5 Johns. 129 | N.Y. Sup. Ct. | 1809
The former trial and judgment were a bar to this suit, if duly proved. The statement of the justice was not competent evidence of itself, but could be made so by consent of the parties; and that consent was to be inferred from the omission of the plaintiff to object to it when it was offered and given. Qui tacet consentiré videtur. The decision of the justice, that it was no bar, because he had excluded the matter as a set-off in the former suit, will not alter the conclusion of law. Every former recovery is equally a bar, so long as it stands in force, and is not reversed. It is to be presumed correct, and we cannot inquire, in this collateral way, whether or not it was founded in error. The judgment below must be reversed.
Judgment reversed,
