One whose person or property has been seized under process, may question the jurisdiction of the court that issued the process either in an action brought by himself for such seizure, or in an action against him, brought by the party in whose favor the process was issued, in which the process is an element of the plaintiff’s cause of action. This principle is elementary. "We think the execution under which the vessel in this case was seized, was illegal, and, therefore, void. The plaintiff in this action was the plaintiff in the execution. The execution was issued • upon a judgment recovered against a non-resident defendant for a personal tort committed in the State of Louisiana, and the defendant was not personally served with the summons in the action in which the judgment was recovered. Although he was brought in by publication, and that may have authorized a judgment against him in rem, it did not authorize one in personam. The judgment actually entered was one vn personam, and was not limited in its operation to the property of the defendant therein which was within this State when the action was commenced. The execution in question was in the form authorized by statute for the enforcement of a judgment in- -personam. The vessel seized was not within this State when the suit in which the execution was issued was commenced, or indeed when the judgment therein was recovered. The execution was, therefore, issued in a case in which the court had no jurisdiction to issue it. This point was, in effect, adjudged in the case of this plaintiff against the defendant in the execution. (60 N. Y., 55.) For if the court has no power to compel such defendant to apply his intangible property to the payment of the judgment, it cannot subject his tangible property not specified therein to the same purpose. The case of Schwinger v. Hichok (53 N. Y., 280), is also decisive that the court below held correctly on this point.
The stipulation, .on which this suit was brought, having been *403given, to j rocnre the release of the vessel from a seizure under a void execution, it furnishes no cause of action to the plaintiff.
Whether such a stipulation is enforceable only in the Admiralty Court is a question which we need not now decide, because the judgment must be affirmed on the other ground stated.
Barnard, P. J., and Dykman, J., concurred.Judgment affirmed, with costs.