delivered the opinion of the court. Every material question in this case, turns upon the effect which the Vermont divorce shall be deemed to have upon the former marriage of the defendant. If he was thereby absolved from the marriage contract with his former wife, his second marriage was lawful, and the plaintiff could not sustain the present action; nor could her daughter, who .has been married to the defendant, be a witness. But if he was not legally divorced, his former wife being still living, his marriage with the plaintiff’s daughter was illegal and void, and she was a competent witness.
The evidence in this cause shows, that when this divorce was obtained in Vermont, the defendant’s former wife was living in Connecticut, separated from him, by virtue of an *141act of the legislature of that state, which, from its terms, may he deemed a divorce a mensa et thora. This separation was to continue during the pleasure of the wife, and the defendant was subjected to the payment of 150 dollars, annually, to her, by way of alimony. It also appears from the case, that the defendant’s former wife never was in the state of Vermont, nor in any manner personally notified or apprised, at the time, of the proceedings in Vermont to obtain the divorce. She did not, in any manner, by her agent, or attorney, appear, or make any defence against such proceedings.
The first question is, whether such proceedings, in Vermont, were not absolutely void. To sanction and give validity and effect to such a divorce, appears to me to be contrary to the first principles of justice. To give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person, qnd of the subject matter; and the want ofjurisdiction 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. The cases in the English courts, and in those of our sister states, as well as in this court, are very strong to show that judicial proceedings against a person not served with process to appear, and not being within the jurisdiction of the court, and not appearing, in person, or by attorney, are null and void. In Buchanan v. Rucker, (9 East, 192.) The court of K. B. in England, declared, that the law would not raise an assumpsit upon a judgment obtained in the island of Tobago, by default, when it appeared, on the face of the proceedings, that the defendant was not in the island when the suit was commenced, and that he had been summoned by nailing a copy of the declaration on the court house door. The court said, it would have made no difference in the case, if such proceedings were admitted to have been valid by the laws of Tobago. In the supreme court of Massachusetts, Ch. J. Parsons, in Bissell v. Briggs, (9 Mass. Rep. 464.) lays down the principle very clearly and distinctly, that before the adoption of the constitution of the United States, and in reference to foreign judgments, it was competent to show that the court had no jurisdiction of the cause; *142and if so, the judgment, if set up as a justification for any act, wou]¿ foe rejected without inquiring into the merits. The same rule would apply where the party, in whose favour the judgment was, came to enforce it in another, court. He pro- - ceeds, very ably, to examine the question how far the judgments of courts in sister states, are made conclusive by the constitution; and contends, that neither thé constitution, nor the act of congress, prevents the court, where such judgment is set up, from examining into the jurisdiction of the court where the judgment was rendered; and, such court, he .observes, must have jurisdiction both of the cause and of the person; that if a court of any state should render a judgment against a man, riot wjthin the state, nor bound by its laws, nor amenable to the jurisdiction of its courts, it would • be void.
■ So, also, the Superior court of Connecticut, in the case of Kibhe v. Kibhe, (Kirby, 119.) refused to sustain an action on a judgment in Massachusetts, on the ground that the judgment debtor had not been personally served with process to compel his appearance in the original cause; and that, therefore, the court, where the judgment was obtained, had proceeded without any jurisdiction of the cause. The same principle governed the decision of the supreme court of Pennsylvania, in the case of Phelps v. Holker, (1 Dali. 261.) The same doctrine, has been repeatedly recognized in this court. The cases of Kilburn v. Woodworth, (5 Johns. Rep. 41.) Robinson v. Executors of Ward, (8 Johns. Rep. 90.) Fenton v. Garlick, (8 Johns. Rep. 197.) Pawling v. Bird’s Executors, (13 Johns. Rep. 192.) are abundantly sufficient to show the light in which we have viewed such judgments. We have refused to sustain an action here, upon a judgment in another state, where the suit was,, commenced by attachment, and no personal summons or actual .notice given to the defendant, he not being, at the time of issuing, the attachment, within such state. In such cases we have considered the proceedings as in rem, which could only bind the goods attached, and that the judgment had no binding force in personam. This principle is not considered as growing out of any thing peculiar to. proceedings by attachment, but is founded on more enlarged and general principles. It *143is said by the court, that to bind a defendant personally by a judgment, when he was never personally summoned, nor had notice of the proceedings, would be contrary to the first principles of justice ; and that, whether the proceedings were valid, and according to the course of the court in the place where such judgment was obtained, or not, would make ne difference. It must, then, be taken, I think, as the settled law of this state, that a judgment obtained in a sister state against a person not being within the jurisdiction of the court, nor having been served with process to op-. pear, nor having appeared to defend the suit, will be absolutely void. This principle must apply equally to a divorce, as to any other judgment. These are principles, too, that have been recognized arid sanctioned in the state courts under the constitution and law of the United States, as now existing. In the case of Barber v. Root, (10 Mass. Rep. 262.) Mr. Justice Sewell, in pronouncing the opinion of the court, animadverts, with great indignation and severity, upon divorces obtained like the one set up in this case. The laws ef Vermont, says he, which authorize the supreme court of thatstate to proceed in suitsfor divorce instituted in favour of persons resident, for a time, but having no settled domicil within the state, against persons resident and domiciled in other states, who are not, and never have been, amenable to the sovereignty of the state of Vermont, upon allegation of offences not pretended to have been committed within the state, or contrary to the peace, morals, or economy of the society there, or in violation of any contract subsisting, or which has ever been, recognised there, in short, where no jurisdiction of the parties, or of the subject matter, can be suggested or supposed, are not to be justified by any principles of comity which have been known to prevail in the intercourse of civilized states; and the exercise of such authority, he adds, is to be reprobated in the strongest terms.
The case of Mills v. Duryee, (7 Cranch, 481.) in the supreme court of the United States, has been very much pressed upon us, as a binding and controling decision, as to the conclusiveness of this divorce in Vermont. Although I have a very strong conviction, that the constitution of the Untied *144States and law of Congress cannot be applied to a judgment w2iic}i we consider void upon the first principles of justice, so as to make it conclusive upon us, yet, the very high respect I entertain for that court, would make me hesitate, and doubt the correctness of my own judgment, did I believe it to have been the intention of that court, thus far to extend the construction of the constitution and laws of the United States. But I cannot persuade myself that it was so intended. And certain 1 am, that the case before that court required no such construction. It is true, that some of the observations of the learned judge, who pronounced the opinion of the court, might tend to such a conclusion. But these observations must be taken in reference to the facts in the case, and to the particular questionbefore the court. The case presented a question of pleading; whether nil debet, or mil tiel record, was the proper plea to an action of debt, brought in the circuit court of the district of Columbia, upon a judgment rendered in the supreme court of this state. It was held that mil tiel record was the proper plea. It was said, that if the record be c onclusivebetween the parties, it cannot be denied, but by the plea of nul tiel record; and that it was conclusive in that case, cannot be doubted. “ The defendant,” says Mr. J. Story,, “ 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, and must, therefore^ be conclusive here also.” That case will very plainly admit of the construction then, that it was intended only to decide, that the judgment was conclusive where the defendant was arrested, or had in some way appeared, and had an opportunity of defending the original suit. This construction is fortified by what fell from Mr. J. Johnson, who dissented from the opinion of the court. His remarks show very clearly, that he did not understand the court, as deciding that they were bound to consider.and carry into effect, as conclusive, judgments obtained upon attachments of property merely, when there was no process served on the defendant, within the jurisdiction of the court .rendering the judgment, or he made in some manner personally amenable to such jurisdic= tian.
*145Í have thus far considered this cáse; upon the ass’ump-^ lion, that this divorce would be valid and conclusive in thé courts in the state of Vermont, and should not even then deem it so here. But I very much question, whether it would be so considered in Vermont. It was a divorce obtained by fraud and false representations. In Fermor's case; (3 Coke, 77.) it was resolved, that a fine, levied by fraud, was not binding, and that such fraudulent estate was as no estate in judgment of law ; and it was declared, that all acts and deeds, judicial as well as extra-judicial, if mixed with fraud, are void. This divorce was introduced by the defendant himself, upon his trial, for the purpose of showing that his former marriage was dissolved, so as to legalize his marriage with the plaintiff’s daughter, and thereby exclude her from being a witness in the cause. Whenever he seeks to avail himself of any benefit from a divorce, procured by his own fraudulent conduct, although brought in collaterally, it would seem to me competent to allege this fraud, otherwise he would be permitted to derive a benefit from his own misconduct ; a position altogether inadmissable. Under the Vermont law, wilful desertion, for three years, is one of the grounds upon which a divorce may be obtained. This, undoubtedly, implies fault and misconduct; a desertion in violation of duty, and of the legal obligations imposed by the marriage contract. It was under this part of the law that the defendant obtained his divorce. In his petition, presented to the court for that purpose, he charges his wife with wilful desertion for more than three years, and with a total neglect of duty. This allegation, which was the sole ground of the divorce, was false, and known to be so to the defendant. For she was, then, and had been, for more than five years preceding, living in á state of separation from him, under the authority and sanction of an act of the legislature-of the state of Connecticut, and by which it appears that both husband and wife appeared, and were heard before the legislature. The defendant must, therefore, have been fully-apprised of the authority and circumstances, under which his wife lived separate and apart from him ; and could not have believed it a wilful desertion, within the sense and *146meaning of the Vermont law. If the validity of this divorce were fo be agitated in Vermont, it might well be objected, that it was obtained on false suggestions, and in fraud of their law; and the principle which governed the decision of this court, in Jackson v. Jackson, (1 Johns. Rep. 424.) would apply. It is there laidj) down, as a general principle, that whenever an act is done in fratidem legis, it cannot be the basis of a suit, in the courts of the country whose laws are attempted to be infringed. If we are bound to give to this divorce the same force and effect that it would have in Vermont, we must certainly admit all objections to he urged against it that could be alleged in that state. Suppose an action should be brought in Vermont, by Mrs. Fitch, for her alimony, under the Connecticut law, could the defendant avail himself of his divorce, to show a dissolution of the marriage contract, so as to discharge himself from the payment ? She certainly might set up this fraud against the divorce. Or, suppose a suit brought in this court for the alimony, after the date of the divorce, and the divorce set up to avoid the payment; we should certainly be bound to give force and effect to the act of the legislature of Connecticut. That act was prior in point of time, and no want of jurisdiction could be set up, as both parties appeared before the legislature in Connecticut. The courts in Vermont cannot have the power of annulling the law of Connecticut. It would be rather a singular situation of the defendant, and his first wife, to consider the divorce a mensa et thora in Connecticut, and the divorce a vinculo matrimonii in Vermont, both in force, and binding on the parties at the same time.
Upon the whole, therefore, I am fully persuaded, that we cannot consider the defendant as lawfully divorced from his former wife; and, of course, his marriage with the plaintiff’s daughter was null, and void. Without noticing the objections urged in arrést of judgment, and about which there is no difference of opinion on the bench, I am of opinion that the plaintiff i& entitled to judgment, on the bill of exceptions.
Judgment for the plaintiff.