This was a penal action, brought by Gipps against Crosby, before a justice of the peace, under the statute of 1852, for obstructing a road. On the trial, evidence was offered by the defendant below, tending to prove that he had been prosecuted by one Goodchild, under the, same statute for the same offense, which case was tried on its merits, and a judgment rendered for the defendant, which judgment remains in full force. Evidence was also produced by Gipps, tending to prove that the prosecution was for a different offense. In this state of the evidence, Crosby asked the court to instruct the jury, “ that if they believe that the Goodchild suit was prosecuted for the same cause as this, they should find for the defendant;” which instruction the court refused, and to which refusal the defendant then and there excepted. In this we think the court erred. For this offense, Goodchild has as much right to prosecute as Gipps, and in such a case it would be superfluous to cite authorities, to show that a judgment in a suit prosecuted by Goodchild, *354is as much a bar in this action as if it had been prosecuted by Gipps, or that a judgment for the defendant was as much a bar as if it had been for the plaintiff, and yet these propositions decide the whole case, for it will hardly be contended that Gipps could prosecute Crosby repeatedly, and recover several judgments against him for the one offense or cause of action. And yet such is the law, if this instruction was properly refused. The instruction leaves no ground for saying that the offense might have been, in some way or degree, different. It only asks to have the defendant acquitted, in case the jury should find that this and the other action were for the same identical offense. This, in our opinion, was the law, and the jury should have been instructed to consider the evidence in reference to it.
Judgment must be reversed and cause remanded.
Judgment reversed.