Hillsborough v. Nichols , 46 N.H. 379 ( 1866 )

Bartlett, J.

The principles stated in Lyford v. Demerritt, 32 N. H. 234, seem to us decisive of the main question in this case. The substance of the cause of action set forth in the declarations in the former suits between these parties, was the injury of George W. Nichols by reason of a defect in a highway, which the town was bound to repair; and the judgments for the plaintiff in those suits, though entered by agreement, are conclusive upon the parties here as to the existence of that cause of action. Tebbetts v. Tilton, 31 N. H. 285; Thatchers. Gammon, 12 Mass. 268; Willson v. Willson, 25 N. H. 229; Railroad v. Shippen, 2 P. & H. 327.

The allegations of the present declaration are in substance that no such cause of action existed as was averred in the declarations and admitted in the judgments in those former suits, and that the present defendant conspiring with George W. Nichols, by false pretences and representations, induced the town to pay the amount of those judgments, and caused it to pay other expenses incidental to the defense of those former suits. Whether the declaration be construed as claiming that the defendant having in truth no cause of action, but having obtained judgments by agreement in those suits, conspired with George W. Nichols, and by false pretences and representations induced the town to pay those judgments, and by reason of the unjust suits and conspiracy put the town to this and to other expenses, incidental to the defense of the actions, or, as it seems understood by the counsel in their arguments, as averring that the defendant, having in fact no such cause of action as was stated in his declarations, conspired with George W. Nichols and obtained these judgments by false pretences and representations as to his cause of action, it is quite apparent that the town now proposes to retry the merits of the former suits, for the matter in issue there was whether the defendant Nichols had the cause of action alleged in bis declarations; and the foundation ol the present suit is the denial of that fact by the plaintiff; if this is open to the town now, we see no reason, in case it should prevail in this action, why the defendant may not upon similar allegations in another suit claim to re-try this action. The settled- policy of the law will not permit a matter once adjudicated to be thus drawn in question again between the parties, while the original judgment remains in force. Lyford v. Demerritt, 32 N. H. 234; Demerritt v. Lyford, 27 N. H. 548; Marriott v. Hampton, 7 T. R. 269; Homer v. Fish, 1 Pick. 435; Greene v. Greene, 2 Gray 361; Railroad v. Sparhawk, 1 Allen 448; McClees v. Burt, 5 Met. 200; 4 C. & H.’s Phil. Ev. 79. Allegations of conspiracy and fraudulent knowledge on the part of the defendant will not prevent the operation, of the general rule in this case. Lyford v. Demerritt, supra; Great Falls Company v. Worster, 45 N. H. 111; Dunlap v. Glidden, 31 Me. 435; Smith v. Lewis, 3 Johns 167; McRae v. Matton, 13 Pick. 57; Tebbetts v. Tilton, 31 N. H. 287. Whether the town might have a remedy in some other form, if the entry of the judgment was procured by the fraud of this defendant, (see McClees v. Burt; Greene v. Greene; Bellows v. Stone, 14 N. H. 203; R. S. ch. 192, secs. 2 and 6,) we are not now called upon to inquire.

The demurrer to the first, second and third counts of the declaration must be sustained.