given to it.1 The constitution intended something more than to make the judgments of state courts prima facie evidence only. It contemplated a power in Congress to give a conclusive effect to such judgments. A judgment is, therefore, conclusive in every other state, if a court of the particular state where it was rendered would hold it conclusive.2 Nil debet is not a good plea in a suit on a judgment in another state, because not a good plea in such state. Nul tiel record is the proper plea in such The same decision was followed in Hampton v. * 261 M'Connel, (a) and the doctrine contained in it may now be considered as the settled law of the land. It is not, however, to be understood, that nul tiel record is, in all cases, the necessary plea; but any special plea may be pleaded which would be good to avoid the judgment in the state where it was pronounced. (b) And in Mayhew v. Thatcher, (c) the

a case.

(a) 3 Wheaton, 234; and in Wernwag v. Pawling, 5 Gill & Johnson, 500. (b) Shumway v. Stillman, 4 Cowen's Rep. 292.

(c) 6 Wheaton, 129. — In Thurber v. Blackbourne, 1 N. H. Rep. 242, it was held, that nil debet was a good plea to debt on a judgment of another state when it did not appear by the record that the defendant had notice of the suit. And in Spencer v. Brockway, 1 Hammond's Ohio Rep. 122; Holt v. Alloway, 2 Blackf. Ind. Rep. 108, and Hoxie v. Wright, 2 Vermont Rep. 263, the judgment of another state, regularly obtained, when the defendant had been served with process, or had otherwise appeared, was held to be conclusive evidence of the debt. But the defendant must have had due notice to appear, and be subject to the jurisdiction of the court, or if a foreigner or non-resident, he must have actually appeared to the suit, or the judgment of another state will not be deemed of any validity. This is a plain principle of justice, which pervades the jurisprudence of this and of all other countries. Kilburn v. Woodworth, 5 Johns. Rep. 37. Aldrich v. Kinney, 4 Conn. Rep. 380. Bissell v. Briggs, 9 Mass. Rep. 462. Fisher v. Lane, 3 Wils. Rep. 297. Buchanan v. Rucker,

1 An action of debt will not lie against an administrator in one state, on a judgment obtained against a different administrator of the same intestate, appointed under the authority of another state. It seems there is no privity between the two administrators, and the judgment cannot be regarded as one in rem against the estate as a corporate unity. Stacy v. Thrasher, 6 How. U. S. 44, 60. McLean v. Meek, 11 How. U. S. 16.

2 In an action upon a bond conditioned for the payment of a debt by instalments, the plaintiff recovered judgment in New Hampshire for the penalty, and execution was issued for the first instalment then due. A suit having been brought in Vermont on the judgment, it was held that the judgment did not create an absolute indebtedness, which would sustain an action of debt in the common form, or by setting forth the judgment, the execution, and the subsequent breaches. Dimmick v. Brooks, 21 Vermont R. 569.

8 The notice must be such as the state giving it is competent to direct. Mere knowledge of the pendency of the suit is not sufficient. State tribunals have no authority beyond the limits of the state; it seems that notice served on a person resident in another state,

court would seem to imply that a judgment in one state, founded on an attachment in rem, would not be conclusive

9 East's Rep. 192. Douglas v. Forrest, 4 Bing. Rep. 686, 702. Becquet v. MacCarthy, 2 Barnw. & Adolph. 951. Bruce v. Wait, 1 Manning & Granger, 1. Pawling v. Bird, 13 Johns. Rep. 192. Earthman v. Jones, 2 Yerger's Tenn. Rep. 484. Miller v. Miller, 1 Bailey's S. C. Rep. 242. Benton v. Burgot, 10 Serg. & Rawle, 240. Rogers v. Coleman, Hardin's Rep. 413. Borden v. Fitch, 15 Johns. Rep. 121. Hall v. Williams, 6 Pick. Rep. 232. Bates v. Delavan, 5 Paige, 305. Bradshaw v. Heath, 13 Wendell, 407. See, also, infra, vol. ii. 120. The doctrine in Mills v. Duryee, is to be taken with the qualification, that in all instances the jurisdiction of the court rendering the judgment may be inquired into, and the plea of nil debet will allow the defendant to show that the court had no jurisdiction over his person. It is only when the jurisdiction of the court in another state is not impeached, either as to the subject-matter or the person, that the record of the judgment is entitled to full faith and credit. The court must have had jurisdiction, not only of the cause, but of the parties, and in that case the judgment is final and conclusive. If the suit in another state was commenced by the attachment of property, the defendant may plead in bar, that no process was served on him, and that he never appeared, either in person or by attorney. Starbuck v. Murray, 5 Wendell's Rep. 148. Shumway v. Stillman, 6 Wendell's Rep. 447. Wilson v. Niles, 2 Hall's N. Y. Rep. 358. Gleason v. Dodd, 4 Metcalf, 333. Story's Comm. on the Conflict of Laws, sec. 586-590. Rangely v. Webster, 11 N. H. Rep. 299.1 But an important distinction is here to be observed, that a proceeding by foreign

and while he is within such state, will not render the foreign judgment binding upon him. Ewer v. Coffin, 1 Cush. (Mass.) R. 23.

1 The record of a judgment obtained in another state is of itself prima facie evidence that the court possessed the jurisdiction which it assumed to exercise. Bank of United States v. Merchants' Bank, 7 Gill, 415: and see Moulin v. Ins. Co. 4 Zabr. 222: and one who alleges a want of jurisdiction must show upon the face of the record according to the law of the state where the judgment was rendered. Lapham v. Briggs, 1 Wms. (Verm.) 26. The defendant may plead that he was not served with process, Rathbone v. Terry, 1 R. I. 73; D'Arcy v. Ketchum, 11 How. U. S. 165; Noyes v. Butler, 6 Barb. 613: aud though the recital upon the record of an appearance by attorney is prima facie evidence of an appearance of the party in interest, Houston v. Dunn, 13 Tex. 476, it may be shown that the attorney appeared without authority. Sherrard v. Nevius, 2 Carter, (Ind.) 241; Thompson v. Emmert, 15 Ill. 415; Bodurtha v. Goodrich, 3 Gray, 508; and see Pearce v. Olney, 20 Conn. 544; Wilcox v. Kassick, 2 Gibbs, (Mich.) 165; Newcomb v. Peck, 17 Verm. 302; Hindman v. Mackall, 3 Iowa, 170.

The record of a judgment pronounced by an inferior tribunal, and which does not admit of authentication according to the law of the United States, is not conclusive within the constitutional provision. Taylor v. Barron, 10 Fost. 78: so of a judgment rendered by a justice of the peace in another state. Snyder v. Wise, 10 Barr. 157; Robinson v. Prescott, 4 N. H. 450. But a judgment, valid by the laws of the state where it is pronounced, is entitled to full faith, though neither plaintiff nor defendant was at the time a resident of the state. Randolph v. Keiler, 21 Mis. 557: so is the probate of a will when certified conformably to the requirements of the Act. Haile v. Hill, 13 Mis. 612.

In a suit in New York upon a judgment rendered there, a decree of a competent court of Connecticut, enjoining proceedings in that state upon the record, is conclusive evidence that the judgment was originally procured by fraud as set forth in the decree. Dobson v. Pearce, 2 Kern. 156.

evidence of the debt in other states, if the defendant

* 262 *had not personal notice of the suit, so as to have enabled him to defend it.

Congress over

the militia.

Power of (6.) Congress have authority to provide for calling forth the militia, to execute the laws of the Union, suppress insurrections and repel invasions; and to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress. (a) The President of the United States is to be the commander of the militia, when called into actual service. The Act of 28th of February, 1795, authorized the President, in case of invasion, or of imminent danger to it, to call forth such number of militia most convenient to the scene of action as he might judge necessary. The militia so called out are made subject to the rules of war; and the law imposes a fine upon every delinquent, to be adjudged by a court-martial composed of militia officers only.

attachment, and against garnishees to judgment and execution, if binding in the state, is conclusive everywhere as a proceeding in rem against movable property and debts attached or garnished; but the judgment is of no force against the person of the debtor who had not been served with process, or appeared in the foreign attachment, nor against his property in another jurisdiction. Cochran v. Fitch, 1 Sandford's Ch. R. 142.1 The process by attachment of property of, and of debts due to non-residents, or of persons absent from the jurisdiction, will subject the property attached to execution upon the judgment or decree founded on the process; but it is considered as a mere proceeding in rem, and not personally binding, or having any extra-territorial force or obligation. Story's Comm. on the Conflict of Laws. Ibid. sec. 568. Chew v. Randolph, Walker's Miss. R. 1. Overstreet v. Shannon, 1 Missouri Rep. 529. A special plea in bar of a suit on a judgment in another state, to be valid, must deny, by positive averments, every fact which would go to show that the court in another state had jurisdiction of the person, or of the subject-matter. Harrod v. Barretto, 1 Hall's N. Y. Rep. 155.

(a) Const. art. 1, sec. 8.

1 Whitney v. Walsh, 1 Cush. Mass. R. 29. See the case of The Globe, N. Dist. N, Y. Law Rep. February, 1851, p. 488, where the court was of opinion that a judgment in rem, rendered in pursuance of an Act of Ohio, would be a nullity in other states, unless the owner of the vessel proceeded against appeared in the suit, or had due notice and opportunity to make a defence. See, also, The Velocity, N. Dist. of N. Y., reported in Law Rep. June, 1850, p. 61. But see the opinion of Mr. Justice Nelson, reversing the decree of the district judge in the case of The Globe. C. C. North Dist. N. Y. Dec. 1852: 15 Law Rep. 421. See Ridley v. Ridley, 24 Miss. 648; Woodruff v. Taylor, 20 Verm. 65.

These militia courts-martial are to be held and conducted in the manner prescribed by the articles of war; and the Act of 18th of April, 1814, prescribes the manner of holding them.

During the war of 1812, the authority of the President of the United States over the militia became a subject of doubt and difficulty, and of a collision of opinion between the general government and the governments of some of the states. It was the opinion of the government of Connecticut, that the militia could not be called out, upon the requisition of the general government, except in a case declared and founded upon the existence of one of the specified exigencies; that, when called out, they could not be taken from under the command of the officers duly appointed by the states, or placed under the immediate command of an officer of the army of the United States. Nor could the United States lawfully detach a portion of the privates from the body of the company to which they belonged, and which was organized with proper officers. *263 This would, in the opinion of the government of Connecticut, impair, and eventually destroy, the state militia. When the militia are duly called in to the service of the United States, they must be called as militia, furnished with proper officers by the state.

Similar difficulties arose between the government of the United States and the state of Massachusetts, on the power of the national government over the militia. Both those states refused to furnish detachments of militia for the maritime frontier, on an exposition of the constitution, which they deemed sound and just.

In Connecticut the claim of the governor, to judge whether the exigency existed, authorizing a call of the militia of that state, or any portion of it, into the service of the Union, and the claim on the part of that state to retain the command of the militia, when duly ordered out, as against any subordinate officer of the army of the United States, were submitted to, and received the strong and decided sanction, not only of the governor and council of that state, but of the legislature itself. (a)

(a) See Official Documents of the State of Connecticut, August, 1812. The jealousy of the exercise of any power (other than that of the local governments) over the

*

261

*

In Massachusetts, the governor consulted the judges of the Supreme Judicial Court as to the true construction of the constitution on these very interesting points. The judges of the Supreme Court were of opinion that it belonged to the governors of the several states to determine when any of the exigencies contemplated by the constitution of the United States existed, so as to require them to place the militia, or any part of it, in the service of the Union, and under the command of the President. It was observed, that the constitution of the United States did not give that right, by any express term, to the President or Congress, and that the power to determine when the exigency existed, was not prohibited to the states, and that it was, therefore, as of course, reserved to the states. A different construction would place all the militia in effect at the will of Congress, and produce a military consolidation of these states. The Act of 28th of February, 1795, vested in the President the power of calling forth the militia when any one of the exigencies existed, and if to that be superadded the power of determining when the casus fœderis occurred, the militia would, in fact, be under the President's control.

As to the question how the militia were to be commanded, when duly called out, the judges were of opinion that the President alone, of all the officers acting under the United States, was authorized to command them, and that he must command them, as they were organized under officers appointed by the states. The militia could not be placed under the command of any officer not of the militia, except that officer be the President of the United States. But the judges did not determine how the militia were to be commanded, in case of the absence of the President, and of a union of militia with troops of the United States; and whether they were to act under their separate officers, and in concert as allied forces, or whether the officer present who was highest in rank, be he of the militia or of the federal troops, was to command the whole, was a difficult and

militia, was very strongly manifested by the legislature and people of Connecticut, as early as 1693, when they fearlessly and successfully resisted the claim of Governor Fletcher, of New York, resting on a commission for that purpose, from the king, to the exclusive command of the militia of Connecticut. 1 Trumbull's Hist. 410-414.