David McGilvray & Co. v. Avery
Supreme Court of Vermont
General Assumpsit. The defendant pleaded, first, the general issue; second, that the plaintiffs had already, at the March Term, 1846, of the court of Common Pleas, in the comity of Grafton, and state of New Hampshire, recovered judgment of the defendant upon the same cause of action as that upon which this suit was brought.
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General Assumpsit. The defendant pleaded, first, the general issue; second, that the plaintiffs had already, at the March Term, 1846, of the court of Common Pleas, in the comity of Grafton, and state of New Hampshire, recovered judgment of the defendant upon the same cause of action as that upon which this suit was brought. To the second plea the plaintiffs replied that they commenced the suit in New Hampshire, described in the defendant’s second plea, at the same time that this suit was brought, by attaching the property of the defendant in that state subject to several prior attachments ;…
1Opinion of the Court
The opinion of the court was delivered by
Bennett, J.
The important question raised upon the pleadings 3n this case, is in relation to what must be the effect of a prior recovery in the court of New Hampshire, upon the same identical cause of action, which is relied upon in this case. Was the original cause of action so merged in the judgment rendered by the court of New Hampshire, as to preclude the plaintiffs’ right to recover upon it in the courts of this state, the judgment remaining unsatisfied ?
The defendant, in this writ, is set up as a citizen of New Hampshire, and it is to be assumed…
2Cases cited6 opinions
- Mills v. DuryeeSupreme Court of the United States · 1813
- Hampton v. M'connelSupreme Court of the United States · 1818
- Bowne v. JoyNew York Supreme Court · 1812
- Andrews v. MontgomeryNew York Supreme Court · 1821
- Boston India Rubber Factory v. Archibald HoitSupreme Court of Vermont · 1842
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3Cited by16 opinions
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- Bank of North America v. WheelerSupreme Court of Connecticut · 1859
- Memphis & Charleston Railroad v. GraysonSupreme Court of Alabama · 1889
- Dunham v. DownerSupreme Court of Vermont · 1858
- Swedish American Nat'l Bank v. Dickinson Co.North Dakota Supreme Court · 1896
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