7 Johns. Ch. 1 | New York Court of Chancery | 1823
In this case, proofs have been taken
touching the merits, but the counsel for the plaintiffs have stated preliminarily, that the decree mentioned in the pleadings is a conclusive bar to all defence and discussion upon the facts, and that the plaintiff is entitled, as of course, to be quieted in his possession, by a decree for a perpetual injunction. It is contended, on the other side, that the former decree did not settle the questions now in controversy, and that, if it did, the filing of this bill opens the former decree.
A bill regularly dismissed upon the merits may be pleaded in bar of a new bill for the same matter; for if the same matter, or the same title, should be drawn into question again, by another original bill, it would, as the cases say, “ introduce perjury, and make suits endless.” The cases to this point were referred to in Perine v. Dunn. (4 Johnson’s Ch. Rep. 142.) But in the cases I have looked into upon dis-mission of former hills, the new bill was brought by the same party who filed the original bill; and there is said to be a material distinction between a new bill by such a party, and a new bill concerning the same subject by the defendant in the first suit. To make the dismission of the former suit a technical bar, it must be an absolute decision upon the same point or matter; and the new bill, it is said, must be by the same plaintiff, or his representatives, against the same defendant, or his representatives. The present bill presents new views of the case, and new and distinct rights are introduced. • The defendants in the present bill have acquired, since the former suit, a legal estate, or a legal advantage, by the judgmentin the ejectment at law; and this
This authority is cited to that point in the late elementary treatises; (2 Maddock’s Tr. 248. Beames' Pleas, 211. note;) and I do not find that it has ever been questioned, or the distinction there taken overruled.
My conclusion, upon examination of the cases, and the grounds upon which they rest, is, that the plaintiff in the present suit must do more than merely show the former decree, before he can entitle himself to the assistance of this Court, according to the prayer of his bill. His bill opens the cause upon the merits; and these merits must be investigated before he can ask for a decree in his favour. The objection to the admissibility of the defence is overruled.
Order accordingly.
N.B. The cause was afterwards directed to be set down for hearing upon the merits.