facts confessed by demurrer as a verdict finding the same facts would have been. We are not advised that this principle has ever been questioned by any respectable author. It is obvious, that the facts in a case may be equally as well established by a demurrer as they can be by a verdict; and as in either case they become matter of record, they should never be again contested between the same parties.

The judgment for the trespass suit, as described in the sixth plea, must be regarded as conclusive upon all matters which might have been litigated in that action. If Knott had recovered, he would have secured the value of the horses.

We think, then, that the facts stated in the sixth plea should be regarded as a good bar to the action, and that the court erred in sustaining the demurrer to that plea.

Judgment reversed.

FORMER RECOVERY BARS ANOTHER ACTION FOR THE SAME INJURY, though the form of action may be different in the two cases; so a judgment in trespass may be set up as a bar to an action on the case for the same injury: Gilchrist v. Bale, 34 Am. Dec. 469. Generally, as to when a former recovery is a bar and when not, see note to Eastman v. Cooper, 26 Id. 609, where other cases in this series are collected.

THE PRINCIPAL CASE IS CITED AND DISTINGUISHED in Keater & Skimer v. Hock, Musser & Co., 16 Iowa, 25.

CASES

IN THE

COURT OF APPEALS

OF

KENTUCKY.

JARBOE v. SMITH.

[10 B. MONROE, 257.]

DISMISSAL OF SUIT AGREED IS BAR to any other suit between the parties on the original cause of action, unless there are express stipulations that suit may be brought.

COVENANT. The opinion states the facts.

R. J. Brown, Riley, and Shuck, for the appellant.

Hill and Thurman, for the appellee.

By Court, SIMPSON, J. In this action of covenant, the defendant pleaded that before the commencement of the suit, the plaintiff had instituted a suit against him, upon the same writing, for the same cause of action, in the same court, and by the agreement of the parties, that previous suit had been by the judgment of the court, dismissed agreed. He therefore pleaded and relied upon that order of dismissal as a bar to the present action.

The plaintiff replied that the dismissal referred to in the plea had been made in pursuance of a written agreement of the parties, by which it was agreed by them, that the suit should be dismissed, and all matters of controversy between the parties, involved and arising in that suit, should be referred to the determination of three designated arbitrators, whose award, when made, they bound themselves to abide by and perform. That the arbitrators named in the agreement and the parties met and proceeded to trial, and after a full hearing of all the evidence adduced on both sides, the arbitrators disagreed and were unable

to make an award, and no award had been made by them. A demurrer was filed to this replication by the defendant, and having been sustained, a judgment was rendered against the plaintiff from which he has appealed to this court.

The legal effect of an order dismissing a suit agreed is to bar any other suit between the same parties, on the original cause of action thus adjusted by them, and merged in the judgment of the court, rendered at their instance, and in consequence of their agreement: Bank of Commonwealth v. Hopkins etc., 2 Dana, 395.

A new cause of action may arise upon the agreement of the parties, that produced the order dismissing the suit; and there might possibly be cases, where, by the terms of the agreement, a suit could be maintained upon the original cause of action, but it would be alone by virtue of the stipulations contained in the agreement of the parties.

If such a case can, however, exist, the present is not one of that character. The agreement contains no provision authorizing the plaintiff, in any event, to bring a new suit upon the same cause of action. If the agreement upon which the suit was dismissed does not afford an adequate remedy, it should not have been entered into by the plaintiff. If the parties contemplated a resort to any other mode of adjusting the matters in controversy between them, upon a failure of the arbitrators to make an award, a stipulation to that effect should have been inserted in the agreement. Such a provision may have been omitted intentionally, and the agreement entered into in its present form, with a view to prevent further litigation, upon the very reasonable assumption, that if the justice of the plaintiff's demand was so doubtful, that three impartial arbitrators could not make an award in his favor, the claim was of too questionable a character to be further prosecuted. Besides, although no award had been made when this suit was commenced, one may yet be made by the arbitrators.

The order of the court dismissing the suit agreed, if obtained by fraud, might be set aside in a proceeding for the purpose. But as it forms a bar to another suit, for the same cause of action, so long as it remains in full force and unreversed, and as the matters contained in the plaintiff's replication were insufficient to obviate its legal effect, the judgment of the court below, sustaining the demurrer, was correct.

Wherefore, the judgment is affirmed.

SMITH V. MOBERLY, ETC.

[10 B. MONROE, 266.]

FRAUD IN OBTAINING SURETY'S SIGNATURE WILL NOT RELIEVE him where

the note has gone into innocent hands.

SECRET AGREEMENT BETWEEN SURETY AND PRINCIPAL can not affect inno

cent parties into whose hands the note falls.

SURETY BOUND BY SIGNATURE, Though MADE WITH CONDITION NOT PERFORMED.-Where a surety signed a note under a promise that it woul not be delivered unless a certain other person also signed it, and the note was delivered without such signature to the drawee, who knew nothing of the promise: Held, that the surety was bound to the payee, notwith standing the promise and fraud of his principal.

PAROL CONDITION TO PROMISSORY NOTE will not affect innocent holders.

ERROR to the Mercer circuit. The opinion states the facts. J. and W. L. Harlan, for the plaintiff.

B. and A. Monroe, Daviess, and Taylor, for the defendant.

By Court, SIMPSON, J. In the year 1844, Scales applied to Mock to borrow from him the sum of one thousand dollars, and proposed to give Smith as his surety on the note for the payment of the money. Mock stated that he was not well acquainted with Smith, but knew Moberly well, and would consider him as sufficient security with or without Smith.

Shortly afterwards Scales presented to Smith, for his signature, a note for one thousand dollars payable to Mock, two years after its date, which note he had signed as principal; and it was signed by Smith, with the express agreement between Scales and Smith, that it was not to be obligatory on the latter unless Moberly also executed it as security.

Scales seems never to have applied to Moberly to execute the note according to his agreement with Smith, having previously understood that Moberly would not become bound as his suretyThe money he expected to obtain from Mock he intended to pay to Moberly in satisfaction of some debts against him, the collection of which Moberly had the control of, and for part of which he was bound as the surety of Scales, who was then in embarrassed circumstances, and desirous to remove from this state of Ohio. His proposed removal he was apprehensive could not be accomplished, unless these debts in the hands of Moberly were paid or in some way arranged, and he was, therefore, anxious to procure the money in order that he might apply it to their payment.

After Smith's signature to the note had been obtained by

Scales, the latter received a message from Mock informing him that he could not loan him the money in consequence of his having been called upon by a son-in-law to aid him in paying for some land that he had purchased. This fact Scales communicated to Moberly, informing him at the same time that he had a note for one thousand dollars executed by himself and Smith as his surety, payable to Mock, which he, Moberly, might have, if he could make an arrangement with Mock to assign it over to him, and he would receive it in payment of the aforesaid debts. Moberly being anxious to secure the debts on Scales, agreed to take the note for one thousand dollars in payment instead of the money, provided Mock would assign it to him. Mock, after some persuasion, agreed to and did assign the note to Moberly without any recourse upon him as assignor. The arrangement was effected by Moberly transferring to Mock the demands on Scales, and by Mock surrendering these demands to Scales for the note for one thousand dollars on himself and Smith, and transferring the note thus acquired to Moberly for the debts on Scales.

Neither Mock nor Moberly, at the time of this arrangement, had any knowledge of the agreement between Scales and Smith that the note was not to be obligatory on Smith unless it was also executed by Moberly. Nor does Moberly appear to have known that Mock had required any security besides Smith, or had objected to him as surety on any ground.

Moberly having obtained against Smith a judgment at law upon the note, the latter exhibited a bill in chancery to be relieved against the judgment. The circuit court refused the relief asked for and dismissed the bill. The question for this court to determine is, whether upon the foregoing facts, and the additional one of the insolvency of Scales at and ever since the time that Moberly acquired the note in the manner detailed, Smith is entitled to any relief against the judgment at law.

The first position assumed in favor of the relief sought for by Smith is, that the note is not obligatory on him, inasmuch as it was not executed by Moberly; and it was only to be binding upon Smith according to the agreement between him and Scales, in the event that Moberly also signed it as the surety of Scales; and its delivery to Mock was a violation of this agreement and a fraud upon Smith.

Had Mock or Moberly known that such was the agreement between Scales and Smith, and had, notwithstanding this knowledge, taken the note from Scales, there would be an evident