Gorman's Case

Soule, J. The petitioner was served with notice to appear and defend the action'in the Superior Court, founded on the replevin bond. The allegation in the declaration was that the defendants executed and delivered the bond, and that there had been breach of the condition. If the petitioner had seen fit to do so, he could have appeared in that suit, denied the allegations in the declaration, and tried the issue whether he executed the bond or not, as well as the question of breach of the condition. He elected not to do so, and made default. This was an admission of the truth of the matters set up in the declaration, of so deliberate and solemn a character that he cannot be heard in denial of it, so long as the judgment rendered in that suit remains unreversed. This is so familiar law that it is unnecessary to cite cases in support of the position. It followed, that, when suit was brought on that judgment, he was not permitted to impeach it by showing that he did not in fact execute the bond. His arrest on the execution, issued on the second judgment, was merely a proceeding in the exercise of the rights of the creditor, to enforce collection of the judgment debt, and it is not competent for the petitioner to impeach collaterally a judgment, by evidence which it was incompetent for him to introduce at the 193 trial of the suit in which the judgment was rendered. There was no mistake on his part, no fraud upon him, no false testimony used to obtain the original0 judgment; and, even if it were otherwise, the original judgment was valid against him until reversed ; and no defence would be open to him founded on facts which existed before it was rendered, nor would such facts avail him in equity more than at law. Sheldon v. Kendall, 7 Cush. 217. Boston & Worcester Railroad v. Sparhawk, 1 Allen, 448. See also O'Shaughnessy v. Baxter, 121 Mass. 515. It is only when the prisoner has been placed in custody, as the result of proceedings before a tribunal which had no jurisdiction, so that its judgment is void, that he is entitled to his discharge on habeas corpus. Where, as here, the court rendering the judgment had jurisdiction, the regularity of its proceedings will not be inquired into collaterally, and its judgment stands good until reversed or annulled by a proper course of proceedings for the purpose. Herrick v. Smith, 1 Gray, 49. Adams v. Vose, 1 Gray, 51. For these reasons it is ordered that the Prisoner be remanded.