3 Johns. 157 | N.Y. Sup. Ct. | 1808
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
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
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,
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
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.
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
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.
Cro. Jac. 601.
Cro. Eliz. 714.
1 Lev. 119.