3 Chand. 210 | Wis. | 1851
Bahr, the defendant in error, commenced a suit against the plaintiff in error, in the Sheboygan circuit court, and in his declaration alleged in substance, that he purchased of the United States a quarter section of government land, situated in the Green Bay land district; that his entry and purchase of the said land was not subject to any preemption claim thereto, arising under the laws of the United States; that the defendant, in order to establish a preemption claim to the said land, made an affidavit before the register and receiver of the Green Bay land district, in conformity to. the laws of the United States; that by the laws of the United States the said defendant was required to. prove by his- o.wn oath,, be
We must confine ourselves to the record. And we are satisfied that the declaration does not set forth a good cause of action. The cases cited by the counsel for the plaintiff in error clearly establish the proposition that no action can be maintained for an injury sustained by a party by means of perjury committed in the course of a trial of a former suit. Davenport v. Simpson, Cro. Eliz., 520; Eyres v. Sedgwick, Cro. Jac., 601; Smith v. Lewis, 3 Johns., 157. The reason given is, that courts will not permit the former suit to be again tried in this form of action, as it must be, if the suit is entertained; the gist of the action being not the perjury committed, but the unjust recovery consequent upon it. The case at bar cannot be distinguished, in principle, from those cited by the plaintiff in error. The proceeding in which the perjury is alleged to have been committed was quasi judicial in its investigation in pursuance
We are satisfied that the judgment must be reversed.
Note. — In tbe case of Stowell ®. Jfild/red, 26 Wis., 504, it was held that