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 *295suit 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 *296judgment.” 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 *297ground "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.