Summary
In Eastman v. Clark, 53 N.H. 276, 16 Am. Rep. 192, a case in which the authorities prior to that time are exhaustively examined, it is said by Judge Doe at page 297: "The distinction between taking profit as profit and taking it not as profit but as payment of a debt is a familiar one, firmly established by the authorities but not always explained as clearly as it might be. It is the distinction between a partner and a creditor obscurely expressed.
Summary of this case from Sheldon v. LittleOpinion
Decided June, 1884.
Extrinsic evidence is admissible to show whether the identical matter in controversy has been determined by a former judgment.
Two actions between the same parties tried together. One is a writ of entry, and the other trespass qu. cl. upon the same land. Verdict for the plaintiff in both. Exceptions by the defendant.
Stickney and Wiggin Fuller, for the plaintiff.
Wheeler, for the defendant.
The competency and effect of the record of the judgments received in evidence depended upon whether the controversy adjudicated therein was the same as in the present suits. It was not necessary that this fact should appear from the record itself. It might be shown by extrinsic evidence. Sanderson v. Peabody, 58 N.H. 116; Morgan v. Burr, 58 N.H. 470. If it was a question of fact, and the admissibility of the record depending upon it, the question might have been decided by the presiding justice at the trial. But it was not error for the court to submit the question to the jury under proper instructions. The instructions in this case were correct, and the exception is overruled.
Judgment on the verdict.
ALLEN, J., did not sit: the others concurred.