Henry Shafer v. Gerard Stonebraker

delivered the opinion of the court.

The appellants have insisted, that the judgment of the County Court should be reversed, because, since the act of Assembly of 1763, ch. 23, all special demurrers, say they, are prohibited in Maryland.

If this act of Assembly were now, for the first time, to receive a judicial exposition, it might be a very grave question, whether it were not the intention of the legislature, and whether that intention is not sufficiently expressed, to interdict, altogether, the use of special demurrers. But we do not consider that question as being now open for examination. The practice of sustaining special demurrers, by every judicial tribunal in the State, hath engrafted upon this act of 1763, an interpretation which nothing but an act of Assembly can change.

Are the objections raised to the plea, by way of special demurrer, well founded, is the next inquiry to be considered ? That when a matter of record is pleaded, the omission to insert prout patet per recordum, is a fatal defect in *354the plea, if assigned as cause of special demurrer, is a principle so universally recognized, that it cannot be necessary to offer authorities to prove it.

There is nothing in the present case which dispenses with the necessity of its introduction. Nor is there any thing in the books to warrant the distinction attempted to be drawn in this respect, between records of the same court, and those of any other court. The prout patet per recordum is equally necessary in both cases.

The second cause of demurrer we do not think sustainable. The plea contains averments of material matters of fact, as well as of record, on which an issue might have been taken. Of these facts, the record would have been no verification ; and such a conclusion would, therefore, have been erroneous. Where matters of fact, as well as of record, are averred in a plea, the conclusion should be by a general verification, and not with a verification by the record. Karthaus vs. Owings, 2 Gill and Johns. 430. 2 Chitty's Plead. 454, 493. 1 Chitty’s Plead. 572. Archb. C. P. 227, 249. Pitt vs. Knight, 1 Saund. 91. 2 Saund. P. and Ev. 755. Thomas vs. Ramsey, 6 Johns. 26. Little vs. Lee and Ruggles, 5 Johns. 112. We deem the validity of the plea unaffected by the third, fourth, and fifth causes of the demurrer, nor do we think it less unexceptionable, for the reason assigned in the sixth cause, to wit, “ that by the two aforesaid pleas of the defendant, there is an estoppel pleaded with a traverse, which require different modes of trial, by different tribunals.” If an issue were joined on the record, and also on the plea of not guilty, both issues would be tried in the same forum, though before different branches of it, but both under the same controlling power. What is there objectionable in this? Is it not every day’s practice to have issues of law and fact, for trial at the same time, in the same cause ? The former are first disposed of by the court, and then the latter are tried by the jury. Can any inconvenience result from such a course of practice ? But it has been alleged that these are *355inconsistent, incompatible pleas. In what does that inconsistency or incompatibility consist? It has not been pointed out in the argument, nor can we discover it. Both pleas may well stand together; there is no contradiction between them. If the plea of estoppel be sustained, a fortiori, is the plea of not guilty sustainable. If the issue on the former terminate in favor of the plaintiff, that on the latter may still be found for the defendant? The same pleadings wore used in Outrarn vs. Morewood and wife, 3 East. 345, and in many other cases, which if were necessary, might be referred to.

The questions of form being disposed of, how stands the plea as to matter of substance ? Is it good on general demurrer, is the next subject for our consideration ? This being a plea by way of estoppel, the rule by which its sufficiency is to be tested, is a certain and familiar one. Does it plainly appear that the fact or right relied on as a bar, was distinctly put in issue, and found by the jury in a former suit between the same parties. The matter here alleged to have been decided by the jury in the former trial, is that the raising and stopping of the mill-dam of the appellant, and thereby blocking the water upon, and impeding the water wheel of the appellee, was lawful, and gavepio right of action to the appellee. Was that the question distinctly submitted to the jury, and established by their finding? If it were, the record presents the most vague and inconclusive evidence of that fact. The plea in the first trial was what ? not guilty ; which put in issue, not only every material fact contained in the declaration, but every defence admissible in evidence under such a plea, of which the defendant should offer testimony. And under the general issue in this form of action, the defendant may give evidence of a release, satisfaction, award, license to raise and stop the dam, and back the water, until the time of issuing the writ in the first action, or any justification or excuse, “or whatever will in equity and conscience, according to the existing circumstances, preclude the plaintiff from recovering. ” 1 Chit. *356Pl. 386. What is it then, that the jury have found in the former suit ? Was it, that the appellee was not seized and possessed of the mill, as charged in the declaration ? That the appellant did not raise and stop his dam ? That such raising and stopping did not back the water, and obstruct or impede the water wheel of the appellee ? That the appellee had released the cause of action, or received full satisfactionfor the injury committed? That he had licensed the acts of the appellant until the time of the suit? or that the appellant had a right to do, and continue, the acts complained of? Upon the jury’s being satisfied of the truth of any one of these grounds, they were bound to have found a verdict for the appellant.

XSll these questions were open for their consideration, under the pleadings in the cause, and on which of them their verdict was founded, the record furnishes us no guide to discover. No matter of fact or of right, therefore, having been distinctly put in issue on the former trial, the finding of the jury and judgment of the court, form no estoppel to a recovery in the subsequent actiomj)

The case of Vooght vs. Winch. 2 B. & A. 662, has been referred to as a decisive authority, that the verdict and judgment relied on in the plea before us, are a conclusive bar. And if the dictum of the judges in that case, were sound law, it would be difficult to evade the force of their decision.

But that dictum is at war with every principle of special pleading, and with all previous adjudications on the subject. It was a point not discussed in that cause, and none of the anterior decisions on the subject were referred to. The ■question there was, whether a verdict in a former suit, when offered in evidence under the general issue, in a subsequent action, was as conclusive a bar, as if it had been pleaded by way of estoppel. And the judges in their opinions upon that point, which alone was before them, after establishing the distinction between the conclusiveness of a verdict, when specially pleaded, and when offered in evidence on the general issue, without considering the circumstances *357and character of the particular verdict in question, rather to illustrate the principle of their decision, than any thing else, proceed to say, “ it would have been conclusive if pleaded in bar to the action by way of estoppel. ”

This decision in Vooght vs. Winch, (if indeed a decision it can be called,) is wholly irreconcilable with the case of Outram vs. Morewood and wife, 3 East 345, the great land mark of the profession in exploring questions of this kind. And also to Miles vs. Rose, and another, 5 Taunt. 705, reported in 1 Serg. and Low. 240; and the much stronger case of Sir Federick Evelyn vs. Haynes, cited by Lord Ellenhorough in Outram vs. Moorewood and wife; and to Standish, petitioner, vs. Parker, et al. 2 Pick. Rep. 20. in the two latter cases, this principle of technicality is certainly stretched to its utmost length, and impairs in a very great degree, the utility of the general rule, as to the conclusiveness of former verdicts. The facts which constitute the plaintiffs’ right of action, are charged in their declarations, and are put in issue by the general plea of not guilty. Before the jury in either of those cases could find a verdict for the plaintiff, thus determining the question of right in his favor, they must of necessity have decided that every averment in the declaration, material to the establishment of the plaintiff’s right, was true. Can it then be said that the right of the plaintiff, that the facts which constitute such right, have not been distinctly put in issue, and found by the jury? To say so, would be to add a new condition to the rule—that the right must not only be distinctly put in issue, but that a separate issue must be framed upon every fact, essential to the constitution of that right. The reason assigned by Lord Mansfield for his decision in Evelyn vs. Haynes was, “because no issue was taken in the first action upon any precise point.” But can it be material, where several facts are to be tried, all of which are necessary to constitute the right of the plaintiff, whether the whole of those facts are submitted to the determination of the jury on one issue, or a separate issue be joined upon *358each individual fact ? If the verdict upon the one issue must be against the right, unless they find the truth of every fact submitted to them as its basis, is not their verdict thus given in favor of the right, as distinct a determination of its existence, as if rendered on issues, on each particular fact by which it is constituted ? Thus to restrict this wise, and necessary axiom of legal policy, would be almost to destroy its utility. A better reason for Lord Mansfield’s opinion might perhaps be found in the suggestion, that although the finding of the jury, did assert the right to exist in the plaintiff at the time of its violation, for which indemnity is recovered in the first suit ; yet that it does not irresistibly follow, that its existence continued, during the time of the injury complained of in the second. JBut an averment to that effect in the plea, it is conceived, would obviate that objection.

/ If the technicalities incident to pleadings by way of estoppel, and the diversity of effect, as regards conclusiveness, when a verdict and judgment in a former suit are relied on as a bar, by way of plea, or as evidence, be applied to cases, where the second suit is not only predicated upon the same right, but upon the same identical cause of action, being for the' recovery of the .same damages, that necessary and wholesome principle of the common law, “nemo debet bis vexari, pro eadem causa,” so highly approved of by the most distinguished jurists of ancient and modern times, becomes in its operation for all purposes of practical utility, almost a dead letter. It is no longer true, in one out of one hundred actions on the case, or in assumpsit, that a verdict and judgment in a court of law, is a bar by way of estoppel to a subsequent suit, between the same parties for the same demand. In those forms of action it is matter of rare, rather than of usual occurrence, that any matter of fact or of right is so distinctly put in issue by the pleadings, as to be pleadable by way of estoppel in a subsequent suit, according to the strong and comprehensive expressions met with in the commentaries upon the law of *359pleadings and evidence ; in the works of Chitty, Archbold, Saunders and Starkie, no discrimination is made, whether used in pleading or as evidence, between the conclusiveness of verdicts and judgments, when relied on as a protection in a second suit, where the same identical damages are sought to be recovered, and where different damages are claimed for a posterior violation of the same right. In England the authorities are so numerous and uniform, that to cases of the latter character, the applicability of the doctrine of estoppel, must be admitted : but that it ever has there been applied to the former class of cases, we have been able to find no express adjudication. The oppression and injustice that would result from such its application, is too obvious to be portrayed. The court of common pleas we think have in some degree sanctioned this distinction, in Stafford, and other assignees of Clark, the younger, vs. Clark the elder, 2 Bing. 377. There an action of assumpsit having been brought to recover the same damages, which were recovered in a former action of trover, (the general issue having been pleaded in both cases,) the verdict and judgment having been suffered to go to the jury, on the trial of the latter, in overruling a motion for a new trial on the ground of the inadmissibility of such evidence, the court say, they do not mean “to enter into the question of the conclusiveness of such a document, when it is produced in evidence; Lord Mansfield thought it conclusive, but my lord Chief Justice Abbot, seems to consider it otherwise.” ¿For this forbearance of the court to express their opinion, it is difficult to assign a reason, unless they deemed the principle of pleading by way of estoppel, as wholly inapplicable to the case before them ; no doubt remaining at that day, but that if the defence was a fit subject for a plea of estoppel to make it a conclusive bar, it must be so pleaded; as it loses its attribute of conclusiveness when offered in evidence under the general issueJ

This discrimination too, is most strongly fortified by adverting to the forms of pleas of former recovery, and former *360acquittal, or verdict and judgment for the defendant, on the same cause of action. They do not conclude by way of estoppel, but generally in bar to the action; whereas a plea in estoppel must in its conclusion rely on the bar by way of estoppel, or the estoppel is regarded as waived. For forms of the several pleas above mentioned, see 2 Chitty Pl. 247, 438, 592. 2 Evans’ Harr. 49, 50, 148, and the cases there referred to in the note.

The same view of this subject was manifestly adopted by Chief Justice Parker in Standish, petitioner, vs. Parker et al., where on a motion for a new trial, in which the plaintiff obtained damages for being obstructed in the enjoyment of a right of way, the court refuse the motion, on the ground, “that nothing is conclusively determined by the verdict, but the damages for the interruption covered by the declaration, and that in another action, if one should be brought, the petitioner (the defendant,) will have a right to contest the respondents (the plaintiffs,) right to the easement, for the interruption of which this action was brought.”

We conceive therefore, it may be stated as a general rule, that a verdict and judgment, upon the merits in a former suit, is, in a subsequent action between the same parties, where the cause of action, damages, or demand is identically the same, conclusive against the plaintiff’s right to recover, whether pleaded in bar, or given in evidence under the general issue, where such evidence is legally admissible; and that such prior verdict and judgment, need not be pleaded by way of estoppel.

JUDGMENT AFFIRMED.