Offutt's Adm'rs. v. Offutt , 2 H. & G. 178 ( 1828 )

Earle, J.

delivered the opinion of the Court. These appellants were plaintiffs in Montgomery county court, and instituted their suit on a long account for blacksmith’s work, commencing the 8th of April 1816, and ending the 6th of November 1819, and amounting to #122 37§. To this they tacked a small account of £5 19 8, assigned to their intestate, and for ' the whole declared in various ways, and among others; for att account brought into court with their declaration,

The defendant pleaded non assumpsit, and when on the trial, the plaintiffs produced their account, and offered to prove the several items of it, the defendant objected; and to show the testimony inadmissible, he presented a record of Montgomery comny court, o'' a suit between the same parties, for the account of $122 374, and insisted it was a bar to the recovery-in this case; and fully demonstrated that the evidence offered bj the plaintiffs was not admissible. The court were of this opinion, and refused to permit the plaintiffs to prove the items of their account The record produced was the record of a suit, between the same parties, and on the same account of $122 374, with two additional articles to the amount of about $23; opposed to which was an account in bar of Osgood Offutt’s against James Off ait of William, which reduced the plaintiffs’ verdict to $41 74, a sum below the jurisdiction of the court. For want of jurisdiction, no judgment was rendered on the verdict; but the judgment rendered was for the defendant, for his costs. This is the substance of the first bill of exceptions; and it is made a question, whether the record of this proceeding, thus conducted, and thus eventuating, is a bar to a recovery in the present action, or can be given in evidence as such?

It appears to us, that this record ivas offered prematurely, before the plaintiffs had given proof of the items of their accounts, and more particularly so, as the tacked account had not been an object of controversy in the former suit But if the record had been offered in evidence at a proper time, wo are of opinion that it could not operate as a bar to the present action, and could not be received in evidence as such. Where there is a full recovery, the record of it may be given in evidence on non assumpsit, and it is conclusive in bar, if the subject matter in dispute has been before decided on by a court of competent jurisdiction, between the same parties. In the ease before us, there was no recovery had by the plaintiffs in the former suit, because Montgomery county court wanted jurisdiction to give them a judgment. The jury ascertained the sum of their damages, but the ascertainment is of no avail, and as to them the verdict is a nullity. It cannot be made the foundation of a further claim against the defendant; and unsupported by ajudgment, it cannot, under any circumstances, be made evidence before a jury. It certainly will not answer the purpose for which it was produced by the defendant. It will not witness a former recovery of the debt due from the defendant to the plaintiffs’ intestate.

The opinion of the court below on the other bill of exceptions, is a correct one. It is supported by the case of Read & Miller v Hannan, in which there was a nisi affirmance in this court at December term 1807. This case we have examined, and approve of the decision therein of Baltimore county court. It establishes the position, that a second suit brought on the same cause of action cannot he sustained by a verdict in the former suit, where the sum ascertained by the jury is below the jurisdiction of the court

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.