Manny against Harris, 2 Johns. 24

Spencer, J. delivered the opinion of the court. To defeat the plaintiff’s recovery, the defendant’s counsel rely on two points. 1. That on the trial of the suit in which Harris was plaintiff, and Manny defendant, the jury allowed the money claimed in the action. 2. That the defendant, having once tendered the principal and interest due on .the bond now in suit, the plaintiff’s remedy to maintain an action for the penalty is gone, notwithstanding the plaintiff, after the tender, and before the institution of the suit, demanded the money tendered.

The only point.in issue, in the former suit, was whether Harris had, or had not, paid and tendered the monies due, to entitle him .to a deed for the land contracted to be sold. That point was decided by the jury in favor of Harris, and they gave him a verdict for $662, 50 cts. as damages for not making the conveyance.

It is, therefore, only necessary to inquire, whether that issue warranted the giving the present bond in evidence, so that the jury might allow it to the plaintiff; for if the issue did not embrace the consideration of the present cause of action, evidence ought not to have been received that the jury did decide upon it. This principle .is not only a plain dictate of common sense, but has frequently been recognised. • In the case of Sintzenick v.

Lucas, Lord Kenyon lays it down, that to make a record evidence, to conclude any matter, it should appear that the matter was in issue, which should appear from the record itself; nor should evidence be admitted, that under such a record, any particular matter came in issue, in the case of Kitchen and others v.

Campbell, Lord Hardwiclce says, if is the test to know, whether a final determination, in a former action, is a bar or not, to a subsequent one, where the same evidence will support both the actions.” It does not appear from the record, that the former issue, in any shape, comprehended this cause of action, and consequently the proof admitted at the time was improper. There is no analogy between this case, and that of Church v. Bedient;‡ there, the assured went for a total loss, holding in his hands the proceeds of the very subject insured nearly equivalent to the loss claimed.

Though the court of errors did not decide, that the proceeds without any notice of set-oif,' ought to go in diminution of the recovery, yet I think it ought to be so. In this case, there are two distinct bonds ; one for the absolute payment of a sum of money by the defendant, the other for the conveyance of a tract of land, on the payment of the money; and the remedy on a breach of either of the conditions was distinct also. The second point is attended with no difficulty. There is a dictum in Carthew, 133, that if tender be on a bond, with a penalty, the plea is in bar of the action.

The only possible reason for this was, that the penalty, on a forfeiture of the condition, became the debt, and might be recovered. At present it is not so considered, and on payment of the sum, in the condition, the court will order satisfaction. The reason having ceased, the law must cease with it. I doubt, however, whether this was the law, that a tender in case of a penal obligation took away the remedy on the obligation. A case in 2 Rolles, Abr. 524, has a different aspect. It appears by the present case, that prior to the commencement of this suit, the plaintiff demanded the money, which was not paid.

Though there had been a previous legal tender, so as even to bar a suit on the penalty, this, I think, revived the remedy. The court are’therefore of opinion, thatfa new trial ought tobe awarded, with costs to abide the event of the suit. New trial granted. ° 1 Esp. Rep. 43. 3 Wil 303. 6 Bac. Ab. 457. Caines’ Cases in Error, 31.