16 F. 341 | U.S. Circuit Court for the District of Southern New York | 1883
The order of reference in this case directs the referee to proceed to determine the claims of the plaintiffs in accordance with the rules and decisions of this court in similar cases, ho far as the same may be found applicable, for .excess of duties upon such charges and commissions as may be. found to have been illegally exacted from plaintiffs and paid under protest.
This order leaves all the issues presented by the pleadings open to the decision of the referee. It was competent, therefore, for him to
The plaintiffs are not entitled to recover the duty levied on the charges “frais jusqu’a lord,” for the reasons stated in the opinion in Bartels v. Redfield, ante, 336. The protests in this case are not sufficiently explicit to authorize the claim for such duties to be allowed.
Under the rules of pleading which obtained when issue was joined in this action, it was competent for the defendant, upon the issue of non-assumpsit, to give in evidence the record o'f a former judgment between the parties on the same cause of action. Young v. Black, 7 Cranch, 565. As the former judgment was for the plaintiffs, it extinguished the demand upon which it was recovered.
It appears by the record of tho former action, and by the bill of particulars therein of the plaintiffs’ demand, that many of the demands litigated in the present suit were litigated in the former suit. In the former suit plaintiffs sought to recover payments made for duties on a large number of importations from January 2, 1857, to April 22, 1861.
The duties liquidated upon each entry, when paid by plaintiffs, were wrongfully exacted to the extent that they were not authorized by law, and thereupon a cause of action arose to the plaintiffs for the recovery of the whole sum illegally exacted. They had the right to bring a separate suit for each distinct cause of action. The liquidation upon each entry was the foundation of a single and entire cause of action. The right of action for payment of duties liquidated upon different entries is, however, several and distinct for each entry. The distinction between demands or rights of action which are single and entire, and those which are several and distinct, is that the former immediately arise out of one and the same act, and the latter out of different acts. Secor v. Sturgis, 16 N. Y. 548. But the plaintiffs could not split up each exaction of duties so as to make several actions or causes of action for the several items included in one liquidation. When a party brings an action for a part only of an entire indivisible demand and recovers judgment, he is estopped from sub<
In the present suit it sufficiently appears that many of the entries upon which duties were exacted, and are now sought to be recovered, are the same upon which the plaintiffs recovered in the former suit a portion of the duties liquidated. They have had their day in court as to each cause of action founded on each entry, and cannot litigate it again. It was error to exclude the record of the former judgment. That judgment, however, will not bar a recovery for distinct and several causes of action which were not litigated. If it appears that no part of the duties liquidated upon a particular entry of the plaintiffs’ importations were sought to be recovered in that suit, the former judgment is not an estoppel. The doctrine of the federal courts is that the estoppel extends only to the matter in issue or points in controversy, upon the détermination of which the finding or verdict was rendered; not as to all matters which might have been but were not liquidated. Smith v. Town of Ontario, 4 Fed. Rep. 388; Cromwell v. Sac Co. 94 U. S. 351. It does extend, however, to all matters which might have been litigated so far as to bar a second recovery up on the same cause of action.
The case is remanded to the referee for rehearing.
