1831. June 15. A nolle pro- THIS sequi as to part, entered up after judg ment for the whole, is equivalent to a retraxit, and a bar to any future action for the same cause. BOWDEN v. HORNE. THIS cause was tried at the last Devon Spring as- stances: The Defendant, in May 1830, was indebted to the Plaintiff 577. 11s. 6d., being the balance of an account for goods sold and work done. He had given the Plaintiff his acceptance for 301. on account, but this acceptance was returned dishonoured. A bailable writ was issued out of this Court against him, on the 2d of June 1830. The affidavit of debt was for 571.; 30l. thereof as due on the bill of exchange, and the rest for goods sold, and work and labour. The declaration in that action was in assumpsit, and contained a count on the dishonoured bill, counts for goods sold, work and labour, the money counts, and an account stated. No order for particulars of demand was obtained, nor were particulars given in that action. The Defendant suffered judgment by default for want of a plea. Interlocutory judgment having been signed on the 3d of July 1830, no further proceedings were had thereon until the latter end of the long vacation of 1830, when, immediately previous to Michaelmas term, the Plaintiff's attorney, in order to avoid the delay of a writ of enquiry, and fearing a bankruptcy by the Defendant, obtained a rule to compute on the bill of exchange only. In pursuance of this rule, on the 9th of 1 of November last, the Plaintiff's costs were taxed, and final judgment signed for 51. 17s. including only the amount of the bill and interest. The Plaintiff had not, at this time, entered a nolle prosequi to any of the counts contained in the declaration; and his costs were taxed according to the length of his whole pleadings. As by the course thus adopted, the Plaintiff did not obtain payment of his whole demand, and as the Defendant continued solvent, the Plaintiff directed his attorney to commence a second action for the balance. The Plaintiff's attorney, accordingly, on the 18th of November 1830, issued a serviceable capias against the Defendant. Particulars of demand in this second action having been furnished by the Plaintiff, the Defendant's attornies applied by summons to a Judge at chambers to stay proceedings on payment of the debt sued for,. namely 277. 11s. 6d., without costs. The learned Judge, after hearing the affidavits on both sides, refused to make any order, particularly as a demand had been made and refused. The Plaintiff declared, in this second action, on the common counts for work and labour, goods sold, the money counts, and account stated; and the Defendant pleaded the general issue only. The Defendant's attorney, on the 25th of February last, obtained a Judge's order on the Plaintiff to carry in and docket the judgment in the first action; and accordingly, on the 4th of March last, the judgment was entered up and docketed as if a nolle prosequi had been entered to the counts not on the bill. The entry of such judgment, after setting out the count on the bill of exchange, goods sold, work and labour, the money counts, and account stated, was as follows:-"And hereupon, as to the second and subsequent counts of the declaration, the said Plaintiff VOL. VII. 3 B saith 1831. BOWDEN V. HORNE, 1831. BOWDEN 2. HORNE. saith that he will not further prosecute his suit against the said Defendant, in respect of the promises and undertakings in the said second and subsequent counts of the said declaration, or any of them; therefore, as to the said promises and undertakings in the said second and subsequent counts of the said declaration, let the said Defendant be acquitted and go thereof without day, &c. And the said Defendant, in his proper person, comes and defends the wrong and injury when, &c., and says nothing in bar or preclusion of the said action of the said Plaintiff in the said first count of the said declaration mentioned, whereby the said Plaintiff remains therein undefended against the said Defendant, wherefore the said Plaintiff ought to recover against the said Defendant, his damages on occasion of the premises; and the said Plaintiff prays judgment and his damages by him sustained, on occasion of the not performing of the said promise and undertaking in the said first count mentioned to be adjudged to him; and because it is suggested and proved, and manifestly appears to the Court here, that the said Plaintiff hath sustained damages on occasion of the not performing of the said last-mentioned promise and undertaking, to the sum of 30l. 14s. 4d., besides his costs and charges by him about this suit in that behalf expended, therefore it is considered that the said Plaintiff do recover against the said Defendant his damages aforesaid, to wit, the said sum of 30l. 14s. 4d., and also 211. 2s. 8d. for his costs and charges by the Court of our said Lord the King now here adjudged to the said Plaintiff with his assent, which said damages, costs, and charges, in the whole amount to 517. 17s., and the said Defendant in mercy, &c." An examined copy of this judgment was put in on the trial of the cause. On the part of the Defendant, it was contended the action did not lie after the nolle prosequi entered in the former cause. Stephen Serjt. accordingly obtained a rule nisi to enter a nonsuit on that ground. Russell Serjt. shewed cause. The nature and extent of a nolle prosequi, which is the form of the judgment in the present case, is now sufficiently understood. The doctrine laid down by the Court in Cooper v. Tiffin (a) has not, in modern times, been disputed; and there it was said, that "the case of a nolle prosequi could not be distinguishable in reason from that of a discontinuance, for that in this as well as in that, the party might afterwards commence another action for the same cause." It can never be urged, in direct opposition to the principle of law laid down in Coɔper v. Tiffin, that the nolle prosequi on the judgment roll in this cause can operate as a release or discharge of the action, or as an absolute bar to any future action for the same cause. The Plaintiff, therefore, is not barred from a renewed action, on the ground that he might have given evidence and recovered for the same matter in a former action. It is established by Seddon v. Tutop (b), that points on which no evidence has been given may be contested in another action; and the law of that case was recognized by Best C. J. in Stafford v. Clark (c), which decides that a judgment which is not pleaded, cannot operate as an estoppel, but is merely evidence on the general issue to the jury. On the general issue here the judgment could only have been available as evidence of payment or satisfaction of the present demand; whereas it shews the very reverse. If it were intended to say that the judgment, such as it is, though it does not prove pay (a) 3 T. R. 511. (b) 6 T. R. 607. (c) 9 Moore, 738. 2 Bingh. 377. 3 B 2 ment 1831. BOWDEN v. HORNE, 1831. BOWDEN บ. HORNE. ment or satisfaction, yet operated as an estoppel, it ought to have been pleaded. An award comes within the same principle. An award, although under a submission of all matters in difference, will not be conclusive upon any matter which was not contested before the arbitrator. And the arbitrator may be examined, in order to prove that no evidence was given upon a particular subject. 2 Stark. Evid. 139. Lord Bagot v. Williams (a), the case which may be relied upon on the other side, is clearly distinguishable. In that case it appeared at the trial, that the defendant had received on account of the plaintiff, and as his steward, different sums of money at different times; and that, on the investigation of the accounts, the plaintiff found there was due to him a much larger sum than that for which he had declared in an inferior court; but that he had proceeded for the smaller sum, under the belief that the defendant had no available property beyond that amount. It was held, that all the sums which the plaintiff knew the defendant had received at the time when he commenced the action in the inferior court, were to be considered as causes of action, in respect of which he had declared and recovered the judgment. But the action in the inferior court was brought on a single account, whereas the Plaintiff here had several causes of action in the first suit. Stephen. The recovery in the former action, coupled with the nolle prosequi as to a part, is a bar to the present action: and it would operate with great hardship on defendants if the law were otherwise; for they might always be harassed with several actions instead of one. Seddon v. Tutop is distinguishable, on the ground that the Plaintiff in the present case entered the nolle pro (a) 3 B. G. 235. |