
    David Smith versus Aaron Whiting, Jun.
    A second action cannot be maintained upon evidence once offered and rejected in the trial of a like action between the same parties.
    Case for money had and received, money laid out and expended, &c.
    The defendant pleaded the general issue, which was joined by the plaintiff; also a special plea in bar, alleging that the plaintiff heretofore impleaded the defendant in an action of the case upon divers promises, and particularly upon the promise alleged in the first count of the declaration in the present action, and that, after a full hearing, a verdict was returned that the defendant did promise, &c., and damages were assessed, and judgment thereon rendered, &c.; and this, &c., wherefore, &c.
    The plaintiff replies that his said first count is for money laid out and expended by him to the said Aaron’s use, and is to recover the sum of 113 dollars 20 cents, for so much money paid to one A. Whitelaw for the said Aaron on the 8th day of September, 1808, as by said A. W.’s receipt appears; and although true it is that the plaintiff did implead the said Aaron in an action of the case on divers promises, and did recover judgment for the sum in the said plea mentioned," yet the said David says that one count in the declaration was for money paid, laid out, and expended for the defendant’s use; and to entitle him to recover on that count [ * 446 ] he offered to give the aforesaid receipt in evidence; * but as it did not appear to the Court that the said sum was paid at the request of the said Aaron, and his attorney objected to the said receipt as evidence on said count, the same was rejected by the Court, and no evidence on that particular was given to the jury; and so the said David says that the sum in the said second plea of the said Aaron mentioned and averred to have been recovered by the said David in a former action, was recovered entirely on account of other promises than the identical promise alleged in the said first count, &c.
    To this replication the defendant demurred generally, and the plaintiff joined in demurrer.
    
      Richardson, for the defendant.
    Where the particular demand is not submitted to the jury, no doubt another action may be brought upon it, and on trial of such second action, the Court will inquire into that fact.  The same principle applies to a submission even of all demands to referees, and judgment on their report.  But where the plaintiff attempts to prove his demand, and fails, he can not maintain a new action for the same cause.
    
      Chickering, for the plaintiff,
    was aware that the replication was not in usual form ; but he thought the facts exposed by it sufficient to maintain the action. 
    
    
      
       4 D. & E. 146, Ravee vs. Farmer; also Golightly vs. Jellico, in anote to the same case. —6 D. & E. 607, Seddon & Al. vs. Tutop.
      
    
    
      
       5 Mass. Rep. 334, Webster vs. Lee.
      
    
    
      
      
        Peake's L. of Evid. 35. — 1 Esp. Rep. 401.
    
   Parker, C. J.

[After stating the pleadings.] We are all of opinion that the replication is ill, and that the matter alleged in the bar is sufficient to avoid this action. It is apparent from the pleadings that this very demand has been once tried and determined; and although the Court may have decided wrong in rejecting the evidence in the former suit, yet this is not the way to remedy the misfortune. Exceptions might have been filed to the opinion of the judge, or a new trial might have been had upon petition; or, if there was a defect of evidence without any negligence, a continuance of the cause might have been had. But the plaintiff suffered the cause to go on to trial, without striking out the count to which the demand was applicable, which he might have done, and permitted a general verdict to be * returned. We [ * 447 ] must presume that this very matter has been tried; and it is never permitted to overhale the judgment of a court having jurisdiction, by another action.

The cases of Ravee vs. Farmer, and Golightly vs. Jellico, establish the same principle which has been recognized here and settled in the case of Webster vs. Lee. The principle is, that, where a demand has not been submitted, it shall not be barred by an award or report on a rule or submission of all demands. The case of an inquiry of damages in Seddon & Al. vs. Tutop is upon the same principle. In all these cases no evidence was offered to support the demands, which were the subject of the second suit.

In the case at bar, the very evidence now relied on was offered, and an adjudication had upon it. A rehearing of the same action may be proper ; but to sustain a new action would be to throw all judgments into uncertainty and confusion,

Replication adjudged bad

403 
      
      
         Hodges vs. Hodges, 9 Mass. Rep. 320. — Minor vs. Walter, 17 Mass. Rep. 237. — Rowe vs. Smith, 16 Mass. Rep. 306. — Loring vs. Mansfield, 17 Mass. Rep. 394. — Thacker vs. Gammon, 12 Mass. Rep. 268.— Thorpe vs. Cooper, 5 Bing. 129.—Ravee vs. Farmer, 4 D. & E. 146. — Bagot vs. Williams, 3 B. & C. 239. — Wheeler vs. Van Horton, 12 Johns. 311. — Canfield vs. Monger & Al. 12 Johns. 347. — Battey vs. Button, 13 Johns. 187. — Grant vs. Button, 14 Johns. 377. — White vs. Ward, 9 Johns. 232.
     