Majority
p. 121Borden against Fitch.
Headnote
A ju^ment couíofamRhhas ^urísdíS thT’subjmT of person f the defendant, will not be en-courts of thisanother state f£a"nta ^ “^aLflialno not!ce °f the proceedings, is void.
tamed in Ver\ band irombis" Zded ¡nh°anohad' no Notice °f the pendenceedmgs, is vord, and will not legalize a marriage contracted in this state.
. A judgment, or decree, obtained on false, or fraudulent suggestions, is void.
It seem, that a judgment obtained in the courts of another state, having jurisdiction of the subject of the suit, and in which the defendant has been duly notified to appear, is conclusive in the courts of this state.
Where a count, in a declaration, contains a sufficient cause of action, connected, however with «natter insensible and void, or not actionable, it will be intended, after verdict for the plaintiff that damages were given only for the part that is actionable, and the judgment will not be arrested
THIS was an action on the case for debauching the daughter and servant of the plaintiff, per quad servilium amisit. The declaration contained three counts. The first count was for debauching Rebecca Borden, the daughter of the plaintiff, per quad, &c. The second count was for enticing from the plaintiff’s service, and debauching her daughter, Rebecca, for the space of ten weeks, per quad, &c. The third count stated, that Rebecca Borden resided with her mother, the plaintiff, and greatly assisted her in the business of her family ; that the defendant, by falsely representing to the said Rebecca, that his former wife was dead, and that he was then unmarried, induced and persuaded her to marry him in case her mother would consent; and to obtain the t ' plaintiff’s consent, falsely represented to the plaintiff that his former wife was dead, and that he was then unmarried, by means of which false representation he induced the plaintiff to consent; and the plaintiff, confiding in his representation, did consent, and the marriage was, thereupon, had between the defendant and the said Rebecca; whereas in truth, and in fact, the lawful wife of the defendant was then , ' ' - , living, ana the defendant was not then unmarried, which tlie defendant well knew; that the defendant, afterwards,
p. 122
abandoned the said Rebecca, and left her wholly destitute °f suPPort, and still does neglect and refuse to maintain and support her ; by means whereof the plaintiff has been, and still is, deprived of the service of the said Rebecca, who had been rendered unable to maintain herself, or assist the plaintiff; and that the plaintiff had expended divers sums of ■money, to wit, the sum of 500 dollars, about the nursing and maintaining of the said Rebecca. The cause was tried before Mr. J. Platt, at the Orange circuit, in September, 1816.
The defendant, Stephen Fitch, was married in 1784, in the state of Connecticut, of which he was then an inhabitant, to Charlotte Sel lick ; arid they resided together, as man and wife, in the state of Connecticut, until some time in the year 1307, when they separated ; during which period they had several children. In September, 1807, Charlotte Fitch presented a petition to the general assembly of the state of Connecticut, complaining of the cruel usage of her husband, ^ who had, at various times, beaten her, and threatened to take away her life, and had so terrified her, that she was afraid to live with him, and had fled from his house for protection, and praying to live separately from him, and be divorced from his bed and board, and for a separate maintenance from him, and to.have the governmentand guardianship of her two youngest children. The resolve of the general assembly stated, that the petition had been duly served on the defendant, and that the parties appeared and were heard, and that threats of cruelty of the defendant to his wife were proved; whereupon it was resolved, át the general assembly, held at New-Haven, in October., 1808, that the petitioner might, at her election, live and reside separately from the defendant, without being subject to his control, and with the privileges of a feme sole ; and the sum of 150 dollars was ordered' to be paid to her annually, by the defendant, for her maintenance, on condition, however, that she should cause the resolve to be recorded in the records of New-Canaan, where she resided.
The defendant’s wife, after her separation from him, resided constantly in the state of Connecticut, and was living during the period of all the transactions hereafter mentioned. The defendant, in 1813, applied to the supreme court of the
p. 123
state of Vermont for a divorce a vinculo matrimonii, which was granted, at the term of that court, held in August, 1813. The record of the decree of the court contained the following recital: “ Stephen Fitch, of Windsor, in the county of Windsor, and state of Vermont, having, by his petition, addressed to this court, stating, that he, on the 4th day of June, in the year of our Lord, 1794, was lawfully married to one Charlotte Sellick, then of Stamford, ia the county of Fairfield, and state of Connecticut; and that the said Charlotte, among other causes and things, has been guilty of wilful desertion for more than three years, with total neglect of duty; and, therefore, praying that a bill of divorce may be granted him in the premises; and it being shown to the court,, that the said Charlotte has been duly notified to appear before this court, (if she see fit,) to show cause, if anyshe have, wherefore the prayer of the said petition should not be granted; and the said Charlotte, not appearing, or showing sufficient cause, this court having fully heard said petition, and the evidence in support of the same, do order, and decree, that the prayer thereof be granted $” and the marriage is, accordingly, declared null and void, to all intents and purposes. It did not appear that the defendant’s wife had any actual notice of the pendency of these proceedings ; and th.e act of the legislature of Vermont relative to divorces, required only a publication in the newspapers, of the citation, in the case of non-resident defendants.
In October, 1814, the defendant applied to the plaintiff, a widow, residing at New-Windsor, in the county of Orange, to receive his two sons into her family, as boarders. To this the plaintiff, after deliberation, consented, and the defendant then requested permission for himself to remain in the family a short time, until he could ascertain whether his children would be contented with their situation. This request was also acceded to, and the defendant, on coming to reside in the family, affected a deportment of the utmost mildness, benevolence, and piety. . He frequently dwelt, in conversation, with peculiar tenderness, on his deceased friends, and in connection with them often spoke of his wife, using such ambiguous phrases, as “ the departure of his wife,”—“ that his wife had departedso that.
p. 124
from the manner of his expressions and the occasions on which they were introduced, he fully impressed all who heard him with the idea that his wife was dead. Soon after he was admitted into the plaintiff’s family, he paid his addresses to her daughter, Rebecca, whp was then of the age of twenty-five years, and materially assisted in the support of the family, by her needle-worlc. The consent of the daughter, and her mother, the plaintiff*, who were acting under the full belief that the defendant was unmarried, was obtained, and the marriage took place about the 2.8th of November, 1814. On the very next day the defendant threw aside his assumed character, and commenced towards his new wife a conduct of extreme harshness and severity, though not amounting to personal violence, often Raising gross and unfounded charges against her reputation and virtue, which were made the pretext for frequent threats and abuse, and finally, by his incessant persecution, her health and all her faculties were impaired. About a week after the marriage, it wras discovered that the first wife of the defendant was still living, and although this circumstance was an additional source of disquiet, yet there was at first no suspicion as to the legal validity of the subsequent marriage. In the latter end of January, or the beginning of February, 1815, the defendant was required by the plaintiff* to leave the house, and he removed, with the plaintiff’s daughter, to lodgings which he. had taken about three miles distant, where th,ey continued a week, when application having been made to counsel, to take measures for the relief of the plaintiff’s daughter, the defendant was arrested and imprisoned, on a .charge of bigamy, by which means she was released, and returned to the plaintiff’s family. The defendant was stated to be a man of. considerable property, and evidence was produced of the good character of the plaintiff’s daughter, and of loss of service.
At the trial, Rebecca Borden was produced as a witness, on the part of the plaintiff", and was objected to, on the ground that the witness was the defendant’s wife; in support, of which objection the decree of divorce of, the supreme Court" of Vermont was given in evidence, and, hence arose
p. 1251. As to the motion in arrest of judgment. Several and distinct rights of action are blended in the declaration, A plaintiff cannot join, in the same action, a demand in his own right, and a demand in the right of another. (Hancock v. Haywood, 3 Term Rep. 433. 1 Chitty's Plead. 200.) Here the plaintiff, in the third count, joins her own claim for the loss of the service of her daughter, with the claim of her daughter to be supported by her husband, the defendant. An action for a tort, must be brought in the name of the person whose legal right is invaded. (Dawes v. Peck, 8 Term Rep. 330, Chitty's Plead. 45, 46. 1 Lev. 247. 1 Sid. 375.) No action is sustainable against the defendant; the second marriage being valid. If the action is maintainable at all, it should have been brought by the daughter, not the mother, The daughter has an actiop, on the case, for the injury arising from the .fraud practised upon her. (1 Skinner, 119. 1 Bac. Ab. Action on the case. (K.) Damages cannot be twice recovered for the same injury; and a recovery by the mother will be no bar to the daughter’s action. The verdict, though general, cannot be amended, (Hopkins v. Beedle, 1 Caines' Rep. 347 . 3 Term Rep. 433. Brown v. Dixon, 1 Term Rep. 276. Union Turnpike Company v. Jenkins, 1 Caines' Rep. 381 . 391, 392, 394. Stafford v. Green, 1 Johns. Rep. 505 .) The whole proof substantially
the question as to the validity of that divorce : the judge decided that it was void; and the witness being admitted,.the defendant’s counsel excepted to the opinion of the judge.
The judge charged the jury that the divorce granted in Vermont was of no validity, as regarded the plaintiff’s right of action, and that the acquiescence of the plaintiff in the cohabitation of the defendant with her daughter, under the circumstances of the case, did not impair her right of action. The defendant’s counsel excepted to this charge, and the jury found a verdict for the plaintiff for 5,000 dollars, being the amount of the damages laid in the declaration.
There was a motion in arrest of judgment; and also to set aside the verdict.
Bristed, for the defendant.
p. 126applied to the third count. (Vaughan v. Havens, 8 Johns. Rep. 110 ) 2. The evidence offered as to the cohabitation of the defendant with a former wife ought not to have been received. The first marriage in Connecticut, according to. the laws of that state, ought to have been proved. In an action for seduction of this kind, the same proof of the first marriage is required as in an action for crim. con., or on an indictment for bigamy. Though, in ordinary cases, marriage may „be shown by reputation, cohabitation, or confession of parties, (Fenton v. Reed, 4 Johns. Rep. 52 . Telts v. Forster, Taylor’s N. C. Rep. 121. Peake’s Ev. 263.) yet, in an action of crim. con. and for the same, or, perhaps, a stronger reason, in this action, it is necessary to show the validity of the first marriage; that it was duly solemnized according to the law. of the state, or country, where it was celebrated. The Connecticut marriage act should have been produced, and, then, proof that the marriage was celebrated according to that act. (Morris v. Miller, 4 Burr. 2059. East’s P. C. 470. 471.) The plaintiff’s daughter, in this case, was not a campe* tent witness. It is admitted, in the declaration, that she was the wife of the defendant; and it is well settled, that a wife cannot be a witness for or against her husband, in a civil suit, except to prove the legitimacy or illegitimacy of her children. (Rex v. Inhabitants of Bramly, 6 Term Rep. 330. Peake’s Ev. 182.) If it is said that the witness is not the lawful wife of the defendant, because he is married to another who is still living ; we answer, that the decree of divorce between the defendant and his first wife, by the supreme court of Vermont, is conclusive here. Though judgments, on mere questions of property, are evidence only between the parties, yet proceedings in rem, or the sentences of ecclesiastial courts, in matrimonial causes, are evidence against third persons. (Peake’s L. of Ev. 70—79. Phillip’s L. of Ev. 223—234. Gelston v. Hoyt, 13 Johns. Rep. 150 . S. C. in Error, Id. 561. Dutchess of Kingston’s case. Ambl. 756. 11 Stat. Trial, 261.) Again; we contend, that under the constitution of the United States, (art. 4. sec. 1. art. 3. sec. 2. art. 6. 1 U. S.
p. 127The decision of the supreme court of the United States, on this long and much agitated question as to the validity or. effect of the judgments of the courts of other states,
Laws, 63. Martin v. Hunter's Lessee, 1 Wheat. 304 . Jackson v. Barnes, 3 Binney, 75.) this decree of the supreme court of the state of Vermont is binding and conclusive on this, and all other courts of the United States. In Stark v. Chesapeake Insurance Company, ( 7 Cranch, 420 .) The supreme court of the United States admitted a record of a court of common pleas, in Maryland, as to naturalization, to be conclusive j and in Mills v. Duryee, ( 7 Cranch, 481 .) it was decided that nil debet was not a good plea, to an action founded on a judgment of a court of another state, and that nul tiel record was the only proper plea. Story, J. in de-i livering the opinion of the court in that case, says, that “ the act (26th May, 1790, ch. 11.) declares, that the record, duly authenticated, shall have such faith and credit as it has in the state court from whence it is taken. If, in such court, it has the faith and credit of evidence of the highest nature, viz. record evidence, it must have the same faith and credit in every other court. Congress have, therefore, declared the ■ effect of the record, by declaring what faith and credit shall, be given to it. It remains only, then, to inquire, in every case, what is the effect of a judgment in the state where it is rendered ? “ Were the construction contended for by the-plaintiff to prevail, that judgments of the state courts ought to be considered prima facie evidence only, this clause in the constitution would be utterly unimportant and illusory.. The common law would give such judgments precisely the same effect. It is manifest, however, that the constitution contemplated a power in Congress to give a conclusive effect to such judgments. And we can perceive no rational interpretation of the act of Congress, unless it declares a judgment conclusive, when a court of the" particular state where it is rendered, would pronounce the same decision.” If nul tiel record is the only proper plea in an action on a judgment of a court of record of another state, it fob lows, from the very nature and effect of that plea, that the judgment must be conclusive. (1 Chitty's Pl. 354. 480, 481. Moses v. Macfarlane, 2 Burr. 1009. 4 East, 311.)
p. 128rinlst put the matter forever át rest. It is a decision conclusive, and binding on all other courts in the United Slates, and is the law of the land." It may he useful, however, fed examine the course of decisions on the point, in this and other state courts. In Hitchcock v. Aicken, ( 1 Caines' Rep. 460 .) which is thé leading case in this state, the opinions and reasoning of Thompson, J. and Livingston, J. though differing With the majority of the court, accords with the judgment óf the supreme court of the United States, in Mills v. Duryee, in giving full and conclusive effect to' thé judgments óf the courts of sister states. In Le Conte v. Pendleton, ( 1 Johns. Cas. 104 .) in 1799, to an action óf debt on a judgment in Georgia, the defendant pleaded two pleas, mal iiel récord, and nil debet, and the court directed thé defendant to elect one of the two pleas, and strike out the other. The defendant, afterwards, elected the pléá of nil debit, hut the court did not décide óh it. (Cole. Cas. 79.) In Rush v. Cobbett, ( 2 Johns. Cas. 256 .) in 1801, the court declined' deciding dri thé validity of the plea-of nil debet. In 1803, in Post and La Rue v. Neafie, (1 Caines, 484.) the defendant pleaded? nul tiel record, (S. C. note.) and the court decided the plea to be" improper, and ordered a repleader; and Kent, J. in Hitchcock v. Aickin, (1 Caines, 482.) considered that decision as leading to the conclusion, that if the judgment óf áhóthér State was not to he treated in the pleadings as á record,' it could not have the same obligatory force. Then, é converso', if it is to be treated as a record, it must have the Same obligatory force; and if the judgment of the supreme court of the United States, in Mills v. Duryee, is the law, the decree of the Vermont court, as'to the divorce-, must be conclusive on this court. The decision in Hitchcocks v. Aicken was confirmed, it is true, by subsequent adjudications, but with some modification; and the court have avoided deciding on the effect oí a' decree of a divorce iii another state, where the parties were married there, or out of this state. (Post v. Neafie, 3 Caines, 22—33. per Spencer, J. Jackson v. Jackson, 1 Johns. Rep. 425 . Kilburn v. Woodworth, 5 Johns. Rep. 37 . Hubbell v. Coudrey, 5 Johns. Rep. 132 . Robinson v. Ward, 8 Johns. Rep. 86 . Fenton v. Garlick, 8
p. 129Johns. Rep. 194 . Taylor v. Bryden, 8 Johns. Rep. 173 . Pawling v. Bird’s Executors. 13 Johns. Rep. 192 . Walsh v. Dunkin, 12 Johns. Rep. 99 .) In Taylor v. Bryden, the court says, that when the party has once litigated his case before a court of competent jurisdiction, and where no fraud or unfairness is pretended, every doubt and every presumption arising on a matter in pais ought to be turned against him; and that such judgment was not to be impeached but on positive proof of unfairness or irregularity. The decisions in all the cases in this state, are on judgments at common law, except that of Post v. Neafie, which was on a decree of the court of chancery of New-Jersey, but by a statute of that state, such a decree is made tantamount to a common law judgment. Divorces belong to the cognizance of ecclesiastical courts, in England, which are courts of exclusive jurisdiction, and of the court of chancery here. But in England, the ecclesiastical court pronounces only a divorce a mensa et thpro j divorces a vinculo matrimonii are by act of parliament. The supreme court in Vermont, by statute, had the sole and exclusive power and authority to grant bills of divorce from the bonds of matrimony, for impotency, adultery, or wilful desertion for three years, and also where either party shall have been absent seven years, if unheard of during that time; and also to grant bills of divorce from bed and board, or from the bonds of matrimony, for intolerable severity, as the court may judge proper, and the nature of the case may require In Gelston v. Hoyt, ( 13 Johns. Rep. 141 . 561.) the court held that such a decree of a court of competent and exclusive jurisdiction was conclusive, on the principle settled in the Duchess of Kingston’s case. (11 St. Tr. 260.) As to the mode of proceeding to obtain these divorces, prescribed by the statute in Vermont, it may be observed, that our act, (1 N. R. L. 489. sess. 36. ch. 95. s. 9.) authorizes the bill to be taken pro confessa, where the defendant is out of the state, or cannot be found, or is concealed, after a publication of the order for appearance, for eight weeks; and if no appearance is entered after such publication, the court pronounces its decree in the same manner as if the party
p. 130had appeared.[1] What should we say, if a court of Pei mont should declare a second marriage void, though the party had been divorced a vinculo, by the court of chancery of this state, because such a decree had been given on; taking a bill pro confessa, against a party out of the state? But whatever may be the effect of the reasoning from the principles of the common law, the authority of the decision of the supreme court of the United States cannot be questioned, and must be conclusive. Indeed, it was time that some decision of that court should be made, to settle the law on tile -subject; so that, in future, there might be a harmony and consistency in the decisions of the courts of the several states, oh constitutional questions. It would seem that the'provision of the constitution of the United States, and the act of congress passed in pursuance of it, were intended, gradually, to produce uniformity in the laws and decisions of the several states, as best calculated to bind together, in permanent and prosperous union, the numerous members of our multiform body politic. There are, then, three different doctrines or opinions floating in the state courts on this clause of the constitution of the United States : 1. That of this court, that judgments of sister states, like foreign judgments, are only prima' facie evidence : ' 2. In North Carolina, South Carolina, and Pennsylvania, they are held as conclusive as in the state in which they were rendered: (Camer. & Norw. Rep. 486. 2 Bay’s Rep. 485. 2 Dallas, 302.) 3. The supreme court of Massachusetts have taken a middle ground, between these opposite decisions of other states, and hold a judgment of a court of a sister state, not to be so high as a domestic, nor so low as a foreign judgment; but to be, as some learned philologists define a proposition, “neither significant nor insignificant, but between signification and no signification.” In Bissel v. Briggs, ( 9 Mass. Rep. 462 .) Parsons, Ch. J. who delivered the opinion of the court, said, that judgments of the courts of other of
p. 131the United States, were not to be considered as foreign judgments, the merits of which might be inquired into, as well as the jurisdiction of the courts rendering them; nor were they to be considered as domestic judgments, rendered in their own courts of record, because the jurisdiction of the courts rendering them was a subject of inquiry. But that such judgments, so far as the court rendering them had jurisdiction, were entitled to full faith and credit; and when declared upon as evidences of debts, or promises, the jurisdiction of the courts rendering them might be inquired into, on the general issue, but not the merits of the judgments. Again; the daughter ought not to have been admitted to give evidence of a promise of marriage; because, in an action for seduction, she cannot be a witness to prove, such a promise in aggravation of damages, since she herself has a right of action for a breach of promise; (Foster v. Scofield, 1 Johns. Rep. 297 .) nor of the-marriage itself, because she has her action also for the injury. (Skinner's Rep. 119.) Nor can she give evidence of bad treatment by the defendant, if considered as his wife, nor if considered as a feme sole, for the gist of this action is the mother’s loss of service, not the daughter’s ill treatment. Another objection is, that the resolution of the general assembly of Connecticut was tantamount to a divorce a mensa et thora, which would protect the defendant from an indictment for bigamy, and, consequently, must be a bar to a suit for seduction, but would not prevent him from applying for a divorce a vinculo matrimonii. (Pawling v. Bird’s Executors, 13 Johns. Rep. 208 .) That the domicil of the wife is that of her husband, is a sufficient answer to her not being in Vermont at the time of the sentence there. (Jackson v. Jackson, 1 Johns. Rep. 432 . 13 Johns. Rep. 208 .) It may be remarked that in all the cases decided by this court, where this question has arisen, the plaintiffs have been citizens of this state, claiming to enforce the judgment of another state here. In the present case, the defendant claims protection here for rights granted to him by the highest competent legislative and judicial authority of another state,.
p. 1322. As to the bill of exceptions. . The defendant must be confined to the points on which the judge’s opinion was given, and to which the exceptions at the trial were taken. (Graham v. Carman, 2 Caines' Rep. 168 , 169. Frier v. Jackson, 8 Johns Rep. 507 .) In all cases, except bigamy and crim. con. proof of cohabitation, connected with other evidence of a similar kind, is sufficient to prove a marriage. (Morris v. Miller, 4 Burr. 2057. 9 Mass. Rep. 414 . 492.) Proof of the actual marriage is not necessary, except in those two cases. (Phillip's Ev. 307.) The proof here was, however, admissible as preliminary to the evidence of the act of the legislature of Con~ necticut, decreeing a separation; and-being part of the matrimonial history of the defendant, for a period of 23 years. But the real and great question in this case, on which the competency of the daughter as a witness depends, is, whether the decree of divorce by the court of Vermont, is con-
P. W. Radcliff, and T. A. Emmet, contra.
1. As to tíre causeg ¿n arrest 0f judgment. It is true the daughter may maintain her action for a tort, and may not the mother also ? In case of a battery of the wife, the husband and wife may bringa joint action, and the husband may also bring, in his own name, an action of trespass, per quad consortium,.amisit. So, also, in the case of master and servant. A wrong may producé injury to two persons, each of whom may have his action. Matter, not actionable, may be stated in the declaration by way of inducement; and it is no ground for arresting the judgment. The court will intend that the damages were given for the actionable part only. (Steele v. West. Inl. Lock Navig. Co. 2 Johns. Rep. 283 . Phettiplace v. Steere, Id. 442. 2 Johns. Cas. 22 . n. (a).) There is but one injury sued for by the plaintiff; the rest of the matter stated is mere historical narration, or by way of inducement. The objection amounts to this, that matter of inducement is stated, which would be a cause of action to another persota. The defect is amendable. (Stafford v. Green, 5 Johns. Rep. 505 .) The evidence given applies to the first and second counts, and judgment may be entered on them, though the third count is bad.
p. 133
The Vermont decree would not be valid and conclusive here, if it were merely a judgment for the payment of money. From 1803 to the present time, the law of this state has been, “ that a judgment in a sister state is only prima facie evidence of a debt,” and is not conclusive here. (Hitchcock v. Aickins, 1 Caines, 460.) In Jackson v. Jackson, ( 1 Johns. Rep. 426 . 432.) Spencer, J. in delivering the opinion of the court, says, “ The case of Hitchcock $• Fitch v. Aicken must, as respects this court, be an authority for saying, that a judgment obtained in a sister state is liable to be impeached in a suit brought on it here, notwithstanding there may have been a full and fair trial in the original suit.” In 1809, 1810, and again in 1816, the doctrine is asserted and repeated, that “ It is well settled, that a judgment in another state is to be considered here as a foreign judgment, in every respect, except in the mode of proving it, which is regulated by a law of the United States. It is only prima facie evidence of a debt,” &c. (Hubbell v. Cowdry, 5 Johns. Rep. 132 . Taylor v. Bryden, 8 Johns. Rep. 173 . Paulding v. Bird’s Executors, 13 Johns. Rep. 205 .) In all these cases, the defendant appeared in the original suit and vindicated his right. In no case is it even doubted, for a moment, that if the defendant did not appear, or had no opportunity to defend himself, the judgment would not be conclusive. The last decision was made three years after that of the supreme court of the United States, in Mills v. Duryee. In Kilburn v. Woodworth, ( 5 Johns. Rep. 41 .) which was a suit commenced in Massachusetts, by an attachment of goods, without any personal notice, the court say, that the judgment is not even, prima facie, evidence, sufficient to support an assumpsit; and that to bind a defendant personally
p. 134by a judgment, when he had not been personally summoned, nor ¡la¿ notice of the proceedings, would be" contrary to the first principles of justice. (See also, 8 Johns. Rep. 86 . 194. 3 Wils. 397. Buchanan v. Rucker, 9 East, 192.) So, in regard to laws or adjudications of other states or countries, exempting or discharging defendants from liability, our court doe's not regard the foreign law. (Smith v. Spinolla, Smith v. Smith, 2 Johns. Rep. 198 . 235. Sicard v. Whale, 11 Johns. Rep. 194 .) In most of the cases, also, the court, besides the objection of its being against the principles of natural justice, have proceeded on the ground of a want of jurisdiction ip the court rendering the judgment. In the case of Slocum v. Wheeler, (1 Day's Conn. Rep. 429—449.) lately decided in the supreme court of errors of Connecticut, (June, 1816,) the court say, that “ the sentence of a court that has not jurisdiction of the person, the process, and the subject matter, is an entire nullity, and may collaterally be disallowed.” In that case, the sentence of the district court of the United States, sitting as a court of admiralty, was brought incidentally into question, and the court say, that to render it conclusive, it must appear that the district court had jurisdiction of the subject matter, and whether it had or not, the state courts were competent to examine and decide ; (Rose v. Himely, 4 Cranch, 241 . 243. Cheriot v. Foussat, 3 Binney, 220.) and Ch. J. Reeve, in Grumon v. Raymond, (1 Day's Conn. Rep. 40. 45.) lays it down, that where there is a want of jurisdiction over the person, as in the Marshalsea case, (10 Co. 70.) or over the cause, or over the process, it is the same as though there was no court. It is coram non judice. The same principle has been recognised and applied in many other cases ; (Bartlett v. Knight, 1 Mass. Rep. 410 . Bissel v. Briggs, 9 Mass. Rep. 462 . 13 Johns. Rep. 207 .) and in the case of Mills v. Duryee, Story, J. impliedly admits, that if the defendant had not had notice of the suit, or had not been arrested, the judgment could . not have been held conclusive. If, then, such a judgment, in a sister state, is not conclusive in cases of property, a fortiori, it cannot be so, where not only property, but the most important relation in life is
p. 135In the case of Barber v. Root, ( 10 Mass. Rep. 260 .) Sewall, J. remarks on the law of Vermont, under which the decree was pronounced, in the present case, in terms of strong indignation. He says, “ that this assumed and extraordinary jurisdiction is an annoyance to the neighbouring states, injurious to the morals and habits of the people; and the exercise of it, for these reasons, is to be reprobated in the strongest terms, and to be counteracted by legislative provisions in the offended states.”
concerned. The principle cannot he weaker in its application in proportion as the importance and dignity of the subject matter is increased. The distinction attempted to be made, between a plaintiff coming to assert a right, or claim a benefit, or a defendant claiming merely an exemption from liability, is fallacious and unsound, when applied here. The doctrine for which we contend, applies with equal, if not greater force, to cases of divorce. Not only reason and justice, but the authorities which have been cited, are in favour of its application. In the case of Jackson v. Jackson, ( 1 Johns. Rep. 430 .) the Attorney General,(Woodworth,) who argued for the conclusiveness of the Vermont decree, admitted, that if the court had pronounced the decree, without having the parties before them, it would have been void. That was a suit for alimony, allowed by the decree, and it appeared by the record, that both parties were before the court; yet this court refused to sustain this suit. By refusing to give the decree effect, as to alimony, the court virtually denied its efficacy as to the divorce. The place where the parties were married makes no difference in the application of the principle. The contract of marriage is personal, and of universal obligation. It is not of a local nature ; nor is it to be supposed to be entered into with reference to the law of a particular place. Huberus, (Tom. 2. 373. 375, 376. B. 1. Tit. 3.) holds, that a marriage, contracted any where, is binding every where; that a marriage, in fraudem legis, is null and void ; and where a party goes into a new jurisdiction, he carries with him all his immunities and disabilities ; and becomes subject to all the disabilities imposed upon him by the laws of the country where he happens to reside.
p. 136The decision of the supreme court of the United States, Mills v. D uryee, goes no further than to declare the effeet of a judgment, by a court of another state having jurisdiction of the parties. The point decided was, that nul tiel record was a proper plea to an action of debt, on a judgment of a court of another state. Story, J. lays great stress on the fact, that the party had full notice of the suit, having been arrested and held to bail, so that it would be held Conclusive in the state where it was rendered. Johnson, J. dissented; He did not think that the constitution, or act of Congress, required, that the court should go so far, as to allow the plea of nul tiel record, apprehensive that it might lead the court into difficulty and embarrassment, in preventing the execution of judgments irregularly and unjustly obtained. “ There are,” he says, “ certain eternal principles of justice, which never ought to be dispensed with, but when compelled by some statute ; one of those is, that jurisdiction cannot be justly exercised by a state, over property not within the reach of its process, nor over persons not owing them allegiance, or not subjected to thei’r jurisdiction, by being found within their limits. But if the states are at. liberty to pass the most absurd laws on this subject, and we admit a course of pleading, which puts it out of our power to prevent the execution of judgments obtained under those laws, certainly an effect will be given to the article of Ihe constitution, in direct hostility to the object of it. I will not now undertake to decide, nor does this case require it, how far the courts of the United States would be bound to carry into effect such judgments, but I am unwilling to be precluded, by a technical nicety, from exercising our judgments at all tipon such- cases.” It is fair to infer, then, that the supreme court of the U. S. did not intend to go beyond the principle laid down by Parsons, Ch. J. in the case of Bissel v. Briggs, and who has given a very sound and able exposition of the act of Congress. The same doctrine was held by Sedgwick, J. in 1805. (Bartlett v. Knight, 1 Mass. Rep. 401 . 409.) This doctrine is, also, adopted by the courts in Kentucky. (Rogers v. Coleman, Harding's Rep. 418.) Courts of other states, though su
p. 137preme within their respective states, jet, in regard to other states, are, pro tanto, courts of limited jurisdiction. This doctrine, so ably and fully settled, in Massachusetts, Connecticut, and Kentucky, is agreeable to the principle of the English law; as laid down by Ch. J. Willes, in Sollers v. Lawrence, (Willes' Rep. 413. 416.) that in an action founded on a judgment of a court of record, of limited jurisdiction,' it must appear, by what is set forth, on the record, that it had jurisdiction, and if sufficient be stated for that purpose, every thing will be intended in favour of the judgment, and that the court acted right, unless the contrary appears on the record. Again; courts do not regard any proceeding as matter of record, until it is enrolled. (Croswell v. Byrnes, 9 Johns. Rep. 287 . 290.) But this decree has never been enrolled. It contains no account of the previous proceedings, which are important parts of the record, to show that the directions of the statute have been observed.
Again; a record, though conclusive proof that the decision, or judgment of the court, was as is there stated -, yet it-is not conclusive, as to the truth of allegations which were not material or traversable. (Co. Litt. 352. b. Phillips’ Ev. 219.) Now, as the statute of Vermont made it perfectly immaterial whether Mrs. Fitch was a resident of that state or not, or whether she was actually notified of the proceedings or not, it was competent for the plaintiff to prove the negative of those facts.
But admitting, even, that it is a record, and that the decree is to have the conclusive effect for which the defendant’s t> counsel contend; still, we insist, it may be impeached on the ground of fraud. The principle of evidence is, “ that a judgment of a court of exclusive jurisdiction, directly upon the point, is conclusive between the same parties, upon the same matter coming incidentally in question in another court for a different purpose.’’ (Dutchess of Kingston’s case, 11 State Tr. 261. Phillips’ Law of Ev. 242.) “ But though sentences are conclusive, and cannot be impeached from within, yet, like all olher acts of the highest judicial authority, they are impeachable from without. Fraud is an
p. 138extrinsic collateral act, which vitiates the toast solemn proccedings. Lord Coke says, it vitiates all judicial acts, whether. ecclesiastical or temporal.” (Fermor’s Case, 4 Co. Rep. 78. b. Phillips’ Law of Ev. 224. note. Doug. 421. 2 Saund. 159. note. Per Thompson, J. 1 Caines, 461.) This' is not a case of a conflictus legum. The legislature of Connecticut passed an act to which full faith and credit is to he given, and which must, like every other record, he conclusive evidence of the facts contained in it. By this act, it waá made lawful for Mrs. F. to live separate from her husband. The decree in Vermont says that she was, while thus living separate under the authority of the act in Connecticut, guilty of the crime of wilful desertion, How, then, does the decree in Vermont stand, in regard to the act of the Connecticut legislature ? Can a court in Vermont repeal an act of the legis-; lature of another state ?; This court must say, what we must presume the court in Vermont would have said, had this act been placed before them. The defendant, by withholdingthis act from the knowledge of the court, and by false the suggestión of the wilful desertion of his wife, has fraudulently obtained the decree of divorce. If this Vermont decree is to have Tull and conclusive effect every where, it changes, in Connecticut, the situation in which Charlotte Sellick was placed, by the act of the legislature of that state, and - destroys all the rights she acquired under it. Look at the consequences of this state of things. If the legislature of Vermont can authorize a decree of divorce, on a residence for three years, of the party seeking it, it may be' granted on a residence for three months, or three weeks. It is only fora discontented husband to go to some watering place in Vermont, on a party of pleasure, and there obtain a divorce. Nay, if the aur„i sacra fames of a venal profession should in-. ■ duce' them to obtain an act of the legislature further to facilitate divorces, a husband residing here might write to his attorney in Vermont, and obtain a divorce by the return of the mail. It is-true that the act relative to the court of chancery authorizes the taking bills pro confessa here," where the defendant is out of the state;. but the act is very cautious and guarded. The order for appearance must
p. 139be published for eight weeks successively, and though the bill may. be taken pro confessa, at the expiration of that time, if the party does not appear, yet the de-‘ cree is not final. The party has one year after notice in writing of the decree, to come in and be heard, and' seven years, if he has had no such notice ; and if he appears within the time, the proceedings go on as if there had been no decree, which is not final until after the seven years ; and the plaintiff who has taken the billpro confessa, before he can obtain any benefit under the decree, must give security to make restitution, in case the defendant should appear and defend the suit within the time allowed for that purpose. There is no analogy, then, between the two cases ; and the argumentum ad hominem can have no effect. 1. That mere cohabitation, or reputation, was not sufficient evidence of the marriage of the defendant with his first wife. (Horn v. Noel, 1 Camb. N. P. Rep. 61. Price’s Exchq. Rep. 81. Fenner v. Lewis, 10 Johns. Rép. 38 .) , 2. That in the cases which had been cited, and in which the court considered the judgments of courts of other states as prima facie evidence only, the plaintiff came for the purpose of enforcing the judgment; but here the question as to the judgment arises incidentally, or collaterally, and, therefore, is to be regarded as final and conclusive. This is the true distinction, and is clearly laid down by Lord Ch. J. Eyre, in Phillips v. Hunter, (2 Hen. Bl. 402. 410.) “ It is in one way only,” he says, “ that the sentence, or judgment of the court of a foreign state, is examinable in our courts; and that is, when the party who claims the benefit of it, applies to our courts to enforce it. When it is thus voluntarily submitted to our jurisdiction, we treat it, not as obligatory to the extent to which it would be obligatory, perhaps, in the country in which it was pronounced, nor as obligato.ry to the extent to which, by our law, sentences' and judg-. ments are obligatory; not as conclusive, but as matter in pais, as consideration, prima facie, sufficient to raise a promise : we examine it, as we do all other considerations of promises, and for that purpose we receive evidence of what
Fisk, in reply, observed,
p. 140the law of the foreign state is, and whether the judgment is warranted by that law. In all other cases, we give entire faith and credit to the sentences of foreign courts, and consider them as conclusive upon us.” “ The judgment, proper, or improper, must stand.” So, in Meadows v. The Dutchess of Kingston, (Ambl. 756. 761.) Lord Apsley makes the same distinction, and lays down the rule, “ that wherever a matter comes to be tried in a collateral way, the".decree, sentence, or judgment of any other court, having competent jurisdiction, shall be received as conclusive evidence of the matter so determined.” Phillips, also, in his treatise on Evidence, which has been cited, lays down the same rule. (p. 243.) It is, therefore, wholly unnecessary, in this case, to question the decisions of this court in cases where the party has brought his action here on the judgment of another state. But if it were necessary, we insist that the decision of the supreme court of the United States, in Mills v. Duryee, on that question, must be conclusive. The legislature of Vermont has an undoubted right to regulate marriages and divorces, and full faith and credit are to be given to their public acts and decrees on the subject. The proceeding, in Vermont, was in a court having both chancery and common law jurisdiction. We are not to presume that the legislature, or courts of that state, will abuse their power.
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
p. 141
act 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;
p. 142
and 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
p. 143
is 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
p. 144
States 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.
p. 145
Í 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
p. 146
meaning 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.
Cases cited
- Martin v. Hunter's Lessee 1 Wheat. 304 p. 127
- Rush v. Cobbett 2 Johns. Cas. 256 p. 128