Hendrick as the head of a family, for the use of his wife and children, sued. Clonts for damages from the overflow of land by the erection of a mill-dam,' etc. The case came on to be tried at the August term, 1890, and the plaintiff' offered in evidence a certified copy of a record, to show the setting apart of a homestead and exemption. To this the defendant objected on the grounds, that the original of the copy was not accounted for; that there was no application to the ordinary to *197have a homestead set apart; that the paper did not refer’ to or seek to have the land, the subject-matter of the ¡suit, set apart as a homestead; that the paper did not ¡state out of whose realty the homestead was sought to be carved, etc. The objection was sustained, and the paper excluded. The plaintiff’s counsel said he had nothing further to offer, and the court granted a nonsuit ■on motion of the defendant, reciting in its order the ..grounds of objection to the certified copy. The plaintiff excepted and brought the. case to the Supreme Court, where it was dismissed for want of prosecution, and the .judgment affirmed. This was made the judgment of the superior court. Previously on November 10, 1890, the plaintiff had again brought his action in the superior court, to which the defendant pleaded res adjudi■cata, and asked that that issue be first tried, .whiqh was •done. The plaintiff offered in evidence the same home■stead paper as before, to which the defendant objected on the ground that it did hot show out of whose property it was taken, and insisted that that question had been .adjudicated in the former suit. The court sustained the objection and rejected the paper, and having examined the records of the former case, passed an order, “ that the homestead papers offered in evidence be repelled and case dismissed on the ground that the legality of •said homestead has been adjudicated and settled, as appears of record in this court, between the same parties .and same cause of action.” The plaintiff excepted.
W. A. James, for plaintiff
A. L. Bartlett, for defendant.