Spencer, J.
The declaration in this cause contains but one count ; it sets forth, minutely, a suit brought by the defendant against the plaintiff and others, in a court [165]*165of common pleas in the state of Connecticut, and after-wards removed to the superior court of that state, in which the defendant prevailed and obtained a judgment, after a trial before a jury, and the payment of thatjudgment by the plaintiff. It is then alleged, that the defendant, in order to prove the matters necessary to maintain his suit, unlawfully and corruptly, and with a view and design to deceive the court and jury, and to injure the plaintiff, procured one Stephen Burritt to commit wilful and corrupt perjury, by making a deposition altogether false, and known to be so by the defendant, and which was given in evidence on the trial ; on which evidence and no other, the defendant prevailed in the said suit; also alleging, that the defendant joined one Azor Buggies, as a defendant in that suit, to prevent his testifying to the facts he knew in that cause, and that the truth might be suppressed ; that the said Azor could have disproved the falsehoods testified by the said Burritt; and that, but for the false deposition of Burritt, the jury would have found a verdict for the plaintiff and the others sued with him ; and that there was no evidence of any weight to maintain the said issue, except that of Burritt.
To this declaration the defendant demurred specially, insisting that distinct matters are alleged in one count, to wit, the subornation of Burritt, and the joining Ruggles in the suit, to prevent his being a witness. To this there was a joinder : and judgment was given for the defendant.
The questions presented are ; 1. Is it actionable to suborn a witness to bear false testimony, whereby a verdict is given contrary to the truth and justice of the case ?
2. Is the declaration defective in containing the double allegation, that the defendant did suborn Burritt, whereby the plaintiff lost his cause, and that he also joined Buggies fraudulently, to prevent his being a witness, whereby Burritt could not be detected in his peijury ?
However just and reasonable it may appear, upon the first view of the proposition, that a man who has by per[166]*166jury, injured another and subjected him to the Unjust payment of a sum of money, should be answerable, yet on a nearer inspection, when the mischiefs resulting from upholding that proposition are considered, the conclusion will be, that it would be dangerous in the extreme to sustain this action.
First, however, as a point adjudicated ; the decisions, Whenever the point has arisen, are uniformly against the maintenance of the action. The question arose in the case of Dampton v. Sympson,
In the case of Eyrcs v. Sedgwick,† it became a question, whether a person who had made a false affidavit in chancery, whereby the plaintiff was imprisoned by the chancellor, was liable to an action for the injury, and it was held by all the judges, except Houghton, that to punish this perjury by an action on the case, under pretence of a false oath, should not be suffered ; and Houghton, who differed, admitted that if the defendant had come in by process of law as a witness, it had been otherwise, for then he would have been punishable by indictment ; but not in the case then before the court. Dodcridge, J. in giving his opinion says, that in the case of Skelhorn v. Harrison,‡ which was an action for putting in bad and false bail, to discharge other good bail, the better opinion was, that the action was not maintainable. The case of Coxe v. Smith,§ is not at variance with the cases cited, for there the affidavit, whereby the plaintiff was removed from office, was not considered as the gist of the action, but only inducement to prove the malicious intent.
These are all the cases which have been cited or met with, that bear on the question, and although they are all cases against the party committing the perjury, their ap[167]*167plication cannot be doubted ; for if the very person who has committed the supposed injury is not answerable, surely the person procuring it will not be held amenable. According to the rule of Lord Coke, it is better to submit to a particular inconvenience, than introduce a general mischief which, in my opinion would be the case, were we to maintain this action, If a perjury has been committed, let the defendant who is alleged to have procured it, be punished according to the known law of the land, and not in a way altogether novel and unprecedented, nay, even against decisions. This pase affords a sample of the danger of maintaining the action, Ruggles is alleged to have been made a party fraudulently, to prevent his being a witness, and most probably £higgles is to be the witness to disprove the truth of Burritos deposition. I do not mean to say any thing against him ; but it is obvious that he must feel strong inducements to retort on Burritt for having implicated him in the fraud. The old rule is the safest, that the parties must come prepared at the trial to vindicate themselves, and to detect the falsity of the testimony brought against them, if it be untrue; or they must take their chance of obtaining a new trial, by showing that they were suri prised, and that they have detected the imposition.
I confess that I should be afraid to make a precedent, that would be so productive of litigation, and that would open a door to so much perjury, as the one we are now called upon to establish.
The fraudulently joining Ruggles in the suit has not. been pretended to be of itself a cause of action, and it becomes unnecessary to examine how far the declaration is bad on that account, since it is vicious in that part which contains the gist of the action. A decision of the superior court of Connecticut has been cited, to show that an action like this has been sustained ; though I respect the decisions of that court, I cannot yield my settled conviction to any unauthoritative adjudication on the subject.
My opinion, therefore is, that the judgment below ought to be affirmed.
[168]*168Kení, Ch. J.
This suit is an attempt to overhale the merits of the verdict and recovery in Connecticut. The defendant below recovered damages of the plaintiff, in - that state, on a charge of fraud, in the sale of Virginia lands; and the plaintiff now alleges that there was no such fraud, and that the testimony which was produced, in-support of the charge, was procured by the corrupt acts of the defendant. If this be not an effort to try over again the merits of the former recovery, I must be greatly mistaken in my view of the case, The injustice of the recovery appears to be the real gravamen.
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Spencer, J.
The declaration in this cause contains but one count ; it sets forth, minutely, a suit brought by the defendant against the plaintiff and others, in a court [165]*165of common pleas in the state of Connecticut, and after-wards removed to the superior court of that state, in which the defendant prevailed and obtained a judgment, after a trial before a jury, and the payment of thatjudgment by the plaintiff. It is then alleged, that the defendant, in order to prove the matters necessary to maintain his suit, unlawfully and corruptly, and with a view and design to deceive the court and jury, and to injure the plaintiff, procured one Stephen Burritt to commit wilful and corrupt perjury, by making a deposition altogether false, and known to be so by the defendant, and which was given in evidence on the trial ; on which evidence and no other, the defendant prevailed in the said suit; also alleging, that the defendant joined one Azor Buggies, as a defendant in that suit, to prevent his testifying to the facts he knew in that cause, and that the truth might be suppressed ; that the said Azor could have disproved the falsehoods testified by the said Burritt; and that, but for the false deposition of Burritt, the jury would have found a verdict for the plaintiff and the others sued with him ; and that there was no evidence of any weight to maintain the said issue, except that of Burritt.
To this declaration the defendant demurred specially, insisting that distinct matters are alleged in one count, to wit, the subornation of Burritt, and the joining Ruggles in the suit, to prevent his being a witness. To this there was a joinder : and judgment was given for the defendant.
The questions presented are ; 1. Is it actionable to suborn a witness to bear false testimony, whereby a verdict is given contrary to the truth and justice of the case ?
2. Is the declaration defective in containing the double allegation, that the defendant did suborn Burritt, whereby the plaintiff lost his cause, and that he also joined Buggies fraudulently, to prevent his being a witness, whereby Burritt could not be detected in his peijury ?
However just and reasonable it may appear, upon the first view of the proposition, that a man who has by per[166]*166jury, injured another and subjected him to the Unjust payment of a sum of money, should be answerable, yet on a nearer inspection, when the mischiefs resulting from upholding that proposition are considered, the conclusion will be, that it would be dangerous in the extreme to sustain this action.
First, however, as a point adjudicated ; the decisions, Whenever the point has arisen, are uniformly against the maintenance of the action. The question arose in the case of Dampton v. Sympson,
In the case of Eyrcs v. Sedgwick,† it became a question, whether a person who had made a false affidavit in chancery, whereby the plaintiff was imprisoned by the chancellor, was liable to an action for the injury, and it was held by all the judges, except Houghton, that to punish this perjury by an action on the case, under pretence of a false oath, should not be suffered ; and Houghton, who differed, admitted that if the defendant had come in by process of law as a witness, it had been otherwise, for then he would have been punishable by indictment ; but not in the case then before the court. Dodcridge, J. in giving his opinion says, that in the case of Skelhorn v. Harrison,‡ which was an action for putting in bad and false bail, to discharge other good bail, the better opinion was, that the action was not maintainable. The case of Coxe v. Smith,§ is not at variance with the cases cited, for there the affidavit, whereby the plaintiff was removed from office, was not considered as the gist of the action, but only inducement to prove the malicious intent.
These are all the cases which have been cited or met with, that bear on the question, and although they are all cases against the party committing the perjury, their ap[167]*167plication cannot be doubted ; for if the very person who has committed the supposed injury is not answerable, surely the person procuring it will not be held amenable. According to the rule of Lord Coke, it is better to submit to a particular inconvenience, than introduce a general mischief which, in my opinion would be the case, were we to maintain this action, If a perjury has been committed, let the defendant who is alleged to have procured it, be punished according to the known law of the land, and not in a way altogether novel and unprecedented, nay, even against decisions. This pase affords a sample of the danger of maintaining the action, Ruggles is alleged to have been made a party fraudulently, to prevent his being a witness, and most probably £higgles is to be the witness to disprove the truth of Burritos deposition. I do not mean to say any thing against him ; but it is obvious that he must feel strong inducements to retort on Burritt for having implicated him in the fraud. The old rule is the safest, that the parties must come prepared at the trial to vindicate themselves, and to detect the falsity of the testimony brought against them, if it be untrue; or they must take their chance of obtaining a new trial, by showing that they were suri prised, and that they have detected the imposition.
I confess that I should be afraid to make a precedent, that would be so productive of litigation, and that would open a door to so much perjury, as the one we are now called upon to establish.
The fraudulently joining Ruggles in the suit has not. been pretended to be of itself a cause of action, and it becomes unnecessary to examine how far the declaration is bad on that account, since it is vicious in that part which contains the gist of the action. A decision of the superior court of Connecticut has been cited, to show that an action like this has been sustained ; though I respect the decisions of that court, I cannot yield my settled conviction to any unauthoritative adjudication on the subject.
My opinion, therefore is, that the judgment below ought to be affirmed.
[168]*168Kení, Ch. J.
This suit is an attempt to overhale the merits of the verdict and recovery in Connecticut. The defendant below recovered damages of the plaintiff, in - that state, on a charge of fraud, in the sale of Virginia lands; and the plaintiff now alleges that there was no such fraud, and that the testimony which was produced, in-support of the charge, was procured by the corrupt acts of the defendant. If this be not an effort to try over again the merits of the former recovery, I must be greatly mistaken in my view of the case, The injustice of the recovery appears to be the real gravamen. The declaration does, in substance, tell the defendant that he had obtained a verdict and judgment against the plaintiff, which he ought npt to have done, whereby the defendant is injured, and claims a return of the money so unjustly recovered. “ Shall the same judgment,” says Ch. J.Eyre, in the ca$e pf Philips v. Hunter, (2 H. Blacks. 414.) “ create a duty for the recoveror, upon which he may have an action of debt, and a duty against him, upon which an action, will lie ? This goes beyond my comprehension.” It would be against public policy and convenience ; it would be productive of endless litigation, and it would be contrary to established precedent, to allow the losing party to try the cause over again in a counter suit, because he was not prepared to meet his adversary at the trial of the first suit. The general law of the land, and the rules of every superior court of competent jurisdiction, sufficiently provide against forcing a party to trial, without giving him a due opportunity to prepare for his defence, and cases of surprise and injustice are generally redressed by the discretionary power of the courts in setting aside verdicts. We are to intend that the judgment in Connecticut was fairly obtained in the regular course of justice, and it is conclusive, as to the subject-matter of it, until it be set aside or reversed, either by the same court, or by some other court having appellate jurisdiction, It never can be opened in a collateral action. It is as. binding upon the parties here, as it is in that state ; for foreign judgments [169]*169are never re-examined, unless the aid of our courts is asked to carry them into effect by a direct suit upon the judgment. The foreign judgment is then held to be only prima facie evidence of the demand; but when it comes in collaterally, or the defendant relies upon it under the exceptio reí judicatait is then received as conclusive ; this distinction is taken and stated by some of the most approved jurists on the law of nations. The general doctrine in Moses v. Macfarlane, (2 Burr. 1005.) has been strongly questioned, and deservedly shaken by subsequent decisions, and especially by the case of Merrit v. Hampton, (7 Term, 269.) but if that case was admitted to stand in full force, it would not apply, as the plaintiff was there alloxved to recover back money adjudged to the defendant in the court of conscience, because from the nature of the jurisdiction below, the plaintiff could not avail himself of his legal defence; no such pretext is alleged as a ground of the suit In the case before us.
The case of Hanford v. Pennoyer, which was decided is the superior court of Connecticut, 1802, is also inapplicable ; for the suit there was not against the party to the judgment, but against a third person, by means of whose fraud and perjury, the judgment was obtained ; and even such a suit against a witness is, I apprehend, ah innovation upon the English law, for it appears to have been frequently and directly denied by the English authorities. (Damport v. Sympson, Cro. E. 520. Eyres v. Sedgwicke, Cro. J. 601. Harding v. Bodman, Hutton, 11.)
I am accordingly of opinion, that the judgment below must be affirmed.
Van Ness, J. declared himself to be of the same opinion.
Yates, J. not having heard the argument in the cause, gave no opinion.
Judgment affirmed.
Cro. Eliz. 520.