The opinion of the court was delivered by
Redfield, J.The effect of a recovery in this action must undoubtedly be a re-examination of the merits of the action in favor of R. & J. Wainwright against Straw and Cunningham, and must operate as a virtual reversal of that judgment. For this court here to decide that this declaration is sufficient will be virtually to order a new trial of the former action. But the technical objection, that the same matter has been formerly adjudicated between the same parties, is avoided here by the difference of parties in the two actions. But the principle of the objection is the same, as if this case were between the same parties. It in effect leads to interminable *126litigation of the same facts. For it is not enough to show, in this case, that the defendant swore falsely in the former action, but damage must be shown to have resulted therefrom. In order to do this, it must appear, that the testimony was material, and that it gained credit, and that this plaintiff had not then the means of disproving it, and that the defendant swore false knowingly ; otherwise there would be no fraud, — and fraud and damage must concur, in order to sustain the action.
From this view of the case it will be evident, that the action cannot be maintained, without virtually putting it in the power of every suitor to re-examine every suit, in which he is cast, and to try the witnesses for perjury by instituting against them a civil suit. ' This course of things would be as interminable, as it is in its nature intolerable. The reasoning of Kent, Ch. J., in Smith v. Lewis, 3 Johns. 157, is fully in point; and that case is so nearly, in principle, the same with this case, that it may well be esteemed an authority, by which this case should he governed. But the ease of Damport v. Sympson, Cro. Eliz. 520, is precisely the same as this case. Eyres v. Sedgewick, Cro. Jac. 601, is much to the same purpose. And the fact, that the action is one of new impression, as is said of the case of Damport v. Sympson, is reason enough, why it should not be sustained, except upon the most satisfactory grounds.
I have never known any case like the present attempted to be maintained. The one most analogous to it, which I now'recollect, was one in the county of Windsor many years since, wherein it was attempted to maintain an action upon the case against one, for forging a note against a deceased person and obtaining an allowance by commissioners, whereby the plaintiff’s dividend was lessened. The court, upon very full hearing, considered that the action would not lie, although there was clearly fraud and damage. 1. It would be re-examining the decision of the commissioners. 2. It would be trying and punishing the defendant for a crime in the form of a civil action. 3. It was thought, in that case, that the act, in its direct operation, was too remote to be any just ground of action in favor of another creditor to the estate. The two first grounds of that determination apply with equal force to this.
Judgment affirmed.