Brockway v. Kinney

2 Johns. 210

• Court: New York Supreme Court
• Decided: February 15, 1807
• Status: Published

Opinion

Per Curiam.

There is no weight in the first objection. The declaration is sufficient. The plea was substantially of a former trial for the same cause, and was a good bar, for the plaintiff declared each time for the same cause of action. It was not shown that the plaintiff aban-r doned the charge for burning the lime, before or at the trial. That charge of course went to the jury on the first trial, and took its chance with them. If they did not allow it, for want of sufficient proof, or for any other cause, it was the plaintiff’s misfortune. The verdict must be considered as conclusive between the same parties, in regard to the same matter; otherwise it would, in effect, be permitting one jury to review the decisions of another. If the plaintiff, at the first trial, had not chosen to hazard a verdict, he should have entered a nolle prosequi on that charge, or consented to a nonsuit. As it was made a part of the plaintiff’s demand, and submitted to the jury, it was their indispensable duty to pass upon it. It would be dangerous to permit jurors thus to separate the plaintiff’s demand, and give a verdict for such part only as they pleased. We are of opinion that the judgment below must be reversed.

Judgment reversed.