We are of opinion that the former adjudication is a bar to this action. There is no occasion to dispute the principle that fraud vitiates all acts, however solemn, or even judicial. That principle is an exception to the general rule rejecting extrinsic evidence to affect written instruments or public records. As was said in the Duchess of Kingston’s Case (20 How. St. Tr.), “ fraud is an extrinsic collateral fact, which vitiates the most solemn proceedings of courts of justice.” In.such cases, the whole proceeding is fábula non judicium. (Harrison v. Mayor, 4 De Gex, M. & G., 148.) The principle applies to every species of judgment. It matters not whether the judgment impugned has been pronounced by an inferior or by the highest court of judicature in the State. Equally well settled, however, is another principle of universal application, namely, that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive between the same parties and their privies. Such a judgment is an estoppel. (1 Gr. Ev., §§ 522-535.) Both these rules are founded on the highest public policy. On the one hand, the public interest requires that fraud shall be detected and suppressed, and on the other, that a limit shall be prescribed to litigation, and that the same cause of action shall not be brought before the court more than once for a final determination. At first blush these principles would seem to be inconsistent with each other, but, in truth, there is no repugnancy between them. As was also remarked in the Duchess of Kingstorüs Case, “ although it is not permitted to show that the court was mistaken, it may be shown that they were misled.”
The fraud, therefore, that vitiates a judgment consists of acts or omissions whereby the court is deceived, and, in consequence of such deception, a judgment is given different from that which otherwise would have been rendered. But the insisting upon rights which, upon a due investigation of those rights, might be found to
*332be overstated or overestimated, is not the kind of fraud which will authorize the court to set aside a judgment (Patch v. Ward, Law R., 3 Ch. App., 207); nor will a party against whom a judgment is rendered be permitted to impeach it by proof that the evidence upon which it is founded was false. (Poss v. Wood, 8 Hun, 185 ; S. C., Ct. of App., MSS.) A great wrong, no doubt, is done, and a high crime committed, by such a use of false witnesses; but the remedy for the public crime is the indictment and punishment of the parties to it, and for the private wrong, by a motion in the action for a new trial, or an appeal. There might never be an end to a suit if parties were permitted to set up the giving of false testimony against them, as a fraud which vitiated the judgment. The only fraud alleged here is of that character. The defendants, it is true, were the witnesses who, it is alleged, gave the false testimony on the trial of the former action; but that makes no difference. They were competent witnesses, and were no more guilty of fraud by testifying themselves, than if they had procured others to do so.
The case of State of Michigan v. Phenix Bank (33 N. V., 25) we think is not in point. In that case, a gross fraud was practiced directly upon the members of the board of auditors, by which alone they were induced to make the award. They were misled by the counsel for the bank.
Should the rule for which the plaintiff contends be adopted, and a judgment had against the defendants, what is to prevent their bringing another action to recover back moneys paid upon that judgment, on the ground that the testimony of the plaintiff’s witnesses on the trial of this action was false? How many adjudications must there be to constitute a bar ?
' Upon principle as well as upon authority, we are convinced that the former judgment is a bar to this action. (Smith v. Nelson, 62 N. Y., 286.)
The order appealed from must, therefore, be affirmed, with costs.
Barnard, P. J., concurred; Dykman, J., not sitting.Order granting new trial affirmed, with costs.