Seddon and Others against Tutop
| Jurisdiction | England & Wales |
| Date | 1796 |
| Year | 1796 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 729
IN THE COURT OF KING'S BENCH.
1 Esp. 401. 2 East, 81. 1 Camp. 252. 4 M. & S. 186.
Referred to, Stevens v. Tillett, 1870, L. R. 6 C. P. 175; Jones v. Brassey, 1871, 24 L. T. 951; Brunsden v. Humphrey, 1884, 14 Q. B. D. 147.
seddon and others against tutop. Monday, April 18th, 1796. Plaintiff in a former action declared on a promissory note, and for goods sold, but upon executing a writ of inquiry after judgment by default gave no evidence on the count for goods sold, and took his damages for the amount of the promissory note only. Euled that the judgment thereupon is no bar to his recovering in a subsequent action for the goods sold. [1 Esp. 401. 2 East, 81. 1 Camp. 252. 4 M. & S. 186.] [Referred to, Stevens v. Tillett, 1870, L. R. 6 C. P. 175 ; Jones v. Srassey, 1871, 24 L. T. 951; Brunsden v. Humphrey, 1884, 14 Q. B. D. 147.] Assumpsit for goods sold and delivered. Plea a former recovery of 711. 10s. for the damages the plaintiffs had sustained as well by means of not performing the same identical promises, &c. as for their costs, &c. Replication that the promises and undertakings in this action were not the same identical promises for the non-performance whereof the said sum of money was so recovered by the said judgment; on which issue was taken. At the trial at Guildhall before Lord Kenyon it appeared that in the former action, in which the defendant suffered judgment to go by default, there was a count on a promissory note for 511. and counts for goods sold and delivered, there being at that time 251. 7s. due for goods : but on executing the writ of inquiry the plaintiffs only being prepared with proof of the note, they took a verdict for that, which with the costs amounted to 711.10s. Afterwards on an application to the defendant for the 251. 7s. he refused to pay, on which the present action was brought. It was objected on behalf of the defendant that as the plaintiffs might have recovered this sum in the former action, they ought not to be permitted to bring this, a second action, for the same demand. But a verdict was taken for the plaintiffs, with liberty to the defendant to move to enter a nonsuit in case this Court should be of opinion that the plaintiffs were not entitled to recover. A rule for that purpose having been accordingly obtained, Erskine now shewed cause against it. In justice the plaintiffs are entitled to recover, because it is admitted that they have a...
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