Streeks v. Dyer

Stewart, J., delivered tbe opinion of the Court. There were two counts in the plaintiffs’ declaration— the one claiming damages for the conversion of certain property, and the other for wrongfully taking and depriving the plaintiff's of certain property. The defendant pleaded not guilty to both, and the jury rendered a verdict in favor of the plaintiff's. The defendant moved in arrest of judgment, alleging as reasons that the verdict was general, not showing whether found on the first or second count.

From the decision of the Circuit Court overruling this motion, and the rendition of a judgment on the verdict, the defendant has taken this appeal. The appellant in his brief, assuming both counts to be good — tbe one as a count in trover, and the other in detinue — contends that the general verdict and the judgment thereon, are erroneous, because they do not afford sufficient certainty to enable him to plead the recovery in this suit in bar to another action for the same matter. There is no doubt, it is the policy of the law to prevent the repetition of suits between the same parties, for the ⁴²⁷ same subject-matter; and that a party is not allowed to recover twice for the same cause of action ; and in order that parties may avail themselves of the defence of a former recovery, there should be reasonable certainty in all pleadings. But from the multiplicity and variety of the causes of action, it is impracticable to establish rules of pleading that will enable the Courts to ascertain from the record alone, in all cases, whether a second suit is identical with the first.

Therefore such a defence is not confined to a mere estoppel by the record, but may be proven by evidence, as any other issue. The operation of the rule of res adjudicata, has frequently been before this Court, and was explained in the recent case of Whitehurst vs. Rogers, 38 Md., 503 , and it is unnecessary to reiterate the extent and purport of the rule. It was stated that the identity of the first and second actions is not determined alone by the pleadings, but by proof. Parties may not choose in the conduct of a suit to present their