A Selection of Leading Cases on Various Branches of the Law; With Notes Volume 2, PT. 2 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1885 edition. Excerpt: ...an alleged want of care or skill in the workmanship or materials: Davis 1). Talcott. And although a debtor, against whom judgment had been taken by default for the whole amount of a debt, without crediting him with the sum which had been received on account by the creditor, was allowed, in Smith 1). Weeks, 26 Barb. 463, to recover back the excess, on the authority of Fowler v. Shearer, 7 Mass. 31, and Rowe v. Smith, 16 Id. 306; yet this seems to have been one of the hard cases which make bad precedents; and if redress was obtainable it should have been sought through a hill in equity, or an application to the court which rendered the judgment. Tilton 1). Gordon, 1 N. H. 33; Mitchell 12. Sanford, 11 Ala. 695; ante., The estoppel of a former adjudication will, however, only extend so far as the subject-matter of the second suit is substantially the same with that of the first, and may be binding on some points, while leaving others open to controversy: Nickerson v. California, 10 Cal. 520. A decision that a right exists, or that a wrongful act has been committed, will be conclusive to the point actually presented and determined; but will leave the parties free to show that the right expired or that the trespass was subsequently abated: McKissick 11. McKissick, 6 Humph. 75; Parker 1). Standish, 3 Pick. 288; Neafie v. Neafie, 7 Johns. Ch. 1. Hence, while a verdict and judgment in an action brought to recover damages for a nuisance committed by the erection of a dam, will be conclusive of the plaintiii"s title, and that the dam, as originally erected, was wrongful, it will not preclude the defendant from showing a subsequent license, or that the pool has been reduced to the proper level: Kilheifer v. Herr, 17 S. & R. 319; Shepperd v....