Legal Opinion

Brockway v. Kinney

New York Supreme Court

Decided February 15, 1807PublishedCited by 20 opinions

On the return to the certiorari in this cause, it appeared that the plaintiff in the court below, declared for work and labour,.in burning 300 bushels of limé. The defen- , , , ,11 , , dant below pleaded non assumpsit,- and gave notice, that he should prove that the plaintiff had before sued him for 1 1 the same matter, and recovered.

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On the return to the certiorari in this cause, it appeared that the plaintiff in the court below, declared for work and labour,.in burning 300 bushels of limé. The defen- , , , ,11 , , dant below pleaded non assumpsit,- and gave notice, that he should prove that the plaintiff had before sued him for 1 1 the same matter, and recovered. There was a trial by jury, and the justice by consent of the parties, informed the jury that the same parties had a cause before him at a former time, in which Kinney was plaintiff, and decía-red on a promissory note, and also for the same work and labour, and…

1Per 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 al*210low 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…

2Cited by20 opinions

  1. Wood v. Jackson ex dem. GenetCourt for the Trial of Impeachments and Correction of Errors · 1829
  2. Hume v. SchintzTexas Supreme Court · 1896
  3. Hatch v. BentonNew York Supreme Court · 1849
  4. Colburn v. WoodworthNew York Supreme Court · 1860
  5. Logan v. CaffreySupreme Court of Pennsylvania · 1858

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