Comes v. Prior

1 Kirby 395

Opinion

By the Court.

That the first suit being only an action of trespass, for the recovery of damages, and this being an action for the recovery of the land, is of a higher nature: — - Therefore, the judgment pleaded is not a bar to this suit; for the party may now be able to produce further evidence in support of his title, than was produced on the former trial. And this is admissible by the uniform practice of the courts of law in this state, as well as in England, in favor of estates of inheritance. See Bac. Abrid. 119.

So judgment was for the plaintiff.

Note.— Judge Ellsworth excused himself in this case.