pass and said mayhem, whereof the appeal is now brought, CH. 178. "was all one, and not several." Held a good bar, though ad- Art. 22. mitted the appeal was of a higher nature than the action of trespass, and the court said, "in all cases where the plt. for a wrong or injury is only to recover damages, he shall not be twice satisfied for one and the same thing, nemo debet bis puniri pro uno delicto;" but in this appeal, and in the trespass, the plt. only recovers damages, and it appears by the deft's. bar, the plt. has admitted by his demurrer, the plt. recovered in trespass damages for the mayhem, "for the wounding included the mayhem and more," and the deft. has averred the wounding in the trespass and the mayhem in the appeal were all one. 4 Ed. 3, 45. § 8. A recovery or bar, in assize, is a good bar in another F. N. B. 5. assize; but not in mort-d'ancestor nor is a recovery in mortd'ancestor a bar in a writ of right. 6 Co. 7, Fer rer's case. -6 Co. 7, case of Fer § 9. So a former judgment in an assize may be pleaded in bar in a writ of entry, in the nature of an assize; for both are of his own possession, and of the same nature, between the same parties. So in ayle, is a bar in besayle or cosinage; for these are ancestrel, and of the same nature: a fortiori will be a bar in an action of an inferior nature. So if one be barred in an action of his own possession, as in assize of novel disseizin, he may have assize of mort-d'ancestor, or entry sur 1 Com. D. disseizin to his ancestor. So if barred in a dum fuit infra 146.-1 Co.7. ætatem, he may have a writ of entry sur disseizin. So if barred in an action on the seizin of his ancestor, he may have rer. a writ of right. So if tenant in tail be barred in formedon by verdict or demurrer, the issue shall have a new formedon; for he claims not only as heir, but also per formam doni; though the actions be of the same nature; for as the tenant in tail has but a qualified right, if there be judgment against him, it cannot be pleaded in bar to another action, even of the same degree, brought by his heir or his successor; for the heir or successor does not claim solely under the title or right of this tenant in tail; and on the same principle, if he be barred in a writ of error by his own release, the issue shall have a new writ of error. § 10. So if a demandant in a real action be barred by judgment, he may have another action for a collateral right, as if a wife be barred in assize, she may have a writ of dower, and the former judgment cannot be pleaded in bar to her action for dower. Th. D. L. 11. c. 38, s. 9, 10. -1 Com. D. 146. Co. 33. § 11. So in actions real, if the demandant or plt. has judg- 7 Co. 8.-5 ment against him on verdict or demurrer, on a plea to the writ only, and not to the action of the writ, this cannot be pleaded in bar to another action of the same kind brought by him. CH. 178. 6 Co. 7, Fer rer's case.2 Mod. 42. 1 Leo. 24. 1 Com. D. 147. Willes, 199, § 12. So if one mistake his action, and judgment against him, this cannot be pleaded in bar to a second action of the same kind; as if one bring formedon in remainder, when it should be formedon in reverter, and judgment against him; yet he may have formedon in reverter; for by the mistake, his first action could not try his true title. So if the plt. be barred in his first action by default of venue, for he loses on a defect in form, and not on the merits or real trial of his title. § 13. So, though it be averred in the plea in bar of a former judgment, that the land in the second action is the same as in the first, yet if by the records, they appear to be different, as if the land sued for in the first be laid to be near Tunbridge, and in the second in Tunbridge, a judgment in the first is no bar, though averred the same land was put in view, if the plea was not to the land put in view, but generally nul tort &c. for the plea might not be to the land put in view. § 14. These are good general rules, and evidently in all the cases of pleas of former judgments in bar of another action, we are brought to this material question, to wit: Does the demandant or plt. come to try in his second action, the same points and title he tried in the first? Now this question is not to be decided by mere names, as trespass, appeal, trover, assumpsit, assize, formedon, entry sur disseizin, ayle or besayle, writ of right, &c. but from a comparison of the records in the two actions, and ascertaining if the demandant or plt. goes in both on the same facts, points, seizins, or rights, or titles; if he do, the rule nemo debet bis &c. applies; if he do not, he is not barred, and this rule does not apply. § 15. And in our real or land actons, there is peculiar need of caution in regard to these pleas; because we have, and especially formerly, so confounded all kinds of real actions; for in Starkie, as above stated, Beckford and wife brought an action in the name of ejectment against the tenant of the freehold; but in fact it was a writ of right in substance, and they tried in it all their points and title as fully to every intent, as if their action had been, in name and technically in form, a writ of right; now had they been barred in the action they brought by a judgment against them, and had brought another action in name and technically in form, a writ of right, there can be no doubt but that they would have been barred, and the judgment against them in their ejectment, as they called it, according to the then practice, would have been pleadable in bar of their second action, called and formally framed as a writ of right. § 16. In pleading the judgment of a writ of a court of inferior Ladbrooke jurisdiction, it is necessary to state those facts that give it jurisdiction, and having done this the party may allege generally, v. James. 195-7 do. that the court gave such a judgment, or did such an act, as CH. 178. discharge the deft. &c. 2 Johns. R. 363, Peeblis v. Kittle. Art. 22. § 17. A owed B $1785 for goods sold &c. and to other creditors; January 1, 1793, A gave a bond to C and D for 2 Johns. case, $22,500 on account of all his debts, including B's debt; on 75, Seaman this bond a judginent was entered, April, 1793; July 18, 1793, v. Haskins.-A gave B a single bill for the $1785; August 1, 1793, B 10 Johns. R. affirmed the trust in C and D as to the judgment, and August 2, directed a ca. sa. to be issued against B on this judgment, on which A was arrested and discharged with B's consent; B sued on the single bill, and held he was barred; for as B had no cestui que trust of the judgment, he had affirmed and elected to proceed on it. Hence his bill was discharged. 365, 366. Mulliner § 18. In an action before a justice, the deft. pleaded a for- 2 Johns. R. mer judgment for the same cause of action before a justice. 181, Felter. In the first suit the jury found a verdict of no cause of action; 191, Young. held, as this was substantially for the deft. though informal, Overacker, and though the justice rendered no judgment on it, it barred the second action; the justice should have given judgment on the verdict, as he could not arrest the judgment nor grant a new trial. So a verdict is evidence against the deft. in ejectment, though no judgment be entered thereon, if he acquiesce in it by paying the costs and giving possession. 6 Binney, 420, Shaeffer v. Krutger. v. Bearce & § 19. Parties in this action bound by a survey &c. in a for- 11 Mass. R. mer action, made by order of court, though the plt. in this 193, Gerrish action was not a party in that, but holds under the proprietors Cane. of Bakerstown, defts. in that action (inquest of office) by the Commonwealth. The question was, if the lands Gerrish demanded were within Bakerstown or the grant to Sheppard. In said inquest of office a certain line was fixed as the northwesterly line of Bakerstown, contained in said survey, made by order of court in that suit. Held, "that this location was conclusive not only as a decision between the Commonwealth and the Bakerstown proprietors, but also conclusive against all persons claiming under the Commonwealth by any subsequent grant" &c. Hence, after grantees are "concluded by boundaries finally assigned by judgment of law to any prior location as privies, even when not parties, to a judgment between the Commonwealth and the proprietors of any former grant or location." Judgment for the defts. 20. Entry sur disseizin ;-lands in Minott, a part of said Ba- 11 Mass. R. kerstown. In 1794, in an inquest of office by the Common- & al. v. 202, Cushing wealth v. Proprietors of Bakerstown, the judgment fixed their Hackett. limits with a proviso in favor of settlers. Held the plts., claiming under said proprietors, were bound by said judgment, and that the deft. was a settler within said proviso. CH. 178. Co Lit.331.-3 Bl. Com. 172,173,174. ART. 23. Several other cases of pleas in bar &c., in real or land actions; for ousters of, or deforcements as to the freehold or inheritance. § 1. Deforcement is a word of extensive meaning, and according to Coke, is any wrongful withholding of, and from, the right owner; and according to Blackstone, is when the entry of the present possessor was lawful, but his detainer is now unlawful; though the original wrong is abatement, intrusion, disseizin, or discontinuance, or any other species of wrong to the freehold, whereby he who has right is kept out of possession; but as distinguished from abatement &c. it is only a detainer of the freehold from him who hath right of property, but never had possession under that right, and excludes abatement, intrusion, disseizin, and discontinuance. It is deforcement to deny dower to one entitled to it: so if tenant for years or for the life of another, after the end of the term, keep possession: so a third person refuses to let the lessor enter, it is a deforcement: so if a minor, or one insane, alien his land, the alienee's detaining it, is a deforcement: so two co-parceners, and one enters before the other, and will not suffer her to enter, this is a deforcement: so A seized of land, covenant to convey it to B, and neglects or refuses to do it, and remains in possession, this is a deforcement so to keep a man out of a freehold office, is a deforcement. In fact deforcement is a good word in concluding most declarations in real actions, brought to recover the demandant's freehold or inheritance; and is the proper word in all such declarations, where he does not go on the ground of abatement, intrusion, disseizin, or discontinuance; and even, when either of these originally existed, but the tenant wrongfully detains the land, to say he deforces the demandant is true, and would, perhaps, be good after verdict, or on a general demurrer, as presenting matter only for an informal issue; but would be bad alone on special demurrer, where the disseizin or illegal entry ought to be put in issue, as not technically averring the specific wrong whereon issue ought to be; but I say alone; for if deforcement be alleged, also the disseizin &c. then the declaration presents the true ground whereon to go to issue. § 2. Cases applicable to this head decided and stated in the preceding chapters. Martin v. Woods, Ch. 131, a. 4 Kent v. Kent, Ch. 178, a. 21; Wolcot & al. v. Knight, Ch. 178, a. 17; Everenden & al. v. Beaumont & al. Ch. 167, a. 9; Commonwealth v. Pejepscot Proprietors, Ch. 178, a. 16; Killeran v. Brown, Ch. 1, a. 7; Dudley v. Sumner, Ch. 119, a. 4, s. 5; Ch. 129, a. 3; Dow v. Warren, Ch. 108, a. 5, s. 19. §3. A common recovery is a record, and so must be СH. 178. pleaded entire, and must be shewn to be a good recovery; Art. 23. and the party pleading it, plt. or deft., must plead it was executed; for till execution of it, the tenant in tail is seized as 5 Com. D. pl. he was before; and if a special verdict find a common re- 3, A.8.-Lut. 833,963, covery, but does not find a writ of seizin or execution, no 1550.-Stra. advantage can be taken of the recovery; but execution may be sued out, though the tenant in tail dies before recovery executed. Christian name of the vouchee amended by the deed to lead the uses and fine, and if he sue before the summon to warrant is returned, the recovery is void. 185, Lewis v. Witham. Co. L.361.1 Co. 94.-2 W. Bl. 1280. -1 Wils. 35. Hob.1.--Cro. man 74; by lease, entry, § 4. Formedon. In formedon in descender, if baron and Reg. 238,239, 243-8 Co. feme were both scized in tail, the issue must demand as heir 88.-Dyer, to both; but if one was in tail, and the other for life, he 216.-F.N.B. must make himself heir to him in tail only; and the de- 212, 487. mandant must make himself heir to him last seized in tail, or Car. 435.-5 by force of the entailment, and must mention every one in Com. D. pl.3, his pedigree, who was seized in tail, or had a right descend- E. 2.-Chiped to him, by force of the entail; and every one seized by confession of force thereof ought to be named, son and heir, or brother and heir &c.; and if named, cousin and heir, must be shewn and ouster, how cousin; but if a son die in his ancestor's lifetime, he of the lease is the operation need not be named in the pedigree; but a son surviving and not confesis seized, and dies without issue, his brother need not shew sed.-If the he died without issue, but it is enough to name himself son plt. declare and heir; nor need it be said by express words, the ances- and proves a tor is dead; for son and heir supposes it; also the demand- title in fee,he ant must shew him who was last seized to be heir to the donee; and not sufficient he be named son only, but must be heir also. In formedon, by husband and wife the descent must be alleged to her only. See Selwyn v. Selwyn, Ch. 104, a. 2; 8 Co. 88. on a lease fails. whole and § 5. In remainder or reverter.-In formedon in remainder, He may dethe demandant ought to mention all mesne remainders, and clare for the must state the prior donee died without issue, if tenant in recover a tail; and in reversion he must state his pedigree from the moity. Id.33. -F.N.B.220, donor, and in this he must allege the esplees in the donor and 504. in the donee. -8 Co. 86.- § 6. If tenant in tail discontinued, the formedon shall say, F. N. B. 220. remanset jus; if not, quod tenamenta remanserunt; and in form- Dy. 216.-8 edon in remainder or reversion, the demandant need not Co. 88. name the issue of the donee, but it is sufficient to say that the donee died without issue; and it is said, Hob. 1, if the formedon in reversion or remainder be by husband and wife; the reversion may be laid to her only, or to both. |