11 Mass. 445 | Mass. | 1814
[After stating the pleadings.] We are all of opinion that the replication is ill, and that the matter alleged in the bar is sufficient to avoid this action. It is apparent from the pleadings that this very demand has been once tried and determined; and although the Court may have decided wrong in rejecting the evidence in the former suit, yet this is not the way to remedy the misfortune. Exceptions might have been filed to the opinion of the judge, or a new trial might have been had upon petition; or, if there was a defect of evidence without any negligence, a continuance of the cause might have been had. But the plaintiff suffered the cause to go on to trial, without striking out the count to which the demand was applicable, which he might have done, and permitted a general verdict to be * returned. We [ * 447 ] must presume that this very matter has been tried; and it is never permitted to overhale the judgment of a court having jurisdiction, by another action.
The cases of Ravee vs. Farmer, and Golightly vs. Jellico, establish the same principle which has been recognized here and settled in the case of Webster vs. Lee. The principle is, that, where a demand has not been submitted, it shall not be barred by an award or report on a rule or submission of all demands. The case of an inquiry of damages in Seddon & Al. vs. Tutop is upon the same principle. In all these cases no evidence was offered to support the demands, which were the subject of the second suit.
In the case at bar, the very evidence now relied on was offered, and an adjudication had upon it. A rehearing of the same action may be proper ; but to sustain a new action would be to throw all judgments into uncertainty and confusion,
Replication adjudged bad
403
Hodges vs. Hodges, 9 Mass. Rep. 320. — Minor vs. Walter, 17 Mass. Rep. 237. — Rowe vs. Smith, 16 Mass. Rep. 306. — Loring vs. Mansfield, 17 Mass. Rep. 394. — Thacker vs. Gammon, 12 Mass. Rep. 268.— Thorpe vs. Cooper, 5 Bing. 129.—Ravee vs. Farmer, 4 D. & E. 146. — Bagot vs. Williams, 3 B. & C. 239. — Wheeler vs. Van Horton, 12 Johns. 311. — Canfield vs. Monger & Al. 12 Johns. 347. — Battey vs. Button, 13 Johns. 187. — Grant vs. Button, 14 Johns. 377. — White vs. Ward, 9 Johns. 232.
