
    Paul Kent versus Joseph Gerrish.
    
      Nov. 9th.
    
    In case for the continuance of an obstruction to a private way, it was held, that a judgment in favor of the defendant, on the general issue, in a former action between the parties for the same obstruction, although admissible in evidence, was not a bar to the action.
    Br an agreed statement of facts, it appeared, that this was an action on the case for the continuance of an alleged obstruction of the plaintiff’s way ; that he had previously brought an action against the defendant for the same obstruction ; that such previous action was tried on the general issue ; and that the defendant recovered judgment, in November, 1837.
    If the judgment in the former action was a bar to this action, the plaintiff was to become nonsuit; otherwise, this action was to go to trial.
    
      Saltonstall and Choate, for the plaintiff,
    to the point, that the former judgment, although admissible in evidence, was not conclusive, cited Standish v. Parker, 2 Pick. (2d ed.) 20, and note; S. C. 3 Pick. 288; Outram v. Morewood, 3 East, 364.
    
      Jan. 31st, 1837
    
      Gerrish and Lord, for the defendant,
    cited Parker v. Thompson, 3 Pick. 429; Stafford v. Clark, 2 Bingh. 377; Heming v. Wilton, 5 Car. & Payne, 54; Buffum v. Tilton, 17 Pick. 510; 1 Stark, on Evid. (5th Am. ed.) 221, 222, 223; Bradford v. Bradford, 5 Connect. R. 127; Vooght v. Winch, 2 Barn. & Ald. 662; Strutt v. Bovingdon, 5 Esp. 59; Johnson v. Long, 1 Salk. 10; Com. Dig. Action, K 3; Ferrer’s case, 6 Co. R. 7.
   Wilde J.

drew up the opinion of the Court. This was an action for the continuance of an obstruction to the plaintiff’s way, he having brought a former action against the defendant for the same obstruction in which he failed to recover. The defendant relies on the judgment in that case as a bar to this action. If the defendant had justified in the former action, and issue had been joined on his right to erect the obstruction, and had been found in his favor, the judgment would have been a bar to this action, according to the doctrine laid down in Outram v Morewood, 3 East, 346. But the trial in the former action was on the general issue, and the judgment is evidence in this case, but is not conclusive. This was decided in the case of Standish v. Parker, 2 Pick. 20, and 3 Pick. 288, after a full examination of the authorities, and we perceive no reason for questioning the authority or correctness of that decision. The case, therefore, is to stand for trial, according to the agreement of the parties  