
    Manny against Harris.
    YO lílítKG & record in a former suit conclusive evidence.on any appear* Slf°om the record that such point was in evidencec'an-not be receiv-that a ular matter not in issue on the record taken into by the jury, bond*'with U a penalty, does action^on*16 suchbond.
    . This was an action of debt on a bond ; the cause was tried, at the circuit, in the county of Saratoga, on the 28th of April, before Mr. Chief Justice Kent. The bond was dated the 25th of May, 1800, and recited, that wjjerea-s Harris, by virtue of an agreement made with . J . ° Manny, was in possession of 112 acres of land, situated, &c* which lot was leased to Manny by Dirriclc, Lefferts, 0f cjty 0f JVcw- York, deceased, with a reservation of J . . . a yearly rent of 10/. 3s. 10d. and the lease contained a covenant, that if, at the expiration thereof, Manny, his heirs or assigns, should pay the lessor ' 143Z. 12s. that the lessor would convey the land to Manny, by a gufficient warranty deed. The condition of the bond was, J that if Harris paid . Manny the yearly rent specified in lease according to the conditions thereof, and also the sum of 145Z. 12s. by'the 1st day of September, 1802, then the bond was to be void. The defendant pleaded non est fac¿um i and gave notice of a set-off; and that he should offer in evidence under that plea, that, at the trial a c.ause between him and the plaintiff, before the commencement of the.present suit, at the Saratoga circuit, in which Harris was plaintiff, the said bond and the monies due thereon were necessarily drawn in question, and that the jurors in the said cause, took into consideration, in making up their verdict, and did allow and deduct from the demand of Harris, all the monies due, or now claimed by Manny on the said bond ; and further, that, the said bond was given on the condition, that Manny should procure by the first day of October, 1802, a good and sufficient deed of the said land to Harris, from the representatives of Lefferts; but that no such deed had been procured by Manny; and further, that on tjíé 28th of May, 1801, the defendant paid to the plaintiff, at Albany, the interest due on 1457. 12s. being 25 dollars and fifty cents, and that on the 26th of May, 1802, before the commencement of the suit, he tendered, and offered'to pay to the plaintiff, $25 50 cts. further interest on the said sum, which the plaintiff refused; and that on the 1st of September, 1802, the defendant tendered and offered to.pay the plaintiff the said sum of 1457. 12s. aud also $6 88 cts, interest, according to the condition of the bond, which the defendant refused to accept.
    The defendant proved, that on the 6th of May, 1802, he went to the plaintiff’s house, and was informed by the family, that the plaintiff was gone to New-Yorlc; that after waiting some time, and counting out the sum of 107. 3s. 10x7. due on the bond, he went away, finding no person ready, to receive the money. He also proved, that on the first of September, 1802, he tendered to the plaintiff, the sum of 1457. 12s.- and the interest which-the plaintiff refused, saying, the defendant should not have the land, as a Mr. Barton hadgot .it. The. defendant then offered in evidence, the récord of the former suit of Harris against Manny, and one of the jurors on-that trial as a witness, that the monies claimed by the plaintiff had been allowed in that suit. This evidence was objected to, on the part of the plaintiff, but admitted by the judge. It appeared from this recox-d, that the suit was on a bond, dated the 26th of May, 1800, from Manny.to Harris, in the penal sum of $2,500 with a condition, that if Manny should procure a' good and sufficient deed to Harris, from the representatives of Lefferts, for the lot of land above mentioned, on or before the 1st of October, 1802, provided Harris paid the sum of 1457. 12s. with interest annually, before the 1st of September, 1802, then the bond to be void, &c. Man„ ny pleaded that Harris did not pay, &c. Harris replied, t^at he Pai<i Manny one year’s interest, and tendere d him the principal with the interest due, according to the condition of the bond, which Manny refused, in the manner above stated. To this replication there was a rejoinder and issue.
    One of the jurors on the former trial, being sworn as witness, testified that the jury, in making up their verdict in that cause, allowed the present plaintiff all the money he now claims in the present suit. The verdict, in the former suit, was for $662 50 cts. for which judgment was rendered, and the-execution thereon satisfied.
    On the trial of this suit, the plaintiff proved', that his brother was his authorised agent to transact his business ; and had the custody of his papers, and the bond in question, and was at his house the day the defendant came there; but that no money was tendered to him by the defendant; and that prior to the commencement of this suit, a demand of money had been made of the defendant, who refused, alleging that the amount had been allowed to the plaintiff in the former suit. The jury found a verdict for the defendant.
    A motion was now made to set aside the verdict. 1st. Because the record of the trial in the former suit, .and the evidence of the juror, were improperly admitted. 2d. Because the tender of the interest, on the 26th of May, 1802, and the tender of the same on the second of September, 1802, were not sufficiently proved. 3d. That the subsequent demand and refusal entitled the plaintiff to recover, notwithstanding the tender.
    
      Hildreth, for the Plaintiff.
    The point put in issue by the pleadings in the former suit was the tender. There was no pretence of a set-off, nor had the jury any right to take a set-off into consideration. In the case of Sint-v, Lucas
      
       Lord Kenyon observed, “ that in order to make a record évidence to conclude any matter, it should appear that the matter was in issue, which should appear from the record itself; nor should evidence 1 r be admitted, that under such a record, any páiticular matter came in question.”’ Here the payment or set-off was not in issue, and the record could conclude nothing on that point. The juror, therefore, ought not to have been admitted to testify, what was taken into consideration by the jury. The only measure ■ of the damages, was the value of the lands covenanted to be conveyed. It is true that nemo debet bis vexari : but then it must ... for the same cause of action, or the same point in issue. The tender on the 26th of May, 1802, was not made according to law. Harris should have staid at the plaintiff’s house until-sun-set, but he went away about noon. A tender does not disharge thedebt. Besides, it ought ° * a to have been as fully proved, as on a plea of tender. The defendant should have shown not only that he was . , , , , , • then ready, but was now ready to pay the money, which should be brought into court. If the money be not brought into court, the plaintiff is entitled to sign judgment.
    
      Henry for the defendant.
    The measure of damages was, no doubt estimated according to the value of the land, and allowing for the money paid. The general rule, as to tender, is not questioned. Biit if it be shown that, by the plaintiff’s default, it was impossible to make the tender, the. defendant is excused. The plaintiff ought to have been at home on the day of payment.
    Where the same subject matter has been once tried, it cannot be again litigated. The bond here relates to the same subject matter. The tender is made out by the default of the plaintiff, to get rid of the penaly, or by the •finding of the jury. The remedy on the penalty of the bond is then-gone, though the debt exists, to recover which, the plaintiff should have resorted to a different action. The plea of tout temps prist with uncore prist, regards only the debt, not the penalty or forfeiture, it is only necessary to show a performance of the condition, or, what is tantamount to a performance, a tender and refusal. A tender to a bond with a penalty is in bar of the action.
    
    But a more substantial ground of defence is, that the. plaintiff had already recieved what he is attempting to recover by the suit. The jury, in assessing the damages in the former suit, deducted the consideration money from the value of the land, and gave a verdict for the residue. This must be intended from the record ; and the fact is proved by the evidence of the juror. In the present action, there is a plea of set off for so much money paid to the plaintiff’s use. Now, if the jury in the former suit did make a deduction of the consideration money, it must be considered as so much money-had and received to the use of the plaintiff. If a court of equity would interfere to prevent the plaintiff from proceeding to recover this money a second time, there is no reason why this Court should allow him to recover it again in this action. In the case of Bedient v. Church, though no set-off was pleaded, the court of errors decided that the amount of sales might, be deducted, and that the residue was the proper measure of damages.
    
      Van Vechten, in reply.
    We are not to intend» that the jury in the former suit took into consideration what was not in issue before them, or competently proved. The plea of tender presumes, that there was no payment, for if the money was paid, why plead tender ? Tender was the only point in the pleadings. The tender did not save the penalty of the other bond; its only effect was to give the defendant a remedy on the contract for the conveyance of the land. A mere .naked tender will never destroy the remedy on the penalty of a bond. The jury, therefore, had no right to consider the payment, or to take the money into their calculation. The only rule for them was, the value of the land to be conveyed. The court cannot intend that the jury did more than they were authorised to do, by the pleadings in the cause.
    
      
       1 Espinasse's Cases, 43.
    
    
      
      
         3Wilson, 304, Kitchen y. Campbell. Saym.
      
    
    
      
       6 Bac. Ab 453, 5th edition.
    
    
      
       6 Bac. Ab. 457 Plowden, 172, 173.
    
    
      
       6 Bac. Ab. 490, 464.
    
    
      
       3 Term, 683. Douglas and others v. Patrick. 1 Espinasse's Cases 449. 5 Comyns, 649. Pleader, 2 W. 28. Carthew, 133.
    
    
      
      
         Caines’ Cases in Error, 21.
    
   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.
     