The Chancellor pronounced the judgment in favor of plaintiff, and delivered the opinion of a majority of the court orally; taking the same ground and supporting it by the same general reasoning, as was presented by him in the same case at June term, 1840. [3 Harr. Rep. 248.]

Judge Harrington dissented.

I am obliged to dissent from the opinion of the court; upon the principles heretofore stated in the former decisions of this case. My opinion on the great question then, and, as I think, now involved, has been since confirmed by the cases of *72Voorhees vs. U. S. Bank; Elliott vs. Piersoll; McElmoyle vs. Cohen; Wilcox vs. Jackson; and the case in 3 Howard 750, 762, in the Supreme Court of the United States, recognizing Judge Story’s restriction of the principle supposed to he decided by that court in Mills vs. Duryee; and which was decided by Judge Washington, on the New Jersey circuit, in Fields against Gibbs.

The principle as I understand it to be settled by these later cases in the Federal courts, and in most of the State courts, in reference to the conclusiveness of judgments of other States, is this: that although full faith and credit are to be given in each State to the judicial proceedings of every other State “ this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given to pronounce it; or the right of the State itself to exercise authority over the person or the subject matter.” [3 Story’s Com. 183.] The judgment is conclusive and cannot be controverted, either collaterally, or in an action of debt directly upon it; nil debet is not a good plea in such action; the plea must be nul tiel record; or a special plea, denying the jurisdiction: yet whether the act which purports to be a judgment is a judgment, or the paper is a record, depends not merely on its authentication by certificate and seal, but on the jurisdiction of the court professing to render the judgment over the parties and subject matter of the suit. “ The line which separates error in judgment from the usurpation of power is very definite; and is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case it is a record importing absolute verity; in the other mere waste paper: there can be no middle character assigned to judicial proceedings, which are irreversible for error.” [Voorhees vs. Bank United States, 10 Peters’ Rep. 449.] In the one case it cannot be controverted; in the other it is not merely controverted, but its existence is denied. If an act of usurpation in the tribunal professing to render it, it is no judgment; it is a mere nullity,' and the assumed record of that nullity is mere waste paper. The essentials of jurisdiction to .render a judgment must, therefore, appear on the record of that judgment to entitle it to any credit or consideration whatever; it must bring with it not merely authentication by certificate and seal, but that which is necessary to its own existence, the institution of a suit ;■ *73the notice to or appearance of the parties; and whatever is essential as a basis of the power to give judgment.

I cannot perceive why this does not come up on a plea of nul tiel record as well as any other plea. True the only question under such plea, is whether there is such a record of such judgment as is declared on, which is the very question of its existence. No objection can be taken under this plea, to the judgment, as a judgment, but the plea denies that any such judgment exists; that there is any such record of the judgment declared on; and this- defence, if admissible at all under the authority of the decisions referred to, supports that plea, and-is quite as admissible under the plea of nul tiel record, where the record does not show the jurisdiction, as it would be under a special plea denying the jurisdiction, where it does appear by the record. The plaintiff by his proferí is bound to produce a record to show a judgment; the plea denies that there is any such record of any such judgment; and the Supreme Court says in McElmoyle vs. Cohen, that the jurisdiction or right of the court to pronounce judgment may be inquired into; and in Voorhees vs. Bank United States, that where such jurisdiction does not exist, it is a mere usurpation of power, the judgment is a nullity and the record mere waste paper.

In a ease commenced as this was in the District Court of the city and county of Philadelphia by copias, it is not doubted that notice to, or appearance of the defendant was necessary to give the court jurisdiction to pronounce judgment against him; and unless this appears by the record, it does not support the proferí, and is sufficient to exclude the paper as the evidence of any judgment. And if the record is doubtful on this point, which it unquestionably is, that is equally fatal to the record.