JUDGMENT RECOVERED. in Term, in the the king, in the court year of the reign of our said lord of our said lord the king, [before Besides this, by pleading the judgment specially, defendant is driven to take issue on a single point, and admit or deny the judgment, or deny that it was for the same causes of action; and see, as to a replication, denying that the causes were the same. 3 B. & Cres. 235. 6 T. R. 607.-2 Bla. Rep. 827. 4 T. R. 146.-2 Bingh. 377, and a form of replication, post, 1159; and form of new assignment, post, 1213. In pleading a foreign judgment, defendant must shew it was conclusive. 4 B. & Cres. 625. A judgment between the same parties, and upon the same cause of action is conclusive, and if the cause of action is the same, it is immaterial that the form of action is different. Thus, a judgment in debt is a bar to an action of assumpsit on the same contract. 4 Rep. 94 b. So a judgment in trover is a bar to an action of assumpsit for the value of the same goods.2 W. Black. 827; and see Com. Dig. Action, K. (3). If the party mistake his form of action, and fail on that account, the judgment therein would not be conclusive. Cro. Eliz. 668.-2 Saund. 47.-2 J. B. Moore, 157. Roscoe, Evidence, 80, 1. If a judgment be recovered in a former action for want of a plea, &c. it will be considered that plaintiff brought such action, and recovered for all the causes of action that might have been recovered in that form of action, and which he knew of at the time of bringing it. 3 B. & Cres. 235. So if a plaintiff, having several causes of action against a defendant, on the trial offers evidence on those cases and fails, he cannot bring another action for the causes on which he failed. 2 Bingh. 882. But if the plaintiff omitted altogether to give any evidence as to them, he may bring another action for them. 6 T. R. 607.-4 T. R. 146. A judgment is only evidence where it is directly upon the point in question, and is not evidence of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment. 20 How. St. Tr. 533.-1 Salk. 290. As to the effect of a judgment as regards the parties to it, and privies and strangers, see 1 Stark. Evid. tit. “Judgment. 1 Phil. Evid. 303. Rosc. Evid. 79, 80. When this plea is adopted as a sham plea for delay, the judgment is usually stated to have been recovered in a different court to that in which the plea is pleaded, for if the recovery were pleaded in the same court, the plaintiff might, instead of replying, crave oyer of the record, or at least a note in writing of the term and number roll, and sign judgment if it were not given in convenient time. Tidd's Prac. 9th edit. 644, 6. When the plea is pleaded in fraud of a judge's order, plaintiff may sign judgment, 2 Chit. Rep. 292.-Tidd, 9th edit, 563. a The plea must state the term, year, and court in which the judgment was recovered, 1 Saund. 329, note 1. с the king himself, the same court then and still being holden JUDGMENT RECOVERED. [ 930 ] of retraxit in former action for the [Actio non, as ante, 906, third form.]-Because he says, Plea of judgment that heretofore, to wit, in Term, in the year of our impleaded the said defendant same causes, lord the said plaintiff See precedent and notes, ante, 482. Be accurate in stating the parties to the judgment. 4 Taunt. 13. If defendant's, instead of plaintiff's, name, be inserted, it would be bad on general demurrer, 7 Taunt. 271. Sed query this decision. Saund. 92, n. 2. A material averment, 1 J. B. Moore, 19. VOL. III. D e Willes, 126.-Com. Dig. tit. "Pleader," E. 29. f 1 Saund. 330, note 4.1 Rich. C. P. 205. This form will be found in the old Entries. It is questionable, however, whether a judgment of this kind is a bar to another action. It operates merely like a judgment of nonsuit; see Tidd, index, Retraxit." RECOVERED. JUDGMENT in the court of our said lord the king of the bench, [see ante, 929, if in K. B. or Exchequer] for the non-performance of the same identical promises and undertakings in the said declaration mentioned, and such proceedings were thereupon had in that court, that afterwards, to wit, in the said last-mentioned Term, the said plaintiff came into the said court, in his own proper person, and confessed that he would not further prosecute his said suit against the said defendant, but from the same altogether withdrew himself; therefore it was then and there considered by the said court, that the said plaintiff should take nothing by his said bill, but that he and his pledges to prosecute should be in mercy, &c. and that the said defendant should go thereof without day, as by the record and proceedings thereof still remaining in the said court more fully and at large appears, which said judgment still remains in full force and effect, not in the least reversed, satisfied, or made void, and this, &c.-[Conclude with a verification by the record, as ante, 907, seventh form.] RELEASE. Release a b [Actio non, as ante, 906, first form.]—Because he says, that after the making of the said several promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said plaintiff against the said defendant in this behalf, [or, if in C. P. or by original, "before the commencement of this suit,"] to wit, on, &c. at, &c. (venue) aforesaid, the said plaintiff, by his certain writing of release, sealed with his seal, and now shewn to the said court here, the date whereof is a certain day and year therein mentioned, to wit, the day and year last aforesaid, [or, if the release be pleaded as a sham plea, or if the deed have been lost, instead of the profert, say "which said writing of release having been lost and destroyed by accident, the said defendant cannot produce the same to the See forms, 2 Rich. C. P. 70, 71.-Morg. 237. A release may be given in evidence under the general issue, or pleaded with it. Gilb. C. P. 64.-Doug. 106, 107.-3 Esp. Rep. 234.Ld. Raym. 566, 787.-12 Mod. 377.-3 Burr. 1353; Cases Pr. C. P. 154.-Barnes, 328, S. C. and in the case of a release contained in a composition deed by creditors to an insolvent, it is not usual to plead it, but it may be pleaded, and see the next form. A plea of release is sometimes adopted as a dilatory plea, and where a release has actually been executed in the usual form, it is frequently advisable to plead it, in order to narrow the evidence on the trial. See forms of pleas of a release puis darrein continuance, post, 1238, 1241, 1242. b The date of the release. said court here,"] did remise, release, and for ever quit claim unto the said defendant, his heirs, executors, and administrators, the said several promises and undertakings in the said declaration mentioned, and each and every of them, and all sum and sums of money then due and owing, or thereafter to become due, together with all and all manner of action and actions, cause and causes of action, suits, bills, bonds, writings obligatory, debts, dues, duties, reckonings, accounts, sum and sums of money, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, both at law and in equity, or otherwise howsoever, which he the said plaintiff then had, or which he should or might at any time or times thereafter have, claim, allege, or demand against the said defendant, for or by reason or means of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of the said deed or writing of release; as by the said deed or writing of release, reference being thereunto had, will fully appear. And this, &c.-[Conclude with a verification, as ante, 907, sixth form.] [First plea, general issue, as ante, 908; second plea, actio non, as ante, 906.]-Because he says, that after the making of the several promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said plaintiffs against the said defendant in this behalf, to wit, on, &c. (date of deed, or about it) at, &c. (venue) aforesaid, an account was had and stated by and between the said plaintiffs and defendant, of and concerning the said several sums of money in the said declaration mentioned, and upon that accounting the said defendant was then and there found to be in arrear and indebted to the said plaintiffs in the sum of £-; and the said defendant further saith, that afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) by a certain deed then and there made by the said plaintiffs, and sealed with the respective seals of the said plaintiffs, they the said plaintiff's did covenant, promise, and In some cases it may be necessary to plead the release of the cause of action with more precision, and to omit the general release when those words do not accord with the faots. In assumpsit or debt on simple contract, this defence RELEASE. That plaintiff position deed for the debt. signed a com RELEASE. SET-OFF 3. Plea of set-off. agree, to and with the said defendant, his executors, administrators, and assigns, that [here set forth the release, which may be thus:] they the said plaintiffs should and would, and they did thereby accept the sum of shillings in the pound, then and there paid by the said defendant to the said plaintiffs, in full satisfaction and discharge of the said sum of £— and that they the said plaintiffs should not nor would sue, arrest, implead, trouble, attach, or seize the said defendant, his heirs, executors, and administrators, estate or effects, for or on account of the said sum of £or any part thereof; and the said defendant further saith, that divers other creditors of the said defendant did then and there also, in and by the said deed, agree to accept, and did then and there accept, the sum of £— currently with the said plaintiffs, for and in satisfaction of the several debts to such creditors respectively due and owing from the said defendant, and did also, in and by the said deed, covenant with the said defendant, not to sue the said defendant for such respective debts. And this he the said defendant is ready to verify, wherefore, &c.-[Conclude with a verification, as ante, 907, sixth form.] [First plea, general issue, as ante, 908.-And for further plea, actio non, as ante, 906, 7, third form.]-Because he says, that the said plaintiff, before and at the time of the commencement of this suit, to wit, at, &c. (venue) aforesaid, was and still is indebted to the said defendant in a large sum of money, to wit, the sum of £-(enough to cover the defendant's set-off.—It is usually the sum stated as damages at the conclusion of the declaration,) of lawful money of Great Britain, for [here state the subject-matter of the set-off according to the fact, the usual' allegations are as in the precedents, post, 934, &c. and when they do not apply, the set-off may be stated as in the counts in indebitatus assumpsit, ante, pages 39 to 91. The following is the common statement of a set-off for work and labour, goods sold, and money lent, paid, had, and received, inWork and labour terest, and account stuted.]-[For the work and labour, and materials. a See forms, 2 Rich. C. P. 25, 6.-Morg. 250, to an action by an executor, 2 Rich. C. P. 32. See a plea of setoff founded ou an agreement where the debts were not due in the same right, or to the same parties, 2 Taunt. 170. As to when a set-off may be pleaded, see ante, vol. i. 484. As to when a notice, instead of a plea of set-off, should be used, see post, 932, n. b These words are necessary, 3 T. R. 186. |