
    Homer versus Fish et al.
    
    To a plea of the statute of limitations in an action of the case for fraud, it is sulli cient for the plaintiff to reply generally, that he did not discover the fraud till within six years.
    The defendants caused the plaintiff to insure a vessel for them, upon which there was a loss. They sued him, and recovered judgment for the amount of the loss, and obtained satisfaction upon execution. He afterwards commenced an action against them to recover back the money, upon the ground that they knew of the loss at the time when the insurance was made, but concealed the knowledge of it from him, and that the fraud was not discovered until after the execution was satisfied. Held, that the former judgment was a bar to this action.
    This was an action of the case for fraud in the nature o. a conspiracy. The declaration alleged, that in the year 1810 the defendants were interested in a vessel called the Jefferson, which, while proceeding on a voyage from Boston to North Carolina, was totally lost; that the defendants afterwards, well knowing of the loss, conspired together to defraud the plaintiff, by falsely representing to him that the vessel was then at sea performing her voyage, whereby they induced him to become an insurer ; that afterwards in the same year they gave notice to the plaintiff of the loss, and demanded payment of the sum insured ; that in 1812, in pursuance of the conspiracy, they caused a suit to be commenced against him, in the name of one of them, and recovered judgment for the amount insured, which judgment he afterwards satisfied upon execution.
    To the several counts setting forth these facts, the defendants pleaded the statute of limitations ; and the plaintiff replied that he did hot discover the fraud until within six years before the commencement of the suit. To this replication the de fendants demurred specially for these causes ; 1st, because the plaintiff in his replication, had not alleged that he was hindered from discovering the fraud by any act of the defendants ; 2d, because he had not alleged affirmatively the time when he discovered it; 3d, because he had not alleged any fact which could be traversed, but only alleged his ignorance of the fraud.
    The defendants further pleaded, that an action on the policy was commenced by the defendants against the plaintiff in a court having competent jurisdiction, and a judgment recovered by them in that action, which had not been reversed or annulled. To this the plaintiff replied, that he did not know of the fraud and conspiracy, until more than three years after the judgment was rendered ; to which the defendants demurred.
    
      Shaw, for the defendants, argued, first,
    that the statute of limitations was made upon the ground that time obliterates evidence. Instead of leaving it to the jury in each case to determine what lapse of time should raise a presumption that the evidence was lost, the statute fixes the time definitely. There is no reason why the statute should not apply to actions of fraud, as much as to any others. There is indeed a peculiar propriety in permitting it to be so applied. Fraud is usually attempted to be proved by a number of small circumstances, which it may be impossible for the defendant to explain, on account of the lapse of time. His witnesses may be dead, or the facts may have escaped his recollection. It is said in this case, that the plaintiff did not know of the fraud till within six years. But this was not the fault of the defendants. The same replication might be made to a plea ofrthe statute of limitations in an action of trespass, and if allowed, the statute would be virtually repealed. Further, the plaintiff has averred generally, that he did not know of the fraud till within six years, without specifying the time when it came to his knowledge. Here is no fact alleged which can be traversed, but a statement only of what existed in his own breast
    But the most important question is, whether the former judgment is not a bar to this action. It is not necessary to controvert the doctrine, that if a judgment is procured by fraud, it may be set aside. The maxim that fraud vitiates every transaction does not apply to this case. vhe defence of fraud, for aught that appears, was made in the former action. The present defendants have a right to say that it was made, and how can it be determined whether it was or not ? The ground of this action is res judicata, and the former judgment cannot he impeached in this manner. Interest reipublicce ut sitjinis litium. Philips v. Hunter, 2 H. Bl. 414 ; Marriott v. Hampton 7 D. & E. 269 ; Peck v. Woodbridge, 3 Day, 30 ; Smith v. Lewis, 3 Johns. Rep. 157 ; Homes v. Aery, 12 Mass. Rep. 134; Thatcher v. Gammon, 12 Mass. Rep. 268.
    
      G. Sullivan and Curtis, for the plaintiff, contended,
    that he had a good cause of action within six years. It has been decided, both in chancery and at common law, that where an action is founded upon a fraud, the statute of limitations is not a bar until six years after the fraud is discovered. Booth v. Warrington, 4 Bro. Parl. Cas. 163 ; South Sea Co. v. Wymondsell, 3 P. Wms. 143 ; Deloraine v. Browne, 3 Bro. C. C. 633 ; Hovenden v. Annesley, 2 Sch. & Lefr. 634, 638 ; Bree v. Holbech, Doug. 655 ; First Mass. Turnp. Corp. v. Field, 3 Mass. Rep. 201.
    It is said that the replication is defective, because it only alleges generally, that the plaintiff did not come to a knowledge of the fraud till within six years, and that it alleges no fact that can be traversed. But would it not be a good answer to the replication, if the defendants should aver that on such a day, being more than six years since, the plaintiff came to a knowledge of the fraud ?
    As to the other point there is more difficulty, but it is not insuperable. Fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. 1 Phil. Ev. 242, which cites FermoFs case, 3 Co. 78 b. If we had a court of chancery, we could doubtless obtain relief against the fraud which is admitted by the pleadings to exist in this case. Lansing v. Eddy, 1 Johns. Ch. Rep. 51 ; Smith v. Lowry, ibid. 320 ; Bateman v. Willoe, 1 Sch. & Lefr. 203 ; Moses v. Macferlan, 2 Burr. 1009. In Graham v. Maxwell, 2 Dow, 314, the court thought it necessary, in order that the former judgment should be a bar, that not only the parties and cause of action, but also that the media concludendi should be the same. In a" suit against an administrator, if he pleads judgments outstanding, the plaintiff may reply that the judgments were obtained by fraud. Anonymous, Ventr. 329, 331 ; 2 Chit. PI. 637. Is not this impeaching the former judgments ? The present action is between third parties as much as if all the parties to it had been strangers to the former action. It would have been sufficient, if the declaration had only set forth the fraud in obtaining the insurance, and the payment of the money. If the defendants had pleaded the former judgment in bar, the plaintiff might have replied, that the judgment was obtained by fraud, and that the defence of fraud was not then made. The former judgment would then have been no bar, because the present ground of action was not then res judicata. The same ought to be the case under the present pleadings, since it is admitted by them that the fraud which is the ground of this action was not known till after the former judgment.
   The opinion of the Court was delivered at the November term following, by

Parker C. J.

[After stating the pleadings he proceeded : ] No authorities have been cited to show that the general allegation in the replication is not sufficient to avoid the plea of the statute of limitations, and we do not find that a particular averment of the time when the fraud was discovered, or of any act of the party by which the knowledge of it was prevented, is necessary. In the case of First Mass. Turnp. Corp. v. Field, 3 Mass. Rep. 201, the replication to the statute was like the one before us, and no objection taken ; and the principle is admitted, both at law and equity, that when the statute is pleaded to an action founded on fraud, a replication which avers an ignorance of the fraud until within six years is sufficient. And the ignorance so averred is traversable, and may be proved or disproved like other traversable matters. It is like a replication of absence beyond seas, in "which it is not necessary to aver the time when the disability ceased, but it is sufficient generally to aver that he did not come within the state until within six years before the suit was commenced ; for though a day is alleged with a scilicet, it is not material or traversable, but any day within the six years is sufficient to maintain the plea.

The third plea in bar offers a question of more difficulty, and to this the attention of the counsel on the argument was principally turned. It states, indeed, what is alleged in the declaration, viz. that an action on the policy had been commenced in a court having competent jurisdiction, and a judgment recovered by the present defendants in that action ; and the answer to this, in the replication, is, that the policy wa« obtained by fraud, which fraud was not discovered until three years after the judgment rendered ; by which allegation it is intended to avoid the effect which the statute right of petitioning for a review might have upon the question. The issue in law joined upon this replication presents the general question, whether the judgment rendered in the action upon the policy does not conclusively shut out all inquiry into the merits of that judgment, on the ground that the matter now alleged as the foundation of this action, was proper matter of defence in that action, and would have defeated the action if it had been set up and maintained ; and whether the ignorance of the facts constituting such a defence until after the judgment was recovered will enable the plaintiff to recover back the money which by means of that judgment was obtained from him.

It certainly is a principle admitted by all courts in the abgtract, that a matter of controversy, which has been inquired into and settled by- a court having jurisdiction of the subject, cannot be drawn into question again, in another suit between the same parties, for the purpose of defeating or avoiding the effects of a judgment of the court to which it has been submitted It is so laid down in express terms by all the judges, in the case of Philips v. Hunter, 2 H. Bl. 415. And even in the case of Moses v. Macferlan, 2 Burr. 1008, in which it has been supposed by some that the principle was violated, Lord Mansfield says, “ It is most clear, that the merits of a judgment can never be overhauled by an original suit, either at law or in equity. Till the judgment is set aside, or reversed, it is conclusive, as to the subject matter of it, to all intents and purposes.”

And Lord Redesdale, in Bateman v. Willoe, 1 Sch. & Lefr. 204, enforces the same principle as a rule in chancery, in very strong language. He says, “ it is not sufficient to show that injustice has been done, but that it has been done under circumstances which authorize the court to interfere ; because, if a matter has already been investigated in a court of justice, according to common and ordinary rules of investigation, a court of equity cannot take on itself to enter into it again. Rules are established, some by the legislature, some by the courts themselves, for the purpose of putting an end to litigation, and it is more important that an end be put to litigation, than that justice should be done in every case.”' And in this doctrine agrees Chancellor Kent, of New York, in the case of Smith v. Lowry, 1 Johns. Ch. Rep. 322.

Common law courts have held the same doctrine as in Smith v. Lewis, 3 Johns. Rep. 157 ; Peck v. Woodbridge, 3 Day, 36 ; Mariott v. Hampton, 7 D. & E. 269. The court in Connecticut, in the case reported by Day, say, that “ It is a principle of the common law, that a man cannot collaterally mpeach, or call m question, a judgment of a court of lawT, or decree in equity, to which he is a party. It can only be done directly, by writ of error, petition for new trial, or bill in chancery.” The same principle has been recognized by this Court in the cases, Homes v. Aery, 12 Mass. Rep. 137 ; Thatcher v. Gammon, 12 Mass. Rep. 268 ; Rowe v. Smith, 16 Mass. Rep. 308; Loring v. Mansfield, 17 Mass. Rep 394.

This concurrence of courts of equity and of common law in a principle so essential in the administration of justice ought to put the general question for ever at rest.

The only plausible ground upon which the present case can be put for the plaintiff is, that the matter of fraud, which is the gravamen in the present action, did not come in question in the trial upon the policy ; but the rule will not admit of an exception like this ; if it did, the rule itself would be nugatory, for in all the cases above cited the particular matter which was the ground of the new suit was not investigated. It is sufficient that the action was of a nature to admit of such a defence, and that the plaintiff in the new suit might have availed himself of the same subject matter in the former one. Where the failure is imputable to loches there can be no question ; and where it is the effect of ignorance of the facts, there must be a period within which the party suffering shall be held to present his claim, or great mischief may ensue.

Provision being made by statute for a review of judgments within a time thought reasonable by the legislature, it must be supposed that a limitation was intended to the right of parties to complain of wrong done them by such judgments ; and it is certainly necessary for the public good, that such limitation should exist; for otherwise, what is intended by the law to be the end of a controversy may be only the beginning of it, and those who are reposing in security under a successful issue of a cause, may be disturbed long after the testimony is lost upon which it rested.

I do not find any case reported in which the merits of a decided cause have been allowed to be reexamined in another independent action. The only one cited, which has a bearing that way, is found in 2 Dow, 314 ; and I think from an examination of that case it will appear, that the case in the House of Lords was but a continuation of a process which had been instituted in a Scottish court. In the last stage a decision which had before taken place was reversed, but the first judgment was only interlocutory ; certainly the cause was not concluded there. One of the counsel said that the plea of competent and omitted did not apply, as the cause was still in Court, and a competent defence, though omitted at the proper stage, might be taken into consideration, if made at any time during the same process. This statement was not denied, and if it was true, the case does not by any means show that a judgment of another court having jurisdiction was inquired into in opposition to the general principle.

The case of Smith v. Lewis, 3 Johns. Rep. 157, is very strong. The plaintiff complained, that the defendant had suborned a witness to swear falsely, in a case in which the defendant had sued him in a court in Connecticut, and by means of his perjury had recovered large damages against him. The court held that the action would not lie, because it went to the overturning collaterally the judgment of a court of competent jurisdiction. And the case in 1 Johns. Ch. Rep. 322, was of a similar nature ; in which Chancellor Kent decided, that even a court of equity could not sustain a bill founded on like facts.

In short, the whole current of authorities seems to recognize 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.

Replication to the last plea adjudged bad. 
      
      
        Welles v. Fish, 3 Pick. 74; Jones v. Conoway, 4 Yeates, 109 Sherwood v. Sutton, 5 Mason, 143; Harrell v. Kelly, 2 McCord, 426; Croft v. Arthur, 3 Desauss. 223. In Maine, this principle has been indirectly recognized in Bishop v. Little, 3 Greenl. 405, where it was held, that if money has been paid more than six years before the commencement of the action, for a consideration recently discovered to be of no value, and no fraud is imputable, the statute is a good bar. But in New York, although the principle is admitted at equity, yet it is held, that at law a replication that the plaintiff did not discover the fraud till within six years will not deprive the defendant of the protection of the statute. Troup v. Smith, 20 Johns. R. 33. See also Oothout v. Thompson, 20 Johns. R. 277. In North Carolina and Virginia, this question has been decided in accordance with the decisions in New York. Hamilton v. Sheppard, 2 Murphey, 115; Callis v. Waddey, 2 Munf. 511. See Shelby v. Shelby, Cooke’s (Tenn.) R. 183. In cases of fraud it seems that the statute runs only from the time of the discovery of the fraud. Brown v. Howard, 4 J. B Moore, 508. See also Granger v. George, 7 Dowl. & Ryl. 729; S. C. 5 Barn. & Cressw. 149.
     
      
       But actual fraud discovered, or which the plaintiff had the means of discovering, more than six years before the commencement of a bill in equity, will not take the case out of the statute. Farnam v. Brooks, 9 Pick 212, 244. Nor will he bar created by the statute be avoided by mere conotractive fraud. Ibid.
      
     
      
       See Saxton v. Chamberlain, 6 Pick. 422; Minor v. Walter, 17 Mass. R. 237; New Eng. Bank v. Lewis, 8 Pick. 113; Whitcomb v. Williams, 4 Pick. 228; Livermore v. Herschell, 3 Pick. 33; Adams v. Pearson, 7 Pick. 341.
     