the only case which seems to-bear against the validity of such plea.' • But that case, properly understood,is not calculated to shake the authority of the previous eases;.
    
      Smith and Aldis, for the plaintiff's.
    
    it is contended’’ that'the' plea of nil debet and plea in bar can not be pleaded with that oí md tiel record. The defendant having pleaded nul tiel recordr and an issue having.been taken on said plea, and found for the-' plaintiffs,-the court are bound to reject the other pleas as altogether inconsistent with the issue,-and judgement of the court thereon— The plaintiffs set forth in their declaration a good and valid judgement, duly and legally recovered before the circuit court, against the defendant, and such-a judgement the county court have, on inspection of the record,.{o( which a proferí was made in the declaration,) found wasduly. and.-legally- rendered by. the circuit courts
    
      The legal consequence of this finding of the county court on the issues of factis, that the plaintiffs recovered of the defendant their .debt, damages and costs. This judgement can not in the least be affected or controlled by any judgement of this court on the issue of law, as this Court have no power to review or set aside the judgement of the county court on the issue, whether there was or was not such a record as is set forth in the plaintiffs’ declaration. —2 JV. Y. Dig. 707; Coleman’s cas. 35.. — But should this Court consider that the other pleas of the defendant are properly before them, then it is contended by the plaintiffs, that when the record is the foundation of the action, as in this case, and not merely inducement, the plea of nil debet is insufficient; and in this case it is immaterial whether the judgement of the circuit court be regarded as a domestic judgement, or as standing on the footing of the judgement of a sister state. — 1 Chit. P. 480 ; 11 Johns. Rep. 474; 8 Johns. Rep. 82 ; 1 East, 373; 7 Cranch, 481 ; 3 Wheat. 234.
    Again ; it is contended that the defence set up in the plea in bar of the defendant, and the rejoinder to the plaintiffs’ replica-lion, do not constitute a legal and admissible defence to this action, ■inasmuch as it tends to impeach collaterally the validity of the judgement of a court having jurisdiction of the subject matter of the suit in which the judgement was recovered, and also of the parties to that suit. It is a well settled maxim of law., that no averment can be made in pleading against the validity of the record : and the relief or remedy in this case is by some direct application to vacate, or set aside, the judgement which is the foundation of the suit. — Í Chip. Rep. 383; Cowp. 315; 3 Term. Rep, 125 ; 2 B. & P. 391 ; 12 East, 75 ; 16 East, 21 ; 1 ChiL Plead. 353, 480 ; 8 Johns. Rep. 61 ; 2 Et. Rep. 263; 12 Mass. Rep. 268.
    The judgement of the circuit court of the United States must be treated by this Court to all intents and purposes as a domestic judgement '-: but, to say the least, it must be placed on the footing of a judgement rendered by a court of a sister state. In all cases when the courts of another state have jurisdiction of the ■subject matter, and of the parties, their judgements are tobe regarded, as to their legal effect, as a domestic judgement. — Constitution ofU.S. 4 Art. Sec. 1; 2 Laws U. S. 102-3, (ed. 1815 ;J 7 Cranch Rep. 481 ; 3 Wheat. 234; 2 Dali. 302; *9 Mass. Rep. 452 ; 1 Starkie, 215, note ; 1 Pei. Rep. 155 ; 2 Et. Rep. 263. It is further contended, that as plaintiffs in their declaration make a profer of the records and proceedings of , 1 . .. the circuit court, this record must be treated as constituting a part of the pleadings in this case. From this it appears that the fendant appeared in said circuit court, by his attorney, C. P. Van Ness, and prosecuted the action in favour of the defendant, against the plaintiffs in this suit; consequently the defendant is precluded from alleging in their suit, that the said C. P. Van Ness was not authorized to prosecute the suit in said circuit court in his behalf, inasmuch as the record imports absolute verity. 1 Pet. Rep. 155; 1 Starlde, 215, note; 2 Vt. Rep. 269.
    Again; when an attorney enters an appearance, either to prosecute or to defend a suit, without the knowledge or consent of the party, and even when the party has no notice — a judgement rendered under such circumstances, is absolutely binding on the party, and the court will not, even on application for such a cause, set aside the judgement: the party enjoined must seek his remedy on the attorney, or by an application to the court for a new trial. —1 pier’s Rep. 304 ; 2 Vt. Rep. 263; 8 Johns. 298 ; 1 Pinny’s Rep. 214, 469 ; 1 Salic. 89, 86; Com. Dig. Atty. (B) 7 ; 6 Johns. 296 ; 7 Pick. Rep. 137.
   The opinion of the Court was pronounced by

Hutchinson, C. J.

This is an action of debt upon a judgement recovered before the circuit court of the United States, for the Vermont district, for the costs of a suit to which the plaintiffs and one Silas Robinson, since deceased,were parties. The declaration contains no averment whether the present plaintiffs were plaintiffs or defendants in that suit, except the strong implication, that they were defendants, by their recovering a judgement for costs only. The defendant pleaded several pleas in the county court: 1st. Nultiel record. This was found against him. 2d. Nil dsbet, concluding to the country. To this the plaintiffs demurred ; and the county court decided this plea to be bad. 3d. The defendant in his third plea set up in bar, that at the time when the action in the circuit court was commenced, &c., he lived atBoylston,in Massachusetts, and was resident there,and was notin the state of Vermont, and had no notice of the suit, and no writ was served on him in said suit, &c. This third plea must of course have been a nullity, if the plaintiffs had averred in their declaration, that the judgement declared upon was rendered in an action brought against them by this defendant. The want of such an averment has driven the plaintiffs to a special replication ; in which they set forth in substance, that the action in the circuit court, in which they recovered their judgement, was an action of ejectment, brought this defendant against them, for a lot of land in St. Albans ; and they add all the averments of citizenship of different states, &sc. which show, conclusively, that the circuit court had jurisdiction of the action ; and then proceed and affirm, that the defendant entered and prosecuted said suit, &c., till they recovered their said judgement for costs, as in said declaration is set forth ; adding also, “ as by the records of said circuit court will more fully appearand conclude with a verification.

To this the defendant rejoins, that one Cornelius P. Yan Ness, without the authority, license, consent, permission or knowledge, of this defendant, did commence and prosecute said suit in the name of this defendant j but was never authorized so to do, either before or after the bringing of said action ; absque hoc, that the said suit-, &e., was brought and prosecuted in said circuit court by him, this defendant, as set forth in said- replication ; and this he is ready to verify, and' prays judgement, &o.

To this rejoinder the plaintiffs put in a general demurrer. And the county conrt adjudged this rejoinder to be bad. And the defendant filed exceptions to these decisions of the county court, upon the demurrers, and has brought the case up in the way pointed out by statute ; and he comes now into this Court as a plaintiff in a writ of error.

Mr. H. Adams, in a laboured argument for the defendant, adducing many cases as authorities, endeavoured to support the positions, that, as to a state court, the circuit court of the United States is a foreign court; that it is an inferior court, of special and limited jurisdiction ; that their judgements are void when they have no jurisdiction of the cause, and that the record does not es-top the defendant from showing by plea, that which shows that the court had no jurisdiction. From all which positions he inferred, that nil debet, concluding to the country, was a good plea to this action ; also, that the facts set forth in his- rejoinder are good and sufficient to show this defendant not bound by this judgement; and further that the traverse in his rejoinder met the gist of the plaintiff’s replication. We have felt no disposition to hear the plaintifi’s counsel upon a ease so plain. Indeed, the defendant’s counsel' might have saved themselves considerable labor, by examining two decisions of this Court, reported in the second volume of Vermont Reports, Hoxie vs. Wright, page 263, and Bellows et al. vs. Ingham, page 575. Soon after the establishment of the constitution of the United States, there were decisions in Mas- , * , sachusetts and New-York, which treated judgements of the courts of the neighboring states as foreign judgements, and admitted fendant to impeach them, and inquire into the original merits. But those decisions have long since been overruled, and, we believe, are no where treated as law. The first time the subject was investigated by Judge Parsons, that doctrine was overruled. It never was adopted in this state. If the debtor in the judgement was not an inhabitant of the state in which the judgement was rendered,and never submitted to the jurisdiction of the court rendering the judgement, and never appeared in the action, either by himself or attorney, he is not bound by the judgement, when sued upon it in another state : but he may plead specially that which shows that the court which rendered the judgement, had him not so before them as to have jurisdiction over 'him ; and thereby avoid hs prima facie force over him. But if the court, rendering the judgement, had no jurisdiction over the subject matter, when this is made to appear, the judgement is of no force any where, in such a ease, we should treat one o.f our ownjudge-raents as a nullity.

Should we 'treat the circuit court as we would treat the courts ■of a neighboring state, '(and their seems no reason to treat them •as of less power, or as entitled to less respect,) they are not foreign •courts in the sense the defendant contends for.

It seems rather singular to hear the circuit courts spoken of as of inferior jurisdiction, when they have jurisdiction over all the most important controversies in the nation, that arise between others than citizens of the same state. They are inferior to the Supreme Court of the United States, but to no other courts. They are courts of limited jurisdiction, it is true ■; not limited to trifling matters, but to those great questions, which may arise between citizens of different states, and some other cases, where it was supposed jealousies might exist, if the creditor was confined to the courts of the state in which his debtor resided. But, within those limits, they have as uncontrolled jurisdiction, as any courts whatever, both at law and in chancery.

But the effort to establish this doctrine in this case could avail nothing, even if the doctrine were correct. For the replication has averred all those matters, which show that the circuit court had jurisdiction to render the judgement now in controversy ; and which shows the defendant to have chosen his own jurisdiction, aiid sailed the present plaintiffs before that court as defendants, and that they appeared and made a successful defence.

But the defendant further contends, that the new matter introduced into his rejoinder, that the suit was brought by one Van Ness, without the knowledge or consent of him, the defendant, absolves this defendant from the force of this judgement. We decided otherwise in the case of Tichout vs. Cilley, in Chittenden county. We there decided, that, so far as related to the bill of costs, recovered against the plaintiff, he was at all events liable to the defendants ; that bis liability is so fully established by the record, that it can not be controverted in the collection of the bill of cost. But it might be otherwise with regard to any thing done under the execution, like taking the property of some third person on the execution. But it would not be very direct justice to drive these plaintiffs to prove, by evidence aliunde, that the present defendant, the then plaintiff, brought his own action.

The defendant further contends, that his rejoinder traverses the most important part of the replication. If it were so, it only traverses the very fact established by the record, and the very fact established for the plaintiffs, on the. plea of nul tiel record. Moreover, this averment in the rejoinder under the absque hoc, was not to be treated as a traverse. The new matter, introduced by the defendant into his rejoinder, was the only matter to be met by the plaintiffs. The defendant concluded his rejoinder with a verification, and the plaintiffs might either traverse this new matter as false, or demur to the rejoinder as immaterial. He chose the latter. And wé consider the rejoinder clearly insufficient.

What is already observed leads to the necessary result, that nil debet is not a good plea to this judgement. It was to carry before the jury the verity of the record, in a case where the record is in law absolute verity, and only to be tried by the inspection of the Court.

The judgement of the county court is affirmed. 
      
       Sec 3 Vt. Rep. 415.
     