Tracy v. Merrill

103 Mass. 280

Opinion

Ames, J.

The record in the former suit between these parties is conclusive upon the point that, as the facts then stood, the plaintiff was not entitled to recover. But it does not necessarily follow that he is in the same situation now. It is true that he cannot bring a new action for the purpose of trying the same question over again, and putting in new evidence, which he had overlooked or considered immaterial. The first case may have been decided, not upon its merits, but on some technical informality; or it may have been prematurely brought. The former suit, it is true, was brought upon the same bond, but the plaintiff insists that the judgment in that action was rendered solely upon the ground that his right of action had not then ac* crued, for want of demand upon Merrill before the commencement of the action. The record shows that precisely that ground of defence was insisted, upon in the defendants’ answer, and it was a full and unanswerable defence. Gen. Sts. c. 18, § 62, and c. 101, § 19. But since the determination of that suit, execution has been taken out in the case of Cottle v. Merrill; demand has been made upon Merrill for payment, which he has refused ; and the execution has been returned in no part satisfied. The judgment in the former suit only decides that Merrill and his sureties are not liable in a suit on his official bond, without proof of neglect on his part, on demand made by the creditor, to pay the debt; a very different question from that presented by the case in its present position. In order that a prior judgment should be a conclusive bar, the parties should be the same, and the question at issue, or involved in the controversy, the same. Norton v. Huxley, 13 Gray, 285. New England Bank v. Lewis, 8 Pick. 113. Wilbur v. Gilmore, 21 Pick. 250. Walbridge v. Shaw, 7 Cush. 560. Shears v. Dusenbury, 13 Gray, 292. Gilbert v. Thompson, 9 Cush. 348. Andrews v. Brown, 3 Cush. 130. Gage v. Holmes, 12 Gray, 428. Perkins v. Parker, 10 Allen, 22. Burlen v. Shannon, 14 Gray, 433. Same v. Same, 99 Mass. 200. We see no ground whatever for holding the former judgment a conclusive bar to the prosecution of this action. The parties are the same, but the question at issue is very different.

The case of Lowell v. Parker, 10 Met. 309, and the recent case of Tracy v. Goodwin, 5 Allen, 409, are quite decisive as to all the other points taken by the defendants at the argument.

Judgment for the plaintiff