Majority
p. 383Johnson against Smith.
Headnote
?|> an action trespass, quart clausum fregi4 anil carrying *justMe^ir defendantpiea(2° e<1 a former suit by the plaintiff against him, fotbar, and^it’was rule m this rase uteTdentky °o£ the,acti011’ i),u 011 the prooi be-mi? the same in both cas5c°IN error, on certiorari, from a justice’s court.
¿>nnth brought an action oi trespass quare clausum fregit, against Johnson, and for cutting and carrying away wheat. The defendant pleaded not guilty, and a former trial in bar. Upon the trial, and before the jury were sworn, the defendant proved a former suit, by the same , . . plaintiff, against him, tor wheat cut and carried away; ón which trial there was a verdict and judgment for the defendant. The justice ruled that this was no bar. The jury were sworn. The plaintiff went on and proved the trespass and cutting, &c. and that the defendant ad-1 0 e Blitted that the wheat belonged to the plaintiff. The de- ¿ fendant offered to prove the former trial in bar, to the jury ; but the justice overruled it, and a verdict was found for F~rith, on which fh#>
The testimony offered by Johnson to prove that he had been sued by Smith, for the same cause of action, and had obtained a verdict and judgment in his favour, ought to have been received. It was in sup? port of his plea, and formed a complete bar to the suit. The former suit was for cutting and carrying away wheat, and was, for the same cause of action, and though the former action was denominated by the justice, an action of trespass on. the case, and this was trespass, it did not alter the application of the rule, which depended not upon the identity of action, but upon the same proof in both cases. (Rice v. King, 7 Johns. Rep. 20 .) The judgment must be reversed.
Judgment reversed.