The court are all of opinion that the evidence offered should have been admitted, on the ground that, if the facts were true which the evidence tended to prove, they would have shown that the court in New Hampshire had no jurisdiction of the person of the defendant, and therefore that the judgment against him by default was not binding on him.
We take it to be now well settled in this commonwealth, that although the judgment of a court of one state of the Union against a citizen of another state is prima facie evidence both of the jurisdiction of the court and of the merits, and notwithstanding the United States statute of 1790, providing that full faith and credit shall be given in each state to the judicial proceedings of another, yet such judgment is not conclusive; but it is competent for the defendant, when suit is brought against him on such judgment, to show by proof that the court, which rendered the judgment in the original suit, in point of *594fact had no jurisdiction over the persons of the parties and the subject matter of the controversy. Bissell v. Briggs, 9 Mass. 469. Hall v. Williams, 6 Pick. 232. Gleason v. Dodd, 4 Met. 333. Bissell v. Wheelock, 11 Cush. 277. Bodurtha v. Goodrich, 3 Gray, 508.
It was clearly so held in Bissell v. Briggs, and though Hall v. Williams is in some respects, an authority the other way, yet, when well understood, it confirms the principle stated. In the latter case, the court seem to have been apparently perplexed between their own opinion upon principle, confirmed by the case of Bissell v. Briggs, on the one hand, and the respect due to what was then supposed to be the authority of the supreme court of the United States in Mills v. Duryee, 7 Cranch, 481, and Hampton v. M’ Connel, 3 Wheat. 234, on the other.
In the case of Hall v. Williams the court held, in deference to the authority of the cases cited, that nul tiel record was the proper plea to debt on the judgment of another state. If it were the proper plea, it would follow that 'it must be the only proper plea; because that plea submits the whole matter to the court, and leaves no fact open to be tried on plea and proof, and nothing but the existence of the judgment and the identity of the parties, as in case of a domestic judgment. And yet the court in that case admitted some other pleas in bar, viz. that neither of the defendants was served with process; that one was not served with process; and nil debet; to which last plea the plaintiffs demurred. To the two other pleas the plaintiffs replied the judgment, by way of estoppel; to which the defendants demurred. The whole therefore came before the court on demurrer.
The court, however, strongly express their opinion, that in some form the question of jurisdiction ought to be open,before a citizen of another state can be held bound; and quote with approbation the dissenting opinion of Mr. Justice Johnson in Mills v. Duryee, “ that jurisdiction cannot be justly exercised by a state over property not within the reach of its process, or ovei persons not owing them allegiance, or not subjected to their jurisdiction by being found within their limits.” 7 Cranch, 486, *595And in that same case of Hall v. Williams the court decided that although the judgment of the Georgia court was a joint judgment against two, it appearing that only one was served with process, and being bad against the other, it was wholly void.
But, in view of subsequent decisions, we think that the court, in Hall v. Williams, attributed a larger effect to the opinion of the court in Mills v. Duryee, in regard to the conclusiveness of the judgments of one state in the courts of another, than it now appears the case warranted. In point of fact, in that case, the court in the original suit had full jurisdiction over the person of the defendant, and he had been arrested and gave bail for his appearance in that suit. The question before the court was a technical question of pleading. One of the judges dissented, on the ground that a case might occur in which a different plea would be proper, drawing in question the jurisdiction of the court rendering the judgment. But the case itself called for no limitation or qualification of the opinion, and none was given. It was therefore taken as authority, that in all cases the judgment of the court of another state had all the force and effect of a domestic -judgment. This was reaffirmed a few years after, in a short opinion of Mr. Chief Justice Marshall, that nil debet was not a proper plea. Hampton v. M’ Connel, 3 Wheat. 234. But no other authority is cited except Mills v. Duryee. And the learned reporter, in a note, questioned the authority of Mills v. Dwyee as to the conclusiveness of the judgments of courts of other states, and considered it an open question.
The subject was much discussed in state courts; and subsequently it was decided by the supreme court of the United States, that congress did not intend, by the act of 1790, to declare that the judgment in one state against the person of the citizen of another, who had not been served with process or voluntarily appeared, should have such faith and credit in every other state as it had in the courts of the state in which it was rendered. They express the opinion, that congress did not intend to give the full force of domestic judgments to the judgments of courts of other states by the act of 1790; and expressed then.' concurrence with the various decisions of state courts, holding that *596congress did not intend that the statute should be so applied as to change the effect of judicial records of this description. D'Arcy v. Ketchum, 9 How. 390. That case was cited in a judgment of this court given by Mr. Justice Fletcher in the case of Phelps v. Brewer, 9 Cush. 390, which was very like the present.
We think therefore the authorities now concur in establishing the principle above stated, that a defendant, called on in an action to answer to a judgment rendered against him in the court of another state, may prove any facts tending to show that such court had no jurisdiction over him, so as to give effect to such judgment. Even if there were now any technical question of pleading, it would be removed by the practice act, dispensing with the rules of technical special pleading, and authorizing any legal defence to be made by answer and proof. .
We can perceive no distinction in principle between this case and many of the cases, in which it was recited in the record that a party had appeared, that he had appeared by his attorney, and the like, but where he was still allowed to prove that the attorney made a mistake or committed a. fraud, that in fact no attorney had appeared for him, that no attorney had been authorized to appear for him, as decided in the foregoing and many other cases. Bodurtha v. Goodrich, 3 Gray, 508. The acts and recitals of a court, not having acquired a jurisdiction, cannot be conclusively binding on him; nor can acts and recitals be conclusive evidence of facts which would give them jurisdiction. No more force and effect can be given to the certificate of a person purporting to be a deputy sheriff of another state, in giving the court jurisdiction over an absent party, than to similar acts of attorneys. To say nothing of the danger of false personation, and other devices, by which an officer of another state might be induced to believe that a stranger was the defendant against whom he had process, it seems to be giving quite sufficient effect to such a return to make it prima facie evidence, leaving the defendant the right to rebut it by evidence
New trial ordered.