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libellant had not married again. The court decided that the offered proof was incompetent, and the libellee excepted.

Geo. Y. Sawyer & Sawyer, Jr., and Isaac W. Smith, for libellant.

Lord & Sulloway, Morrison & Stanley and P. B. Cilley, for libellee.

BELLOWS, C. J. As a general proposition, courts have power to set aside, vacate, modify, or amend their judgments for good cause shown. Judge of Probate v. Webster, 46 N. H. 518; Bellows v. Stone, 14 id. 203; Frink v. Frink, 43 id. 508; Wiggin v. Veasey, id. 513, and cases cited; and Chamberlain v. Crane, 4 id. 115.

In this respect decrees in divorce suits stand upon the same footing as other judgments, both upon principle and authority. Bishop, in his work on Marriage and Divorce, 1st ed., § 697, lays it down as a general proposition, that the American tribunals, when unincumbered by specific statutory directions, have been governed by substantially the same principles in divorce causes as in others, in respect to opening decrees, or granting rehearings, writs of error, or certiorari, or otherwise, according to the practice of the court, reëxamining the question, except that there has always been a manifest reluctance to disturb a final judgment of divorce, especially after a second marriage involving the interests of third persons; for which he cites authorities from Ohio, New York, Kentucky, and Delaware. So is 1 Phillipps' Ev. 341. The same doctrine is laid down in a later edition by the same author. 2 Bishop on Mar. and Div., § 751.

It is equally well settled that judgments may be set aside or vacated when procured by fraud, but not on the application of a person who is himself a party to the fraud, nor will the judgment be avoided for fraud when the same question of fraud was tried in the original action. This doctrine is fully sustained by the case of Tebbetts v. Tilton, 31 N. H. 287, and cases cited; and in that case the subject was carefully considered.

So it is well settled that a judgment may be vacated, or the record of it amended, on the ground that it was entered up by mistake, Bellows v. Stone, 14 N. H. 203; and in this case the application to set it aside was made more than eleven years after the judgment was rendered. This was a bill in equity; and although it was held that courts of equity will set aside judgments at law when obtained by fraud, it would not do so for any error in the proceedings, but

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leave the party to his petition in the court of law. Chamberlain v. Crane, 4 N. H. 115, Wiggin v. Veasey, 43 id. 313, and Frink v. Frink, id. 508, are cases where mistakes in entering up judgments were corrected many years after the judgments were rendered.

Much more should judgments be corrected or vacated when they have been obtained by the fraud of one party, and the other is in no way implicated in it. The authorities indeed to this point are numerous and quite satisfactory in other jurisdictions. Among them are Fermor's case, 3 Co. 77, 78, a; Story on Con. of Laws, § 597; Starkie's Ev., pt. 2, §§ 77 and 83; Duchess of Kingston's case, 11 State Trials, 261; 1 Phillipps' Ev. 341; 2 Kent's Com. 655. In Fermor's case it is laid down that the law so abhors fraud and covin that all acts, as well judicial as others, and which of themselves are just and lawful, yet, being mixed with fraud and deceit, are in judgment of law wrongful and unlawful.

In Bradstreet v. Neptune Ins. Co., 3 Sumn. 600, STORY, J., p. 604, says: "I know of no case where fraud, if established by competent proofs, is not sufficient to overthrow any judgment or decree, however solemn may be its form and promulgation." The case there was a decree of a foreign court in rem, which in general was held to be conclusive. So in Harding & Wife v. Alden, 9 Greenl. 151, the general doctrine is recognized that "fraud and collusion, when pleaded and verified, vacate all judgments and decrees." So is Broom's Legal Maxims, *254, and cases cited.

As to the mode of avoiding a judgment or decree obtained by fraud, there is some diversity in the decisions, although it is generally held that such judgment or decree cannot be collaterally attacked by either party to it, but can be avoided only by proceedings instituted directly for that purpose. In some cases, however, a bill in equity to restrain the enforcement of such judgment or decree has been sustained, as in Huggins v. King, 3 Barb. S. C. 616, where a party had a good defense to a suit at law, but was prevented setting it up by the gross fraud of the plaintiff and others.

A similar doctrine was held in this State, in Hibbard v. Eastman, 47 N. H. 507, and cases cited; so is 2 Kent's Com. 655, and so is Vanmeter v. Jones, 2 Green N. J. Ch. 520. These cases clearly recognize the doctrine that the party, injured by a judgment obtained by fraud, may in some form avoid the effect of it. The general doctrine is also recognized in Great Falls Manf'g Co. v. Worster, 45 N. H. 110.

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It has been said that neither a party to a judgment nor a privy can impeach it for fraud -3 Cow. & Hill's Phillipps' Ev., note 610; but this doctrine was considered in Tebbetts v. Tilton, 31 N. H. 287, and repudiated, and for reasons that are entirely satisfactory to us. If the position had been taken that such judgment could not be collaterally impeached by a party or privy, it would be supported by the authorities; and from the reference in the note to Davy v. Haddon, 3 Doug. 310, and the notes to that case which hold that a party must apply to the tribunal which rendered the judgment to vacate it, it is not certain that any thing more was meant by the learned editors.

This doctrine, in regard to impeaching judgments and decrees for fraud, has been applied in numerous cases to decrees in divorce suits and suits for nullity of marriage, and the weight of authority is greatly in favor of such application. Upon principle, there is no solid ground for any distinction between decrees in divorce suits and other judgments; or if there be any, it is to be found in the much greater danger of fraud and imposition in divorce cases, as compared with others; thus adding largely to the necessity and importance of preserving the power to correct or vacate decrees that have been obtained by fraud and imposition. Accordingly it is laid down in Bishop on Mar. and Div., § 699, that if a tribunal has been imposed upon, and in consequence of the fraud a judgment of divorce has been wrongfully rendered, it may vacate this judgment, when, upon a summary proceeding, it is made cognizant of the fraud; and see id., § 706, note 4, and cases cited, and also id. 697. This is the doctrine of Allen v. Maclellan, 12 Penn. St. 328 (2 Jones), and of Dunn v. Dunn, 4 Paige's Ch. 425.

In Story on Conflict of Laws, § 597, it is said, speaking of foreign sentences of divorce, that "fraud in this, as in other cases, will vitiate any judgment, however well founded in point of jurisdiction." So is 2 Kent's Com. *109. So in Roach v. Garvan, 1 Ves. Sen. 157, and Brownsword v. Edwards, 2 id. 243-246, it is held that a sentence in divorce cases may be impeached for fraud. So in Harrison v. South Hampton, 17 Law & Eq. 364, it was distinctly held that a sentence of an ecclesiastical court, pronouncing a marriage to be a nullity because one of the parties was within the age of consent and consert not given, would be itself a nullity when obtained by collusion.

So the doctrine that a decree of divorce may be impeached for VOL. XII.-18

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fraud is recognized in Borden v. Fitch, 15 Johns. 121, and in Hardiny v. Aulen, 9 Greenl. 151, and Kerr v. Kerr, 41 N. Y. 272. The counsel for the libellee have cited the cases of Greene v. Greene, 2 Gray, 361, and Parish v. Parish, 9 Ohio St. 534.

But the case of Greene v. Greene merely decides that on an original oil filed at a subsequent term a decree of divorce will not be set aside for fraud and false testimony, and distinctly declines to give an opinion on the point whether such decree is open to any revisal by review, writ of error, certiorari, or any other proceeding in the nature of an appeal, the court taking the ground that such decree, when the court has jurisdiction, is conclusive between the parties unless revised on some legal proceeding instituted directly for that purpose, although third persons might be allowed to attack it collaterally. And besides, it would seem that Greene v. Greene has been overruled in Massachusetts in Edson v. Edson, referred to ir Bennett & Holland's Mass. Dig., vol. 3, p. 233.

The case of Homer v. Fish, 1 Pick. 435, was cited and relied upon. In that case a suit was brought to recover back a sum of money paid by the plaintiff to satisfy a judgment recovered on a policy of Insurance, upon the ground that the judgment was obtained by fraud; but the court held that the judgment, so long as it was unreversed, was a bar to the recovery; and the court cites with approval the decision of the court in Peck v. Woodbridge, 3 Day, 36, that a man cannot collaterally impeach or call in question a judgment of a court of law 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.

These cases lend no aid to the position that a party to a decree of divorce cannot, in any form, impeach it for fraud.

The Ohio case of Parish v. Parish was an original bill in equity to set aside a decree of divorce, on the ground that it was obtained by fraud and perjury, and alleging also that the libellant had suppressed the paper which contained notice of the suit.

A demurrer to the bill was sustained, and the reasoning goes to the extent of holding that the decree was absolutely conclusive, and not subject to be impeached, even for fraud. Some stress was placed upon their statute, which provided that such decree should be final and conclusive- the court holding it, however, to be in accordance with general policy. The result in this case is like that in Greene v. Greene, 2 Gray, 261, but, unlike that case, it does not

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apparently leave open the question whether in some form, by review or other proceeding brought directly to reverse the decree, it ought not to be done.

To the reasoning in this case we cannot subscribe, and we think it is opposed both to principle and authority. It is essential, indeed, to the due administration of justice that courts should have the power to protect themselves and their suitors against fraud and imposition.

Of course this power will always be exercised with great caution, and especially after a long lapse of time, and after changes in the status of persons upon the faith of decrees in cases like this.

In the case before us the libellee offers to prove that she had no notice of the pendency of the suit, and that the libellant, knowing her residence, caused the notice to be published in a newspaper that he had every reason to believe neither she nor her friends would see, for the purpose of concealing from her any notice of the proceedings, and that the divorce was obtained by fraud and perjury. Should it be made to appear that the libellent, knowing where the libellee resided, fraudulently caused the notice to be published in a paper not likely to be seen by her or her friends with the purpose of preventing the notice reaching her, and that the artifice was successful, the court ought not to hesitate to treat it as no notice at all and no real compliance with the requisitions of the statute. The order of notice may have been complied with, but if fraudulently procured, with the very purpose of avoiding the giving of actual notice, it ought to be regarded as what it really is, no notice at all.

Upon the other point, that the divorce was obtained by fraud and perjury, it ought also to appear that the cause of divorce alleged had in fact no existence; but, as no definitive judgment is to be rendered, but only to determine how far testimony of this character is admissible, it is unnecessary to examine further the sufficiency of the offer. The great question is, whether, after this lapse of time, this decree can be set aside or vacated for fraud and imposition; and on that point we are clear that it may be if the proofs are clear.

These views must not be understood to give any countenance whatever to the idea that there may be a re-trial, merely, of a divorce suit on the allegation of fraud. On the contrary, the proof of fraud of a grave character ought to be clear; and the court would be slow to reverse a decree of divorce. when the libelles