Neafie v. Neafie

The Chancellor. 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 [5] Court will not lend its aid to the plaintiff to deprive them of that advantage, unless he can show a clear equitable right. A decree dismissing a bill upon the merits, does not establish any new right to be carried into effect; it only dedares, that the plaintiff has failed to establish the equity which he had set up; and if he has had his claim discussed upon the merits, he ought not to be permitted to sue the defendant again, with a fresh introduction of his claim. But the representatives of the plaintiff in the former suit are not plaintiffs in this suit. They have not resorted to this Court for a further discussion of their claim. They have acquired certain rights at law, and they now insist that the defendant in the former suit cannot come here with his original bill, and deprive them of those legal rights, on the fact simply of the former decree; and that, before he can be entitled to a decree declaring and enforcing his rights by process of injunction or execution, he must show and prove them. His pretensions have not been affirmatively established in this Court. He cannot show any rights acquired by the former decree, except simply the right to bar the then plaintiff, or his representatives, from a new bill upon the same matter. That technical bar rests on grounds not applicable to this case. In Kinsey v. Kinsey, (2 Vesey, 577.) a decree in a former suit, in which the then defendant was the plaintiff, was pleaded in bar, and no objection was raised on the fact that the order of the parties was reversed. But that was not the case of a dismissal of the former bill: the plaintiff in the second suit had insisted, in his answer in the former suit, on the same matter he had now charged by his bill, and the decree had been against him in favour of the bill. It was, therefore, a bill to introduce, for further discussion, the same claim which he had introduced in the former suit, and upon which the decree had passed against him. The case in point against the pretension now advanced by the plaintiff, is Sawyer v. Bletsoe, (2 Vern. 328. 1 Vern. 244. S. C.) B. brought his bill, as devisee, to be relieved [6] against a recovery in ejectment by S. On hearing, he was decreed to pay £ 100, and on default, the bill was to stand dismissed, with costs; he made default in payment, and the bill was dismissed. B. afterwards obtained a conveyance from the heirs, and so gained a title at law; and S. brought his bill to have the £100 paid, and set forth the proceedings in the former cause. But the case says, “it was agreed, that notwithstanding the dismission of the bill of B., S. being now plaintiff by an original bill, the cause was open, and the merits of the case properly before the Court.” The case was afterwards discussed upon the merits, and the bill of S. dismissed. 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.