Abbot v. Abbot

The Deft, pleads in bar an Action of Trover brought by the Pit. formerly for the same Negroes and upon not guilty Pleaded a Verd’t was found against the Pit. And Judgment that his Suit shou’d be Dismiss’!, to which the Pit. hath Demurred That this is a good bar will appear by the Resolutions of the Judges in England in many Cases.

Ferriers Case C. Co. It was resolved when one is barred in any Action Real or Personal by Judgment on Demurrer, Confession Verd’t &c. he is barred as to that or the like Action of the like nature for' the same Thing Expedit, republice uisit finis lituem [sic] S. Case is reported, Cro. Eliz. 667. and there it appears that in an Action of Trover the Deft, pleaded that the Pits, and another who is since dead had brought Trespass against several for the same 0, who justifyed the taking as Heir of in the right of the now Deft. And tho’ the Deft, is a Stranger to the Record yet being privy to the Trespass he may Plead it and is a good bar. By Walmsley and Kingsmill against Anderson and Glanvil who hold that if the Cause of Action was the same, the Deft, might Plead it. But a Verdict or Demurrer in an Action of Trespass cou’d not be a bar in Detinue which is an Action of a different nature, which Walmsley Agreed where the Verd’t was upon Not guilty But when a Title is Pleaded in an Action of Trespass and by reason of that Title, the Pit. is barred by Verd’t or Demurrer The Interest is thereby bound and the Pit. barred Agreeable to this Opinion Walmsley in the like Case of Putt and Roster 2 Mod. 319. a Judgment is reported to have been given But that Reporter seems to have mistaken the Case for S. C. in 3. Mod. 1. and Raym. 472. The Verd’t Pleaded in Bar was upon not Guilty And therefore it was Adjudged for the Pit.

*R22But it is Admitted in all these Cases that where an Action is brought and the Pit. barred by Verd’t or Demurrer that shall be a barr to any Action of the like nature for the same Thing And in the Case of Lechmere vs Toplady 2. Vent. 269. In Trover it was Pleaded that the Pit. brought Trespass before for the same Goods To which the Deft, pleaded not Guilty and a Special Verdict was found "Where upon a Demurrer it was Adjudged that the Plea in bar was good. But in regard to the Case of Putt and Royston above mentioned & the Importunities of the Pit. the Court gave leave to speak further to the [133] Case the next Term And in the Case of Lipping and Kidgwin 1. Mod. 207. Fr North and agreed by the other Judges where the right of the matter is found for the Deft, in one Action the Pit. shall never bring his Action about again For he is estopped by the Verdict.

Obj. But perhaps it may be objected that the Judgment of the Court in this Case in the former Action That the Pits. Suit shou’d be Dismissed is no Judgment and therefore no bar, For the Judgment ought to have been that the Pit. take nothing by his Bill. As it was Adjudged between Level & Hall Cro. Ja. 384. Cited 2. Mod. 294. 295. Answer. This is the manner of entring all Judgments in this Country and if it is not right all Judgments must be void. And upon this Exception the Plea was held no Bar, by the whole Court.

So we see how the People of this Country suffer by Ignorance of the Clerks, for till within these three Years no other Judgment was Ent’red by the Clerk of the General Court And it was by my Advice that since that time Judgments have been entered that the Pit. takes nothing by his Bill, but in the Country Courts there is no such Entrey yet.