State ex rel. Hinds County v. Morrison

Campbell, C. J., delivered the opinion of the court. It was no answer to the plea of a former recovery on the-bond to reply that breaches of the bond, which had occurred before the institution of the former action, and should have been included in it, were not known to the plaintiff when the former action was brought. The rule precluding a subsequent recovery on an entii’e cause of action, part of which had béen the subject of a former suit, is quite independent of the knowledge of the plaintiff as to his rights, unless, perhaps, there has been a fraudulent concealment of the cause of action by the defendant. It is an inflexible rule founded in policy, and its application depends on the nature of the cause of action, and not on the accidental circumstance whether the plaintiff is well or ill informed of his rights in a given case. There can be but one action on one cause of action, and, if a plaintiff, having a right to recover á large amount for the breach of a bond, seeks recovery of a less sum for such breach,, it is not admissible afterwards to recover an additional amount for such pre-existing cause of action. The right of action is exhausted by the first action, and it is a bar to ai second. “ The law will not permit a party who has recovered in one action a portion of an entire demand, to make the resi [82] due of it the subject of another suit.” Big. on Estop. 129: Herman on Estop., sect. 77; Freem. on Judg., sects. 238-240. 2 Smith’s Ld. Cas. (6th Am. ed.) 801; Hanes v. Planters, etc., Assn., 55 Miss. 654. The statutes cited by counsel do not change the rule of law mentioned. Sect. 404 of the Code gives a right of action on an official bond to any person injured by its breach, and sect. 1542 prescribes how bonds shall be declared on and recovery had, and gives scire facias for other breaches that may after-wards occur. Whether the fact that all of the defendants were not included in the former recovery, would make the plea bad is not involved. The replication does not aver this state of facts in such manner that judgment could be rendered against some of the defendants, if they ivere liable. Judgment affirmed.