Avery v. Fitch

Hosmer, Ch. J. Fitch brought his action of book debt against Avery, before the county court, by writ dated the 18th of April, 1819. To this action Avery pleaded in bar, that by writ dated July 9th, 1819, Fitch instituted an action on book against him, before Justice Loomis, demanding seven dollars, to which the general issue was pleaded, and judgment for 4 dollars, 42 cents, was rendered in favour of the plaintiff. To this plea a replication was made, averring, among other things, that the book debt, on which judgment was obtained before the justice, accrued or grew due after the date and service of the plaintiff's writ in this suit, and after the session of the said county court, and constituted no part of the plaintiff's book account exhibited in the action on trial. To this replication the parties joined in a demurrer. For the same cause of action, no person ought to recover twice; and if it might have been exhibited in a former suit as part of a book debt then litigated, it must be considered as [365] extinguished. A man cannot be permitted to sever a book debt, and multiply suits unnecessarily. The case of Lane v. Cook, 3 Day 255. settled this principle, that a judgment in an action of book debt is conclusive, “as to all matters on book, subsisting between the parties, at the date of the writ on which judgment was rendered;" upon the same principle, that an award extinguishes all demands existing at the date of the submission. Bunnel v. Pinto, 2 Conn. Rep. 431. But a cause of action, which originated posterior to the commencement of a suit, cannot be affected, by the judgment rendered in it; as it was not exhibited in evidence, nor could form any part of the matter on which the suit was instituted. To the claim of Avery, there exist two irresistible objections. In the first place, his plea is manifestly insufficient; there being no averment, that the facts pleaded are the same matter adjudicated upon in the former suit; nor does this fact appear, by necessary inference, from the allegations in the plea. In the next place, it does appear from the replication, that the book debt sued before the justice had its origin, subsequent to the date of the writ brought before the county court. A judgment is never a bar to a cause of action, not included in the suit, on which the judgment was rendered; and which by no legal possibility, could have been regarded. The other Judges were of the same opinion. Judgment affirmed.