5 D.C. 393 (C.C.D.C. 1838), 13,333, Steam-Packet Co. v. Bradley

Docket Nº:13,333[1]
Citation:5 D.C. 393, 22 F.Cas. 1166
Opinion Judge:CRANCH, Chief Judge.
Attorney:Mr. Marbury, for plaintiffs. Mr. Jones, contra. Mr. Bradley, on the same side, Mr. Coxe, in reply.
Judge Panel:Before CRANCH, Chief Judge, and MORSELL, Circuit Judge. THRUSTON, Circuit Judge. THRUSTON, Circuit Judge, did not sit in the cause.

Page 393

5 D.C. 393 (C.C.D.C. 1838)

22 F.Cas. 1166




No. 13,333 [1]

Circuit Court, District of Columbia.

March 1838. [2]

Assumpsit, upon the same cause of action as that in the case between the same parties in 9 Pet. [ 34 U. S.] 107, in which the judgment was reversed in January term, 1835, because it appeared by the record that the writ of capias ad respondendum was issued before the cause of action had accrued. The writ of error, upon which it was reversed, was issued in January, 1834. While it was depending in the supreme court unreversed, the plaintiffs sued out the capias ad respondendum in the present suit, on the 24th of December, 1834. In January, 1835, the supreme court reversed the first judgment, and sent the cause back with an order to issue a venire de novo, and thus it stood until the 22d of June, 1838, when the plaintiffs directed a non-pros. to be entered. On the 7th of March, 1836, the plaintiffs filed a declaration precisely like that in the former case; to which the defendant pleaded in abatement the pendency of the former suit. To this plea the plaintiffs replied, in effect, that the writ in the former case issued before the cause of action accrued, and therefore the evidence to support the present action was improperly admitted in the former suit, and that the judgment of this court in that suit was reversed by the supreme court upon that ground. To this replication the defendant demurred.

Mr. Marbury, for plaintiffs. The record in the former case shows that the plaintiffs had then no cause of action, and unless they could have recovered in that action, it is no ground of abatement of the present suit. But the former record is extinguished by the reversal before the plea pleaded, so that nul tiel record might have been pleaded. Knight's Case, 1 Salk. 329, 2 Ld. Raym. 1014; Marston v. Lawrence, 1 Johns. Cas. 397.

Mr. Jones, contra. The plaintiffs in the former suit had a good cause of action for the hire of the boat from the 20th of November to the 2d of December, 1831, the date of the first writ; and the present suit covers the same time. To that extent, the cause of action is the same in both causes. The error of this court was, in instructing the jury that the plaintiffs could recover for the hire from the 2d of December to the 7th of February. The judgment of this court was reversed, but a venire de novo was ordered; so that...

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