delivered the opinion of the Court. Upon comparing the copy of the record which is produced, with the declaration, the Court are of opinion that there is such a record as the plaintiff has set forth and declared upon. The first issue, viz. upon nul tiel record, is therefore found by the Court for the plaintiff.
The second issue, upon nil debet, was found for the defendant. And the plaintiff contends that the evidence which was admitted to prove it was altogether inadmissible. On the other hand, the defendant contends that the evidence was competent, and that the facts proved by the witnesses were sufficient to warrant the verdict. The question is, in substance, whether the defendant may prove, under this issue, that the judgment was obtained by fraud and misrepresentation. We are entirely satisfied, that while the judgment remains apparently in full force, that defence cannot be made against it. So that it becomes unnecessary to determine whether the evidence was admissible or not, as part of the res gestee ; for if it were, it would not warrant the verdict.
This subject of the conclusiveness of judgments was very much considered in the case of Homer v. Fish, 1 Pick. 435 ; which has not been cited. It was shortly thus. Fish had obtained a judgment against Homer upon a policy of assurance, and it was paid on execution. Afterwards Homer discovered that Fish caused the insurance to be made when he knew that the ship was lost, and so procured a judgment against Homer by a gross fraud. Homer sued to recover back the money, as having been obtained from him by fraud and imposition. Now the general proposition is true, that an action for money had and received will he to recover money-obtained by fraud. But the defendant, Fish, set up Ins *58judgment in his defence; which Homer contended ought not to avail, because it had been so fraudulently procured. He would have avoided the effect of the judgment by the new evidence which he had discovered, proving in a most satisfactory manner the iniquity of the former proceedings. But the whole Court were clear that this evidence _ould not avail, while the judgment of Fish against Homer remained unreversed. The case concludes with this remark; “the whole current of authorities seems to recognise the principle, that where a cause has been instituted in a proper forum, where all matters of defence were open to the party sued, the judgment is conclusive until reversed by a superior court which has jurisdiction of the same cause on a writ of error.”
We would add, that if it were not so, there would be no end of litigation. If the first judgment is thus to be rendered void, the second is liable to the same allegation, and the third, and so on. The law would become a game of frauds, in which the greatest rogue would become the most successful player.
In the case at bar, the parties all belonged to the State of North Carolina at the time when the suit was commenced against the principal, and when the defendant became bail. They must be supposed to have submitted themselves to the laws and known practice of the courts in that State. If any proceedings have taken place there which would avoid the judgment obtained against the defendant, upon error, or if a new trial should be granted, the application must be made to the judicial courts there. But so long as the judgment remains in full force, the courts in Massachusetts cannot go behind it.
But the defendant contends, that the court had no jurisdic tion, inasmuch as according to the third and fourth pleas, the defendant never had any notice that any process had been instituted against him as bail, and he never had notice of the judgment against the principal. If this appeared judicially, we should have no difficulty in holding the judgment to be a nullity. But, unfortunately for the defendant, the plaintiff has disproved those allegations of a want of notice.
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The defendant has objected to the mode of proof, viz. by the evidence of witnesses, that the proceedings were according to the law of the State of North Carolina, and that by the law of that State and usage there, the defendant was so far a party to the record against the principal, as to be bound to take notice of the proceedings against him, and also of the subsequent proceedings against himself, as the bail. Now we think it too clear for argument, that it was competent for the plaintiff to prove by witnesses that such was the law of North Carolina. It was the only way to establish it here; for it was their common unwritten law, provable here as matters of fact are to be proved. And upon recurring to the evidence, it was very clearly established, not only by the opinion of the witnesses, who were of the profession and in the practice of the law, but by the judicial decision of the court there, in Woodfork v. Broomfield, 1 Murphey, 187.
The defendant therefore must be considered as affected by that constructive notice, which would avail the plaintiff just as effectually as if an actual notice were given; so far at least as we are at liberty to consider the matter. If there has been any fraud practised upon the defendant, 'of which, however, we have no judicial evidence,) we hope he will resort to the proper remedies provided in all civilized states for redress. It is to the judicial courts of North Carolina that application should be made for a new trial, or to reverse the judgment upon any error that may have happened there.
Our opinion is, that we must regard the judgment in North Carolina as in force, as it is.presented, and that the verdict for the defendant, upon the issue of nil debet, should be set aside, and that the judgment should be rendered for the plaintiff