Barnum v. Reynolds

Crockett, J., delivered the opinion of the Court: The former judgment, relied upon by the defendants, was, in our opinion, a bar to this action. The pleadings in the first action, directly put in issue the title of the plaintiff to the potatoes now in controversy; and the present plaintiff offered evidence of his title on the trial of that action. The Court excluded the evidence on the ground that the present plaintiff (then defendant) could not go behind the Sheriff’s return on the writ, which was to the effect, that after seizing the potatoes, he had returned them to the master of the vessel from whom he took them. The Court held the return to be conclusive of the fact, that the present plaintiff had not [646]been deprived of the possession of the potatoes, and therefore excluded, as immaterial, the proof which he offered of his title. On the trial of the present action, these facts appeared; and the question for decision is, whether the offer of the proof of title, by the present plaintiff, on the former trial, and its exclusion by the Court, avoids the bar of the: former judgment. We are satisfied it does not. The question of title was fully and fairly within the issues to be tried in the first action. The present plaintiff has no other or. better cause of action now than he had then. He offered his proof of title, which was excluded by the Court. If the Court ruled correctly, in holding that the Sheriff’s return concluded the plaintiff, the same principle would govern the last trial. If he was concluded by the return in the first action, he is. equally concluded in this. On the other hand,' if the Court erred in holding the return to be conclusive, the t remedy was by exception and appeal, or by withdrawing so much of the- plaintiff’s pleading as was applicable to the potatoes in question. In this manner, he might have pre-' served his' rights, and have either reversed the judgment for error in the, first alternative, or in the latter case have prosecuted a new action. If the Sheriff’s return was false, and. concluded the plaintiff, the remedy was by an action against the Sheriff, and his sureties on his official bond, for a false return. The rule in this class of cases is well stated by! Chief Justice Parker, in Smith v. Whiting (11 Mass. 446), in which he. says v “ It is apparent from the pleadings, that th,is 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 on. 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 must presume that this very matter has been.