
    Shumway and others against Stillman.
    In an action judgment of a neighboring state, the defendant may flrar’they court had no jurisperson, or the subject matter of the suit.
    But where to° a °deelaration on such a ST’that, at the time of the commence-suit, and when was reiidmed1 and during all díate timeThé was, and ever Bincé had been, an inhabitant in the títy' of Schenectady, Schenectadyf and state of New York; held bad on goneral demur-not'’ being Pinconsistent with havisg actual': ly appeared, in person, otherwise, and defended the
    d of 1 judgment in a neighboring state is prima facie evidence, that the court by was rendered, jurisdiction ; and, to do away the effect of the record, the contrary should ho clearly and fully shown.
    The only plea of tfie general., issue, applicable to a declaration, upon the judgment of a is nul tiel record.
    
    j)EBT on-judgment, in favor of the plaintiffs against the defendant', recovered ill the Circuit Court of Common Pleas at Worcester, in the- Commonwealth of Massachusetts,, Juné 19th, 1820.- The defendant pleaded, that at the . „ , time of the commencement of the suit m which the recoveiT °f the judgment was obtained, and at the time whetí the judgment was rendered, and during all the time, bétween the time of the commencement of the suit, and. recovery of the judgment, and ever since, he was, has , . r - ,. - - .. . , . been, and still is an inhabitant of, and resident m the city Schenectady, comity of Schenectady, and state of New Yoi'lt.
    General demurrer and joinder.
    
      B. F. Butler, in support of the demurrer, said that.nutiel, record was the only appropriate plea.
    
    But admithng the principle of the plea to be good, it is insufficient,in not answering all that it assumes to answer. It does not show that the defendant was not actually arrested. It should have denied actual arrest, personal notice and volunta-ry appearance. Either of these might well be? though the defendant, as alleged in the plea, was all along an in-" habitant of, and resident in the city of Schenectady. The record is, prima facie, evidence of jurisdiction in the Court 0f Massachusetts, and all the facts questioning this should ’ he fully stated,
    A. C. Paige, contra, conceded, that
    upon the authorities cited, the merits of the judgment of a sister state were not inquirable into ; that iii this sense, nul tiel record is the only pr0per plea; but he said it is also well settled that the juf. , L . - . J usdictioil of its courts may be questioned, either as to the person or subject matter. In order to make such a jndgment the foundation of an action, the defendant must, at the commencement of the suit, have been within the jurisdiction of the Courtand, while there, must have been personally served with process. His continued residence 7 _ , * , . . , in Schenectady, as averred by the plea, is inconsistent with his having been within the jurisdiction of the Massachusetts Court, at any time, for the purposes of the judgment. Barllet v. Knight,
      
       is in point for this plea. It is drawn in the veiy words of the one in that case.
    [Woodworth and Sutherland, Is. inquired whether the averment in the pica did not still leave it open to be 1 1 implied, that the defendant might have been in Massachusetts, and duly served with process there ?]
    The legal inference is, that he was not in Massachusetts when the suit was commenced. If not there, the proceeding must have been in rem; and in such case, even a , ° , ’ ... subsequent voluntary appearance will not confer junsdiction. If the defendant was arrested, or appeared by attorney, or any other way by his own act, this should have been replied by the plaintiff. In Kilburn v. Woodworth,
      
       the proof was no more than what wo have averred ; yet this Court hold it sufficient to negative the jurisdiction of the foreign Court.
    But the declaration is defective in substance. It should have averred that the defendant ivas within the jurisdiction of the Court at the commencement, of the suit; and that, while there, he was served with process.
    
    At any rate, if the plea is defective, the Court will allow us to amend ; and this without payment of costs.
    He also cited Butrick v. Allen. 
      
    
    
      Butler, in reply, said, that an averment of actual residence in Schenectady would not have been enough ; for, notwithstanding thiq the defendant might have appeared by appointing an attorney.
    This plea, however, is still weaker. Actual residence is not pretended. He might have been a resident in this state; and yet have been personally in Massachusetts defending the suit through all its stages. The word 
      resident does not imply actual inhabitancy. It may be a mere right of settlement. Instances of this occur under mr poor laws, (1 R. L. 279.) The word resident is synony mous with inhabitant.
    
    
      
      
         Mills v. Duryee, 7 Cranch, 481. Hampton v. M’Connel, 3 Wheat, 234. Bordens v. Fitch, 15 John. Rep. 121, 140.
    
    
      
      
         Borden v. Fitch, 15 John. Rep 141, 2, 3 Pawling v. Bird's Executors, 13 id 207. Bissell v. Briggs, 9 Mass. Rep. 462, 469. Kilburn v. Woodworth,5 John. Rep. 37, 41 Robinson v. Ward's Executors, 8 John Rep. 86. Fenton v. Garlick id. 197. Bartlet v. Knight, 1 Mass. Rep. 408.
    
    
      
       1 Mass Rep. 401, 409
    
    
      
      
        Bissell v. Briggs, 9 Mass. Rep 462, 468. Pawling v. Bird's Executors,13 John. Rep. 192, 207.
    
    
      
       5 John. Rep. 37, 41.
    
    
      
       Kibbe v. Kibbe, Kirby 119.
    
    
      
       8 Mass Rep. 273.
    
    
      
      h) Rosevelt v. Kellogg, 20 John. Rep. 210.
    
   Curia per Sutherland, J.

The questions which arise upon the demurrer are, 1. Whether any other plea than that of md tiel record can be pleaded in a case like this 7 2. Admitting that it is competent to show that the Court, which rendered the judgment, had no jurisdiction over the person of the defendant, is that fact shown with sufficient certainty by the plea in question 7

The Supreme Court of the United States in Mills v. Duryee, (7 Cranch, 431,) decided that nil debet was not a proper plea to an action of debt upon a state judgment, prosecuted in another state ; and that, in that particular case, as it was presented to the Court, nul tiel record was the proper plea. But I do not understand the Court, in the opinion delivered by Mr. Justice Story, as deciding, or intimating that nul tiel record is the only proper plea to such an action. The only general proposition upon the subject of pleading, which I conceive to have been established by that case, is, that nul tiel record is the only proper general issue in an action of debt upon a state judgment; and this necessarily resulted from the conclusion to which the Court came, that by the provisions of the constitution, and the law of congress upon that subject, judgments of the state Courts are to be considered and treated as records. Judge Story says, “ the pleadings in an action are governed by the dignity of the instrument on which it is founded. If it be a record, conclusive between the parties, it can not be denied but by the plea of nul tiel record.” And, in order to show that the record in that case was of this description, that is, conclusive between the parties, he says, “in the present case, the defendant had full notice of the suit, for he was arrested and gave bail; and it is beyond all doubt, that the judgment of the Supreme Court of New York was conclusive upon the parties in that state putting the conclusiveness of the judgment between the, parties upon the ground, that the defendant had notice of the suit a id appeared to it: impliedly admitting that the judgment would not be conclusive, where the Court had not acquired jurisdiction over the person of the defendant; and that in such a case, mil tiel record was not the only proper plea.

This point not having been decided by the Supreme Court of the United States, I can not entertain a doubt upon principle, that, in an action upon a state judgment, 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 the subject matter, or of the person. In Borden v. Fitch, (15 John. 141,) the Court say, “ to give any binding effect to a judgment, it is essential that the Court should have jurisdiction of the person, and of the subject matter ; and the want of jurisdiction is a matter that may always be set up against a judgment, when sought to be enforced, or where any benefit is claimed under it. The want of jurisdiction makes it utterly void, and unavailable for any purpose. In Andrews v. Montgomery, (19 John. 162,) Ch. J. Spencer, in delivering the opinion of the Court, says, that this Court, in Borden v. Fitch, did not believe that the decision in Mills v. Duryee was intended to be carried so far as to preclude the party, against whom it was rendered, from showing that such judgment was fraudulently obtained, or that the Court had not jurisdiction of the person of the defendant. With these qualifications, (he says,) we are bound by the authority of that case to consider a judgment, fairly and regularly obtained in another state, a full and conclusive evidence of the matter adjudicated. The same principle was held by Ch. J. Parsons, in Bissell v. Briggs, (9 Mass. Rep. 467.) He says, K the public acts, records and judicial proceedings contemplated (by the constitution and laws of the United States,) and to which full faith and credit are to be given, are such as were within the jurisdiction of the state, whence they shall be taken. Whenever, therefore, a record of a judgment of any Court of any state is produced as conclusive evidence, the jurisdiction of the Court rendering it, is open to inquiry. If it should appear that the Court had no jurisdiction of the cause, no faith or credit whatever will be given to the judgment.” And again, if a Court of any state, should, render judgment against a pian, not within the state, noi hound by its laws, nor amenable to the jurisdiction of its Courts, if that judgment should be produced in any other state against the defendant, the jurisdiction of the - Court might be inquired into, and if a want of jurisdiction appeared, no credit would be given to the judgment.”

Against the principle of the plea, therefore, hi my opinion, there is no objection. But,

2. Does the plea state enough, to show that the Court, which rendered the judgment, had not jurisdiction of the person of the defendant ?-

Every presumption is in favor of the jurisdiction of the Court. The record is prima facie evidence of it; and will be held conclusive, until clearly and explicitly disproved. Now the plea, in this case, may be literally true, and yet the defendant may have been personally served with process, in the state of Massachusetts, may have entered special bail in the action, may have appeared and litigated the cause either in person or by attorney upon the trial, and may have been present in Court when the' judgment was rendered. It merely states that the defendants domicil, from the commencement of the suit, until the rendering of the judgment was in Schenectady, in the state of New York. Now, as is said by Ch. J. Parsons, in Bissell v. Briggs, (9 Mass. Rep. 470,) an inhabitant of one state may, without changing his domicil, go into another ; he may there contract a debt, or commit a tort; and while there, he owes a temporary allegiance to that state, is bound by its laws, and is amenable to its Courts. This plea, therefore, entirely fails in showing the want of jurisdiction in' the Court which rendered the judgment.

This plea was probably taken from- that in Bartlet ,v. Knight, (1 Mass. Rep. 399.) But in that case the plea contained the further allegation, that the defendant, at the time of making the promise, and at the time of the recovery of-the judgment was an infant; and that case was determined on the ground that the judgment was nothing more than a foreign judgment, and liable to be impeached, not on the ground of the want of jurisdiction only, but on any other ground "which showed the plaintiff ought not to have recovered. No objection was taken to the plea on the ground that the want of jurisdiction was not sufficiently stated. The Court seem, to have given more weight in their jüdginent to the fact of infancy, thanthe want of jurisdiction.

I am of opinion that the plaintiff is entitled to judgment, the defendant may amend his plea.

Rule accordingly.  