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FORMER RECOVERY
(bouvier) | FORMER RECOVERY. A recovery in a former action.
2. It is a general rule, that in a real or personal action, a judgment
unreversed, whether it be by confession, verdict or demurrer, is a perpetual
bar, and may be pleaded to any new action of the same or a like nature, for
the same cause. Bac. Ab. Pleas, I 12, n. 2; 6 Co. 7; Hob. 4, 5 Ventr. 170.
3. There are two exceptions to this general rule. 1. The case of mutual
dealings between the parties, when the defendant omits to set off his
counter demand in that case he may recover in a cross action. 2. When the
defendant in ejectment neglects to bring forward his title, he may avail
himself of a new suit. 1 John Cas. 492, 502, 510. It is evident that in
these cases the cause of the second action is not the same as that of, the
first, and, therefore, a former recovery cannot be pleaded. In real actions,
one is not a bar to an, action of a. higher nature. 6 Co. 7. Vide 12 Mass.
337; Res Judicata; Thing Adjudged.
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