Thompson v. Wineland

Napton, J-, delivered the opinion of the Court. The action of the Circuit Court in giving the plaintiff the benefit of the verdict upon the general issue, without regard to its finding on the issue presented by the plea of former recovery, must have proceeded on the ground that the plea presented an immaterial issue. The objections now made to the plea of former recovery are two fold. 'The first class of objections is to the form of the plea, which, as there was no demurrer, cannot now be noticed. The principal objection is, [245] that the set-off which the plea recites, was inadmissible in the former suit, and is therefore no bar to the present action. We do not think it material in this action whether the set-off was a proper one or not. The reasons suggested by the counsel for the defendant in error against the admissibility of such set-off are certainly forcible, and probábly conclusive. But we consider it as well settled, that where a defence has been insisted on in a former action, submitted to and passed upon by a jury, and not objected to by the plaintiff, the party making such defence cannot afterwards maintain an action for the matter thus set off. The record of the former suit is a bar. McLean vs. Hugarin, 13 J. R., 184; Lawrence vs. Houghton, 5 J. R., 129; Skelding vs. Whitney, 3 Wend., 154; Wilder vs. Case, 16 Wend., 583. The case of Manny vs. Harris (2 J. R., 24) has been thought to conflict with the adjudications just referred to, but it certainly maintains no principle favorable to the defendant in error. It merely recognizes the principle that, in order to make a record evidence, it should appear that the matter sought to be concluded by that record was in issue, and that the record itself must show this. The plea in the present case alleges that the matter here sought to be tried anew was in issue in the former case, and the finding on the plea of nul tid record shows that the record itself must have established the truth of the plea. The general principle above referred to is a sound and just one. If a party makes a defence not strictly admissible, and that defence is tried and passed upon without objection by the other party, it is but right that the party offering the defence should not, in another action, be permitted to question its propriety. If the record does not show the fact, the question may be altered, and the doctrine in Manny vs. Harris may then be considered. The other Judges concurring, the judgment is reversed