This is an action to recover a balance alleged to be due on a judgment rendered by the late Superior Court of the city of San Francisco. Two of the defendants answer, charging fraud in the procurement of the judgment, and claiming that there is nothing legally or properly due thereon. The alleged fraud consists in the concealment of a credit of $10,000, to which the defendants were entitled on the indebtedness upon which the judgment was obtained. The facts in regard to this credit are clearly made out, and it is evident that a conspiracy existed between the plaintiff and the defendant Vigneaux to defraud the other defendants of the amount. The credit arose from a payment by Vigneaux, and the Court below finds that the defendants Grisar and De Boom had no knowledge of this payment during the pendency of the former suit. The answer of De Boom admits that he was informed of the payment before the judgment was rendered, and the plaintiff contends that the finding is in conflict with this admission. There is certainly an apparent inconsistency, but we are of opinion that there is really no conflict, and that the finding is strictly in accordance with the answer. It is expressly declared that De Boom had no personal knowledge upon the subject, and it is alleged that upon inquiry of Vigneaux in relation to it, he denied having made the payment. It *449is also alleged that De Boom was so situated as to be unable to ascertain the facts, and it is averred that Vigneaux was examined as a witness in the case, and testified to the correctness of the demand upon which the suit was brought. In effect, therefore, the answer shows that De Boom had no actual knowledge of the payment; and that the means of acquiring such knowledge were entirely beyond his reach. So far as the answer of Grisar is concerned, no objection of this character is interposed; and we see nothing in the record for which the plaintiff is entitled to a reversal.

The authorities cited by the counsel for the appellant on the question as to whether the defense set up is not to be regarded as res judicata, have no application. The principle enunciated is undoubtedly correct, but there was no actual adjudication upon the matter in controversy, and this principle cannot he invoked to sustain a fraud.

In Borland v. Thornton (12 Cal. 440) and in Riddle v. Baker, (13 Cal. 295) the rule governing cases of this character is clearly laid down.

The judgment is affirmed.

On petition for rehearing, Cope, J. deEvered the foEowing opinion—Field, G. J. concurring.

The petition for a rehearing in this case must be denied. It is claimed that the suggestion as to a conspiracy between the plaintiff and Vigneaux is unauthorized by the evidence. The proof is that the payment was made by a house in Valparaiso, of which Vigneaux had the control and management, and it is hardly to be supposed that a payment of such magnitude was made without his authority or knowledge. It would be absurd to suppose that the plaintiff receiving it was ignorant of the fact, and the only inference from the concealment is that it was a matter of concert and arrangement. It is claimed also, that the admission in the answer of De Boom is conclusive of his rights, as it shows him to have been guilty of negEgence in defending the former suit. The admission is that he had been informed of the payment; but the circumstances stated in connection with this admission exculpate him from the charge of laches. Vigneaux, who made the payment, *450denied having done so, and was present to support the denial by his oath; and afterwards actually came forward and swore to the correctness of the demand. It is said that De Boom should have applied for a continuance; but it is evident that he could not have made a showing sufficient for that purpose, and that the application would simply have been a matter of form. If he had known the facts, the failure in that respect would probably be fatal to the defense : but under the circumstances it would be a gross denial of justice to refuse relief.

The petition is denied.