Majority
p. 232White against Ward and Aylesworth. ALBANY, August, 1812.
Headnote
A. being arinstance of fi6 on a charge ken B.’sb brivoid 'further trouble and on the degave, him a promissory ^ B°Uílpromfsed that1 if A. show'1 that "he the bricUe^or that he was the charge, or should bbe'e found, he would give up the note, and trouble. *beforeSUalljusnote añd'recovered judgamount”which was paid^by ■wardsbrought fore* another ihf ^recover back the money, on the ground, that centWaoflnthé thatSB. had got his bridle again, without theknowiedge or assistance . , , , of A. and it was held, that A. having neglected to set up this matter against the former suit on the rióte, to which it would have been a good defence, the former suit was a sufficient bar under the act.
Money collected under a regular judgment, cannot be recovered back, in a new suit, on the ground that evidence has since been discovered of a good defence, which existed before the judgment.
IN ERROR, on certiorari, from a justice’s court. Ward and Aylesworth brought an action against White, before the' justice, The plaintiffs, in their declaration, stated, that on or about the 10th September, 1810, White alleged he had lost a bridle, and accused Aylesworth of taking it, and threatened to put him to trouble and costs, unless he would pay him the sum of twelve dollars in cash, or give him a note for the amount, with sufficient surety; upon which Aylesworth, (though innocent of taking the bridle,) to save himself from the trouble and expense of a prosecution, executed a note with Ward, dated the 20th September, 1811, for the sum of 12 dollars, payable in three months, which note they afterwards paid; that White had recovered possession of his bridle, without the knowledge or aid of the plaintiffs, and refused to refund the money so paid by the plaintiffs, &c.
The defendant pleaded in bar a prior suit, brought by him against the plaintiffs, in April, 1811, before Sutherland, another iustice, in which the plaintiffs neglected to set off their demand .
The record of that suit was produced in evidence, by which it appeared that White sued the plaintiffs on the note in question, before the other justice, and recovered the amount of 12 dollars, and the costs. The justice overruled this defence. The plaintiffs then proved, that Aylesworth was arrested for taking the bridle, which he denied; and White told him, that if he would ever show ylaj- ^ |laj not had the bridle, or it should ever appear that A. was innocent, he would give up the note, or that if he should find the bridle, or if it should be found, and A. not appear to be guilty of taking it, While would pay him for his trouble; and Aylesworth say rather than to be carried further, he would sign the note, ’ ° y which was accordingly done.
A witness testified that one Harrington told him that White gave him a dollar to say, and stand to it, that he saw Aylesworth White's bridle, and that he did say so, in consequence of . . _ which the note was given, but that he would not have said so
p. 233
under oath. This evidence was objected to, but admitted by the justice.
The jury gave a verdict for the plaintiffs, for twenty dollars, on which the justice gave judgment.
The first question is, whether the recovery by White on the note, in the action before the other justice, in which the plaintiffs neglected to set off their demand, was not a bar to this suit. We are of opinion that it was a sufficient bar. The grounds on which the plaintiffs recovered in this suit below, would have been a good defence for them, in the suit before justice Sutherland; and if the plaintiffs were not in a situation at that time to make out that defence, by proof, it ivas their misfortune. The money having been collected under a regular judgment, cannot be recovered back in a new suit, upon the allegation that evidence has since been discovered of a defence which existed before the judgment. On this ground, therefore, the judgment below must be reversed.
J udgment reversed.