(£4 3s. Od.), brought an action in the Divisional Court against defendant, claiming damages for personal injury sustained by plaintiff through the same negligence, and the jury found for the plaintiff with £350 damages, it was held that, inasmuch as the damages for personal injuries might have been claimed in the first action, the judgment recovered in it was a bar to subsequent proceedings (z). However, facts "noviter peracta et ad notitiam perventa," may be introduced in a subsequent action, even where matter which might have been known by reasonable diligence on the former occasion could not be so introduced (a). And the distinction should be borne in mind between a continuing cause of action and fresh damages arising out of the same cause of action. Thus, in an action on the case for erecting a nuisance, defendant pleaded a prior action for erecting the same nuisance and a recovery thereon, and plaintiff demurred, but judgment was given for defendant, for plaintiff might have had an action for a continuance of the same nuisance, but not a new action for the same nuisance (b). On the same principle new consequential damages do not give a fresh right of action for assault, after a former recovery had (c). The general principle upon which the plea of res judicata depends, and also the rule by which it may be determined whether the cause of action is the same or (2) Brunsden v. Humphrey, L. R. 11 Q. B. D. 712. (a) See per Willes, J., in Stevens v. Tillett, L. R. 6 C. P. 147. (b) Johnson v. Long, 1 Salk. 10; Clarke v. Yorke, 52 L. J. Ch. 32. (c) Fetter v Beale, 1 Salk. 11. But a summary order is no bar as to fresh causes of complaint; Cutler v. Turner, L. R. 9 Q. B. 502. not, has been well stated, as follows:-"You shall not bring the same cause of action twice to a final determination. Nemo debet bis vexari'; upon this we found our judgment; and what is meant by the same cause of action is where the same evidence will support both the actions (d), although the actions may happen to be grounded on different writs. This is the test to know whether a final determination in a former action is a bar or not to a subsequent action, and it runs through all the cases in the books, both in real and personal actions. It was resolved in Ferrer's Case (e) that when one is barred in any action, real or personal, by judgment upon demurrer, confession, verdict, &c., he is barred as to that or the like action, of the like nature, for the same thing for ever; for 'expedit reipublicæ ut sit finis litium' "(ƒ). Thus, where a suit for declarator of marriage was brought against a lady in Scotland, and after trial was dismissed, and it appeared that the pursuer had at the time of the hearing all the facts within his knowledge, and had the power to raise them, it was held that he was barred from instituting, upwards of thirty years afterwards, a second suit for declarator of the marriage against the lady's trustees, after her death, although it was urged in the second suit, that the decree in the former suit had been obtained through fraud and by false (d) See also Ld. Westbury's judgment in Hunter v. Stewart, 31 L. J. Ch. N. S. 346, and V.-C. Wood's remarks thereon in Simpson v. Fogo, 29 L. J. Ch. 657; 32 L. J. Ch. 249. (e) 2 Cro. Eliz. 668. (f) Hitchin v. Campbell, 2 Sir W. Bl. 827. evidence (9). "The object of the rule of res judicata," said Lord Blackburn, "is always put upon two grounds; the one public policy, that it is in the interest of the State that there should be an end of litigation, and the other the hardship on the individual that he should be vexed twice for the same cause." Again, Lord Penzance, in his judgment in another case, says, "When that which was originally only a right of action has been advanced into a judgment of a court of record, the judgment is a bar to an action brought on the original cause of action. The reasons for this result are given by Baron Parke in King v. Hoare (h). He says: The judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of attaining the same result. Hence the legal maxim, "Transit in rem judicatam"; the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher'" (i). The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time (k). (g) Lockyer v. Ferryman, L. R. 2 App. Cas. 519. (h) 13 M. & W. 494, at p. 504. (i) Kendall v. Hamilton, L. R. 4 App. Cas. 504, at p. 526; Nel son v. Couch, 15 C. B. N. S. 99; and per Eyre, C. J., in Philips v. Hunter, 2 H. Bl. 414. (k) Per Lord Kenyon, C. J., Greathead v. Bromley, 7 T. in R. The elements which, in a civil case, are, generally speaking, necessary to establish the plea of res judicata, are thus explained in the judgment of Lord O'Hagan in a recent case (7). First, every opportunity must have been given to all the parties to make their respective cases. Secondly, a tribunal perfectly competent to decide the issues raised between the parties. Thirdly, distinct issues, or a distinct issue, raised between the parties, before the said tribunal. Fourthly, a valid and final adjudication upon the said issues, or issue, so raised. Fifthly, a deliberate acting upon the said adjudication, as between all the parties interested. And therefore the English Courts are reluctant to interfere with the decision of a competent Court which had, or might have had, but for the fault of one of the parties to the cause, all the materials before it to come to a right conclusion. This is illustrated by the following case (m). For the purpose of having a contract of sale of a concession set aside on the ground of fraud and repayment of the purchase money, 455; and per Wigram, V.-C., in Henderson v. Henderson, 3 Hare, 115; cited with approval by Wood, V.-C., in Simpson v. Fogo, 29 L. J. Ch. 657; 32 L. J. Ch. 249. See also In re May, L. R. 25 Ch. D. 231. As to the jurisdiction of a judge to re-hear an order under the Judicature Act, 1873, see In re St. Nazaire Co., L. R. 12 Ch. D. 88. But as to matters which might have been pleaded by way of set-off or counter-claim in the first action, see Hindley v. Haslem, L. R. 3 Q. B. D. 481. (1) Dundas v. Waddell, L. R. 5 App. Cas. 249, at p. 269; see also per Willes, J., in Langmead v. Maple, 18 C. B. N. S. 255, 270; and National Bolivian &c. Co. v. Wilson, L. R. 5 App. Cas. 176. (m) Phosphate Sewage Co., (Lim.) v. Molleson, L. R. 4 App. Cas. 801. a company filed a bill in the English Court of Chancery. At the same time they lodged a claim in Scotland to be ranked as creditors for the amount of the said purchasemoney, upon the estates of a firm carrying on business in Edinburgh and London, which had been sequestrated in Scotland. In the claim, the company described the debt as owing under the circumstances set out at length in the bill in chancery, "produced and held as repeated brevitatis causa." The trustee having rejected the claim, a condescendence and proof was ordered in Scotland. The proof was then adduced. The Court of Session and ultimately the House of Lords, held that the claimants were not entitled to the debt claimed against the sequestrated estates; and refused to sist the proceedings in the sequestration, pending the issue of the chancery suit (n). The bill in chancery, to which the trustee was a party, as filed alleged certain indicia of fraud: afterwards additional evidence of fraud was discovered, in time to have it inserted, by way of amendment, in the bill, and before the proof above alluded to had been adduced (0). The bill was then amended, and a decree was made by the Vice-Chancellor (affirmed by the Court of Appeal), rescinding the contract and ordering repayment of the said purchase-money; and a declaration was added that the plaintiff company should be at liberty to prove in the sequestration suit in Scotland for the amount of the said purchase-money (p). The company then lodged another claim with the trustee in Scotland. (n) L. R. 1 App. Cas. 780. (0) But this additional evidence was not made use of in the pro ceedings on the proof. F |