Kent v. Gerrish

35 Mass. 564

• Court: Massachusetts Supreme Judicial Court
• Decided: January 31, 1837
• Status: Published

Opinion

Wilde J.

drew up the opinion of the Court. This was an action for the continuance of an obstruction to the plaintiff’s way, he having brought a former action against the defendant for the same obstruction in which he failed to recover. The defendant relies on the judgment in that case as a bar to this action. If the defendant had justified in the former action, and issue had been joined on his right to erect the obstruction, and had been found in his favor, the judgment would have been a bar to this action, according to the doctrine laid down in Outram v Morewood, 3 East, 346. But the trial in the former action was on the general issue, and the judgment is evidence in this case, but is not conclusive. This was decided in the case of Standish v. Parker, 2 Pick. 20, and 3 Pick. 288, after a full examination of the authorities, and we perceive no reason for questioning the authority or correctness of that decision. The case, therefore, is to stand for trial, according to the agreement of the parties