H. Actions upon policies of insurance, and evidence therein. 1. Action upon a policy on a ship. The plaintiff offered no evidence, that any preliminary proof was exhibited to the defendants before suit, except an abandonment, a demand of payment, and an agreement to leave the case to arbitration; but the defendants always refused payment, on the ground of unseaworthiness, and not for the want of further preliminary proof. Held, they had hereby waived their right to such proof, or that it might be presumed to have been furnished.-Martin v. Fishing, &c. xx. 389. 2. The opinion of the vendor of a vessel, formed after a partial loss and repairs made upon her, upon examination of the documents and evidence, on the point whether the loss was one for which the defendants were liable, is not evidence. Rider v. Ocean, &c. xx. 259. 3. In an action upon a policy, made payable to A., for whom it might concern, brought by B., a party interested jointly with others; the defendants, without filing a set-off, moved that the sums due them from B., should be deducted, according to the terms of the policy, from the loss to be paid. The motion was overruled, but judgment was suspended, to give the defendants opportunity for a cross action; saving, however, the lien of the plaintiff's attorney upon the judgment for his fees. - Ibid. 4. Insurance upon a ship at sea. Upon the margin of the policy it was written, that she had been spoken with on the 27th of August. Held, parol evidence was inadmissible, that a memorandum was left with the underwriters, intended as a guide for the policy, stating that she was spoken on the 20th; and that “27th,” was inserted by mistake. Ewer v. Washington Ins. Co. xvi. 502. 5. In an action upon a policy on a vessel, it appeared that a survey was called in a foreign port, the vessel having been injured, and that the surveyors recommended a sale. Held, the plaintiff should not prove, by the testimony of one of the surveyors, the declarations and opinions of another, while making the survey, the plaintiff having in his possession the deposition of the latter; and, even if it were otherwise, the plaintiff waived any objection to the rejection of such evidence, by afterwards offering the deposition. -Orrok v. Commonwealth, &c. xxi. 456. 6. On the question, whether the cost of repairs would exceed half the value of the vessel, held, evidence was not admissible, tending to show, that she was worth more before the injury, than she would have been after being repaired. - Ibid. Interest. 1. Action upon an account for money paid and for professional services. It appeared, that the defendant wrote to the plaintiff, that he would call according to his request and settle with him. Held, this letter proved a demand, and gave the plaintiff a claim for interest from its date. - Barnard v. Bartholomew, xxii. 291. 2. In assumpsit for money paid, the plaintiff is entitled to interest from the time of payment, without a demand. Ilsley v. Jewett, 2 Met. 168. 3. Where the ad damnum in a writ is too small, to cover the interest which accrues, pending a petition by another creditor to vacate the plaintiff's attachment, but is large enough to include interest, if such petition had not been presented; the plaintiff, prevailing against the petitioner, is not entitled to recover of him, as damages, the interest first named, if the defendant, after the filing of the petition, delayed judgment by appearing and pleading. Guild v. Guild, 2 Met. 229. (See Poor Debtors.) Jail. 1. Upon the division of Boston into wards in 1822, a part of the boundary line of the fifth ward was described in the selectmen's return as running by the river, which was a navigable arm of the sea. St. 1822, c. 86, (passed in 1823,) declared the prison-limits of Suffolk County, with reference to certain contracts, to be co-extensive with the exterior boundary of the fifth ward of Boston, "as the same is now defined." Held, such prison-limits did not extend into the river beyond low-water mark. Trull v. Wheeler, xix. 240. 2. Held, this construction of the statute could not be controlled by evidence, that prisoners having the liberty of the yard in Suffolk, had been accustomed, from the time when the limits were established, to visit certain places beyond low-water mark. —Ibid. 33 Judgment. A. Effect of a former judgment upon a new action. A. Effect of a former judgment upon a new action. 1. A former judgment, between the same parties, for the same cause of action, is admissible in evidence under the general issue. French v Neal, xxiv. 55. 2. A judgment for the defendant, on general demurrer to the declaration, not rendered upon the merits, is no bar to a subsequent suit. Wilbur v. Gilmore, xxi. 250. 3. Where the question to be tried in one suit has been really tried in another, but this does not appear by the issue upon the record; parol evidence is admissible to prove the identity. Eastman v. Cooper, xv. 276. 4. In an action of debt on a judgment of the Court of Common Pleas, the judgment cannot be impeached as erroneous by plea. The remedy is a writ of error. Cook v. Darling, xviii. 393. 5. Where the items claimed in a suit might have been proved in a previous action between the same parties, it is presumed that they were thus proved; but this presumption may be rebutted. Badger v. Titcomb, xv. 409. 6. Where the claim sued upon was proved in a former suit, not for the purpose of recovering it, but by way of answer to the defence against another claim, the former judgment is no bar to the second action. — Ibid. 7. If, upon a promise made by A. and B, an action is brought against A. alone, and there is no plea in abatement, but a trial on the merits, and judgment for the defendant, this judgment is a bar to a new action against A. and B. jointly. French v. Neal, xxiv. 55. 8. Held, the same rule applied to the following facts. The two actions were upon a note indorsed to the plaintiff in blank and declared on by him as indorsee, but at the trial of the first action he filled up the blank, so as to make the note payable to him as the payee's agent. The defendant objected, in the first action, that the note, with the indorsement thus filled up, did not support the declaration, but it was admitted in evidence, and a verdict and judgment upon the merits rendered for the defendant. - Ibid. 9. A. and B. each brought a suit against C., to try the same question of title to an undivided part of certain land. A.'s action was continued, by agreement of A. and C., to abide the result of B.'s ; and in the latter action C. recovered a verdict and a judgment for costs, whereupon A. became nonsuit, and had a judgment for costs against him. Held, A. might bring a new suit against C. for the same cause. Ensign v. Bartholomew, 1 Met. 274. 10. Assumpsit against A., B. and C., upon seven promissory notes, purporting to be made by them as partners. Plea in bar and estoppel by B. and C., that the plaintiff brought a previous suit against A., B. and C., upon another note, payable on demand; that B. and C. pleaded the general issue; that the plaintiff alleged and proved, that the note sued was given instead and in consideration of, and as security for, the seven notes, which were not due at the commencement of that suit; that B. and C. alleged the seven notes to have been made by A. for his own use and in fraud of them, which was known to the plaintiff when he took them; that these facts, and whether B. and C. promised as alleged, were the issues tried, and a verdict and judgment were rendered for the defendants, which judgment remains in force. Held, this plea was no bar to the action, because the former cause of action was not the same, and, though the validity of the same notes was in effect tried, it was only collateral to the issue. Eastman v. Cooper, xv. 276. 11. Held, the former judgment could not be pleaded as an estoppel, the same point not being put in issue on the record and directly found by the jury. Ibid. 12. Held, the former verdict and judgment were competent, though not conclusive evidence, under the general issue, that the seven notes were not given for a partnership debt, and that the plaintiff knew it. - Ibid. 13. The defendant accepted an order, to pay a certain sum out of the first money received from a newspaper establishment. Held, he was bound to pay from time to time, on request, as he received the money; and, upon failing to do so, was liable to successive actions. Perry v. Harrington, 2 Met. 368. 14. Action upon a contract of indemnity against the claim of one A. Held, the plaintiff might offer in evidence the record of a judgment upon such claim recovered by A. Weld v. Nichols, xvii. 538. 15. Devise to children, as tenants in common. The testator left five children, and a widow, their mother. Two of the children died intestate, unmarried, one of age, the other a minor. The mother married again, and, with her husband, petitioned that the share which descended to her from the former child might be set off to her, but made no claim to a share of the minor's land, supposing, probably, that the whole passed to the surviving children. Partition was made, as prayed for. The minor's land remained in the hands of the executor, till the death of the wife. Upon a bill in equity against the executor, held, the petition and judgment for partition did not estop the husband from claiming a share of the rents, received by the executor after the death of the infant and during the coverture, nor bar the heir of the mother from claiming her share of the infant's land. Nash v. Cutler, xvi. 491. 16. Case, for continuance of an obstruction to a private way. In a previous action between the parties for the same obstruction, upon the general issue, the defendant recovered a judgment. Held, such judgment was admissible, but not conclusive evidence in his favor, in this action. Kent v. Gerrish, xviii. 564. B. Other matters relating to judgments. 1. Where a demurrer to an information for additional punishment of a convict is overruled, respondeat ouster is not the necessary judgment, but it may be final. Evans v. Commonwealth, 3 Met. 453. 2. After conviction before a justice of the peace and performance of the sentence, the party cannot be indicted for the same offence, although the form of complaint before the justice was such as to render the judgment erroneous. Commonwealth v. Loud, 3 Met. 328. 3. By Revised Statutes, c. 126, § 19, in case of conviction of three distinct larcenies at one term, there must be a single judgment against the party, as a common and notorious thief. Three separate judgments will be all erroneous. Haggett v. Commonwealth, 3 Met. 457. 4. One not a party to an illegal judgment, but prejudiced thereby, may avoid it by plea and proof. Downs v. Fuller, 2 Met. 135. 5. Where a plaintiff, having received certain articles in part payment of the debt, brings a suit and recovers judgment by default for the whole claim, such judgment is wholly void as against a subsequent attaching creditor. So also, it is void in the hands of one who took an assignment of the claim, pending the suit, if before judgment he had reasonable notice of the above fact. — Peirce v. Partridge, 3 Met. 44. |