Levy v. Flash, Lewis & Co. , 1 McGl. 124 ( 1881 )

Henry, C. Miller, Esq., member of the Bar, sat in this case, vice McGloin, judge, recused, having been of counsel .in the case.

Miller, judge ad hoc.

plaintiff has a judgment for his costs claimed in his petition. He can enforce it by execution. There cannot be a double judgment;

The first suit for damages substantially embraced the causes set forth in the present suit. Counsel fees were demanded in the first suit. The petition in .that suit refers to the seizure of plaintiff’s property. It avers as the grounds of recovery, that defendants prevented the delivery of his property (money and envelope); that under defendant’s instructions, express or implied, the sheriff illegally demanded and obtained possession of the property, and these grounds are amplified in the petition. The allegations of damage is that defendants have violated his rights as a citizen, and have caused loss and damage in lawyer’s fees, loss of time, anxiety and outrage to his feelings,* and to his rights of property. Contrast these allegations with those in the petition in the present suit, and there is no perceptible difference. The causes of action are essentially the same. The liability for counsel fees, without actual payment at the time the present suit for damages, is brought, is enough to entitle the plaintiff to recover for that item. Thus every item for damages alleged here was at issue, and could have been recovered in the previous suit, the final decree in ■ which is the basis of res judicata here.

In our opinion the judgment appealed from is correct, and is, therefore, affirmed.