James Peach v. Archibald Mills, 14 Vt. 371

The opinion of the court was delivered by Williams, Ch. J. The plaintiff cannot maintain this action. The first claim of the plaintiff, for the sum of thirteen dollars and fifty cents paid on a note, is wholly groundless in any view. The authority of the case of Slasson v. Davis, 1 Aikens, 73, is decisive against the plaintiff that he never could have had any action on book therefor. Moreover, when the note on which the payment was made was sued, the plaintiff appeared, claimed this payment, and had a trial and judgment thereon.

Whether, therefore, this sum is to be treated, as the plaintiff now claims it, as a payment on the. note, which he says has never been applied, or as a subject already adjudicated, no action can now be maintained to recover it.

The same remark will also apply to the charge for the fifty cents ; and, although on the facts, as now found by the auditor, it would appear that this might have been once recovered of the defendant, yet, when we find the plaintiff contending, on the trial of the action of Mills against him, on the note, that this sum was paid on that note, and endeavoring to sustain the claim until a verdict was found against him, he cannot now be permitted to maintain an action therefor and sustain it by his own oath, and wholly change the ground on which he has once claimed it, and which has been decided against him by the verdict of a jury and a judgment of court thereon.

This claim, together with the other, must be considered as res adjudicata, and cannot be again litigated in this, or any other action. The opinion of the jurors, or their statements of their views, or the ground on which they found their verdict, is of no importance. It is sufficient that the plaintiff claimed this sum, urged it on the consideration of the jury and took his chance for a verdict, and they have passed thereon. The plaintiff cannot, by shifting his claim, take another chance to substantiate it before another tribunal. The case of Brockway v. Kinney, 2 Johns. 210, as well as the case of McGuinty v.

Herrick, 5 Wendell, 240, are strong, if not conclusive authorites against the plaintiff as to both of these claims. The claim for the cellar stairs is wholly unfounded, as there was no contract, express or implied, which would justify the plaintiff to charge them on book. If the plaintiff has any cause of action therefor, it must be an action of trespass vi et armis, and, for property forcibly taken out of the possession, and against the will of the owner, I have never learned that he could charge the same in account and maintain an action of book therefor.

Judgment on the report must be entered for the defendant.