Burt v. Sternburgh

Curia, per Sutherland, J. In Gardner v. Buckbee, (3 Cowen’s Rep. 120,) we adopted the language of Ch. J. De Grey, in the case of the Dutchess of Kingston, (11 State Trials, 261,) that the judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence conclusive between the sanie parties, upon the same matter, directly in question in another Court. In that-case, the former judgment was not pleaded, but was given-in evidence under the general issue; and the counsel for the defendant there contended that the later cases had overruled the opinions of Ld. Mansfield in Bird v. Randall, (3 Burr. 1353,) and of Ch. J. De Grey, in the case of the Duchéss of Kingston, that a former judgment is as conclusive ih its operation when given in evidence as though it were pleaded. The case of Vooght v. Winch, (2 Barnw. & Ald. 662,) was relied upon. But we considered those opinions too well supported, both by principle and authority to admit of discussion. It is well remarked by Ld. Ellenborough in Outram v. Morewood, (3 East, 353,) that the operation and effect of a former recovery,- if it operate at all as a conclusive bar, must be by way of estoppel; that it is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself, he continues, in an action of trespass, is only a bar to the future recovery of damages for the same injury. But the estoppel precludes parties and privies from contending to the contraiy of that point or matter of fact, which, having once been distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them. In that case, the question" which the defendant wished to contest was, whether certain coal mines, in relation to which the action was brought, were, at the time of making a certain convey artce by Sir John Zouch, part and parcel of the coal mine included in that conveyance. The plaintiff showed by hia [563] replication, that the precise point had been raised between the same parties in a former action and decided m his favor ; and the Court held that the defendant was estopped from again raising that question; that the point was conclusively settled between the parties, by the verdict. In this case, it was shown that the former trial was between the same parties, for a trespass committed by the defendant, upon the same premises for a trespass upon which this action was brought; that the defendant then attempted to defend himself, under a title from George W. Featherstonhaugh, and contended, and endeavored to prove, that the locus in quo was in a patent granted to Weyfield and Clifford, and not in the Schoharie patent, as was contended by the plaintiff; and it was admitted on the former trial, that if the premises were in the Schoharie patent, the plaintiff was entitled to recover; if in the Weyfield and Clifford patent, that the defendant was entitled to a verdict. The former verdict must then have turned on that point; arid it was in favor of the plaintiff. Yet that was the precise question which the defendant sought again to agitate in this case. He offered to prove that the locus in quo was in the Weyfield and Clifford patent, and that he had title to it when the trespass was alleged to have been committed. The decision of the Judge, that the former recovery, and the evidence offered by the plaintiff., were conclusive evidence of the plaintiff’s title, must be understood as having been made after the defendant had disclosed the defence and title on which he relied; and as determining nothing more than that, in relation to that title, founded on the allegation, that the premises were in the Weyfield and Clifford patent, the recovery and evidence were conclusive. The offer on the part of the defendant, .was nothing more than to show that the premises were not in the Schoharie, but in the Weyfield and Clifford patent. If this is the fair construction of the case, of which I have no doubt, I think the decision of the Judge was correct. The defendant was estopped from again opening that question. But he certainly was not concluded by the former verdict, fiom showing title in himself, acquired subsequently to that trial, or indeed any other title than one depending [564] oh the point Settled- in the former cause. He might have showri that the plkintiff’s- title had been extinguished,. either' by alienation or- a subsequent adverse possession. But I repeat, I understand his offer was simply to- show,. that the premises were not in- the Schoharie patent, but in-the patent' of Weyñéld and Clifford, and' that, therefore, the plaintiff had no title. That was- impugning the verity of the former verdict which he had no right to do. This" case can not he distinguished in principle, from Gardner v. Buckbee, and Oiitram v. Morewood-.- Motion for a new trial denied.