Hughes v. Blake

12 F. Cas. 834 | U.S. Circuit Court for the District of Massachusetts | 1818

STORY, Circuit Justice.

No question arises in this case on the «sufficiency of the plea in point of law; for the parties, by going to issue on the facts alleged in the plea, have waived all considerations of this nature. Mitf. Eq. Pl. 240; Coop. Eq. Pl. 232. It remains, therefore, for the court only to ascertain whether the plea is supported in point of fact. It is admitted by the plaintiff, that the defendant has never received any money on account of the Barrell notes, since the former suit in 1804 was instituted against him. All, that he ever received, was prior to that time. It is also admitted by the plaintiff, that he has no new evidence to offer in support of his original cause of action, beyond what he knew' and used in the former suit, except so far as grows out of the compromise made by the defeudant at Washington with Mr. Williams, in 1814. As to this compromise, the defendant in his answer in support of his plea, expressly denies, that he ever received any allowance from Williams tínder that compromise, on account of his liability as bail for Gibson, as charged in the bill. This denial is sufficient to support the plea, unless it is disproved by two witnesses, or by one witness and by other circumstances, which ouglil to outweigh the defendant’s answer on oath. The only wdtness to sustain the plaintiff’s charge is Mr. Williams; and without going farther into the evidence. I do not think his testimony, uncorroborated as it is. can be admitted to have this effect. The grounds of equitable relief averred in the bill being thus removed, the only remaining question is, whether the causes of action in the former and present suit are the same. It seems to me perfectly clear, that they are. Some technical objections have been taken to some of the counts in the declaration in the former suit, which, it is said, would have justified , the former verdict. independent of any examination of the merits. It is said, that in five counts on the special contract there is no averment. that any proceeds of the Barrell notes had ever been received by the defendant. But assuming, that thesé counts were defective, in not averring a breach of the promise to account for the proceeds of these notes, and alleging, that some money had been received as the proceeds thereof, it is very clear, that the jury could not, under the general issue, have found a verdict for the defendants for this defect. For, if the promise was proved as laid, then the verdict, must have been for the plaintiff, although for the defect in the declaration, the latter might have been held bad on demurrer; or judgment might have been arrested; or the judgment reversed for error. I do not say, that these counts were so defective, that if judgment had passed.for the plaintiff, the defendant might have reversed it for error. That is a question, not now necessary to be considered. But I cannot doubt, that if judgment had passed for the plaintiff,'and the defendant had paid the money on such judgment, that the defendant might now plead that judgment in bar for the same cause of action, while unreversed, notwithstanding the defect. And If so, I do not perceive, why the defendant also is not entitled to plead a judgment on the same counts in his own favor. Where a cause has been tried on the merits, and judgment has passed thereupon for either party, such judgment, while it remains in force, must be a bar to. any other suit for the same cause of action, though the declaration be so imperfectly drawn, that it would not stand the test of a demurrer. Suppose a payment were specially pleaded to such defective declaration, and found for the defendant, would it not be a bar to a second suit? I agree, that it must in such case appear, that the trial was on the merits; for if the cause went off on the technical defect, it would in effect negative the averment, that the causes of action were the same. Here it is clear, that the whole merits were in fact tried; and, so far as I can comprehend them, they might at all events, legally be tried upon the count for money had and received, which is clearly well drawn. The plea must be adjudged to be proved, and a decree entered of a dismissal of the bill.

[NOTE. On plaintiff’s appeal, the supreme court, in an opinion delivered by Mr. Justice Livingston, affirmed the decree of the lower court, holding that a replication by the complainant to the plea of the defendant was always an admission of the sufficiency of the plea itself, as much so as if it had been set down for argument and allowed; and that in such case, if the facts relied on by the plea were proved, a dismission of the bill on the hearing would be a matter of course. And it was also held in the same opinion that no decree could be made, against a positive denial of the defendant, of any matter directly charged in the bill on the testimony of a single witness, unaccompanied by some corroborating circumstance. 6 Wheat. (19 TJ. S.) 453.]