¶1The opinion of the court was drawn up by
¶2—Assumpsit on account annexed. May 26,1858, the plaintiff sued out a writ against the defendant containing three counts ; one on an account annexed, one for work and labor performed, and one upon a special contract" to cut, champer and face one million of pencil sharpener blades.” This action was referred to referees by rule of Court, by whom an award was rendered in favor of the plaintiff, and, on that award, judgment of Court was duly entered.
¶3July 12, 1860, the present action was commenced, in which the plaintiff claims to recover the sum of $191,25, for "tempering sharpener blades,” as per his account annexed to his writ. It is admitted that the work, for which this action is brought, was performed before the former action was commenced, and the defendant contends that it was included in that case under the head, of " cutting, champering and facing” said blades. He has, therefore, pleaded the former judgment in bar of this action. The plaintiff, however, contended that the claim now sued for, is different and distinct from the one in litigation in the former action before the referees, and was not presented to nor considered by them.
¶4The presiding Judge ruled that although the subject matter of this suit might properly have come before the referees in the former suit, inasmuch as the second count in the plaintiff’s former writ would embrace the items in the *70account now in suit, yet said award was not necessarily a bar to this suit, and the question, whether the claim now in suit was embraced in said award, was submitted to the jury. To this the defendant excepted.
¶5It is a well settled rule of law, that if a verdict, award, or judgment of a Court of competent jurisdiction, has apparently, but not necessarily, covered the very ground on which a second action is brought, though this would be, perhaps, prima facie evidence that the matter had passed in rem judicatum, yet -it may still be averred, and proved by parol testimony, that the cause of the second action was not in issue, and the point to be established by it was not in fact decided in the former case. Snider v. Croy, 2 Johns., 227 ; Phillips v. Berick, 16 Johns., 136 ; Webster v. Lee, 5 Mass., 334; Whittimore v. Whittimore, 2 N. H., 26; Squires v. Whipple, 2 Vt., 111 ; Eastman v. Cooper, 15 Pick., 276 ; Dutton v. Woodman, 9 Cush., 255 ; Sedden v. Tutpot, 6 T. R., 607.
¶6It appears from the authorities, that where the declaration in the second action is framed in such a manner that the causes of action may be the same as those in the first suit, it is incumbent on the party bringing the second action, to show that they are not the same. Per Abbott, C. J., in Bugot v. Williams, 3 B. & C., 235.
¶7The ruling of the Judge was in strict conformity to authorities. Exceptions overruled.