By the Court,
Savage, J.
The plaintiff claims as the widow of Bradshaw. Having been previously married to Dr. M’Donald, who is still living, she could not have been the lawful wife of Bradshaw, unless, before her marriage with him, she had been legally divorced from M’Donald. Whether she was so divorced, is the main question in the cause. To prove the divorce, she produces a record of the superior court of Connecticut, and by it the proceeding appears to have been entirely ex parte. It is not alleged in the record that notice was given to the husband, nor is there any appearance by him. The judgment of the court also appears to have been rendered nine days before the petition was presented praying for such judgment. This is probably to be reconciled by the practice of' considering the term as but one day; but if so, still the judgment appears to have been pronounced instanter upon the presentation of the petition. The record recites that the court had heard the plea and evidence of the said Mary, but it is not alleged that the husband appeared, or was served with process or hadnotice, either actual or constructive, by the service of an attachment upon any article of property alleged to be his. In addition to the facts already mentioned, it was proved that soon after the marriage, the plaintiff and her husband removedfrom the state of Connecticut to Bedford in the state of Ne w York, and after they had been gone some time, the plaintiff’s father went after her and brought her home to New-[414] i Milford in Connecticut. The husband, M’Donald, never returned to Connecticut, but remained, as is inferrible from the testimony, in Bedford and that vicinity until 1795, and long after. The evidence is not conclusive, perhaps, on this point; but, uncontradicted, it certainly was sufficient to authorize the jury to find the fact. The husband was Dr. M’Donald; he is shown to have moved from New-Milford to Bedford ; a person of that name and profession is shown to ■ have resided in and near Bedford for many years, and there is no evidence concerning any other Dr. M’Donald: the inference, therefore, is, that he is tbe same person, and I think the evidence isprimafacie sufficient to prove it in a case like the present. But whether tbe husband remained in Bedford, was only material to show tbe fact that in 1795, when the divorce was granted, he was not in Connecticut, within the jurisdiction of the court which eran led t be di vorcc. That fact I consider proved prima facie, wilhou ti oca I io g h i m in Bed fo rd. Tbe witness says M’Donald never returned to Connecticut, and that the plaintiff told him that she did not know where he had gone. The husband having been proved to have changed his domicil, before the divorce, it was incumbent on the plaintiff to have shown his return, or he must be presumed to have remained out of the state of Connecticut. As the fact of the husband’s absence was material in the decision of the case, the judge should have submitted the evidence to the jury. I shall, therefore, in fu rther discussing this subject, consider the fact of the husband's absence as proved, and also that he did not appear, and had not any notice,of the proceedings to obtain a divorce.
Were this a civil suit between the parties of the divorce, and the evidence such as I have stated, all the adjudications agree that a judgment so obtained cannot be enforced. The earliest American case affecting the question is a case in the same court, which pronounced the judgment of divorce in this case. Kibbe v. Kibbe, Kirby's R. 119, 126. That was an action of debt upon a judgment obtained in Massachusetts. Process had been issued in that case, and a handkerchief attached as the defendant’s property, and a copy of the process had been left at the defendant’s house, in Connecticut. The [415] ' court decided that the judgment in Massachusetts was void for want of jurisdiction, the defendant not being an inhabitant of Massachusetts, nor within the jurisdiction of the court where the protended notice was given. They then laid down a rule which, since the case of Mills v. Duryee, 7 Cranch, 481, has been uniformly consideted correct, that full faith and credit oughtto bo given tojudgments of the courts of any of the United States, when both parlies are within the jurisdiction of the court, where the suit was commenced, where the defendant was served with process, and had or might have had a fair trial of the cause. This case was decided in 1786. The next case in the same court, is Smith v. Rhoads, 1 Day, 168. That was an action upon a judgment in Massachusetts, and it appeared from the pleadings that although the defendant resided in Connecticut, yet he had notice of the suit, and appeared thereinand defended the same; the court held the judgment conclusive. The case of Sanford v. Sanford, 5 Day, 356, was decided on the same ground. A divorce was granted in that case, although the defendant resided in Albany, in the state of New York ; but he appeared by attorney and defended the suit. On error, brought to the supreme court of errors, the judgment was affirmed, the court laying stress upon the fact that the defendant was not nominally, but actually in court. This, they say, gave the court jurisdiction, as a court of chancery, to pass a decree in personam. The case oí Aldridge v. Kinney 4 Conn. R. 380, decided in 18:22, was an action brought in Connecticut, upon a judgment in Bhode Isl- and, in which the defendant had no notice, nor was served with proeecs, nor did he appear, being an inhabitant of Connecticut, and the suit commenced by attaching certain turnpike shares. Chief Justice Hosmer reviews most of the cases then published, and asks what is intended by -Mho records and judicial proceedings of amr oilier state,7’ to which full “ faith and credit shall be given f and remarks that these words are sufficientlycomprehensive to embrace eve-v judgment in fact, but that they may rationally be satisfied by an application to such judgments as are duly rendered against those who appeared or were legally notified to appear. He maintains that nothing can be more preposterous and absurd, [416] nothing more contrary to reason and justice, than to hold a man invincibly bound by a judgment rendered against him without notice. Such is the law in Connecticut. It is substandally the same in Massachusetts, in Pennsylvania, in New-York, and several other, probably in all the states. 9 Mass. R. 462. 6 Pick. 232. In Bissell v. Briggs, Chief Justice Parsons considers a judgment in another state in two points of view: 1. To justify its execution in the state where rendered, and 2. To obtain execution from the courts of other states. In the first it is sufficient that the proceedings were had according to the practice in that state, whether notice was actually given or not. Thus, where property is attached in one state, the owner living out of the jurisdiction of such state, and not being within its jurisdiction, nor amenable to its laws, the judgment is good as to the property attached within the jurisdiction of the court rendering the judgment. So far it is a proceeding in rem. But as to the second particular, when the plaintiff in such judgment seeks to enforce it against the person, by obtaining execution through the courts of the state where the defendant resides, then the defendant has a right to show that the court rendering the judgment against him never had jurisdiction of his person ; and therefore, as to any such remedy, the judgment is void. This is perfectly consistent with the point decided in Mills v. Duryee, 7 Cranch, 481. Mr. Justice Story, who delivered the opinion of the court in that case, remarks, that in that case the defendant had full notice of the suit, for he was arrested and gave bail. Since the decision of Mills v. Duryee, I believe it has never been considered as extending to conclude anydefendant who never had any notice of the suit, and who was not an inhabitant of the state in which the judgment was entered, and did not appear by an attorney. That in such cases the record is not conclusive, has been decided in this court very frequently. Some of the cases are the following: Borden v. Fitch, 15 Johns. R. 121; Shumway v. Stillman, 4 Cowen, 294, and 6 Wendell, 447, S. C. ; Andrews v. Montgomery, 19 Johns. R. 162, and Starbuck v. Murray, 5 Wendell, 154.
It is said, however, that the proceeding to obtain a divorce in Connecticut is like a proceeding in rem, or proceedings in [417] the ecclesiastical courts in England, which are conclusive as to matters adjudicated in them. Proceedings in rem are those wherein certain things are seized or attached, and the judgment is conclusive as to the title of the property so attached, and sold by virtue of the proceedings conseduent upon such sei zu re or attachment. The case of Scott v. Shearman, 2 Black. 977, in 1774, exemplifies this principle. There an action of trespass was brought against certain custom house officers for taking the plaintiffs goods. The defendants gave in evidence the condemnation of the same property in the court of exchequer. The court held that the condemnation in the exchequer was conclusive. Mr. Justice Blackstone assigned his reasons; which were, 1. Because of the credit which the law gives to a judgment of a court of record having jurisdiction of the subject matter; 2. Because the property of the goods becomes changed and vested in the crown by the condemnation. To the argument that no notice was given to the owner in person, he answers that the seizure is notice to the owner, for he is presumed to know what becomes of his goods ; he knew by the proclamations made according to the course of the court, and the writ of apppraisement which must be publicly executed. But in the case of Fisher v. Lane, 3 Wils. 297, (in 1772,) where an action was brought in the same court, before the same judges, for an admitted debt, and the defence consisted of a judgment rendered upon process of foreign attachment in London, and of which no notice was given to the plaintiff Fisher, which was according to the custom of the city court, Chief Justice Be Grey said that customs may deviate from the course of the common law, but a custom not to summon or give notice to a defendant, in a ■suit commenced against him, is contrary to the first principles of justice, and cannot be good; and the defence was excluded. So in Buchanan v. Rucker, 9 East, 192, assumpsit was brought in the king’s bench, upon a foreign judgment in the island of Tobago. The record contained an entry that the defendant, of the city of London, was summoned to appear, by nailing up a copy of the declaration at the court house door, on which judgment was afterwards entered by default. It [418] Was objected that the judgment had been entered without any notice to or appearance by the defendant, and it was contended that therefore the judgment was a nullity; and so Lord Ellenborough decided, although it was alleged that such was the practice in Tobago ; and the plaintiff was nonsuited. On a motion t<j set aside the nonsuit, it appeared that the service of the declaration was according to the law of the isl- and of Tobago, with respect to persons absent from the island. Lord Ellenborough held, that by those absentfrom the island, was meant those who had been subject to the jurisdiction of the courts there; and as that fact was not shown, no assumpsit could be raised upon a judgment so obtained. This case is not altogether analogous to the present, for it does not appear that Dr. M’Donald was within the state of Connecticut in 1784, but there is nothing to show that he was ever there after he changed his domicil and removed from the state. This case also shows that it is proper to look into the record to see what notice was given to the defendant, and thereby determine whether the court had jurisdiction of the person of the defendant. Where it appeared, as in this case, that the court had no jurisdiction of the person of the defendant, the judgment was declared a nullity, and could not be enforced. In the cases in this court which have already been cited, it has been decided that, although it appears by the record that the defendant appeared, yet he may by testimony controvert that fact, and show that he did not appear, and was not in a situation to receive notice; and in such ease the record is ineffectual, and no action can be sustained upon it. In Kilburn v. Woodworth, 5 Johns. R. 37, a judgment was obtained in Massachusetts, in a suit commenced by attaching a bedstead. A suit being brought in this court, it was held that the judgment could only be good as a proceeding vn rem, but not the ground of an action here. To bind a defendant personally by judgment, where he was never summoned or- had notice of the proceedings, would be contrary to the first principles of justice. It would seem- to follow, that where the record shows no jurisdiction over the person of the defendant, but the contrary is necessarily implied, such record is a nullity and insufficient to support an action.
[419] The opinion of Chief Justice De Grey, in the Duchess Kingston's case, is often referred to as laying down the rule as to the conclusiveness of records. I will state some of the facts of that case, and some of the remarks of that learned judge. The person known as the dutchess of Kingston was originally Elizabeth Chudleigh; she was married in 1744, to one Hervey, (afterwards earl of Bristol.) In 1768 she instituted a suit of jactitation of marriage against Mr. Hervey, in the court of the bishop of London. This proceeding is applicable in England, where one boasts or gives out that he or she is married to the other. The injured party may libel the other, and unless he proves actual marriage, he is enjoined perpetual silence on that head. In the case of Elizebeth Chudleigh v. Hervey, such proceedings were had, that in February, 1769, sentence was pronounced, that the said Elizabeth Chudleigh was and now is a spinster, and free from all matrimonial contracts with said Hervey. In March following she was married to the duke of Kingston. In January, 1775, she was indicted for polygamy; the indictment was removed into parliament, and in April, 1776, she was brought to trial before the house of lords. She pleaded not guilty, and insisted upon the decree in her favor, in the suit before the bishop of London, as conclusive evidence of the fact that she never was married to Mr. Hervey, and that no other evidence ought to be received respecting the pretended marriage. The question as to the conclusiveness of the record was argued at great length and with great ability. Lord Chief Justice De Grey, chief justice of the common pleas, gave the unanimous opinion of the judges. After stating, as a general rule, to which there are some exceptions, that judicial proceedings, although evidence against the parties and all claiming under them, are not evidence against strangers, he proceeds to draw from the cases which had been referred to upon the argument two deductions : 1. That the judgment of a court of concurrent jurisdiction directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter directly in question in another court; 2. That the judgment of a court of exclusive jurisdiction, directly upon the point, is, in the like manner, conclusive upon the same [420] mattev> between the same parties, coming incidentally in question in another court But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collatterally in question, though within their jurisdiction ; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument, by the judgment. He proceeds to remark that the spiritual court has the sole cognizance of deciding directly the question of marriage; but the temporal courts have the sole cognizance of deciding questions of property, and, in their investigations in such cases, have the power of deciding incidentally the fact and the legality of marriages. But when they have found the question directly decided by the ecclesiastical courts, they receive it as evidence of the fact, in the same manner as they receive the acts of other courts. Hence, he says, a sentence of nullity and a sentence of affirmance of marriage have been received as conclusive evidence, on a question of legitimacy arising incidentially upon a claim to real estate. So a direct sentence, in a suit upon a promise of marriage, against a contract, has been admitted as evidence against such contract,in an action brought upon the same promise for damages, it being a direct sentence of a competent court, disproving the ground of the action. So a sentence of nullity is equally evidence in a personal action against a defence founded upon a supposed coverture. But in all these cases the parties to the suits, or at least the parties against ivhom the evidence was received,loere parties to the sentence, and had acquiesced under it, or claimed under those who were parties and had acquiesced. He proceeds to showthatproceedingsin-ecclesiastical courts cannot be evidence in criminal suits; and even if they should be in civil suits, yet that a cause of jactitation, being in the nature of a cause of defamation only, the sentence has only a negative and qualified effect, to wit, that the party has failed in his proof,and that the libellant is free from all matrimonial contractasfar as yet appeals—being inconclusive in the same court, and cannot of course conclude any other court. It was therefore decided that a.sentence in a spiritual court against a marriage, in a suit of jactitation ofmarriage,isnotconclusiveevidenceso as to stopthe counsel ofthe crown from pro vin g the marriage in an indictment [421] forpolygamy. 2 Macnally's Ev. 430 to 462.2 St. Trials,201, 262. I have been thus particular in stating this case, that it might be seen what was the question before the judges, and with what qualifications general propositions are advanced. If we apply the doctrine of the preceding case to the case now under consideration, it will establish the point that the fact of divorce is proved by the proceedings of a court of competent jurisdiction; but the record is no evidence of the jurisdiction of the court over the person of the defendant in those proceedings, because no fact is stated in the record giving such jurisdiction ; and if it is inferrible at all, it is so only by argument from the judgment; and at most it is only to be received as against the parties to that suit, or those who claim under them and had acquiesced under it. The defendant in this case was neither party nor privy to that suit, nor does he claim under a party or privy.
It does not become necessary to agitate the difficult question, under what circumstances the courts of the several states have a right to grant divorces, which shall be operative in the other states. We have as yet no adjudications from which any general rules can be considered as established. Our revised statutes have laid down rules for the government of our own courts,and the legislatures of other statutes have done the same in respect to their courts. Several cases however have arisen, in which courts have declared divorces granted in other states inoperative and void out of the states in which they were granted, to which I will refer. In the case of Jackson v. Jackson, 1 Johns. R. 424, the parties were married in this state in September, 1800; they resided here and lived together until the winter of 1802. In October, 1802, the plaintiff (the wife) went to Vermont for the express purpose of obtaining a divorce ; in April, 1803, she returned, having in February preceding obtained a divorce, discharging her from the marriage covenant, and awarding to her alimony to the amount of $1500—to recover which that suit was brought. The ground upon which the divorce was granted was ill treatment and severity of temper; for which causes thelaws of Vermont authorized a divorce a vinculo, when, by the laws of this state, where the contract was entered into, and where the par- [422] > ties resided, no such divorce could be granted, except Sr adultery. This court gave judgment for the defendant, on the ground that the procuring a divorce in Vermont was a fraud upon our own laws. But, upon principle, how was it possible to sustain the judgment rendered in Vermont 2. The contract was not made there, nor was it made in reference to the laws of Vermont; nor were such laws violated; nor were the parties resident there. Both parties, indeed, appeared there, and therefore the court had jurisdiction of the persons of the parties; but this court refused to enforce the judgment. A question nearly similar was presented in Pawling v. Bird's Ex'rs, 13 Johns. R. 208. There the divorce took place in Connecticut; both parties appeared and contested the divorce, though inhabitants of this state at the time of the divorce ; the question, however, was not decided, as the defendants were entitled to judgment upon other grounds. In Borden v. Fitch, 15 Johns. R. 140, the validity of a divorce in Vermont again came up for consideration. The action was for debauching the plaintiff’s daughter; the evidence was, that the defendant married her and cohabited with her in 1814. The defendant had been married in 1784, in Connecticut, and resided there until 1807, when his wife, Charlotte Sellick, applied to the legislature, and obtained a divorce from him a mensa et thoro, and he was ordered to pay her f 150 annually. In 1813, the defendant obtained in Vermont a divorce a vinculo matrimonii, but it did not appear that personal notice had been given to the wife. The record recited that she had been duly notified to appear and show cause, <fcc.; the law only required notice in the newspapers. Chief Justice Thompson, in giving the opinion of the court, said, that to sanction such a divorce was contrary to the first principles of justice; that a judgment could have no validity, unless the court had jurisdiction both of the person and the subject matter; and want of such jurisdiction rendered it void and unavailable for any purpose. He further declares it to be the settled law of this state, that a judgment obtained in a sister state, against a person not being within the state, nor served with notice,nor appearing, is absolutely void. This principle, he says, must apply equally to a divorce as to any othér [423] judgment; and he insists that the case of Mills v. Duryee, not applicable to a judgment void according to the first principles of justice. A divorce, obtained under similar circumstances, was declared void in Massachusetts. 14 Mass. R. 230, 1. In Hopkins v. Hopkins, 3 Mass. R. 158, the supreme court of Massachusetts decided that a suit for a divorce would not be sustained, where the parties lived in another state, and one of them committed adultery there, and the injured party had subsequently removed into Massachusetts, and there brought her suit. The court said they would have sustained the libel, if the parties had resided in that state before the offence was committed, although such of-fence was committed without their jurisdiction.
In the case of Barker v. Root, 10 Mass. R. 260, a divorce obtained in Vermont, both parties being domiciled there, was held valid, although the contract of marriage was entered into in Massachusetts. Mr. Justice Sewall remarked that the lex loci, which is to govern married persons, and by which the contract is to be annulled, is not the law of the place where the-contract was made, but where it exists for the time; where the parties have their domicil, and where they are amenable for any violation of their duties in that relation. In Jackson v. Jackson, 1 Johns. R. 432,it was said by Mr. Justice Spencer, in giving the opinion of the court, that the wife was incapable during coverture of obtaining domicil distinct from that of her husband. He refers to 5 Vesey, jun. 787, where it was decided that a son, who was a minor, could not acquire a domicil distinct from his father, because he was not sui juris. If we consider the plaintiff in this case as domiciled in New York, when she applied for and obtained a divorce in Connecticut, then the divorce there should not be considered of any validity. The contract, according to Mr. Justice Sewall, was such as consisted with the law of New York when the parties resided here. Desertion for three years was no cause of divorce in New York, in which state, if at all, the desertion took place. The parties being domiciled here, the offence, if any, having been committed here, was not, according to the argument of Mr. Justice Sewall, such a violation of contract as to justify a divorce here, and of [424] course not in Connecticut. On this question, it is not necessary now to give any opinion. It is enough at present to decide that the- record was not conclusive—Dr. M’Donald being out of the state of Connecticut, not having appeared, nor having had notice of the proceedings.
There were some minor questions arising upon the trial which should be disposed of. The judge was right in rejecting evidence of conversations in the family of the plaintiff’s father as to the residence of Dr. M’Donald; his residence was the fact to be proved. The plaintiff,s admissions would be evidence, but not the declarations of other persons, unless in her presence, and under circumstances which would imply her assent; the declarations of others, under any other circumstances, would be hearsay merety. The question whether the Dr. M’Donald proved to have resided in Westchester county was reputed to be the father of W. M’Donald of Glen’s Falls, I think, should have been answered. The object was not to prove pedigree, and thereby show title .to an estate, •but to prove a fact which was important in the case. It had been shown that W. M’Donald, Esq. was the son of the plaintiff. The fact to be ascertained was, whether the Dr. M’Donald spoken of by the witnesses was the father of W. M’Donald, Esq. Such a person was shown to have resided in Westchester at the time the divorce was obtained. If he was the husband, then the divorce was void; and if he was the father of W. M’Donald, then his identity was proved. The fact of paternity is one to be proved by reputation. No person can swear positively to that fact but the mother. It is true, indeed, that had W. M’Donald himself been called, he might have been asked what his mother, the plaintiff, had told him on that subject; but this, I apprehend, is one of those cases where reputation is sufficient. This point, however, I do not consider important, as in my opinion there was without it testimony enough, to warrant a jury in finding that the husband was without the state of Connecticut, at the time of the divorce, which was the fact to be proved.
New trial granted ; costs to abide the event.