*730 when we come to the meaning of the phrase, "the same matter in issue," and the application of the rule, we find an irreconcilable conflict between the authorities. (p) Much of the difficulty springs, no doubt, from the relaxation of the rules. and practice of pleading; but there are questions on this subject in their own nature difficult, and which can only be determined by further adjudication. It may be difficult to draw the line, but it is necessary that it should be drawn somewhere. (2) 1

1 The dismissal of a suit because the wrong form of action has been used does not bar a suit in another form of action. Kittredge v. Holt, 58 N. H. 191; Charles e Charles, 13 S. C. 385. — K.

That extrinsic evidence is now received to show that the issue on trial is or is not the same as that involved in a former trial, and that this evidence may be controverted by similar evidence, is certain. (99) But let us suppose that in an * 731 action for assault and battery, in which only the general issue is pleaded, the defendant relies upon the "molliter manus imposuit," asserting the alleged assault to have taken place on his own land; the plaintiff denies that the land belonged to the defendant, and this is the main or only question actually controverted. Could a judgment in this case be interposed as a bar to a writ of entry for the same land, between the same parties? It is clear that it could not, if the rule once in force, and now not entirely obsolete, be applied, namely, that only matters. directly involved in the issues made upon the pleadings, are considered as res judicatæ. (qr) But if to trespass quare clausum, soil and freehold are pleaded by the defendant, can a judgment in this action be pleaded in bar to a writ of entry? It is more difficult to answer this question, because it differs from the former in the new element that the title to the very land is put in issue of record, and by the pleadings. And very high authorities answer this question differently. (r)

in the name of the judge of probate, against a removed executor, on his probate bond, in which action sundry breaches were assigned, and among them, that the defendant had neglected and refused, upon demand made therefor, to pay over to his successor the moneys in his hands belonging to the estate; and thereupon judgment was rendered against the defendant for a certain sum and costs. On a scire facias afterwards brought on this judgment, it appeared that the testator had given by his will certain legacies, payable to the legatees respectively when they should become eighteen years of age; that neither at the time of the defendant's removal from office, nor at the trial of, and judgment in, the original action, had these legatees arrived at that age; that the defendant had then in his hands moneys belonging to the estate, derived from a sale of lands under a decree of probate, sufficient to pay such legacies, which he still retained; that on the trial of such action, no claim was made or evidence offered in relation to the nonpayment of such legacies, nor were they considered by the court or included in the judgment, the action having been in stituted and prosecuted solely for the benefit of those entitled to the residuum of the estate after the payment of such

The Supreme Court of the

legacies. Held, Williams, C. J., and Waite, J., dissenting, that the former judgment must be considered as covering the whole ground, and constituting a bar to any claim for the legacies in the scire facias, the cause of action in both suits being essentially the same. See Garwood v. Garwood, 29 Cal. 514.

(99) Packett Co. v. Sickles, 5 Wallace, 580; Wilcox v. Lee, 1 Rob. 355.

(qr) Duncan v. Holcomb, 36 Ind. 378; Johnson v. Morse, 11 Allen, 540.

(r) Thus, in Arnold v. Arnold, 17 Pick, 4, which was a writ of right, the tenant pleaded a judgment in favor of his grantor, rendered in an action of trespass quare clausum upon an issue joined upon a plea of liberum tenementum, and the plea was held to be no bar. And from the opinion delivered, it seems that the judg ment upon this plea would have been the same, if it had been interposed as a bar to a writ of entry. And in Mallett v. Foxcroft, 1 Story, 474, it was held to be no bar to a writ of right, that there had been a judgment on a petition for partition between the same parties in favor of the tenant, upon an issue joined therein on the sole seisin of the demandant. But in Dame . Wingate, 12 N. H 291, it was directly decided, that a judgment rendered in an action of trespass quare clausum

United States (one justice dissenting) has held that whatever is fairly within the scope of the pleadings in a suit is concluded by the judgment. (rr) Again, if in trover, the question * 732 turns upon the * validity of an instrument under which title to the chattels is claimed, and this is found to be fraudulent and void, is the judgment in this case conclusive as to all questions of property or title between the same parties, under that instrument, and in relation to all the property which the instrument purports to transfer? Here, too, the authorities are directly antagonistic. (s)

So far as we can venture to state rules which may determine these difficult questions, we should say, that "the matter in issue" is either that which the record and the pleadings show clearly to be so; or else a question which extrinsic evidence

tenementum, is a bar to a writ of entry
for the same premises. And Gilchrist,
J., said
It is a principle well established
in the law, that a former judgment, upon
a point directly in issue upon the face of
the pleadings, is admissible in evidence
against the parties and their privies, in
a subsequent suit, where the same point
comes in question. Nor is it material
that the former suit was trespass, and
the latter a writ of entry, if the same
point were decided in the former suit.
It is not the recovery, but the matter
alleged by the party, and upon which
the recovery proceeds, which creates the
estoppel. The recovery of itself, in an
action of trespass, is only a bar to the
future recovery of damages for the same
injury, but the estoppel precludes par-
ties and privies from contending to the
contrary of that point, or matter of fact,
which, having once distinctly been put in
issue by them, or by those to whom they
are privy, in estate or law, has been, on
such issue joined, solemnly found against
them. It was so held in Parker v. Leg.
gett, 13 Rich. L 170. Ellenborough, C. J.,
Outram v. Morewood, 3 East, 355. The
recovery concludes nothing upon the ulte-
rior right of possession, much less of
property in the land, unless a question of
that kind be raised by a plea and a trav-
erse thereon. Id 357. And a recovery
in any one suit, upon issue joined on

In

matter of title, is equally conclusive upon
the subject-matter of such title; and a
finding upon title in trespass not only
operates as a bar to the future recovery
of damages founded on the same inquiry,
but also operates by way of estoppel to
any action for an injury to the same sup-
posed right of possession. Id. 354. The
issue upon a plea of liberum tenementum
raises a question of title.
Forsaithe.
Clogston, 3 N. H. 403." See also Ben-
nett v. Holmes, 1 Dev. & Bat. 436.
some States, a judgment in an action of
trespass, upon the issue of liberum tene-
mentum, has been held admissible in a
subsequent action of ejectment between
the same parties. See Hoey Furman,
1 Pa. St. 295, Kerr . Chess, 7 Watts,
371; Foster M'Divit, 8 d. 341, 349;
Meredith v. Gilpin, 6 Price, 146, White v.
Chase, 128 Mass. 158. As to the effect of
a judgment in ejectment, as regulated by
the Revised Statutes of New York, see
Beebee v. Elliott, 4 Barb 457.

(rr) Aurora City v. West, 7 Wallace, 82. See also Durant v. Essex Co. 7 Wallace, 107; Beloit v. Morgan, 7 Wallace, 619; Derby v. Jacques, 1 Clifford, 425; Jackson v. Lodge, 36 Cal. 28.

(s) See King v. Chase, 15 N. H. 9, cited supra, n. (p), and Doty v. Brown, 4 Comst. 71, cited supra, n. (o); Roberts v. Roberts, 27 Ind. 454.

1 "A judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies whenever the existence of that fact is again in issue between them." Gould v. Sternberg, 128 Ill. 510, 516. See also Wilson v. Deen, 121 U. S. 525; Jackson v. Lodge, 36 Cal. 28, Kennedy v. McCarthy, 73 Ga. 346; Hanna v. Read, 102 Ill. 596; Mueller v. Henning, 102 Ill. 646, Hahn v. Miller, 68 Ia. 745; Byrne Minneapolis, &c. Ry. Co. 38 Minn 212, McLeod v. Lee, 17 Nev. 103; Nemetty v. Mayor, 100 N. Y. 562; Lorillard v. Clyde, 122 N. Y 41.

shows to have been actually tried, and shows also to have been absolutely essential to the case, in so much that the answer to it decided the case, and if it had not been contested the case could not have been tried. (ss) We should say, that the judgment in the supposed case of trover should not be conclusive upon the questions which might be raised in other cases as to the validity of the instrument, and the title it gave;1 and we should incline also to the opinion that the judgment in the supposed case of trespass quare clausum should be no bar to a writ of entry. (st) It cannot however, be denied, that the present tendency of the law is to perinit parol evidence to show the actual grounds on which the judgment rested, when the record needs not and does not exhibit those grounds. (su) And also, not to permit the former judgment to be a bar, although the record presents the claim, if no testimony was offered in relation to it, and the question was not submitted to court or jury. (sv)

It is said that the former judgment must have been between the same parties; and for this rule there seems to be good reason as well as authority. (t) It has also been held, as was *said, that the same parties must stand in the same posi- *733 tion as plaintiff and defendant. It is obvious that in most cases this must be necessary to constitute the question the same; and it is only then that the rule can apply. (u) It may be stated, as a general rule, that a former judgment is conclusive only against parties and privies. (uu)

A party cannot avoid the effect of a former judgment, by

(ss) Where a seller of property took sundry notes in payment, and put one in suit, and afterwards another, it was held, that the defendant could not set up against the action the same defences he had set up in the former. Freeman v. Bass, 34 Ga. 355.

(st) Newsome v. Graham, 10 B. & C. 234; Barber v. Brown, 26 L. J. C. 41; Clarance v. Marshall, 2 C. & M. 495.

(su) Sturtevant v. Randall, 53 Me. 149. (sv) Burwell v. Knight, 51 Barb. 360. (t) This is not always true; for where a cause of action is such that more than one may sue, a judgment in an action brought by one is a bar to an action by the other. Thus, if a consignor sue a carrier for goods, and the latter has a verdict and judgment on a plea of not guilty, the consignee cannot maintain

another action for the same goods. Green v. Clark, 5 Denio, 497. So, where a plaintiff may bring his action against either of two persons, as for instance against the sheriff or his deputy, for the acts of the deputy, a judgment in favor of either would be a bar to a second action for the same cause against the other. See King v. Chase, 15 N. H. 9. And in Parkhurst v. Sumner, 23 Vt 538, it was held, that all matters which might have been urged by the party before the adjudication are concluded by the judgment as to the principal parties, and all privies in interest, or estate, and among privies are those who are holden as bail for the party. See Davis . Davis, 30 Ga. 296.

This may be doubted. See note 1, on the preceding page; also Freeman on Judgments, § 256.

changing the forum from the equity side of the court to the law side. (uv)

It may be added, that no prior judgment is a bar to a subsequent action, if it be shown that the judgment was obtained by a mistake on the part of the plaintiff, which prevented him from trying the question; as an error in respect to the character of the action, or a fault in the pleading. (v) And it has been held, that a foreign judgment does not merge the original cause of action, and cannot be pleaded in bar of an action founded thereon. (w) And that if there be now a defence to a claim which could not have been made in the former suit, the judgment is not a bar. (ww)

A foreign judgment will be deemed valid and effectual here, only when the jurisdiction over the case was complete, the merits of the case investigated, and process duly served on the defendant, or a full equivalent of personal service. (wx)

SECTION X.

OF SET-OFF.

Where two parties owe each other debts, connected in their origin or by a subsequent agreement, the balance only is the debt, and he to whom it is due should sue only for that; and if he sue for more, the opposite debt may be offered in evidence

(uv) Baldwin v McCrae, 38 Ga. 650. (v) Agnew v. McElroy, 10 Smedes & M. 552, Johnson v. White, 13 Smedes & M 584. The former decision must have been on the merits, or the judgment must be such that it might have been. Dixon Sinclair, 4 Vt. 354; N. E. Bank v. Lewis, 8 Pick. 113; Lane v. Harrison, 6 Munf. 573, M'Donald v. Rainor, 8 Johns. 442; Lampen v. Kedgewin, 1 Mod. 207; Knox v. Waldoborough, 5 Greenl. 185; Bridge Summer, I Pick 371; Mosby v. Wall, 23 Miss. 81. And where judgment was rendered in replevin against a plaintiff, by nonsuiting him in a case in which he had replevied a vessel alleged to be his by virtue of a bottomry bond, seized by an attaching officer, it was held, that that judgment, to be good in bar of an action of trover for the vessel, must be pleaded and averred, and proved to have been upon the merits, and to have been rendered in a suit between privies in inter

est. Greeley v. Smith. 3 Woodb. & M.

236.

(w) Lyman v. Brown, 2 Curtis, C. C. 559. Where there was a confession of judgment by members of a firm in the absence of one of the partners, and without his consent, and the judgment was subsequently vacated, as to the partner who had not consented, and as to the whole firm at the instance of the judg ment creditors, it was held, that the debt for which judgment had been confessed was revived, notwithstanding a receipt in full had been given therefor. Clark e Bowen, 22 How, 270.