UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY RES JUDICATA A TREATISE ON the law of Former Adjudication CONTAINING A COMPLETE ANALYSIS OF ALL THE PRECEDENTS AND PRINCIPLES CONCERNING THE EFFECT OF JUDICIAL DECREES. JUDGMENTS. ORDERS AND SENTENCES UPON THE RIGHTS OF PARTIES. PRIVIES AND STRANGERS. IN OTHER JUDICIAL PROCEEDINGS, EITHER CIVIL, CRIMINAL OR ECCLESIASTICAL INCLUDING A DISCUSSION OF THE RULES FOR DETERMINING WHEN JUDGMENTS AT LAW AND DECREES IN EQUITY ARE FINAL AND CON- CLUSIVE ADJUDICATIONS, BY John M. Van Fleet Author of "Collateral Attack on Judicial Proceedings* Hn Uwo Dolumes VOLUME I INDIANAPOLIS AND KANSAS CITY THE BOWEN-MERRILL COMPANY 1895 1^5 COPYKIGHT 1895 BY THE BOWEN-MERRILL CO. PKES3 OF CAKLOX & HOLLENBECKj INDIANAPOLIS . PREFACE. These volumes consider all of that important branch of the law which determines when judgments of courts of law and decrees of courts of equity are conclusive and final adjudica- tions, together with the force and effect of a former adjudica- tion as evidence to establish, in another suit, a cause of action, or of defense, or some issue therein, as against parties, privies or strangers. As stated in the preface of my "Collateral Attack on Judicial Proceedings," my original design was to prepare a treatise on the Law of Judgments. That task, assumed more than ten years ago, soon disclosed the vast range of the subject, the hopeless confusion which prevails in regard to its doctrines and the serious conflict which exists in the judicial decisions. This convinced me that the most practicable method of consider- ing the subject would be found in special treatises upon its most important branches. My "Collateral Attack" was the first result of the work upon those lines. These volumes are a further result of the same scheme and the same effort. In the preparation of this work, the reports of all the courts, whether nisi prius, intermediate or last resort, have been ex- amined with diligence and care, not only those of the United States, but also of Great Britain, Canada, Australia, New Zea- land and the Hawaiian Islands. It has been my aim to make the consideration of the decisions so exhaustive that there would be no occasion to read the cases themselves. While I have dealt with the specific facts and law of each case, I have also attempted to group them generally and philosophically,, and to give the principle involved in each matter considered. Where decisions seemed unsound, and upon (V). VI PREFACE. the numerous questions about which the cases differ, I have not hesitated to express my own views. These views represent my best judgment after reading and considering all the cases, but are based upon principles rather than precedents. The Duchess of Kingston Case is the basis of the present law of res judicata or former adjudication. That case, decided April 20, 1776, accurately formulates and lays down all the general rules that govern the subject, and it has never been doubted nor criticised in any case since. Being of so great importance, much space has been devoted to its consideration, and, in order to show from whence the rules were derived, care- ful and comprehensive abstracts are given of all the cases cited by the court and counsel. When the manuscript of the present work was about com- pleted I received a book published at Delhi, India, entitled "The Law of Res Judicata," by Hukm Chand. It treats of the kindred subjects of jurisdiction and collateral attack, and gives my work on Collateral Attack credit for extensive quota- tions. I am indebted to this excellent treatise for valuable additions to the present work. As I had no access to the In- dian reports, I have quoted Mr. Chand 's statements, with slight eliminations, as to what these cases decided, always giving him proper credit. The ability and learning, both of the author and the judges, will be manifest to those who read the quota- tions from Mr. Chand 's book and from the decisions of the courts of India. Special attention is directed to the fact that throughout the entire work matters in each chapter and section are arranged alphabetically as nearly as possible. While this has caused much additional labor, it is believed that it will greatly aid in the search for special and unusual subjects. John M. Van Fleet. Elkhart, Indiana, September, 1895. REPORTS CITED. The Reports are cited in this work from the earliest down to and includ- ing the following: AMERICAN. New York Supreme (84 Hun), 91 Alabama, 103 New York Supplement, 32 Arizona, 2 North Carolina, 114 Arkansas, 60 North Dakota, 3 Atlantic Reporter, 30 Northeastern Reporter, 39 California, 105 Northwestern Reporter, 61 Colorado, 20 Ohio Circuit, 8 Colorado Appeals, 4 Ohio State, 51 Connecticut, 65 Oklahoma, 1 Dakota, 6 Oregon, 25 Delaware (Houston), 9 Pacific Reporter, 39 District of Columbia (9 Mackey), 20 Pennsylvania County, 12 Federal Reporter, 64 Pennsylvania District, 2 Florida, 35 Pennsylvania State, 164 Georgia, 94 Philadelphia, 18 Idaho, 2 Pittsburgh, 3 Illinois, 152 South Carolina, 42 Illinois Appeals, 53 Soutli Dakota, 3 Indiana, 138 Southeastern Reporter, 20 Indiana Appeals, 10 Southern Reporter, 16 Iowa, 89 Southwestern Reporter, 29 Kansas, 55 Tennessee, 93 Kentucky, 96 Texas, 87 Louisiana Annual, 46 Texas Civil App., 7 Maine, 87 Texas Criminal App., 32 Maryland, 78 Texas Unreported Cases, 2 Massachusetts, 162 United States, 154 Michigan, 100 Utah, 9 Minnesota, 57 Vermont, 67 ^Mississippi, 71 Virginia, 90 Missouri, 123 Washington, 10 Missouri Appeals, 56 West Virginia, 40 Montana, 14 Wisconsin, 89 Nebraska, 42 Wyoming, 3 Nevada, 22 New Hampshire, 66 AUSTRALIAN. New Jersey Equity, 52 New South Wales, S. 0.,; 11 New Jersey Law, 57 New South Wales Law, 13 New Mexico, 5 Victorian Law, 18 New York (Court of Appeals), 145 CANADIAN. New York Miscellaneous, 10 Canada S. C, 18 New York State Reporter, 64 Grant's Ch., 29 New York Superior, 61 Lower Canada, 15 (vii) Vlll BEPORTS CITED. Manitoba, Montreal, New Brunswick, Nova Scotia, Ontario, Ontario A pp. Cases, Prince Edwards Island, Upper Canada C. P., Upper Canada Q. B., ENGLISH. Indian Appeals, The Reports (1894), HAWAIIAN. Hawaii, 6 29 24 20 5 2 32 46 15 2 INDIAN. Agra, ■ All cited Bombay, from Calcutta, Chand on Indian Law, '" Res Judicata Madras, to Punjab, IBISH. about 1894. Irish Chancery, 17 Irish Equity, 13 Irish Law Reports, 32 NE\V ZEALAND. New Zealand Law, 11 TABLE OF CONTENTS. Analysis of the Work. TITLE I. PRINCIPLES, ANALOGIES, COMPARISONS, DEFINITIONS AND FINAL JUDGMENTS. Chapter I. — General matters. Chapter II. — Special matters. Chapter III. — Final judgments. TITLE II. THE MERITS IN CIVIL CAUSES. Scope of, and principle involved in, Title II. Chapter IV. — Abatements, nonsuits, etc. Chapter V. — Cause entire or divisible, or the doctrine OF SPLITTING CIVIL CAUSES. Chapter VI. — Defenses omitted — What is or is not a de- fense. Chapter VII. — Estoppels. Chapter VIII. — The issues — Contested or not contested. Chapter IX. — The issues — Immaterial, effect of adjudi- cation UPON. Chapter X. — The issues — Plaintiffs, issues and adjudica- tions between each other. Chapter XI. — The issues — Defendants, issues and adjudi- cations BETWEEN EACH OTHER. (ix) X TABLE OF CONTENTS VOL. I. Chapter XII. — The same issue — Determined by the rec- ord — Principles and general matters. Chapter XIII. — The same issue — Determined by the rec- ord — Special matters alphabetically arranged. Chapter XIV. — The same issue — Determined by extrinsic OR PAROL evidence. Chaptpjr XV. — Remedy,- election of. Chapter XVI. — Remedy, wrong. TITLE III. PARTIES, PRIVIES AND STRANGERS. Chapter XVII. — Parties, privies and strangers. TITLE IV. CRIMES AND CRIMINAL PROCEEDINGS. Principle involved in Title IV. Chapter XVIIL — Cause entire or divisible, or the doc- trine OF splitting criminal causes. Chapter XIX. — Issues determined in criminal causes — Force and effect of. Chapter XX. — Jeopardy in criminal causes — What does or does not constitute, and its force and effect. Chapter XXI. — Pleading, practice and evidence in crim- . inal causes. TITLE V. SECOND APPEALS— PLEADINGS IN CIVIL CAUSES. Chapter XXII. — Second appeal — Effect of decision on FIRST APPEAL IN. Chapter XXIII. — Pleadings in civil causes. TABLE OF CONTENTS VOL. I. CHAPTER I. XI GENERAL MATTERS. 8BCTI0K8. 6. Ses judicata defined — Principle involved — The Duchess of Kingston's Case : (Cases cited in that case — Comments on those cases) "Collaterally in question" — "Concurrent jurisdiction" — "Directly upon the point" — "Exclusive jurisdiction" — "Incidentally cognizable" — "Inferred by argument" Collaterally in question or directly upon the point— The cases specially considered : (Administrator removed — Adminis- trator's indebtedness to the estate — Cause of action split — Consideration of note — Deed, execution of — Deed, forgery of — Deed or mortgage — Distributee, alive or dead — Duress, admissions obtained by — Fraudulent judgment — Lunacy in- quisition—Mortgage, fraudulent - Pauper settled — Plat of land — Replevin, account investigated in — Specific per- formance — Tenancy, in suit for reconveyance— Title to goods in trespass to land — Tirle to goods in trover for other goods — Title to trust estate in suit for an accounting — Trust under a will — Widow or no widow— Will, forged or not) Section 3 continued — Cases in New Hampshire, South Caro- lina, West Virginia and India specially considered Concurrent jurisdiction, or incidentally cognizable — The cases specially considered: (Forcible entry — Fraud in release — Heirship or kinship in probate court — Installment of inter- est recovered in inferior court, suit on principal in superior court — Reformation of deed — Street repairs — Title to land in criminal case before a magistrate — Title to land in case for violation of city ordinance — Wills of real and personal estate) Inferred by argument: (Detinue, title in — Divorce — Malice — Marriage or no — Office, contest for — Record, uncertain — Special finding of facts) PAGES. 1-26 27-32 33^9 50-64 6o-76 77-Si CHAPTER II. SPECIAL MATTERS. 7. Courts — Different grades and kinds of 85-86 8. Appeal not allowed by law 87 9. First judgment rendered in several pending suits is a bar 87-91 10. Forcible entry and detainer 92-93 11. Habeas Corpus — Highway proceedings— Intervener 93-95 12. Jurisdiction — 3Iandamus 95-96 13. Merger in domestic judgment: (Foreign country or state) 95-96 Xll TABLE OF CONTENTS VOL. I. SECTIONS. PAGES. 14. Motions: (Principle involved) 96-98 15. Motions: (Affidavit in claim case — Appeal in supreme court — Attachment— Attorney's fees — Award) 98-99 16. Motions: (Change of venue — Criminal case — Executions — Ex- emptions) 99-100 17. Motions: (Injunction dissolved or refused) 101 18. Motions: (New trials — Reformation of deed — Set-off of judg- ments — Setting aside assessments) 101-102 19. Motions: (Setting aside judgments) 102-103 20. Motions: (Setting aside sales) 103-104 21. Motions: (Sheriff proceeded against, by — Summons restored) — Indian cases. (Execution proceedings — Appellate pro- ceedings) 104-110 22. Mutuality: (Exceptions) 110-111 23. Object or purpose, different — Opposite rulings in same case — Reversed judgment 111-113 24. Eight of property, trial of 113-114 25. Set-off — Set-off of claim against a judgment — Summary pro- ceedings by landlord 114-116 26. Witnesses, competent in one suit and incompetent in the other.. 116-118 CHAPTER III. FINAL JUDGMENTS. 27. Final ]ndginent on\j is res judicata : (Verdicts and findings). Indian cases: {Ex pa7-te decision may become final — Final, though appealable) 119-125 28. Final judgment, what is or is not: (Accounting — Accounts current — Appeals) 125-127 29. Final judgment, what is or is not, continued: Costs — Cred- itor's suit — Motion for new trial — Order for decree — Party substituted — Plaintiff given leave to amend — Review, de- cree on, and exceptions filed - Trespass to try titles) 127-128 30-458— Title II. — The merits in civil causes 129-904 30. Scope of , and principle involved in, Title II 130 31. Section 30, continued — Errors of law or fact made by the court: (Account rejected — Attorneys' fees rejected — Breach of entire contract — Consideration fails — Dismissal — Dower — Ejectment upon an equity — Equities rejected — Federal court and state court— Fraud — Jurisdiction of justice of the peace — Law and equity — Partnership creditor— Pleadings bad — Prior damages rejected — Prospective damages re- jected — Replevin — Sale of land in equity — Sequestration, damages on — Statute misconstrued — Support — Trial unfair — Wife's necessaries — Exception, issues of law — Party's errors) 130-141 TABLE OF CONTENTS VOL. I. XUl CHAPTER IV. ABATEMENTS, AGREEMENTS, CONFESSIONS, CONSENTS, DISCONTIN- UANCES, DISMISSALS, MISJOINDER OR NON-JOINDER OF PARTIES, NONSUITS, PREMATURE SUITS, WITH- DRAWING CAUSES AND WITHHOLDING ALL EVIDENCE. SECTIONS. PAGES. 32. Abatements— Appeal — Arbitration ordered 143-145 33. Agreement, consents and stijiulations : (Compromises — "Merits" — Eent — Settled and adjusted — Exceptions) 145-153 34. Confessions 153 35. Court strikes out or withdraws a part 153-155 36. Discontinuances 155-156 37. Dismissal in equity, generally 156-158 38. Dismissal in equity after answer : (Failure to appear or prose- cute — Chambers) 158-160 39. Dismissal in equity after appeal 161 40. Dismissal in equity on defendant's motion 161-162 41. Dismissal in equity : (Findings nevertheless conclusive) 162-165 42. Dismissal in equity : (Language used in decree construed) 165-166 43. Dismissal in equity : (Non-meritorious matters) 166 44. Dismissal in equity : (Presumptions) , 167 45. Dismissal in equity " without prejudice" 167-168 46. Dismissal at law: (Generally) 168-169 47. Dismissal at law : (After answer in California — After appeal — Appearance wanting — Bastardy — Costs— E\'idence of plaint- iff insufficient — Intervener) 169-171 48. Dismissal at law : (Jurisdiction wanting) 171-172 49. Dismissal at law : (Language of judgment construed — New trial) 172-173 50. Dismissal at law: (Retraxit — "Without prejudice," by J. P.) 173-174 51. Dismissal under codes of California, Minnesota, New York and India 174-191 52. Misjoinder or non-joinder of parties : (Set-off) 191-192 53. Nonsuit: (Detinue — Evidence, insufficient — Jurisdiction — Replevin — Reversal — Set-off — What makes ) 192-194 54. Practice, irregular 194-195 55. Preliminary matters, omitted 195-196 56. Premature suits 197-198 57. Withdrawing cause or withholding evidence : (Principle in- volved — Cause of action withdrawn) 198-199 58. Withdrawing counter-claim or set-off, or withholding evi- dence: (What is not a withdrawal — Set-off) 199-201 xiv TABLE OF CONTENTS VOL, I. CHAPTER V. CAUSE ENTIRE OR DIVISIBLE, OR THE DOCTRINE OF SPLITTING CIVIL CAUSES. SECTIONS. PAGES. 59. Principle involved in Chapter V, and the exceptions : (Acci- dent, excusable neglect, fraud or mistake— Rule in India).. 204-228 60. Accounts: (General rule) 228-231 61. Accounts: (Cash on delivery — Delivery at different times— Ex- press and implied) 231-232 62. Accounts: (Due at diffei-ent times) 232 63. Accounts : (Goods sold and money loaned — Moneys paid and expended) 233 64. Accounts: (Moneys received by agent or removed executor) . 233 65. Accounts: (Note) 233-235 66. Accounts: (Withdrawing of items) 236 67. Arbitration and award 236 68. Attorney's fees and damages — Baggage and merchandise — Behavior, bond for — Bill of Review — Bonds and coupons 236-238 69. Breaches of contract, several existing : (Indian cases)....'. 238-243 70. Cancellation suits : (Deeds — Execution sales — Insurance pol- icy — Judgments — Mortgages — Sheriff's deed — ^Tax-deed — Will) 243-250 71. Carrier and Warehousemen — Caveats — Certiorari — City ordi- nance—Claim case 250-251 72. Commissions and goods furnished — Commissions and salary.. 251-252 73. Condemnation suits 252-254 74. Condition in contract 254-256 75. Consent, omission of matter by : (Compromise decree — Default is a consent) 257-259 76. Continuing covenants 259-260 77. Conversion : (Notes converted — Owned in different capacities — Replevin and trover — Services of chattel — Times of taking, different — Stranger converts part — Indian cases) 261-264 78. Conveyance, suit to compel 264-265 79. Damages for wrongful act, present or prospective: (Perma- nent injury or nuisance — Indian cases) 265-272 80. Declaring hen 272 81. Detinue 272 82. Distribution of estate — Double covenant — Double rent — Eject- ment — Ejectment and mesne profits in India 273-290 83. Evidence, insufficient, new, newly discovered, or omitted: (Distributees — Divorce — Fraud — Marriage or no — Recogni- zance—Verdict directed) 290-292 84. Executor : (Settling accounts and removing — Fiduciary debts) 292 TABLE OF CONTENTS VOL. I. XV SECTIONS. PAGES. 85. Express and implied covenants in same instrument 292-293 86. Final report — Forcible entry and damages 293-294 87. Foreclosure as between defendants — Foreign state, land in... 294-295 88. Foreclosure: (Note not due — Foreclosure on partial interest) . 295 89. Foreclosure: (Personal claim against heirs) 295-296 90. Foreclosure : (Personal claim on bond or note — Foreclosure on constructive service) 296-298 91. Foreclosure: (Personal claim on oral promise) 298-299 92. Foreclosure: (Personal claim in tax proceedings) 299-300 93. Foreclosure: ("Wife's separate estate) 300 94. Fraudulent convej'ance: (Proceeds of other lots — Setting aside illegal alienations in India) 300-303 95. Furnishing men, surety for — Furnishing security 303 96. Garnishment: (Fraud of garnishee) 303 97. Goods sold: (Part delivered) 303-304 98. Husband and wife: (Divorce, absolute — Adultery — Cruel treatment — Property rights) 304-307 99. Husband and wife : (Enticing away and debauching wife — Injury to both — Wife injured) 307-309 100. Improvements 309 101. Individual and partnership claim — Individual debt and as- sumed debt o 309 102. Injunctions : (Ejectment — Tax sales and assessments — Plaintiff defaulted in Louisiana) 310-313 103. In rem 314 104. Installments: (Building delayed — Principal and interest — Rents — Subscription — Weekly payments — Indian cases). 314-319 105. Interest: (Simple and compound — Coupons) — Intervener 319-320 106. Joint and several obligors 320 107. Judgment and costs — Justice of the peace in Illinois 320-321 108. Malicious prosecution : (Attachment — False imprisonment — Slander) 321-322 109. Negligent act described differently 322-323 110. Negligent act kills several persons, the damages for which go to the same persons — Person and goods injured 323-325 111. Negligent destruction : (Toll first taken by wrong-doer) 325 112. Negligent injuries to personal property : ("What makes sev- eral) 325-326 113. Notes: (Deficit— Money loaned) 326 114. Note and mortgage or vendor's lien : (One ignored) 326-328 115. Nuisance 328 116. Offer to confess judgment accepted — Offer to convey 328-329 117. OflBcial bonds: (Administrators, executors or guardians — Constable's bond— Sheriff's bond) 330 118. Option of creditor to declare debt all due — Order 330-331 119. Parent and child: (Child taken) 331-333 XVI TABLE OF CONTENTS VOL. I. 8BCTI0NS. PAGES. 120. Partial recovery: (Principle involved— Finding for defend- ant, but no judgment) 333-334 121. Partial recovery : (Special matters— Trover — Indian cases)... 335-342 122. Partition— Partition suits in India 342-344 123. Partnership agreement — Partnership and contract to pay debts 344-346 124. Patent, royalties for use of — Paupers brought into a town 346-347 125. Payment in advance, total failure to perform — Payment of claims— Payment before judgment — Payment "per day" 347-348 126. Penalties: (Breach of contract — Dividend unpaid — Railway —Tenant holds over) 348-349 127. Pending suit, damages accruing: (Rents — Waste). — Excep- tions: (Accounting— Trust matter) 349-350 128. Pleadings, matters omitted from 351 129. Quieting title: (Release of claim according to contract) 351 130. Railway crossing — Reconveyance, suit to compel 352-355 131. Redemption suit : (Breach of contract — Contribution — Dam- ages) 355-358 132. Rent ignored — Rent and attorney's fees — Rent in advance... 358-359 133. Replevin: (Damages for detention) — Rescission and rents... 359-361 134. Reservation in decree of right to bring new suit 361-364 135. Right of property : (Damages) 364 136. Salary, services and wages : (Special deposit) 364-366 137. Salary, services and wages : (Wrongful discharge and recov- ery of damages for — Prior wages) 366-368 138. Salary, services and wages : (Wrongful discharge, and sub- sequent recovery of wages) 368-370 139. Salary and supplies 370-371 140. Sequestration bond : (Title) 371 141. Several obligations for same debt : (Guaranty to lease) 371-372 142. Several persons damaged by one breach of warranty... 372-373 143. Slander and hbel 373 144. Specific performance: (Securities) 373-374 145. Subsequently-acquired rights and titles: (Divorce — Eject- ment) 374-376 146. Subsequently-acquired rights and titles : (Equitable rights).. 376-377 147. Subsequently-acquired rights and titles : (Failure of consid- eration — Income of fund — Partition — Patent — Payment — Promise, new — Railroad — Ratification — Reassignment — Substituted plaintiff) 377-381 148. Sureties on replevin bond ignored 381-382 149. Taxes— Title to land 382-383 150. Tort connected with contract : (Estoppel not used — Principal and agent) 383-387 151. Trespass to personal property 387-388 152. Trespass upon real estate : (Fire) , 388-390 TABLE OF CONTENTS VOL. I. XVll SECnOXS. PAGES. 153. Trespass upon real estate, conversion of goods and waste: (Waste and use) 390 154. Trustee's bond 391-392 155. Usury 392 156. Warranty of title— Water supply ^ 392 157. Water-riglits injured and land overflowed — Way, right of, ignored 392-395 158. Widow's rights: (Dower — Injury to husband) 39&-397 CHAPTER VI. DEFENSES OMITTED WHAT IS OR IS NOT A DEFENSE. 159. Principle involved in Chapter YI: (Exception by excusable neglect — Indian rule) 399^06 160. Accounting: (Administrators and executors) 406-409 161. Accounting: (Consideration of mortgage).. 409-410 162. Accounting: (Partnership affairs — Report of referee or trus- tee) 410-411 163. Administrator's petition to sell land — Assault, excessive 412^13 164. Bankrupt's discharge : (Judgment afterwards rendered on a provable demand) 413-414 165. Bankrupt's discharge: (Judgment previously rendered during the pendency of the bankruptcy proceedings) 414 166. Cancellation suit : (Will canceled) 414-415 167. Compromise and indemnity agreements — Contempt in civil suits 415-418 168. Contract sued upon, damages caused bj' negligence or non- performance not set up : (Landlord and tenant) 418-423 169. Section 168 continued : (Malpractice, recovery for services) 423-425 170. Section 168 continued : (Services, price or wages) 425^28 171. Counter-claims, cross-demands or set-offs, not set up, or set up and not used : (Principle involved — Set up, but no evidence offered — Withdrawn by leave of court — Indian cases) 429-431 172. Section 171 continued: (Breach of warranty not set up — Forci- ble entry — Fraud — Insurance policy and premium note — Rejected as a defense — Reversed and abandoned — Set-off in New Jersey — What is not a counter-claim) 431^38 173. Counter-claims, cross-demands or set-offs set up and used: (Principle involved — Attachment, wrongful — Breach of con- tract) 438-439 174. Section 173 continued: (Breach of warranty set up and used)... 439-449 175. Section 173 continued : (Consideration fails or is wanting) 449 176. Section 173 continued : (Court rejects as bad in law — Injunc- tion and damages — Joint ownership of stock — Malicious prosecution, counter-claim for — Set-off) 450-454 B XVlll TABLE OP' CONTENTS VOL. I. SECTIONS. PAGES. 177. Declaring lien — Deed and will construed — Detention 455 178. Distribution: (Corporate assets — Estate of decedent — part- nership assets) 455-457 179. Divorce: (Alimony — Ante-nuptial contract — Criminal con- versation — Curtesy and dower) 458-459 180. Divorce: (Deed reformed) 459-460 181. Divorce: (Homestead — Husband's rights — Partition of com- munity property — Second divorce) 461 182. Dower: (Fraudulent conveyance — Heirs barred — Partner- ship land — Unassigned dower — Wife of legatee) 462-464 183. Ejectment — Ejectment, equitable defenses in : (Deed re- formed — Indian cases) 464-468 184. Ejectment, equitable defenses in: (Fraudulent conveyance- Specific performance — Title bond) — (Improvements ignored — Subsequent title by tenant) 468-471 185. Equity and law 471-472 186. Exemption of homestead: (Ejectment— Foreclosure — Fraudu- lent conveyance set aside — Partition — Probate court, in — Subsequent matters) 472-473 187. Exemption of personal property and wages 474-475 188. Fee-bill 475 189. Forcible entry and detainer, or tenant holding over 475^77 190. Foreclosures: (Accounting by mortgagee in possession — Claim omitted) 477-478 191. Foreclosures: (Dower rights) 478-479 192. Foreclosures: (Equitable rights of junior mortgagee — Equita- ble title — Fraudulent conveyance — Husband and wife, wife ignored — Infants— Junior mortgage covers two tracts) 479-480 193. Foreclosures: (Prior and superior rights, how affected) 481^83 194. Fraud and deceit: (Trust deed) 483-485 195. Garnishment — Illegality — Implied trust — Mandamus and quo warranto — Money paid and damages 485^86 196. Partition: (Advancements— Titles) 486-488 197. Partition: (Will construed in — Will or no will) 489 198. Payment: (Attorney of plaintiff maybe sued — Goods sold to be credited)— Priorities 489^91 199. Quieting title : (Pending suit, new title — Subsequent title) 491-493 200. Replevin: (Return awarded and value fixed without deduct- ing lien of adverse party) 493-495 201. Replevin: (Return awarded, but no damages given for injury to property 495-496 202. Revivor 496-497 203. Summary proceedings — Sureties released 497 204. Trespass to try titles 497-498 205. Trustee's report, exceptions to : (Reservation in deed) 498 206. Usury 498-499 TABLE OF CONTENTS VOL. I. XIX CHAPTER VII. ESTOPPELS. SECTIONS. PAGES. 207. Principle involved in Chapter VII 500 208. Administrator's void sale — Averments of pleading in Louisi- ana— Benefits taken 500-501 209. Breach of warranty 501-503 210. Cause of action split — Corporation or partners — Dower or no dower 503-504 211. Entirety of land and machinery — Estoppel against estoppel 504-506 212. Failure to deliver goods, estopped to show — Foreclosure, void.. 506 213. Lease— Renewal of note 506-507 214. Set-off credited in the complaint 507-508 215. State court decision and Federal decision — Title in Louisiana — Waiver of res jwdicato- Witness, judgment does not pre- vent person from being 509-510 CHAPTER VIII. THE ISSUES CONTESTED OR NOT CONTESTED. 216. The issue: (Function of — What makes an issue) 511-517 217. Contest or no contest over an issue : (General observations) 517-518 218. Contest or no contest — English cases : (Installments of rent — Patent or no patent — Usury) — Indian cases 518-522 219. Contest or no contest — United States cases: (Bonds — Bonds and coupons, bona fides not contested— Indorsement, validity of — Priority of mining claim — Rent due on lease) 522-528 220. Contest or no contest — Georgia cases : (Exemption) 528 221. Contest or no contest— Illinois case: (Payment) — Louisiana case 529 222. Contest or no contest— Massachusetts case : (Adultery) 529-530 223. Contest or no contest —Michigan case : (Lease or no lease) 531-532 224. Contest or no contest — Minnesota case: (Consideration of notes) — Missouri case: (Lease or no lease) 532-534 225. Contest or no contest — New York cases : (Generally — Fraud — Insurance policies — Lease or no lease — Unsoundness of mind —Usury) 534-637 226. Contest or no contest — North Carolina case: (Debts)— Penn- sylvania case: (Confession) — Tennessee case: (Assets ex- hausted) — Vermont case: (Right of way) 537-539 227. Contest or no contest — Wisconsin case : (Title to land) 539 228. Contest or no contest — Issue of law : (Statute unconstitutional) 539-541 y^ TABLE OF CONTENTS VOL. I. CHAPTER IX. THE ISSUES IMMATERIAL, EFFECT OF ADJUDICATION UPON. SECTIONS. PAGES. 229. Principle involved in Chapter IX : (Depends upon relief de- manded — Indian cases) 543-548 230. Administrator, suit to remove: (Accounts)— Agreement to pay: (Payment) 548-549 231. Bona fide holder or no — Cancellation suit, amount due 549-550 232. Commissions: (Construction of will — Trade-mark) 550 233. Construction of deed of trust in suit to determine its validity — Construction of will as to personalty, rights in land deter- mined 551-552 234. Contract, execution of, determined in suit dismissed for want of jurisdiction 552-563 235. Deed, in ejectment, held to be a mortgage, and amount due de- termined — Deed, validity of , determined in action for breach of contract to convey 553-554 236. Domicile determined in a proceeding to probate will — Eject- ment, time of ouster — False imprisonment, fact of, deter- mined in breach of promise suit 554-555 237. "Fraudulent" alteration of note adjudicated in suit upon it — Fraudulent rei^resentations, no representations — Freehold ... 555-556 238. Heirship adjudged in granting letters of administration — Knowledge of possession, immaterial 556 239. Mistake in stranger's deed 556-557 240. Mortgage of chattels, validity of, determined in suit against officer for levying writ 657 241. Number of owners of a vessel — Partner, general or special 557-558 242. Payment, by whom made, determined in partition suit 559 243. Payment of one claim determined in suit upon another — Pay- ment to stranger 660 244. Possession of chattels, right to, determined in suit to establish a right of remainder 560-561 245. Quantity of interest in estate determined in suit to construe will 561-562 246. Quantity of water to which party is entitled determined in trespass 562-563 247. Redemption suit, amount due, determined in — Service of pro- cess in partition 563-564 248. Street, use and visibility of, determined in suit to enjoin its obstruction 564-565 249. Tenancy determined in suit to declare a deed a mortgage 565-566 250. Title determined in possessory action : (Vested or contingent interest determined in suit to construe will) 566-567 251. Unborn colt, title to, determined in suit concerning the mother —Water supply for city 567-568 TABLE OF CONTENTS VOL. I. XXI CHAPTER X. THE ISSUES PLAINTIFFS, ISSUES AND ADJUDICATIONS BETWEEN EACH OTHER. SECTIONS. PAGES. 2-52. Principle involved in Chapter X : (Administrators) 569-570 253. Agreement between plaintiffs that suit shall not determine their rights among themselves — Fraudulent conveyance 570 254. Husband and wife 570-571 255. Partners 671 CHAPTER XI. THE ISSUES DEFENDANTS, ISSUES AND ADJUDICATIONS BETWEEN EACH OTHER. 256. Principle involved in Chapter XI : (Nebraska rule in equity — Plaintiff tenders issues in equity — Indian cases) 572-579 257. Accounting in land transaction — Bona fide assignment — Consid- eration of deed — Contract held void — Corporation, stockhold- ers, county 579-583 258. Cosureties or no — Deed of trust, validity of 583-585 259. Foreclosure of lien or mortgage 586-590 260. Fraudulent vendee and sheriff 590-591 261. Joint obligors at law 592 262. Marriage settlement accounts 592-593 263. Negotiable paper — presentment and demand, as betweeen the indorser and acceptor defendants — Partition — Partners — Partnership creditors 593-594 264. Railway consolidation — Sale held void 594-597 265. Suretyship 597-599 266. Tax lien or no tax lien 599 267. Title-bond purchaser in partition 599-600 268. Title quieted 600 269. Warranty of title 600 270. Widow's election under will 600-601 271. Will construed— Will or no will 602 CHAPTER XII. THE SAME ISSUE DETERMINED BY THE RECORD PRINCIPLES AND GENERAL MATTERS. 272. Principle involved in Chapter XII 603 273. Evidence, same will support both actions 603-606 XXll TABLE OF CONTENTS VOL. II. SECTIONS. PAGES. 274. Former adjudication: (Burden of proof) 606-607 275. Former adjudication : (Effect of, under general issue) 607-609 276. Former adjudication : (Proof of, how made) 609-611 277. Necessarily decided 611-614 278. Opinions and reasons of the court 614-618 279. Presumptions 618-624 VOLUME II. CHAPTER XIII. THE SAME ISSUE DETERMINED BY THE EECORD SPECIAL MAT- TERS ALPHABETICALLY ARRANGED. 280. Administrator's current report, excepted to — Administrator's final report — Administrator removed 628-630 281. Adoption of child , 630 282. Adverse possession 630-631 283. Affirmance in supreme court on one ground, ignoring others... 631-632 284. Age of testator— Agency 632-633 285. Agreement declared void — Agreement to credit account, validity of account — Agreement to divide property 633-635 286. Amended decree governs — Amount of debt 635-636 287. Assets of estate — Assignment of mortgage 636 288. Assumpsit or conversion— Attachment 636-637 289. Bankruptcy and insolvency 637 290. Bar and abatement — Bastard, order for support of — Bill of sale 637-639 291. Bond, date of — Bonds, validity of — Bond in replevin 639-641 292. Boundaries 641-643 293. Breach of warranty and fraudulent conduct 643-644 294. Chattel mortgage — City funds — City's rights — Claim case in Georgia — Compromise after suit 644-646 295. Consent to separation in divorce 646 296. Consideration of city bonds 646-649 297. Consideration of contract of assignment of judgment — Consid- eration of note 649 298. Conspiracy to defraud 650 299. Construction of contract— Construction put upon decree by parties 650-653 300. Conversion of other property allowed for in replevin 653 301. Coupons, invalid— Credit allowed — Cross-error — Custody of child 653-654 302. Debt or no debt — Debt and Fraud — Dedication 654-655 TABLE OF CONTENTS VOL. II. XXlll SECTIONS. PAGES. 303. Deed — Deed of trust, held invalid — Deed or mortgage — De- mand and notice — Demise 655-657 304. Demurrer overruled 657 305. Demurrer in equity sustained to plaintiff's pleading 657-660 306. Demurrer at law sustained to plaintiff's pleadings or evidence, leave to amend 660-663 307. Demurrer at law sustained to plaintiff's pleadings, continued: (Illustrative case — Jurisdiction — Several grounds — Support of wife) 664-665 308. Demurrer at law sustained to plaintiff's pleadings : (Material new allegation, what does not make) 665-667 309. Demurrer at law sustained to plaintiff's pleadings: (Presump- tions) — Demurrer toanswer 667-676 310. Detinue — Devise, validity of — Discover}' in equity — Distribu- tion in equity, partition 676-677 311. Ditch, old or new — Dividends, same or not — Division fence — Division line 677-679 312. Ejectment: (Waste) 679-680 313. Embezzlement or no embezzlement — Employe, competency of — Entry states grounds of judgment 681-682 314. Equity and law : (Principle involved) 682 315. Equity and law — Bonds, validity of — Cancellation suit and rail- road fence — Consideration of ante-nuptial contract — Con- sideration, illegal 682-684 316. Equity and law : (Conspiracy — Contract or no contract) 685-687 317. Equity and law: (Deceit and rescission — Deed construed, vested remainder) 687 318. Equity and law : (Equitable and legal title— Forfeiture) 687-688 319. Equity and law : (Fraud — Fraudulent compromise — Fraudulent conveyance — Fraudulent issue of stock — Fraudulent note and mortgage — Fraudulent sale of goods — Fraudulent sale, "paid nothing").. 688-694 320. Equity and law : (Fund— Homestead— Interest) 694-695 321. Equity and law : (Lease or no lease) 695 322. Equity and law : (Malicious prosecution and bill to compel an assignment of stock) 695-696 323. Equity and law : (Marriage contract construed — Money due — Mortgage, invalid— Parol agreement to purchase land — Parol license to occupy land) 696 324. Equity and law : (Partner sues partner — Payment — Purchase- price of land) 697-698 325. Equity and law : (Seizin — Settlement — Specific performance — Suretyship— Survey) 698-700 326. Equity and law : (Title to land— Usurj'- Water-rights) 700-701 327. Executor's duties 701-702 328. Exemption 702 329. Expenses of trustee — Expulsion of member 702-703 Xxiv TABLE OF CONTENTS VOL. II. SECTIONS. PAGES. 330. False imprisonment and malicious prosecution — Father of child in seduction — Fixtures 703-704 331. Forcible entry and detainer, adverse possession 704 832. Fraud in deed — Fraud in execution against the body— Fraud in settlement— Fraud, trustee by reason of 705-709 333. Fraudulent conveyance— (Deed not in issue— Insolvent's dis- charge—Title quieted) — Fraudulent sale of other goods 709-711 334. Good will— Guaranty— Highway 711-712 335. Husband and wife: (Board of wife— Divorce, adultery— Di- vorce, children ^ Divorce, conviction of felony — Divorce, cruelty — Divorce, desertion — Divorce, ejectment — Divorce, marriage — Divorce, property adjudicated — Divorce, support and desertion — Divorce, will of wife) 712-721 336. Identity of person— Illegality — Implied and express contract with attorney 721 337. Individual property, trust property 721-722 338. Injunction 723-725 339. Installments : (Principle involved— Assessments — Assignment of lease) 725 340. Installments : (Bona fide holder of bonds — Breach of warranty) 725-727 341. Installments: (By-law, void) 727 342. Installments: (Consideration of assignment of note) 727-728 343. Installments: (Consideration of note) 728-729 344. Installments: (Contract adjudged divisible — Contract never made— Contract, validity of — Execution of bonds) 729-731 345. Installments: (Fraud in bonds — Fraud in notes) 732 346. Installments: (Indorsement — Lease, executed or not — Lease, length of — Lease, rent how payable) 732-733 347. Installments: (Maker or indorser — Ratification of town bonds — Vendor's lien — Wages) 733-735 348. Instructions to jury — Insurance and re-insurance 735-737 349. Interest: (Payment of debt) — Interest and principal — Inter- vener — Issues — Joint actors or partners 737 350. Judge's power to act 738 351. Judgment, how collectible — Judgment, validity of 738 352. Jurisdiction of federal court — Jurisdiction of state court 739-740 353. Lease and deed — Lease or no lease — Lease on condition — Less included 741-744 354. Lien of minister — Lien on partnership funds — Lien and gift 744^745 355. Loan or payment — Lost note 745-746 356. Maker or no maker— ^Malice or no malice — Malpractice 746 357. Marriage settlement, vesting of estate 746-747 358. Mechanic's lien — Merits of relator — Mistake — Money, when paid— Mortgage, validity of 748-749 359. Negligence: (Common law and admiralty) 749 360. Note on condition — Note not due, described, but not put in issue— Note, validity of 740-750 TABLE OF CONTENTS VOL. II. XXV SECTIONS. PAGES. 361. Notice 750 362. Office, title to — Owner or clerk 751 363. Partner or agent — Partner, general or special 752-756 364. Partners or joint owners — Partners or no partners 756 365. Partnership assets— Partnership debts paid 757 366. Partner's individual property 757 367. Pasturage 758 368. Patent for invention — Patent for invention with two claims 758-759 369. Patent for land— Pauper settled 759-763 370. Payment determined in illegality proceedings in Georgia — Payment for land by partner — Payment in land 764 371. Payment of mortgage 764-765 372. Payment of purchase-money 765 373. Payment for work 765-766 374. Performance of contract 766 375. Pleadings bad, no demurrer: (Bad complaint affirmed on ap- peal) 766-772 376. Pleadings good, construed : (Dower — Injunction — Mechanics' lien — Prayer — Indian cases) 772-776 377. Possession — Power to sell in mortgage 776-777 378. Preference — Prepared to keep tavern 777 379. Priorities: (Costs) 777 380. Quantity of lumber on hand 778 381. Railroad in street — Realty and personalty included in one deed, recovery of realty, suit for personalty 779 382. Reasonable time — Receipts — Receiver, appointment of 780-781 383. Redemption — Reformation — Release 781-782 384. Rent: (Indian cases) 782-783 385. Report of commissioner, master or referee 783-784 386. Right of way .• 785 387. Salary 785 388. Services, value of — Set-off ruled out — Settlement — Special con- tract 785-788 389. Special verdict at law : (Findings exclude matters) 788-789 390. Special verdict inequity 789-790 391. Specific performance, rescission — State court, federal court — Statute of limitations — Stock, title to 790-795 392. Street or no street— Substituted contract— Supersedeas — Surviv- ing partner sued individually — Swamp land 795 393. Taxable— Tax-deed — Taxes for different years — Tax-title to dif- ferent lots— Tax values 796-799 394. Tenancy, time of— Tenant ousted 799 395. Title to goods in assumpsit : (Estoppel) 800 396. Title to goods in detinue and replevin : (Presumption — Title in stranger) 800-802 397. Title to goods in trover : (Slander and theft) 802 XXVI TABLE OF CONTENTS VOL. II. SECTIONS. PAGES.. 398. Title to land: (Bankruptcy proceedings — Boundary suit — Claim case) 802-805 399. Title to land in ejectment 803-804 400. Title to land in foreclosure suit 804-805 401. Title to land adjudicated upon a guardian's report — Title to land determined in an injunction suit — Title to land ad- judged in suit on note 805-807 402. Title to land settled : (Partition — Real action — Removing cloud) 807-808 403. Title to land settled : (Replevin— Tax proceedings) 808-809 404. Title to land in trespass quare clausum fregit 810-814 405. Title to land in trespass q. cl. fregit, what does not put it in issue 814-816 406. Title to land in water-rights' cases — Title to pew in church 816 407. Trust— Trust or no trust 816-817 408. Trust, technical or implied 817-818 409. Unsoundness of mind at different times 818-819 410. Use and occupation — Usury — Value — Void judgment 819-820 411. Water-rights: (Date of deed — Issue uncertain — Mill uses too much water — Natural water-course obstructed) 820-824 412. Will : (Construed — Insanity — Probate denied — Will or no will —Will, validity of) 825-830 CHAPTER XIV. THE SAME ISSUE DETERMINED BY EXTRINSIC OR PAROL EVI- DENCE. 413. Principle involved in Chapter XIV : (General verdict, judg- ment on good count — Witnesses, who competent) 831-836 414. Account— Award 836-837 415. Boundary — Breach of warranty — Consideration — Deed, valid- ity of 837-838 416. Description in ejectment — Description in replevin 838-841 417. Ejectment, issue in 841 418. Election of case for trial by prosecuting attorney 842 419. Existence of contract — Foreign judgment — Identity 842 420. Intoxicating-liquor sales in Vermont 842-843 421. Judge's public rulings 843-845 422. Judge's and jury's secret deliberations 845-850 423. Lease, action upon for rent— Notes — Which ones were considered 850-852 424. Parties— Who are the actual 852-853 425. Partnership demand — Practice in other state 853-854 426. Premature suit 854-855 427. Purchase-price of land, what fails to show that it was not ad- judicated 865 TABLE OF CONTENTS VOL. II. XXVll SECTIONS. PAGES. 428. Record, contradicting by parol evidence : (Principle involved).. 855-856 429. Record, contradicting by parol evidence : (Award — Breach of warranty — Dower — Ejectment — Fraud) 85&-857 430. Record, contradicting by parol evidence: (Intervener— Jus- tice's record — Merits of patent — Probate record) 857-859 431. Record, contradicting: (Parol evidence to contradict parol evidence) 859-861 432. Record, explaining by parol evidence : (Uncertain issue) 861-863 433. Replevin, issues tried in 863-864 434. Trade-mark — Trespass to land — Value of land 864-865 435. Water-rights— Wife's board 865-866 CHAPTER XV. REMEDY, ELECTION OF. ■436. Principle involved in Chapter XV : (Indian cases) 867-869 437. Breach of warranty — Fraud 869 438. Cancellation suit for fraud : (For mistake) 869-871 439. Contract: (Tort) 872-873 440. Ejectment in Pennsylvania : (Accounting) — Foreclosure: (De- ficiency decree) — Fraud at law : (Trust in equity) — Malicious prosecution: (Attachment) 873-874 441. Reformation of insurance policy 874-875 442. Replevin: (Statutory action in Washington) — Set-off 875-876 443. Specific performance : (Reformation — Rescission) — Trover and trespass 876 CHAPTER XVI. REMEDY, WRONG; 444. Principle involved in Chapter XVI 877-878 445. Account stated: (Original account) — Cancellation suit: (Con- version) 878 446. Contract : (Fraud) — Contract for lien : (An agreement to make) — Contract: (Negligence) — Contract to redeem : (Trust) 878-879 447. Conversion: (Hiring)— Declare trust : (Quiet title) 879-880 448. Equity and law : (Principle involved) 880-881 449. Equity and law: (Assumpsit and cancellation — Contract and trust) 881 450. Equity and law: (Deed and contract to convey — Gift and deed — Partition and ejectment— Quiet title and suit for taxes) 881-883 451. Equity and law: (Reformation and damages against attorney — Reformation and legal rights — Replevin and accounting) 883-885 XXviil TABLE OF CONTENTS — VOL. II. SECTIONS. PAGES. 452. Equity and law: (Specific performance and ejectment — Spe- cific performance and money paid — Specific performance and rescission — Exception in Florida) 885-887 453. Foreclosure and reformation 887 454. Fraud and guaranty — Fraud and mistake — Fraud in deed and lien — Fraudulent conveyance and fraudulent assignment 887 455. Habeas Corpus and false imprisonment— Goods sold and special contract — Joint and several — Marriage valid and null — Money received and notes received 888-889 456. Negligence and statutory duty— Note and account— Note on de- mand and note on one day — Partner and employe 889-891 457. Replevin and contract — Replevin and trover 891-892 458. Right of way in gross or appendant — Seduction and breach of promise— Indian cases 893-904 TITLE III AND CHAPTER XVII. PARTIES, PRIVIES AND STRANGERS. 469. Principle involved in Chapter XVII— Parties and privies, de- fined—Strangers, defined: (Collateral fact — Crime — Debtor and creditor, judgment establishing that relation is evidence against strangers^-Estoppel in pais —Evidence, judgment is, of its own existence, or link in chain of title — Fraudulent grantee, creditor of grantgr — Fraudulent grantee, creditor having judgment against administrator of grantor — Partner- ship adjudicated — Prescriptive right — Reputation) 909-925 460. Administrator, administrator de 6oms won 925 461. Administrator, creditors of decedent 925-926 462. Administrator, decedent 926 463. Administrator, distributees : (Land) 926-927 464. Administrator, donee 927 465. Administrator, heir: (Personalty) 927-929 466. Administrator, heir: (Real estate— Revivor— Statutes) 929-931 467. Administrator, heir : (Judgment against heir, how affects ad- ministrator) 931-933 468. Administrator: (Joint debtor — Legatee — Surviving partner — Widow) 933-934 469. Administrators in different nations or states — Ancestor, heir — Appellant 934-935 470. Assignee for creditors 935-936 471. Assignee, indorsee or vendee sues and is defeated — Assignor, indorser or vendor sues same person on same cause of action 936-938 472. Assignee, indorsee or vendee sues and is defeated — Assignor, indorser or vendor sues same person on different cause of ac- tion 938-940 TABLE OF CONTENTS VOL. II. XXIX SECTIONS. PAGES. 473. Assignee, indorsee or vendee sues and recovers — Assignor, in- dorser or vendor sued by former defendant. 940-941 474. Assignor sues after payment to alleged assignee 941-942 475. Attachment-defendant: (Interpleader) 942-943 476. Attorney and client — Board and state — Bondholders 943-946 477. Capacities different : (Principle involved) 946-947 478. Capacities different : (Assignee and attorney — Beneficiary and trustee) 947-948 479. Capacities different : (Executor and guardian) 948-949 480. Capacities different : (Individual and representative) 949-954 481. Carrier and consignor — Church member and church 954 482. City as trustee for state — State — City, city officers 954-955 483. Civil and criminal proceeding for same act or omission— Civil first: (City or town— State) 955 956 484. Civil and criminal proceeding for same act or omission : (Con- tempt proceeding first) 956-958 485. Civil and criminal proceeding for same act or omission : (Crim- inal first)— (State— United States) 958-959 486. Civil proceeding, issue determined in, between prosecuting witness and defendant, effect of, in criminal proceeding for same act or omission : (§«ast criminal) 959-961 487. Criminal proceeding, issue determined in, effect of, in civil proceeding between prosecuting witness and defendant: (Assault and battery — Embezzlement — False imprisonment — Intoxicating liquor— Larceny — Malicious mischief — Murder — Obstructing highway — Perjury — Receiving stolen goods — Removing crops— Repairs omitted — Reward — Slander — Tres- pass) 961-965 488. Criminal proceeding, issue determined in, effect of, in civil pro- ceeding between state and defendant: (Wholesale liquor dealer) 965-969 489. Criminal proceeding against person aiTested, and against officer who made the arrest 969-970 490. Compelled to pay wrong person 970 491. Contingent interests : (Principle involved) 970-971 492. Contingent interests : (Administrator's sale) 972 493. Contingent interests, trustee a defendant: (Bill to cancel deed — Bill to execute deed — Bill to execute trust — Bill to reform deed — Bill to reform marriage settlement — Bill to restore lost deed) 972-982 494. Contingent interests, trustee not a defendant 982 495. Contingent interests : (Paramount title and life tenant) 983-985 496. Contingent interests : (Partition) 985-98G 497. Contingent interests : (Partition sale) 986-98S 498. Contingent interests: (Trusts under Maryland statute) 988-989 499. Contingent interests : (Will construed— Will set aside) 989-990 500. Contractor, employer — Contractor, sub-contractor 991-994 XXX TABLE OF CONTENTS VOL. II. SECTIONS. PAGES. 501. Corporation: (Directors, officers or trustees — Receiver) 994-995 502. Corporation and stockholders — (Land — Stockholder, stock- holder) 995-998 503. Creditors of same debtor: ^Fraudulent grantee — Garnishee — Mortgagee and execution plaintiff) 999-1000 504. Devisees — Disseizors — Distributees — Ejectment .1000-1001 505. Executor: (Administrator de bonis non — Devisees — Executor de S071 tort — Heirs — Legatees — Successors) 1001-1004 506. Few persons represent many : (Principle involved) 1004 507. Few persons represent many: (Charter-party — Depositors — Lienholders — Partners — Quieting title) 1004-1016 508. Garnishee: (His creditor) 1016-1017 509. Guardian and ward — Guardian ad litem 1017 510. Heirs of different persons 1017-1018 511. Husband and wife, husband a nominal party 1018 512. Husband and wife, husband represents wife 1018-1020 513. Husband and wife, husband no party 1020-1021 514. Husband and wife, wife no party 1021-1022 515. In rem: (Principle involved — Pedigree — Perishable goods — Town boundary— Will probated) 1022-1025 516. In rem: (Defunct corporation) 1025 517. In rem: (Divorce — Nullity of marriage — Legitimacy) 1025-1029 518. In rem: (Evidence in other proceedings: (Principle involved — Heirship— Ownership of vessel — Will probated) 1029-1039 519. Inrem: (Forfeiture — Inquisition of lunacy) 1039-1044 520. In rem: (Pauper settled) 1044-1046 521. Inrem: (Vessel acquitted) , 1046-1047 522. In rem, Vessel condemned : (Insurers, how affected — Collisou — Unseaworthy) 1047-1050 523. Interested person aids in the defense : (Principle involved — Aids secretly) 1050-1052 524. Interested person aids in the defense — Special cases : (Inter- ested persons brought in, but not bound — Interested person consents — Issue different — Permission to aid, not accepted)... 1053-1059 525. Interested person aids in the prosecution: (Principle in- volved) 1059 526. Interested person aids in the prosecution: (Special cases) 1059-1061 527. Joint debtors, including partners, judgment against one : (Hus- band and wife — Out of jurisdiction — Partners — Set aside as to one) 1061-1065 528. Joint debtors, including partners, judgment in favor of one 1065 529. Joint owners or plaintiffs, one defeated 1065 530. Joint and several, or several, debtors 1065-1066 631. Joint wrong-doers : (Satisfied judgment against one — Partially satisfied) 1066-1068 532. Joint wrong-doers : (Unsatisfied judgment against one) 1068-1070 533. Joint wrong-doers: (Who are and who are not) 1070-1071 TABLE OP CONTENTS VOL. II. XXXI SECTIONS. PAGES. 534. Legatees and executor: (Executor acts in double capacity) 1071 535. Lessee sued and defeated by stranger ; lessor, how affected : (Landlord or lessor assumes, or aids in, the defense — United States) 1071-1073 536,, Leesee sues stranger and is defeated — Lessor, how affected 1073-1076 537. Lessor and lessee, various matters of privity between : As- signee of lessor, lessee — Collateral fact, stranger's judgment against lessee — Lessee has notice of dispute as to title — Less- or's judgment against lessee, stranger — Mortgagee of as- signee of lessee, assignee of lessor) 1076-1077 538. Lienholders, mortgagees, occupants, owners, possessors, prior purchasers, or tenants, not made parties : (Mortgagees — Oc- cupants — Possessor of goods — Prior purchaser — Purchaser at sheriff's sale — Tax-lienholders — Tenant — Vendor's lien — Exceptions) 1077-1082 539. Lis pendens: (Principle involved) 1082-1091 540. Lispendens: (Adverse or paramount claims) 1091-1094 541. Lis pendens : (Appeal, review or writ of error, purchase pend- ing) 1095-1097 542. Lis pendens, ceases, when 1097-1102 543. Lis pendens, commences, when : (Common law — Dating back of service— Publication— Statutes) ^ 1102-1106 544. Lispendens: (County, land lies in another — Cross-bill) 1106 545. Lispendens: (Deed of trust, payments on — Deed unre- corded) 1106-1107 546. Lispendens: (Description of property) 1107-1110 547. Lis pendens: (Divorce and alimony) 1110-1112 548. Lis pendens: (Laches in prosecution) 1112-1115 549. Lis pendens, pleadings defective, or new matter added : (De- murrable — Nsw matter added to bill— New matter by supple- mental bill— New party added to bill — Prayer wanting) 1116-1118 550. Lis pendens, exceptions to the rule: (Receivership — ^Title in trespass) 1118-1121 551. Master and servant 1121-1122 552. New and additional parties 1122-1124 553. Office holders, adverse 1124-1127 554. Officer with writ— Parties to suit 1127-1129 555. Parent and child: (Grandfather, father, son — Posthumous child — Slave) — Partnership, members 1129-1131 556. Principal and agent: (Principal sued, agent afterward sued — Secret principal — Sub-agent) 1131-1133 557. Principal and sureties on bonds given in judicial proceeding : (Collusion or fraud — Consent judgment — Redelivery bond, surety not bound on other matters) 1134-1136 558. Principal and sureties on official bonds : (Administrator's bond — Administrator of administrator) 1136-1138 559. Principal and sureties on official bonds: (Constable's bond)... 1138-1 139 XXXll TABLE OF CONTENTS VOL. II. SECTIONS. PAGES. 560. Principal and sureties on official bonds : (Executor's bond).... 1139 561. Principal and sureties on official bonds: (Guardian's bond).. ..1139-1140 562. Principal and sureties on official bonds: (Receiver's bond) 1140-1141 563. Principal and sureties on official bonds : (Sheriff's bond — Dep- uty sheriff and sureties) 1141-1142 564. Principal and sureties on official bonds: (Trustee under will).. 1143 565. Principal and sureties on bonds given in private matters: (Em- bezzlement — Guarantor — Intoxicating liquor bond — Mort- gage — Note — Reformation of lease) 1143-1145 566. Principal and sureties on bonds given in private matters: (Sub- rogation of sureties) 1145-1146 567. Principal and sureties on bonds given in private matters : (Sup- port— Trustee— What binds surety) 1146-1147 568. Public matters, who are bound as privies : (County seat — Re- moved officer, appointee — Street or no street — Town or no town) 1147-1153 669. Public matters, who are bound as privies : (Tax-payers bound by judgment against municipality) 1153-1157 570. Public matters, who are or are not bound as privies: (Tax-pay- ers sue and are defeated — Tax-payers win, bondholders — Votes, canvassing) 1157 571. Receiver and bondholders 1157 672. Responsible over — Claimant defeated by person responsible over or primarily liable and afterwards sues person indemnified or secondarily liable: (Principle involved) 1157-1160 673. Responsible over — Claimant defeated by person indemnified or secondarily liable, and afterwards sues person responsible over or primarily liable: (Principle involved — Master and servant — Exception, issue different) 1161-1162 574. Responsible over — Claimant defeats indemnified person, who afterwards sues person responsible over to him : (Principle and scope of this matter — Control of case denied — Exception in North Carolina — Not applicable) 1162-1166 575. Section 574, continued : (Judgment concludes what, and what must be proved) 1166-1169 576. Section 574, continued : (Notice, must it be express, with a request to defend ? — Waiver of notice) 1169-1173 577. Section 574, continued: (Notice, what is good) 1173-1176 578. Section 574, continued : (Notice, what is not good — Court or- ders notice) 1176-1178 579. Section 574, continued — Notice of suit, and request to assume the defense, given: (Indorsee, indorser — Vendee sues for possession) 1178-1181 580. Section 574, continued — Notice to person responsible over, wanting : (Administrator's sureties — Coguarantors, Co- obligors, cosureties) 1182 TABLE OF CONTENTS VOL. II. XXXlll SECTIONS. PAGES. 681. Sections 574 and 580, continued — Indemnitor or guarantor has no notice of suit : (Oflicer indemnified for seizing property —Results guaranteed) 1182-1185 582. Sections 574 and 580, continued : (Warrantor of title or va- lidity of chose in action, has no notice of defense in suit to collect) 1185-1186 583. Sections 574 and 580, continued : (Warrantor of title to goods or chattels has no notice of suit) 1186 584. Sections 574 and 580, continued : (Warrantor of title to real property has no notice of suit) 1187 585. Slave or Freeman: (Children) ; 1187-1188 586. Subsequent purchasers — (Execution sale — Exemption — Tax- deed— Taxes— Trade-mark— Trover) 1188-1191 587. Tenants in common, mortgagee of one — Tenant in dower, re- versioner — Tenant for life, vested remainderman — Tenant for life, reversioner 1191-1193 588. Trustee sued by beneficiaiy 1193 589. Trustee sued by stranger — Trustee dies pending suit — Trustee in marriage settlement, next ot kin 1193-1195 590. Trustee sues stranger 1195-1196 591. Vendor and conditional vendee 1197 592. Wife, paramour— Witnesses 1197-1198 593. Wrong person, recovery from 1198-1199 TITLE IV— CHAPTERS XVIII-XXI. CRIMES AND CRIMINAL PROCEEDINGS. 694. Principle involved in Title IV : (Cases defining the principle, possible evidence — Same evidence— Acquittal and conviction distinguished in Texas — First case determined bars — Fraud — Inferior court— Jurisdiction — Merits tried in irregular pro- ceedings—Other state) 1200-1205 CHAPTER XVIII. CAUSE ENTIRE OR DIVISIBLE, OR THE DOCTRINE OF SPLITTING CRIMINAL CAUSES. 595. Principle involved in Chapter XVIII 1207 596. Abandonment— Abortion and murder 1207 597. Adultery and lascivious cohabitation) 1207-1209 598. Affray and assault and battery— Arson— Arson and murder 1209 599. Assault and battery 1209 600. Assault— Breach of the peace 1210 C XXXI V TABLE OF CONTENTS VOL. II, SECTIONS. PAGES, 601. Assault — (Deadly weapon displayed — Disturbing religious meeting— Kidnaping) 1210-1211 602. Assault and robbery — Assault with intent, and threat 1211-1212 603. Burglary and larceny— Burglary and robbery 1212-1213 604. Concealing birth and murder— Contempt of witness — Counter- feit plates — Deadly weapon 1213-1214 605. Degree, higher prosecuted, bars prosecution of lower 1214-1215 606. Degree, lower, conviction of, on prosecution for higher, bars prosecution of latter on new trial : (Common law question) ...1215-1216 607. Degree, lower, conviction of, on prosecution for higher, bars prosecution of latter on new trial: (Statutory question) 1216-1217 608. Degree, lower prosecuted, subsequent prosecution of higher: (Conviction— Acquittal) 1218-1221 609. Degree, lower prosecuted in inferior court, subsequent prosecu- tion of higher in superior court 1221-1222 610. Disorderly house — Distiller's tax, still in dwelling-house 1223 611. Embezzlement alid false pretense — Faro table — Forgery and false pretense— Fornication and rape 1223-1224 612. Gaming — Gaming house — Highway obstructed — House of ill fame 1224-1225 613. Intoxicating liquors : (Common seller — Continuous selling). ..1225-1227 614. Intoxicating liquors: (Keeping with intent to sell) ,...1227-1228 615. Intoxicating liquors : (Reputation of place — Sunday selling)... 122S 616. Intoxication and disturbing religious meeting — Jail delivery.. .1228-1230 617. Larceny, different articles taken from same person — Larceny and false pretense — or fraud — or prior felony 1230-1231 618. Libel 1231 619. Nuisance, continuous 1231-1232 620. Partial conviction: (New trial) 1232-1233 621. Partner, 1233 622. Persons, several injured in person or property bj' the same act : (Acquittal or conviction) 1233-1236 623. Persons, several injured in person in the same melee or trans- action 1236-1238 624. Persons, several necessary in order to commit offense: (Adul- tery — Incest— Lascivious cohabitation) 1238-1239 625. Racing and betting— Slave, trading with— Streets 1239-1240 626. Uttering forged paper and false pretense 1240 CHAPTER XIX. ISSUES DETERMINED IN CRIxMINAL CAUSES FORCE AND EFFECT OF. 627. Issue determined upon demurrer, effect of 1241-1242 628. Issue determined upon a trial in one criminal case, effect of in another: (Assault, lawful — Bastardy — Drunk or not drunk — Forgery or no forgery — Highway or no highway — Self-defense or no self-defense — Value in larceny — State not barred — Comments) 1242-1249 TABLE OF CONTENTS VOL. II. XXXV BEOnONS. PAGES. 629. Variance between a material issue and the proof, what is or is not — (Description of property, wrong — Description of means used, wrong) 1249-1252 630. Variance between name of person injured as charged and proved: (Immaterial under statute) 1252-1253 631. Variance — Identity of person injured : (Principal or accessory —Relationship) 1263 632. Variance — "Wrong offense charged: (Felonious assault, com- mon assault — Forgery , uttering — Intent to commit — Larcency, conspiring to steal, embezzlement, malicious wounding, re- ceiving stolen goods — Murder, assault — Murder, attempt — Murder, manslaughter) • 1253-1255 CHAPTER XX. JEOPARDY IN CRIMINAL CAUSES WHAT DOES OR DOES NOT CONSTITUTE, AND ITS FORCE AND EFFECT. 633. Principle involved in Chapter XX : (Exceptions — Former action pending— Plea of guilty 1256-1258 634. Arraignment omitted 1258-1259 635. Arrest of judgment 1259 636. Bailiff's dereliction 1259-1260 637. Court grants a new trial on its own motion 1260-1262 638. Defendant's motion, conviction set aside on: {Certiorari or reversal — State obtains a new trial) 1262-1264 639. Discontinuance 1264-1265 640. Dismissal or nolle prosequi 1265-1266 641. Examining court 1266-1267 642. Indictment insufficient, objection taken to, on trial 1267-1269 643. Irregularities on the trial. 1269-1270 644. Judges, one absent — Judge sick, and receives verdict at hotel — Judge's wife sick 1271-1272 645. Jury discharged : (Principle involved) 1272 646. Jury discharged : (Defendant's consent or motion). 1273-1274 647. Jury discharged : (Defendant's enforced absence) 1274-1276 648. Jury discharged : (Defendant's voluntary absence) 1276 649. Jury discharged : (Discretion of court) 1276-1278 650. Jury discharged : (Entry of reason for, omitted) 1278 651. Jury discharged: (Judge absent) 1278-1279 652. Jury discharged : (Juror biased, corrupt, fraudulent, inter- ested or tampered with) 1279-1282 653. Jury discharged: (Juror ill— Juror's mother dies— Statutes) ...1282-1283 654. Jury discharged: (Juror incompetent— Grand juror) 1283-1284 655. Jury discharged : (Record confuses two cases — Separation by consent — Separation without consent) 1284-1285 656. Jury discharged : (Sworn irregularly) 1285 XXXVi TABLE OF CONTENTS VOL. II. SECTIONS. PAGES. 657. Jury discharged : (Time of deliberation, length of, generally —New trial barred) 1285-1286 658. Jury discharged : (Time of deliberation, length of — New trial not barred) ; 1287-1289 659. Sentence, illegal 1289 660. Verdict, defective 1289-1293 CHAPTER XXI. PLEADING, PRACTICE AND EVIDENCE IN CRIMINAL CAUSES. 661. Plea of former adjudication : (Conclusion of law — County — Jeopardy — Uncertainty — Unnecessary) .1294r-1297 662. Practice: (Dismissal, defendant held — Dismissal of part — Grand jury, irregular) 1297 663. Proof of identity of charges 1297-1300 TITLE V— CHAPTERS XXII-XXIII. SECOND APPEALS PLEADINGS IN CIVIL CAUSES. CHAPTER XXII. SECOND APPEAL EFFECT OF DECISION ON FIRST APPEAL, IN. 664. Principle involved in Chapter XXII : (Contradictory decisions). .1302-1307 665. Accounting — Administration — Ancient deed — Answer— Argu- ment — Attachment 1307-1308 666. Bill of review — Bona fide purchaser — Bond 1308-1309 667. Capias — Collateral questions — Complaint — Computation, wrong 1309-1310 668. Contract construed 1310-1311 669. Coroner's authority — Court divided — Court misapprehends record — Creditor or no creditor 1311-1312 670. Deed construed — Deed, color of title — Deed delivered — De- murrer sustained 1312 671. Dicta 1312-1316 672. Divorce 1316 673. Evidence, admissible— Different ....1316-1317 674. Evidence insuflBcient — Executor or no executor. 1317-1318 675. Federal court and state court conflict — Final or not final — For- mer adjudication 1318 676. Gift or no gift— Interest 1319 677. Intermediate court— Joint trustees — Jurisdiction — Lease con- strued—Legacy 1319-1320 678. Might have been decided 1320-1321 TABLE OF CONTENTS VOL. II. XXXVll SECTIONS. PAGES. 679. Mortgage 1321 680. Necessarily decided— Partial reversal 1321-1322 681. Negligence — New trial for excusable neglect — Party — Patent for land construed— Payment 1322-1323 682. Possession of land — Power of attorney construed — Practice 1323-1324 683. Resale— Specific judgment ordered — Statute construed — Tax collector — Wife's separate estate — "Will construed 1324-1325 CHAPTER XXIII. PLEADINGS IN CIVIL CAUSES. 684. Complaint, declaration or petition 1326-1327 685. Answer or plea of former adjudication — General matters : (All matters adjudicated — Date of judgment not given — Entry wanting — Fro tanto — Remains in force — Foreign judgment). ..1327-1330 686. Answer or plea of former adjudication — Special matters : (Au- thority to act for church — Commissions — Detinue, title in — Executor's rights — Goods, damages to, recovered — Goods sold — Guardian's individual rights — Machine, breach of war- ranty — Machine, worthless — Part remitted — Replevin undey chattel mortgage — Replevin, title determined — ^Tender of goods in payment — Water-rights , 1330-1334 687. Reply 1334-1335 Table of Cases. [Beferences are to pages. Vol. I, pp Abadie v. Labero, 36 Cal. 390, 1097 Abbe V. Goodwin, 7 Conn. 377, 511 Abbott V. Stevens, 117 Mass. 340, 654 Abboy V. Annamalai, I. L. R. 12 Madr. 180, 1091 Abdul Majid v. Jew Narain, I. L, R. 16 Calc. 233, 19 Abendroth v. Van Dolsen, 131 U. S. 66, 753 Aber v. Clark, 10 N. J. Law (5 Halstead) 217 (18 Am. D. 417), 1039 Aberdeen v. Blackmar, 6 Hill 324, ' 1183 Abidunnissa v. Amirunuisa, L. R. 4 I. App. 66, 20 Acker v. Ledyard, 8 Barb. 514, 104 Ackley v. Westervelt, 83 N. Y. 448, 744 Adair v. The New River Com- pany, 11 Vesey 429, 1007 Adams v . Adams, 25 Minn. 72, 632, 533 Adams v. Barnes, 17 Mass. 365, 819 Adams v. Bradley, 12 Mich. 346, 1196 Adams v. Butts, 9 Conn. 79, 1192 Adams v. Cameron, 40 Mich. 506, 156 Adams v. Conover, 22 Hun (29 N. Y. Supr.)424, 1178 Adams v. Dickson, 72 Ga. 846, 414 Adams v. LaRose, 75 Ind. 471, 1194 Adams v. Pearson, 7 Pick. 341, 820 Adams v. State, 34 Fla. 185 (15 S. R. 905), 1288 Adams v. State, 99 Ind. 244, 1284 Adams v. State, 9 Ark. 33, 144 Adams V. State, 16 Tex. App. 162, 1234 Adams County v. B. & M. R. R. Co., 55 Iowa 94 (2 N. W. R. 1054), 1302 Adams County v. Graves, 75 Iowa 642 (36 N. W. R. 889), 653 Adams Ex. Co. v. Hoeing, 88 Ky. 373 (11 S. W. R. 205), 1319 Adamson v. Sunbby, 51 Minn. 460 (53 N. W. R. 761), 1321 Ador, Ex parte, 2 Q. B. 574, 516 Agan v. Hey, 30 Hun 501, 850 . 1-624, Vol. II, pp. 625-1335.1 Agate V. Richards, 5 Bosworth 456, 621 Agnew V. McElroy, 10 Sm. & M. 552 (48 Am. D. 772), 873, 1334 Ahl V. Ahl, 60 Md. 207, 315 Ahmad Ahan v. Mehrkhan, 1893 Pun. R. No. 35, 222 Ahmedboy v. Vulleebhoy, Indian L. R. 6 Bombay 715, 16 Ain Ally v. Juggut Chunder, 25 W. R. 416, 574 AinsHe v. Mayor, 1 Barb. 168, 464, 1072 Aiken v. Peck, 22 Vt. 255, 709 Akers v. Rowan, 36 S. C. 87 (15 S. E. R. 350), 777 Alabama, etc., R. Co. v. Blevins, 92 Ga. 522 (17 S. E. R. 836), 169 Alabama Midland Ry. Co. v. New- ton, 94 Ala. 443 (10 S. R. 89), 111 Alabama Warehouse Co. v. Jones, 62 Ala. 550, 922 Alcott V. Hugus, 105 Pa. St. 350, 133 389 Alexander v. Com., 105 Pa. St. 1, 1257 Alexander v. Quigley, 2 Duvall 399, 923 Alexander v. State, 21 Tex. App. 406 (17 S. W. R. 139,57 Am. R. 617) 1202, 1236 Alexander v. Stokely, 7 Serg. & Rawle 299, 1188 Alexander v . Tavlor,4 Denio 302, 1121 Alexander v. Walter, 8 Gill 239 (50 Am. D. 688), 146 Ali Shah v. Husain Bakhsh, In- dian L. R. 1 Allahabad, 588 Alkal Bapulli v. Kunhali, 5 Indian J. 402, 898 Allebaugh v.Coakley, 75 Va. 628, 834, 1179 Allen V. Butman, 138 Mass. 586, 776 Allen V. Morris, 34 N. J. Law (5 Vroom) 159, 1086 Allen v.Roundtree, 1 Spears' Law, 80, 55 Allen v. State, 52 Ala. 391, 1292 (xxxix) xl TABLE OF CASES. \^Beferences are to pages, Vol. I, pp Allen V. Wheatley, 3 Blackford, 332 1067 Alley V. Chase, 83 Me. 537 (22 Atl. R. 393), 86 Alley V. Nott, HI U. S. 472, 657 Allinet v. Newsom, 76 la. 81 (40 N. W. R. 105), 198 Allis V. Davidson, 23 Minn. 442, 88 Allison, In re, 13 Colo. 525 (22 Pac. R. 820), 1235 Allison V. Hess, 28 la. 388, 658 Allison V. Little, 93 Ala. 150 (9 S. R. 388), 954 Allison V. Whittier, 101 N. C. 490 (8 S. E. R. 338), 98 Allunni v. Kunju Sha, I. L. R. 7 Madr. 264, 212, 215 Almv V. Daniels, 15 R. I. 312 (4 Atl. R. 753) 163 Alonzo V. State, 15 Tex. App. 378 (49 Am. R. 207) 1238 Alsop V. Mather, 8 Conn. 584 (21 Am. D. 703), 1001 Altenburg v. Com., 126 Pa. St. 602 (17 Atl. R. 799), 1228 Althrop V. Beckwith, 14 111. App. 628, 613 Altman v.Hofeller,31 N.Y.S.881, 1324 Altschul V. Polack, 55 Cal. 633, 1072 Amanat Bibi v. Imdad Husain, L. R. 15 Indian App. 106, 223, 281 Ambu V. Ketlilamma, I. L. R. 14 Madr. 23, 223, 284 American Bell Telephone Co. v. Allbright, 32 Fed. R. 287, 1069 American Bible Society v. Price, 115 111. 623, s. c. 5 N. E. R. 126, 973 American Building & Loan Assn. V. Stoneman, 53 Minn. 212 (54 N. W. R. 1115), 1183 American, etc., Co. v. Thornton, 28 Minn. 418 (10 N. W. R. 425), 229 Amerman v. Briggs, 50 N. J. L. 114, 94 Amet V. Boyer, 43 La. Ann. 562 (9 S. R. 622), 643 Amory v. Amory, 26 Wis. 152, 715 Amsden v. Dubuque, etc., Co, 32 la. 288, 1295 Ananta Balacharya v. Damodhar, I. L. R. 13 Bom. 33, 514 Anderson, Succession of, 12 La. Ann. 95, 293 Anderson v. Bright, 12 Ala. 478, 325 Anderson v. Gregory, 43 Conn. 61, 193 Anderson v. Kalagarla, I. L. R. 12 Calc. 339, 242, 318 Anderson v. Lewis, 20 Ga. 383, 919 Anderson v. Rogge, Texas Civil Appeals (28 S. W. R.) 106, 430 1-624, Vol. II, pp. 625-1335.} Anderson v. Stather, 2 Colly (33 Eng. Ch.) 209, 978 Anderson v. Third Avenue R. Co., 9 Daly 487, 1130 Anderson Building Association v. Hoppes, 90 Ind. 250, 737 Andover Savings Bank v. Adams, 1 Allen (83 Mass.) 28, 315 Andrew, Succession of, 16 La. Ann. 197. 159 Andrew v. Schmitt, 64 Wis. 664 (26N. W. R. 190), 392 Andrews v. Denison, 16 N. H.469 (43 Am. D. 565), 1181 Andrews v. School District, 35 Minn. 70 (27 N. W. R. 303), 1331 Angel V. Hollister, 38 N. Y. 378, 361, 800 Angel V. Hollister, 6 Trans. App. (N. Y.) 204, 801 Annett v. Terry, 35 N. Y. 256, 1138 Ansley v. Carlos, 9 Ala. 973, 915 Anson v. Stein, 6 Iowa 150, 69 Anundo Moyee v. Dhonendro Chunder, 14 M. I. A. Ill, 1190 Anusuyabai v. Sakharam, I. L. R. 7 Bom. 466, _ 546 Appasami v. Ramasami, I. L. R. 9 Madr. 279, 317 Appeal of Buckingham, 60 Conn. 143 (22 Atl. R. 509), 1061 Appeal of Coleman, 62 Pa. St. 252, 833 Appeal of Hungerford, 41 Conn. 322, 836 Appeal of Susquehanna, etc., Ins. Co., 105 Pa. St. 615, 434 Appelgate v. Do well, 15 Ore. 513 (16 Pac. R. 651), 709 Archer v. Heiman, 21 Ind. 29, 1062 Archer v. State, 74 Md. 410 (22 Atl. 737), 141 Arcia v. State, 28 Tex. App. 198 (12 S. W. R. 599), 1273 Armfield v. Nash, 31 Miss. 361, 368 Armstrong v. Oppenheimer, 84 Tex. 365 (19 S. W. R. 520), 930 Armstrong v. Prewitt, 5 Mo. 476 (32 Am. D. 338), 1066 Armstrong County v. Plum Creek Township, 158 Pa. St. 92 (27 Atl. R. 842), 100 Arnold v. Arnold, 17 Pick. 4, 812 Arnold v. Arnold, — Ky. — (16 S. W. R. 585), 1039 Arnold v. Kyle, 8 Baxter fTenn.) 319, 484 Arnold v. Norfolk, etc.. Hosiery Co., 63 Hun (70 N. Y. Sapr. 176) (17 N. Y. Suppl. 646), 535 TABLE OF CASES. Xli [Beferences are to pages, Vol. I, pp Arnold v. AVoodward, 14 Colo. 164 (23Pac. E. 444), ^ 471 Arrington v. Arrington, 114 N. C. 151 (19 S. E. R. 351), 1109 Arrington v. Com., 87 Va. 96 (12 S. E. R. 224), ^ 1228 Arrington v. Porter, 47 Ala. 714, 1143, 1144 Arunachala v. Panchanadam, I. L. R. 8 Madr. 348, 191 Ashley v. Laird, 14 Ind. 222, 611 Ashmead v. Hurt, 125 Ind. 566 (25 N. E. R. 709), 693 Ashton V. Bank, 3 Allen 217, 1194, 1196 Ashton V. Citv of Rochester, 133 N. Y. 187 (30 N. E. R. 965, 28 Am. St. R. 619), 1147, 1153 Aspinall v. Marks, 8 Vict. L. R. (Law) 217, 844 Aspden v. Nixon, 4 How. (45 V . S.) 467, 934 Atchison, etc., R. Co. v. Commis- sioners, 12 Kan. 127, 167 Atchison, etc., R. Co. v. Forney, 35 Keb. 607 (53 N. W. R. 585), 254 Atchison, etc., R. Co. v. Gough, 29 Kan. 94, 254 Atchison and Nebraska E. R. Co. V. Boener, 34 Neb. 240 (51 N. W. R. 842, 33 Am. St. R. 637), 253 Athearn v. Brannan, 8 Blackford 440, 326 Atkinsv. Anderson, 63 la. 739 (19 N. W. R. 323), 143 Atkins V. Baily, 9 Yerger (17 Tenn.) 110, 1138 Atkins V. Hosely, 3 Thompson & Cook 322, 1085 Atkison v. Dixon, 96 Mo. 582 (10 S. W. R. 163), 113 Atkinson v. White, 60 Me. 396, 1160, 1161 Atlanta, etc., Co. v. Andrews, 120 N. Y. 58 (23N. E. R. 987), 785 Atlanta, etc., Co. v. Andrews, 55 N. Y. Superior 93, 785 Atlantic Dock Co. v. Mayor, 53 N. Y. 64, 1199 Atlanta Hill Mining Co. v. An- drews, 55 N. Y. Superior (23 Jones & Spencer) 93, 401 Attorney-General v. Chicago, etc., R. Co", 112 111. 520, 779 Attorney-General v. Eriche, 1 "The Reports" 440, 73 Atwood y. Robbins, 35 Vt. 529, 539 Audi y. Thatha, Indian L. R. 10 Mad. 347, 222 1-624, Vol. II, pp. 625-1335.1 Audubon v. Excelsior Ins. Co., 27 N. Y. 216, 156, 192 Aughore Nath v. Roop Chand, 13 AV. R. 97, 896 Auld y. Smith, 23 Kan. 65, 120, 121, 165, 335 Ault V. Gassaway, 18 Cal. 205, 1085 Ault y. Zehering, 38 Ind. 429, 96 Aultman y. Mount, 62 la. 674 (18 N. W. R. 306), 732 Aurora City v. West, 7 Wall. 82, 119, 396, 529, 649, 1328 Austin y. Foster, 9 Pick. 341, 426 Austin y. Walker, 61 Iowa 158 (16 N. W. R.65), 103 Ayala y. Kuppu, I. L. R. 8 Madr. 77, 187 Ayery y. Fitzgeral, 94 Mo. 207 (7 S. W. R. 6), 87 Ayerv y. Vansickle, 35 O. St. 270, 300, 1063- Axford V. Graham, 57 Mich. 422 (24 N. W. R. 158). 1186 Axtel y. Chase, 83 Ind. 546, 429 Aydlett y. Pendleton, 114 N. C. 1 ■(18 S. E. R. 971), 198 Ayres v. Noyinger, 8 Pa. St. 414, 116 Azmat Ali y. Harnam, 10 Punjab R. 157, 513 B Babcock y. Camp, 12 O. St. 11, 585 Babu Lai y. Ishri Prasad, I. L. R. 2 Alia. 533, 186 Bachelder y. Brown, 47 Mich. 366 (11 N. W. R. 200), 1053 Bachelder v. Merriman, 34 Me. 69, 1016 Bachmann y. New Yorker D. A. Bund, 12 Abb. N. C. 54, 703 Badger y. Badger, 1 Clifford 237, 159 Badger y. Daniel, 79 N. C. 372, 1139 Badger y. Titcomb, 15 Pick. 409 (26 Am. D. 611), 230 Bago y. Diwan, 1884 Punjab R. No. 25, 183 Bagott y. Williams, 3 B. & C. 235 (10 E. C. L. 115), 233 Bahum Bhutt y. Bhoobunlal, 6 W. R. 78, 339 Bailey y. Bailey, 115 111. 551 (4N. E. R. 394i, Bailey y. Knight, 8 Tex. 58, 195 Bailey y. Law's, 3 Tex. Civ. App. 529'(23 S. W. R. 20), 631 Bailev y. South Carolina Ins. Co., 3 Breyard 354, 1047 xlii TABLE OF CASES. [Eeferences are to pages, Vol. I, pp Bailey v. State, 26 Ga. 579, 1216 Bailey v. Siindberg, 49 Fed. R. 583 (1 C. C. A. 387), 1 U. S. A. 101, 1132 Bailey v. Winn, 101 Mo. 649, 87 Baines v. Babcock, 95 Cal. 581 (27 Pac. R. 674, 29 Am.St. R. 158), 997 Bainbridge v. Baddeley, 2 Phil- lips 705, 166 Bainbridge v. State, 30 O. St. 264, 842 Baird v. U. S., 96 U. S. 430, 205 Baird v. Bardwell, 60 Miss. 164, 159 Baird, In re, 84 Cal. 95 (24 Pac.R. 167), 936 Baker v. Baker, 28 N. J. Law (4 Dutcher) 13, 335 Baker v. Flint and Pere Marquette R. R. Co., 91 Mich. 298 (51 N. W. R. 897), 332 Baker v. Frellsen, 32 La. Ann. 822, 660 Baker v. Hart, 3 Atk. 542, 74 Baker v. Morehouse, 48 Mich. 334 (12 N. W. R. 170), 429 Baker v. State, 109 Ind. 47 (9 N. E. R. 711), 706 Baker v. Stinchfield, 57 Me. 363, 847 Baker v. Thompson, 151 Mass. 390 (24 N. E. R. 399), 766 Bakshi v. Nizamuddin, I. L. R. 20 Calc. 505, 180 Bakshiram v. Darku, 10 Ben. H. C. R. 369, 338 Balaji v. Khushalji, 11 Bom. H. C. R. 24, 1090 Baldwin v. McCrea, 38 Ga. 650, 1316 Baldeo Sahai v. Bateshar Singh, I. L. R. 1 Alia. 75, 405 Balkishan v. Kishanlal, I. L. R. 11 Alia. 148, 17, 19, 90, 124, 516 Ball V. State, 48 Ark. 94 (2 S. W. R. 462), 1269 Ball V. State, 67 Miss. 358 (7 S. R. 353), 1229 Ballentine v. Ballentine (Pa. St.) 15 Atl. R. 859, 167 Ballew V. Roler, 124 Ind. 557 (24 N. E. R. 976), 481 Ballou V. Ballon, 110 N. Y. 394 (18 N. E.R. 118), 1019 Ballou V. Billings, 136 Mass. 307, 699 Baloji Tamaji v. Tamangoud, 6 B. H.R. R.97, 241 Bancroft v. Winspear, 44 Barb. 209, 132 Banda v. Abadi, Indian L. R. 4 Alia. 180, 225 Bandev Karim v. Romesh Chun- der, I. L. R. 9Calc. 65, 106 . 1-624, Vol. II, pp. 625-1335.'] Bangor V. Brunswick, 33 Me. 352, 88 759 Bangs V. Strong, 4 N. Y. 315, 'l324 Bank v. Burkett, 101 111. 391, . SO Bank of Com. v. Hopkins, 2 Dana 395, 146, 147 Bank of Mobile v. Mobile, etc., Co., 69 Ala. 305, 148 Bank of New London v. Ketchum, 66 Wis. 429 (29 N. W. R. 216), 1146 Bank of N. A. v. Wheeler, 28 Conn. 433 (73 Am. D. 683), 88 Bank of the State v. Bobo, 11 Rich. Law 597, 998 Bank of the State v. Bridges, 11 Rich. Law 87, 374 Bank of Tipton v. Cochel, 27 Mo. App. 529, 737 Bank of the U. S. v. Beverly, 1 How. 134, 86 Bank of United States v. Schultz, 3 Ohio 61, 310 Banker v. Banker, 63 N. Y. 409, 1039 Banks v. Speers, 97 Ala. 560 (11 S. R. 841), 1136 Banks v. Thompson, 75 Ala. 531, 1102 Barber v. Root, 10 Mass. 260, 1025 Barclay v. Why Te Hong, 3 N. S. W. Law R. 119, 758 Barelli v. Delassus, 16 La. Ann. 280, 1085 Barfield v. Jefferson, 84 Ga. 609 (11 S. E. R. 149), 1007, 1019 Barger v. Hobbs, 67 111. 592, 834 Barker v. Belknap, 39 Vt. 168, 236 Barker v. Cassidy, 16 Barb. 177, 940 Barker V. Cleveland, 19 Mich. 230, 420, 432 Barksdale v. Hopkins, 23 Ga. 332, 1025 Barlow v. Delaney , 40 Fed. R. 97, lOia Barnard v. Brown, 112 Ind. 53 (13 N. E. R. 401), 1189 Barnes v. Gibbs, 31 N. J. L. 317, 96 Barnes v. Cunningham, 9 Rich. Eq. 475, 397 Barnett v. People, 54 111. 325, 1216 Barney v. Dewey, 13 Johns. 224 (7 Am. D. 372), 1173 Barney v. Winona, etc., R. Co., 117 U. S. 228, 1315 Barnslev, Ex parte, 3 Atk. 184, 1039 Barr, AVill of, Ohio Probate R. 134, 828 Barrett v. Choen, 119 Ind. 56 (20 N. E. R. 145 and 21 N. E. R. 322), 951 Barrett v. Birge, 50 Cal. 655, 381 Barrett v. Failing, 8 Ore. 152, 835 Barrett v. State, 35 Ala. 406, 1287 TABLE OF CASES. xliii \^Beferences are to pages, Vol. I, pp Barrick v. Horner, (Md.) 27 Atl. nil, 777 Barron v. Paine, 83 Me. 312 (22 Atl. R. 218), 995 Barron v. Paulling 38 Ala. 292, 498 Barrows v. Kindred, 4 Wall. (71 U. S. 399), 376 Barrs v. Jackson, 1 Y. & Collyer 585, 67, 70 Barrs v. Jackson, 1 Phillips 582, 68, 514 Barry v. Adams, 14 Allen 208, 915 Bartels v. Schell, 16 Fed. R. 341, 205 Barters v. Real Estate Savings Bank, 10 Mo. App. 76, 1081 Earth v. Burt, 43 Barb. 628, 432 Bartlett v. Bartlett, 113 Mass. 312, 307 Bartlett v. Boston Gaslight Co., 122 Mass. 209, 1075 Bartlett v. Kochel, 88 Ind. 425, 1130 Barton v. Allbright, 29 Ind. 489, 1017 Barton v. Anderson, 104 Ind. 578 (4 N. E. R. 420), 481, 482 Barton v. Thompson, 56 Iowa 571 (9 N. W. R. 899), 1305 Barton V. Thompson, 46 Iowa 30, 1305 Bascom v. Manning, 52 N. H. 132, 199 Bass V. Nelms, 56 Miss. 502, 310 Bass V. Sevier, 58 Tex. 567, 1191 Bassett v. Connecticut River, etc., R. Co., 145 Mass. 129 (13 N. E. R. 370), 323 Bassett v. Connnecticut River R. Co., 150 Mass. 178 (22 N. E. R. 890 ) 323 Bassett V.Mitchell, 2 B. & Ad. 99, 865 Bateman v. Grand Rapids, etc., R. Co., 96 Mich. 441 (56 N. W. R. 28) 91, 505 Bates V. Quattlebom, 2 Nott & McCord 205, 325 Bates V. Spooner, 45 Ind. 489, 492 Bates V. Stanton, 1 Duer 79, 1158, 1160 Bauder's Appeal, 115 Pa. St. 480 (10 Atl. R. 41), 374 Baudin v. Dubourg, 8 Mar. (La.) 251 (4 Martin N. S. 496), 772 Baudin v. Roliff, 1 Martin (N. S.) fLa.) 165 (14 Am. D. 181), 192, 921 Baugh v. Baugh, 4 Bibb 556, 119 Baumer v. State, 49 Ind. 544 (1 Am. Cr. R. 354), 1239 Baxley v. Linah, 16 Pa. St. 241 (55 Am. D. 494) 88 Baxter v. Aubrey, 41 Mich. 13 (1 N. W. R. 897), 855 Baxter v. Baxter, 76 Hun 98 (27 N. Y. S. 834, 57 N. Y. S. R. 458), 819 Baxter v. Dear 24 Tex. 275, 473 . 1-624, Vol. 11, pp. 625-1335.] Baxter v. Myers, 85 Iowa 328 (52 N. W. R. 234) 691 Baxter v. New England Ins. Co., 6 Mass. 277 (4 Am. D. 125), 1047 Bayliss v. Deford, 73 Iowa 495 (35 N. W. R. 596), 255 Baylor v. Dejarnette, 13 Gratt. 152, 137, 972, 989 Baysinger v. State, 77 Ala. 60, 1224 Bazayet Hossein v. Dooli Chund, I. L. R. 4 Calc. 409, 1102 Bazille v. Murray, 40 Minn. 48 (41 N. W. R. 238), 464 Beach v. Citv of Elmira, 58 Hun 606 (11 N. Y. S. 913), 725 Beach v. Grain, 2 N. Y. 86 (49 Am. D. 369) 259 Beall V. Pearre, 12 Md. 550, 134, 450, 692 Beauchaine v. McKinnon, 55 Minn. 318 (SON. W. R. 1065), 1141 Beaver v. Irwin, 6 Ind. App. 285 (33 N. E. R. 462), 857 Becharji v. Pujaji, I. L. R. 14 Bombay 31, 186, 214 Beck V. Devereaux, 9 Neb. 109 (2 N. W. R. 365), 232 Beck v. Hunter, 3 La. Ann. 641, 1182 Beckett v. Selover, 7 Cal. 215, 1002 Beckwith v. Griswold, 29 Barb. 291 394 Beckwith v. Thompson, 18W.Va. 103, 250 Bedee v. People, 73 111. 320, 1259 Bedwell v. Gephart, 67 Iowa 44 (24N.W. R. 585), 497 Beebe v. Bull, 12 Wend. 504 (27 Am. D. 150) 114 Beebe v. ElHott, 4 Barb. 457, 464 Beer v. Lendenthal, 1 Tex. App. C. Cases, section 307, 592 Beere v. Fleming, 13 Irish C. L. R. 506, 880 Beeson v. Comly, 19 Mich. 103, 711 Begein v. Brehm, 123 Ind. 160 (23 N. E. R. 496), 78 Behrley v. Behrley, 93 Ind. 255, 459 Bell v.'Bell, 25 S. C. 149, 1002 Bell V. Daga, 60 N. Y. 528, 1180 Bell V. McCulloch, 31 O. St. 397, 870 Bell V. Merrified, 109 N. Y. 202 (16N. E. R. 55), 754 Bell V. Raymond, 18 Conn. 1, 65 Bell V. State, 48 Ala. 684 (17 Am. R. 40), 1232, 1233 Belden v. Seymour, 8 Conn. 304 (21 Am. D."661), 1179 Belden v. State, 103 N. Y. 1 (8 N. E. R. 363) 32, 871, 887 xliv TABLE OF CASES. [References are to pages, Vol. I, pp Bellamy v. Sabine, 1 DeGex & Jones (68 Eng. Ch.) 566, 1083, 1088, 1099 Bellinger V. Craigne, 31 Barb. 534, 423 Beloit V. Morgan, 7 Wall. (74 U. S.) 619, 523 Bellows V. Litchfield, 83 Iowa 36 (48 N. W. R. 1062), 1181 Bemola Soondury v. Punchanun, I. L. R. 3 Calc. 705, 60 Bender v. Belknap, 23 La. Ann. 764, 501 Bendernagle v. Cocks, 19 Wend. 207 (32 Am. D. 448), 238, 366 Benjamin v. Elmira, Jefferson & C. R. R. Co., 49 Barb. 441, 481 Bennethum v. Bowers, 141 Pa. St. 105 (21 All. R. 520), 715 Bennett v. Couchman, 48 Barb. 73, 1077 Bennett v. Denny, 33 Minn. 530 (24 N. W. R. 193), 97 Bennett v. Fulmer, 49 Pa, St. 155, 963 Bennett v. Graham, 71 Ga. 211, 1137 Bennett v. Holmes, 1 Dev. & Bat. L. 486, 815 Bennett v. Hood, 1 Allen (83 Mass.) 47, 387 Bennett v. Keehn, 67 Wis. 154 (30 N. W. R. 112), 1321 Bennett v. Leach, 25 Hun (32 N.' Y. Supr.) 178, 1072 Bennett v. Williams, 5 Ohio 461, 1104 Beni Ram v. Nanhu Mai, L. R. 11 I. App. 181, 106 Bennitt v. Wilmington Star Min- ing Co., 18 111. App. 17, 1059 Bennitt v. Wilmington Star Min- ing Co., 119 111. 9 (7 N. E. R. 498), 482 Bensimer v. Fell, 35 W. Va. 15 (12 S. E. R. 1078), 455 Benson v. Connors, 63 la. 670 (19 N. W. R. 812), 701 Benson v. Paine, 17 How.Pr. 407, 1062 Bentley v. O'Bryan, 111 111. 53, 744 Benton v. Ragan, (Ky.) 11 S. W. R. 430 and 12 S. W. R. 155, 402 Benton v. Shafer, 47 O. St. 117 (24 N. E. R. 197), 1106 Benwell v. Black, 3 T. R. 643, 123 Benz V. Hines, 3 Kan. 390 (89 Am. D. 594), 484 Berber v. Kerzinger, 23 111. 346, 1182 Berger v. Clark, 79 Pa. St. 340, 140 Berger v. Williams, 4 McLean 577, 1185 Bergeson v. Richardott, 55 Wis. 129 (12 N. W. R. 384), 622 1-624, Vol. II, pp. 625-1335.1 Bernard v. Hoboken, 3 Dutch. 412, 26, 140 Bernheimer, Matter of, 47 Hun 567, 102 Berringer v. Payne, 68 Ala. 154, 326 Berry V. State, 65 Ala. 117, 1204,1216 Berry v. Whidden, 62 N. H. 473, 350 Bertrand v. Bingham, 13 Tex. 266, 1077 Bessessur v. Murli, Indian L. R. 9 Calcutta 163, 178 Best V. Hoppie, 3 Colo. 137, 746 Bethlehem v. Town of Watertown, 51 Conn. 490, 1046 Bethlehem v. Town of Water- town, 47 Conn. 237, 1046 Betterton v. Roope, 3 Lea 215, 288 Betts V . Starr, 5 Conn . 650 ( 13 Am. D. 94), 819 Bettys V. C. M. & St. P. R. Co., 43 Iowa 602, 139, 396 Bever v.North,107 Ind.544, 1177, 1178 Beveridge v. N. Y., etc., Rv. Co., 112 N. Y. 1 (19 N. E. R. 489), 694 Beverley's Case, 4 Coke 123, 1042 Bevidere v. Railroad Co., 34 N. J. L. 193, 210 Bevington v. Buck, 18 Ind. 414, 610 Bhagwant Singh v. Tej Kuar, I. L. R. 8 Allahabad 91, 574 Bhao Singh v. Het Ram, 7 Alla- habad H. C. R. 17, 338 Bheeka Lall v. Bhuggoo Lall, In- dian L. R. 3 Calcutta 23, 898, 903 Bhikam Bhat v. Joseph Fernan- dez, I. L. R. 5 Bombay 673, 21 Bhisto Shanker v. Ram Chandra Rav, 8 Bombay H. C. R. A. C. 89, 896 Bholabhai v. Adesang, I. L. R. 9 Bombay 81, 17 Bhukhands v. Lallubhai, I. L. R. 17 Bombay 565, 179 Bickett V. Nash, 101 N. C. 579 (8 S. E. R. 350), 464 Biddulph V. Ather, 2 Wilson 23, 8 Bierer v. Fretz, 37 Kan. 27 (14 Pac. R. 558), 439 Bifield V. Taylor, 1 Beat. (Irish) 91 1194 Bige'low V. Winsor, 1 Gray 299, 693 Biggins V. People, 106 111. 270, 883 Bigley v. Jones, 114 Pa. St. 510 (7 Atl. R. 54), 882 Billing V. Gilmer, 60 Fed. R. 332 (8C. C. A. 645), 623, 792 Billing V. Gilmer, 62 Fed. R. 661, 623 Bilsland v. McManomy, 82 Ind. 139, 1065 Binck V. Wood, 43 Barb. 315, 490 TABLE OF CASES. Xh [References are to pages, Vol. I, pp Bingham v. McDowall, 19 Neb. 407 (137 N. W. R. 384), 130 Birch V. Funk, 2 Mete. 544, 661. Birchunder Manickya v. Hurrish Chunder, Indian L. R. 3 Calcut- ta 383, 122, 521 Bird V. Montgomery, 34 Tex. 713, 643 Bird V. Sellers, 122 Mo. 143 (26 S. W. R. 668), 1304 Birely v. Stalev, 5 Gill & J. 432, 1002 Bishop V. McGillis, 82 Wis. 120 (51 N. W. R. 1075), 147 Bishop V. Perrin, (Ariz.) 35 Pac. R. 1059, 92 Bishop V. Truett, 85 Ala. 376 (5 S. R. 154), 704 Bishop of Winchester v. Paine, 11 Vesev, Jr., 194, 1085 Bisland v. Griffin, 9 La. Ann. 150, 1096 Bissell V. Kellog, 65 N. Y. 432, 1079 Bissell V. Kellogg, 60 Barb. 617, 84 Bissell V. Spring Valley Tp., 124 U. S. 225, 670, 731 Bissessur L a 1 1 v. Luehmessur Singh, L. R. 6 I. App. 237, 1013 Bissick V. ]\IcKenzie, 4 Daly 265, 1061 Bissett V. Kentucky River Nav. Co., 15 Fed. R. 353, 998 Bissorup V. Gorachand, I. L. R. 9 Calcutta 124, 577 Bitzer v. Killinger, 46 Pa. St. 44, 772 Bixbv V. Whitney, 5 Me. (5 Green- leaf) 192, ' 236 Bizor V. Ottumwa Hydraulic Pow- er Co., 70 Iowa 145 (30 N. W. R. 172), 265 Black V. Miller, 75 Mich. 323 (42 N. W. R. 837), 846 Black y. State, 36 Ga. 447, 1259, 1268 Blackburn v. Crawford, 3 Wall. 175, 68 Blackham's Case, 1 Selk. 290, 8, 78 Blackington v. Blackington, 113 :\Iass. 231, 684 Blacklock y. Stewart, 2 Bay 363, 1047 Black River, etc., Bk. v. Ed- wards, 10 Gray 387, 728 Blackwell v. Bragg, 78 Va. 529, 273 Blair, In re, 4 Wis. 522, 93 Blair y. Bartlett, 75 N. Y. 150 (31 Am. R. 4551, 423 Blair v. Lanning, 61 Ind. 499, 750 j Blair v. Smith, 114 Ind. 114 (15 N. 1 E. R. 817), 1189' Blair v. State, 81 Ga. 629 (7 S. E. R. 855), 1226 Blaisdell v. Scallv, 84 Mich. 149 (47 N. W. R. 58b), 263 Blake v. Koons, 71 Iowa 356 (32 N. W. R. 379), 1146 , 1-624, Vol. II, pp. 625-1335.] Blank, In matter of, 86 N. Y. 563, 958 Blakev v. Newby, 6 Munford (20 Va.) 64, 1021 Blankenbaker v. Bank of Com- merce, So Ind. 459, 926 Blann v. Crocheron, 19 Ala. 647 (54 Am. D. 203), 1068 Blatchley v. Moser, 15 Wend. 215, 956 Bledsoe v. Erwin, 33 La. Ann. 615, 157 Bliss v. Weil, 14 Wis. 35 (80 Am. D. 766), 295 Block y. Ebner, 54 Ind. 544, 259 Blodgett v. Dow, 81 Me. 197 (16 Am. R. 660), 846 Bloodgood y. Grasey, 31 Ala. 575, 1188 Bloomer v. State, 48 Md. 521 (3 Am. Cr. R. 37), 1239 Bloomington v. Roush, 13 111. App. 339, 1178 Blum y. Gaines, 57 Tex. 135, 371 Blum V. Hartman. 3 Dalv 47, 86 Blun V. Holitzer, 53 Ga. 82, 368 Blvthe's Estate, In re, 99 Cal. 472 (34 Pac. R. 108), 126 Board v. Callihan, 33 W. Va. 209 (lOS. E. R. 382), 929 Board, etc., y. Railroad Co., 24 Wis. 93, 1194 Board of Commissioners v. Ap- plewhite, 62 Ind. 464, 335 Board of Com. v. Binford, 70 Ind. 208, 141 Board of Com. v. Jameson, 86 Ind. 154, 1311 Board of Com. y. Pritchett, 85 Ind. 68, 1309 Board of Com. v. Welch, 40 Kan. 767 (20 Pac. R. 483), 492 Board of Education v. Fowler, 19 Cal. 11, 119 Board of Education y. Parsons, 24 W. Va. 551, 1302 Board of School Directors y. Her- nandez. 31 La. Ann. 158, 872 Bobb V. Graham, 89 Mo. 200 (1 S. W. R. 90), 488 Bobe V. Stiekney, 36 Ala. 482, 490 Bode v. New Ens:. Fnyestment Co., 1 N. Dak. 12l (45 N. W. R. 197), 128 Bode V. New England Investment Co., 6 Dakota 499 (42 N. W. R. 6-58), 311 Bodurtha v. Phelon, 13 Gray (79 Mass.) 4] 3, 432 Boeger V. Langenberg, 97 Mo. 390 (11 S. W. R. 223), 703 Boerum v. Schenk, 41 N. Y. 182, 1193 xlvi TABLE OF CASES. \^References are to pages, Vol. I, pp Bogardus v. Clark, 4 Paige 623, 74 Bogardus v. Clarke, 1 Edw. Ch. 266, 74 Boileau v. Rutlin, 2 Ex. 665, 63 Bohanan v. State, 18 Neb. 57 (53 Am. R. 791, 24 N. W. R. 390), 1215 Bohn V. Hatch, 133 N. Y. 64 (30 N. E. R. 659;, 1076 Bolen Coal Co.v. Whittaker Brick Co., 52 Kan. 747 (35 Pac. R. 810), 229 Boles V. Smith, 5 Sneed (37Tenn.) 105, 1073 Boiling V. Pace, 99 Ala. 607 (12 S. R. 796), 483 Bolton V. Gladstone, 5 East 155 (A. D. 18041, 1047 Bomar v. Parker, 68 Tex. 435 (4 S. W. R. 599), 662,1303 Bond V. Billups, 8 Jones' Law 423, 1137 Bond V. Markstrum, — Mich. — (60 N. W. R. 282), 517, 607 Bond V. McNider, 3 Ired. Law 440, 172 Bond V. Ward, 1 Nott & McCord 201, 1184 Bone V. Torry, 16 Ark. 83, 1182 Bonker v. Charlesworth, 33 Mich. 81, 247 Bonvillain v. Bourg, 16 La. Ann. 363, 773 Booge V. Pac. R. R., 33 Mo. 212 (82 Am. D. 160), 368 Boon V. Moss, 70 N. Y. 465 712 Borer v. Chapman, 119 U. S. 587,_ 1318 Borngesser v. Harrison, 12 Wis. 544 (78 Am. D. 757), 228, 229 Borough of York v. Forscht, 23 Pa. St. 391, 964 Borrowscalev.Tuttle,5 Allen 377, 158 Boston V. Worthington, 10 Gray (76Mass.)496(71 Am.D. 678), 1166 Bosquett v. Crane, 51 Cal. 505, 471 Boston Blower Co. v. Brown, 149 Mass. 421 (21 N. E. R. 883), 443 Boswell V. State, 111 Ind. 47 (11 N. E. R. 788), 1258, 1265 Boswell V. State, 20 Fla. 869, 1219 Bouchaud v. Dia3,3 Denio 238, 673, 782 Bouchier v. Taylor, 4 Brown P. C. 708, 68 Bottorff V. Wise, 53 Ind. 32, 619 Bougher v. Scobey, 21 Ind. 365, 889 Bouldin v. Phelps, 30 Fed. R.547, 127 Bourg v.Gerding,'33 La.Ann.l369, 857 Bourke v. Granberrv, Gilmer (21 Va.) 16 (9 Am. D.'589), 1047 Bouton V. Lindsley, 84 Wis. 644 (54 N. W. R. 1017), 427 . 1-624, Vol. 11, pp. 625-1335.'] Bowe V. Minnesota Milk Co., 44 Minn. 460 ('f7 N. W. R. 151), 206, 1328 Bowe V. Wilkins, 105 N. Y. 322 (11 N. E. R. 839), 835 Bowen v. Eichel, 91 Ind. 22 (46 Am. R. 574), 414 Bowen v. Hastings, 47 Wis. 232, 1311 Bowen v. Mandeville, 95 N.Y. 237, 385 Bower v. Tallman (5 Watts & S. 556), 400 Bowman v. McElroy, 15 La. Ann. 663 320 Bowver v. Schofield, 1 Abb. Ct. of App. 177, 822 Boyd V. Alabama, 94 U. S. 645, 26, 541 Bovd V. Caldwell, 4 Rich Law. 117, 1138 Boyd V. Huffaker, 40 Kan. 634 (20 Pac. R. 459), 1135 Boyd V. Moore, 34 Kan. 119 (8 Pac. R. 255), 1136 Boyd V. Olvev, 82 Ind. 294, 78 Boyd V. Whitfield, 19 Ark. 447, 1170 Boyden v. Partridge, 2 Gray 190, 1196 Boyer v. Austin, 54 la. 402 (6 N. W. R. 585), 196 Boykin v. Cook, 61 Ala. 472, 933 Boykin v. Rain, 28 Ala. 332, 1025 Boj^kin V. Rosenfield, (Tex. 0. App.)24S. W. R. 323, 155 Bovle V. Grant, 18 Pa. St. 162, 326 Boyle V. Wallace, 81 Ala. 352 (8 S. R. 193), 779 Bovnton v. Ball, 105 111. 627, 414 Boynton v. Ball, 121 U. S. 457, 414 Boynton v. Morrill, 111 Mass. 4, 1169 Brackett v. Hoitt, 20 N. H. 257, 877 Brackett v. People, 115 111. 29 (3 N. E. R. 723), 197 Bradford v. Knowles, 78 Tex. 109 (14S. W. R. 307), 807 Bradford v. Rice, 102 Mass. 472 (3 Am. R. 483), 414 Bradley, Ex parte, 48 Ind. 548, 1216 Bradley v. Andrews, 51 Vt. 525, 331 Bradley v. Beetle, 153 Mass. 154 (26 N. E. R. 429), 888 Bradley v. Bradley, 160 Mass. 258 (35 N. E. R. 482), 157,435 Bradley v. Chamberlain, 35 Vt. 277, 1141 Bradley v. Cole, 67 la. 650 (25 N. W. R. 845), 883 Bradley v. Johnson, 49 Ga. 412, 48 Bradley v. Luce, 99 111.234, 1092, 1118 Bradley y. McDaniel, 3 Jones' Law l28, 1086 Bradley y. Parkhurst, 20 Kan. 462, 335 Bradley v. West, 68 Mo. 69, 92 Bradley v. Zehmer, 82 Va. 685, 487 TABLE OF CASES. xlv'i [Beferences are to pages, Vol. I, pp Brady v. Breadleston, 62 Hun 548 (17 N. Y. S. 42, 42 N. Y. S. R. 422), 800 Brady v. Huff, 75 Ala. 80, 704 Brady v. Murphy, 19 Ind. 258, 1328 Brady v. Prior, (iO Ga. 691, 457 Brady v. Eevnolds, 13 Cal. 31, 1062 Brady v. State, 21 Tex. App. 659 (1 S. W. R. 462), 1287 Bradwell v. Spencer, 16 Ga. 578, 1140, 1185 Brahannavaki v. Krishna, Indian L. R. 9 Madras 92, 242, 1089 Braiden v. Mercer, 44 O. St. 339 (7 N. E. R. 155), 1139 Braithwait v. Harvev, 14 Mon- tana 208 (36 Pac. R. 38), 934 Bramble v. Poultnev, 11 Vt. 208, 1183 Branch, Ex parte, 63 Ala. 383. 1271 Branch V. State, 20 Tex. App. 599, 1252 Branch Bk. v. Hodges, 12 Ala. 118, 914 Brandon v. Judah, 7 Ind. 545, 1334 Brannenburg v. Indianapolis, P. & C. R. R. Co., 13 Ind. 103 (74 Am. D. 250), 387 Brannon v. Noble, 8 Ga. 549, 1016 Brant v. Plumer, 64 la. 33 (19 N. W. R. 842), 712 Bray v. Saaman, 13 Neb. 518 (14 N. W. R. 474), 114 Breading v. Siegworth, 29 Pa. St. 396, 999 Breeze v. Haley, 11 Colo. 351 (18 Pac. R. 551), 311 Breit V. Yeaton, 101 111. 242, 980 Brenner v. Moyer, 98 Pa. St. 274, 88 ''35 Brennan v. People, 15 111. 511, 'l216 Bressler v. Martin, 34 111. App. 122, 330 Bressler v. Martin, 133 111. 278 (24 N. E. R. 518), 295 Brett V. Marston, 45 Me. 401, 192 Brevoort v. Brevoort, 70 N. Y. 136, 987 Brewery. Beckwith, 35 Miss. 467, 803 Brewer v. Hardy, 22 Pick. (39 Mass.) 376, 1192 Brewster v. Galloway, 4 Lea. 558, 593 Brickhead v. Brown, 5 Sanford 134, 712 Bridewell, Ex parte, 57 Miss. 177, 94 Bridge v. Gray, 14 Pick. 55 (25 Am. D. 358), 837 Bridgeport Ins. Co. v. Wilson, 34 N. Y. 275, 1183 Bridges v. Wilson, 2 Tex. App. Civil Cases 625, 451 1-G24, Vol. II, pp. 625-1335.'] Briggs V. Com., 82 Ya. 554, 1217 Briggs V. Richmond, 10 Pick. (27 Mass.) 391 (20 Am. D. 526), 508, 509 Briggs V. Wells, 12 Barb. 567, 841 Brigham v. Fayerweather, 140 Mass. 411, 826, 1039 Brightman v. Brightman, 1 R. I. 112, 1110 Brill V. Shively, 93 Cal. 674 (29 Pac. R. 324), 480 Brindabus Chunder v. Dhununjoy, Indian L. R. 5 Calcutta 246, 178 Brinkley v. Brinkley, 60 N. Y. 184, 119 Brinkham v. State, 57 Ind. 76, 1298 Brinsmead v. Harrison, L. R. 6 C. P. 584, 1069 Brintnall v. Foster, 7 Wend. 103, 858 Brisco V. Lomax, 8 Ad. & El. 198, 924 Bristowe v. Fairclough, 1 M. & G. 143 (39 E. C. L. 687), 347 Britton v. State, 77 Ala. 202, 959 Britton v. Turner, 6 N. H. 481, 426 Brizendine v. Frankfort Bridge Co., 2 B. Mon. (41 Ky.) 82 (36 Am. D. 587), 1065 Brodar v. Lord, 14 Jones & Spen- cer (46 N. Y. Supr.) 205, 368 Brodie v. Bickley, 2 Rawle 431, 934 Brodrib v. Brodrib, 56 Cal. 563, 1139 Brojo Behari Mitterv. KedaNath, Indian L. R. 12 Calcutta 580, 1124 Brojo Lall v. Khnettur Nath, 12 W. R. 55, 898 Brojondra Nath v. Budge-Budge Jute Mill Co., Indian L. E. 20 Calcutta 527, 431 Bronte v. Leslie, 30 111. App. 288, 937 Brooke v. Logan, 112 Ind. 183 (13 N. E. R. 669), 94, 605 Brooklyn W. & N. R. Co., 19 Hun (26 N. Y. Supr.) 314, 1025 Brothers V. Higgins,5 J. J. Marsh. 658i 168 Brougiiton v. Mcintosh, 1 Ala. 103, 490 Broussard v. Broussard, 43 La. Ann. 921 (9 S. R. 910), 376 Brower v. Bowers, 1 Abb. Ct. of Appeals 214, 1071 Brown, Ex parte, 15 S. R. 602, 1292 Brown, In re, 1 Abb. Pr. 108, 1042 Brown v. Ashley, 16 Nev. 311, 821 Brown v. Brown, 2 E. D. Smith 153, 118 Brown v. Brown, 37 N. H. 536, 157 Brown v. Cain, 79 Ind. 93, 604 Brown v. Campbell, 100 Cal. 635 (35 Pac. R. 4331, 126 Brown v. Chadwick, 32 Mo. App. 615, 233 xlviii TABLE OF CASES. [Seferences are to pages, Vol. I, pp Brown v. Chaney, 1 Ga. (1 Kelly) 410, 1186 Brown v. Critohell, 110 Ind. 31, 1325 Brown v. Dudley, 33 N. H. 511, 1017 Brown v. Foster, 113 Mass. 136,^ 444 Brown v. Johnson, 13 Gratt. (54 Va.) 614, 1062 Brown v. Gallaudet, 80 N. Y. 413, 420 Brown v. King, 10 Mo. 56, 833 Brown V. Kirkbride, 19 Kan. 588, 107 Brown v. Mavor, etc., 66 N. Y. 385, ' 636 Brown v. M'Mullen, 1 Hill's Law (S. C.) 29, 1179 Brown v. Moran, 42 Me. 44, 872 Brown v. Roberts, 24 N. H. 131, 374 Brown v. Somerville, 8 Md. 444, 1302 Brown v. State, 64 Md. 199 (1 Atl. R. 54 and 6 Atl. R. 172), 249 Brown v. State, (Miss.) 16 S. R. 202, 1298 Brown v. Street, 60 Ind. 8, 606 Brown v. Taylor, 13 Vt. 631 (37 ' Am. D. 618), 1179 Brown' v. Union Ins. Co., 4 Day 179 (4 Am. D. 204), 1047 Brown v. Weldon, 34 Mo. App. 378, 283 Brown v. Winstanly, 18 Ohio 67, 970 Browne V. French, 3 Tex. App. 445 (22 S. W. R. 581), 1183 Brown's Estate v. Wayne County, (Mo.) 27S. W. R. 322, 651 Bruce v. State, 9 Ind. 206, 1203 Bruner v. Ramsburh, 43 Md.560, 498 Brunsden v. Humphrey, L. R. 14 Q. B. Div. 141, 325 Brunskill v. Powell, 1 L. M. & P. 550, 233 Brusie v. Peck Bros. & Co., 54 Fed. R. 820, (4 C. C. A. 597, 14 U. S. A. 21), 758 Bryan v. Alexander, 111 N. C. 142 (15S. E. R. 1031) 1312 Bryan v. Weems, 25 Ala. 195 1325 Bryan v. Boothe, 35 Ala. 269, 1302 Bryant v. Isburgh, 13 Gray 607 433 Bryant v. Owen, 1 Ga. (1 Kelly) 355, 1140, 1185 Bryant v. State, 72 Ind. 400, 1221 Buccleuch v. Metropolitan Board of Works, L. R. 5 Eng. & Ir. App. Cas. 418, 850 Buchanan v. Kauffman, 65 Tex. 235, 1172 Buchanan v. Smith, 75 Mo. 463, 650 Bucher v. Cheshire R. Co., 125 U. S. 555, 193 Buck V. Buck, 2 Vt. 417, 420, 236 Buck V. Collins, 69 Me. 445, 1-624, Vol. II, pp. 625-1335.'] Buck V. Rhodes, 11 la. 348, 801 Buck V. Spofford, 35 Me. 526, 837 Buck V. Wilson, 113 Pa. St. 423(6 Atl. R. 97), 234r Buckingham's Appeal, 60 Conn. 143 (22 Atl. R. 509), 614, 1061 Buckingham v. Ludlum, 37 N. J. Eq. 137, 910, 934 Buckland v. Johnson, 15 C. B, (80 E. C. L.) 145, 1069 Buckner v. Calcote, 2S Miss. 432, 136 Buhler v. State, 64 Ga. 504, 1251 Bull V. Kutchens, 32 Beavan 615, 1090 Bullock V. Winter, 10 Ga. 214, 1180 Bumpass v. Reams, 1 Sneed 595, 701 Bungsee Singh v. Soodist Lall, In- dian L. R. 7 Calcutta 739, 225 Bunker v. Langs, 76 Hun 543 (28 N. Y. Suppl. 210, 58 N. Y. St. Rep. 243), 942 Buntin v. Duchane, 1 Blackf. 56, 803 Bunting v. Lepingwel, 4 Coke 29, 6, 30 Buntyn v. Holmes, 9 Lea 319, 930 Burdick v. Chicago, etc., Co., 87 la. 384 (54 N. W. R. 439) 920 Burdick v. City of Norwich, 49 Conn. 225, 1150 Burdick v. Post, 12 Barb. 168, 737 Burger v. Young, 78 Tex. 656 (15 S. W. R. 107), 430 Burgess v. Poole, 45 Ark. 373, 126 Burgess v. Simonson, 45 N. Y. 225, 922 Burke v. Miller, 4 Gray 114, 750 Burks V. State, 24 Tex. App. 326 (6 S. AV. R. 300), 1224 Burlen v. Shannon, 3 Gray (69 Mass.) 387, 1026 Burlen v. Shannon, 14 Gray 433, 712 Burlen v. Shannon, 99 Mass. 200 (96 Am. Dec. 733), 77, 518, 790 Burlen v. Shannon, 115 Mass. 438, 117 Burner v. Hevener, 34 W. Va. 774 (12 S. E. R. 861) (26 Am. St. R. 948), 97 Burnett v. Smith, 4 Gray (70 Mass.) 50, 449 Burns v. Hodgdon, 64 Cal. 72 (28 Pac, R. 61) 376 Burns v. Gavin, 118 Ind. 320 (20 N. E. Rep. 799) 933, 1059 Burns v. People, 1 Park. Cr. R. 182, 1218 Burr V. Deinson, 8 N. C. Q. B. 610, 1198 Burr V. Woodrow, 1 Bush (64 Ky.) 602, 390 Burress v. Com., 27 Gratt. 934, 1251 Burril v. West, 2 N. H. 190, 1184 TABLE OF CASES. xlix [Iicferences are to pages, Vol, I, pp Bnrritt v. Belfy, 47 Conn. 323 (36 Am. R. 79), 316 Bnrroaghs v. Reiger, 12 How. Pr. 171, 1103 Burt V. Sternbargh, 4 Cow. 559 (15 Am. D. 402), 396, 535, 810, 811 Burton v. Barlow, 55 Vt. 434, 207 Burton v.Burton,28Ind.342, 123, 126 Burton v. Huma, 37 Fed. R. 738, 492 Burton v. Mill, 78 Va. 468, 617 Burwell v. Cannadav, 3 Jones L. 165, ' 822 Burwell v. Knight, 51 Barb. 267, 199 Bush V. Bush, 1 Strob. Eq. 377, 167 Bush V. Hampton, 4 Dana (34 Ky. 83), 1158 Bush V. Knox, 5 Thompson & Cook 130, 1060 Bush V. Merriman. 87 Mich. 260, 70 Bussun Lall v. Chundee Dass, I. L. R. 4 Calc. 686, 61 Butchers', etc., Association v. City of Boston, 137 Mass. 186, " Butler V. Butler, 1 "The Reports" 521 (1893, p. 185), 712 Butler V. Stephens, Walker(Miss.) 219, 120 Butler V. Suffolk Glass Co., 126 Mass. 512, 423, 446 Butler V. Wright, 2 Wend. 369, 861 Butterfield v. Town of Ontario, 44 Fed. R. 171, 320 Buzloor Ruheem v. Shumsoonissa Begum, 11 M. I. A. 551, 228, 243 Buzzell V. Still, 63 Vt. 490 (25 Am. St. R. 777. 22 Atl. R. 619), 481 Byers v. Iseal, 43 Cal. 210, 464 Bvnum V. Apperson,9 Heisk. 632, 1304 Byrket v. Stale, 3 Ind. 248, 207 Byrne v. Hume, 84 Mich. 185 (47 N. W. R. 679), 825 Byrne v. Prather, 14 La. Ann. 653, 123 Byrnes v. Byrnes, 102 N. Y. 4 (5 N. E. R. 776), 366 c Cabot V. Town of Washington, 41 Vt. 168, 759 Cackley v. Smith, 47 Kan. 642 (27 Am. St. R. 311, 28 Pac. R. 617), 127 Cade V. McFarland, 48 Vt. 47, 413 Cadwallader v. Harris, 76 111. 370, 938 Cadwell v. Blake, 6 Gray 402, 445 Cagger v. Lansing, 64 N. Y. 417, 464 Caldwell v. Micheau, 1 Spears' Law 276, 400 Calkins v. Allerton, 3 Barb. 171, 1190 Calverley V. Phelp, 6Madd. 229,, 978 D 1-624, Vol. II, pp. 625-1335.'] Calvit V. Williams, 35 La. Ann. 322, 474 Cameron v. Chicago, etc., R. Co., 51 Minn. 153 (53 N. W. R. 199), 149 Camp V. Forrest, 13 Ala. 114, 497, 780 Cambell's Case, 2 Bland's Ch. 209 (20 Am. D. 360), 1102 Campbell v. Ayres, 18 Iowa 252, 156 Campbell v. Board of Commis- sioners, 71 Ind. 185, 205 Campbell v. Butts, 3 N. Y. 173, 856 Campbell v. Campbell, 22 Gratt. 649, 407 Campbell v. Consalus, 25 N. Y. 613, 550 Campbell v. Consalus, 40 Barb. 509, 550 Campbell v. Cross, 39 Ind. 155, 1326 1329 Campbell v. Hall, 16 N. Y. 575, ' 1078 Campbell v. Hatchett, 55 Ala. 548, 315 Campbell v. Holmes, 21 U. C. Q. B. 465, 439 Campbell v. Hunt, 104 Ind. 210 (2 X. E. R. 363, 3 N. E. R. 879), 657 Campbell V. Mayhugh, 15 B. Mon. 142, 158 Campbell v. People, 109 111. 565 (50 Am. R. 621), 1295 Campbell v. Railroad Co., 1 AVoods 368, 1194 Campbell v. Rankin, 99 U. S. 261, 812, 813 Campbell v. Renwick (2 Bradf. Sur. 80), 391 Campbell v. State, 9 Yerger (17 Tenn. 333, 30 Am. D. 417), 1232 Campbell v. Watson, 8 Ohio 498, 972, 1194 Campbell v. Woolfolk, 37 La. Ann. 320, 740 Campbell Printing, etc., Co. v. Walker, 114 N. Y. 7 (20 N. E. R. 625), 650 Canada v. Barksdale, 84 Va. 742 (6 S. E. R. 10), 86 Canaday v. Detrick, 63 Ind. 485, 1016 Canal Bank v. DeLizardi, 20 La. Ann. 285, 112, 501 Canal Banking Co. v. Brown, 4 La. Ann. 545, 1137 Candee v. Burke, 10 Hun 350, 699 Candee v. Clark, 2 Mich. 255, 1062 Candee v. Lord, 2 N. Y. 269 (51 Am. D. 294), 922 Cannon v. Brame, 45 Ala. 262, 604 Cannon v. Nelson, 83 Iowa 242 (48N. W. R. 1033), 1153 1 TABLE OF CASES. [Eeferences are to parjes, Vol. I, j)p. Cannon River Mfg. As. v. Rogers, 42 Minn. 123 (43 N. W. R. 792), 1052 Canter v. People, 1 Abb. Ct. App. 305, 1249 Cantrelle v. Roman Catholic Cong. l(i La. Ann. 442, 816 Capell V. Landano, 34 Ala. 135, 119 Caperton v. Hall, 83 Ala. 171 (3 S. R. 234), 488 Caperton v. Schmidt, 26 Cal. 479 (85 Am. D. 187), 464 Carey v. Brown, 92 U. S. 171, 1196 Carey v. AVilcox, 6 N. H. 177, 86 Carit V. Wilhams, 74 Cal. 183 (15 Pac. R. 751), 637 Carl V. Knott, 16 Iowa 379, 346 Carlin v. Brackett, 38 Minn. 307 (37N. W. R. 342), 661 Carlisle v. Killebrew, 89 Ala. 329 (6 S. R. 756), 964 Carlton v. Davis, 8 Allen (90 Mass.) 94, 1127 Carmichael v. The Governor, 3 How. (4 Miss.) 236, 1141 Carmony v. Hoober, 5 Pa. St. 305, 195, 844 Carney v. Emmons, 9 Wis. 114, 1078 Carpenter v. Canal Co., 35 O. St. 307, 1005 Carpenter V. King, 9 Mete. 511 (43 Am. D. 405), _ 597 Carpenter v. Shepardson, 46 Wis. 557, 1324 Carpenter v. Smith, 24 Iowa 200, 571 Carr v. Gates, 96 Mo. 271 (9 S. W. R. 659), 1096 Carr v. Ellis, 37 Ind. 465, 800 Carr v. Lewis Coal Co., 96 Mo. 149 (8 S. W. R. 907), 1087 Carr v. United States, 98 U. S. 433, 1073 Carrigan v. Semple, 72 Tex. 306 (12 S. W. R. 178), 935 Carroll v. Board of Police, 28 Miss. 38, 401 Carroll v. Carroll, 60 N. Y. 121 (19 Am. R. 144), 918 Carroll v. Patrick, 23 Neb. 834 (37 N. W. R. 671), 157 Carroll County v. Smith, 111 U. S. 556, 1118 Carson v. People, 4 Colo. 463 (36 Pac. R. 551), 1242 Carson & Rand Lumber Co. v. Knapp, Stout & Co., 80 Iowa 617 (45N. W. R. 544), 1059 Carter v. Bowe, 41 Hun (48 N. Y. Supr.) 516, 1159 Carter v. Coleman, 12 Ired. L. 274, ^& 1-624, Vol. II, pp. 625-1335.'] Carter v. Hanna, 2 Ind. 45, 613 Carter v. James, 13 M. & W. 137, 519 Cartwright v. Carpenter, 7 How. (8 Miss.) 328, 1173 Caruth v. Grigsby, 57 Tex. 259; 949 Caruthers v. Williams, 53 Mo. App. 181, 143 Carver v. Adams, 38 Vt. 500, 429 Carver v. Staples, 52 Conn. 21, 814 Carvill v. Garrigues, 5 Pa. St. (5 Barr 152. 304 Case V. Beauregard, 101 U.S. 688, 745 Case V. Gorton, 33 Mo. App. 597, 857 Casebeer v. Mowry, 55 Pa. St. 419 (93 Am. D. 766) 88, 821 Casey v. Cooper, 99 N. C. 395 (6 S. E. R. 653), 471 Casey v. McFall, 3 Sneed 114, 92 Cashman v. Bean, 2 Hilton 340, 347 Casoni v. Jerome, 58 N. Y. 315, 1137 Casselberry v. Forquer, 27 111. 170, 316 Castellaw v. Guilmartin, 64 Ga. 299, 1002 Castle V. Noyes, 14 N. Y. 329, 536, 1053 Castonv. Perrv, 1 Bailey's Law 533 (21 Am. D. 482), 497 Cauhape v. Parke, Davis & Co., 121 N. Y. 152 (24 N. E. R. 185), 553 Caujolle V. Ferrie, 13 Wall. 465, 67, 68 Cavanaugh v. Buehler, 120 Pa. 441 (14 Atl. 391), 37, 60 Cave v. Burns, 6 Ala. 780, 1182 Caylus V. N. Y., etc., R. R. Co., 76 N. Y. 009, 385, 872 Central Baptist Church and Soci- ety V. ]Manchester, 17 R. I. 492 (23 Atl. R. 30), 1052 Central Nat. Bk. v. Hazard. 30 Fed. R. 484, 910 Central Trust Co. v. Iowa Central Ry. Co., 40 Fed. R. 851, 156, 158 Chaffee v. Morgan, 30 La. Ann. 1307, 614 Chaffee v. Patterson, 61 Miss. 28, 1118 Chaffin V. Hull, 49 Fed. R. 524, 980 Chafhn Will Case, 32 Wis. 557, 389 Chambei'lain v. Carlisle, 26 N. H. 540, 608 Chamberlain v. Gaillard, 26 Ala. 504, 1331 Chamberlain v. Godfrey, 36 Vt. 380 (84 Am. D. 960), 1142 Chamberlain v. Preble, 11 Allen (93 Mass.) 370, 1178 Chamberlain v. Sutherland, 4 111. App. 494, 159 Chambers v. Smith, 30 Mo. 156, 1305 TABLE OF CASES. [Beferences are to pages. Vol. I, pp Chamley v. Dunsany, 2 Sch. & Lefroy, 690, 573 Champion v. Cayce, 54 Miss. 695, 930 Champlin v. Smith, (Pa. St.) 30 Atl. R. 447, 162 Chand Konr v. Partap Singh, L. R. 15 Indian App, 156, 175 Chandler's Appeal, 100 Pa. St. 262, 111 Chandu v. Kunhamed, I. L. R. 14 Madras 324, 577, 1015 Chant V. Reynolds, 49 Cal. 213, 1072 Chapin v. Cnrtis, 23 Conn. 388, 657 Chapin v. Thompson, 4 Hun (11 N. Y. Supr.) 779, 1165 Chapin Hall Lumber Co. v. Dal- rymple, 53 N. J. Law 267 (21 Atl. R. 949), 436 Chapman v.Frank, 15 Daly 282 (15 N. Y. Suppl. 448), 939 Chapman v. Smith, 16 How. 114, 855 Chardavoyne v. Lynch, 82 Ala. 376 (3 S. R. 98), 412 Charles v. Davis, 62 N. H. 375, 498 Charles v. Haskins, 11 Iowa 329, 330 Charles v. Hoskins, 14 Iowa 471 (83 Am. D. 378), 1141 Charta v. Puran Sabh, 2 Agra R. 256, 61 Chase's Case, 1 Bland's Ch. 206 (17 Am. D. 277), 148 Chase v. Kavnor, 78 Iowa 449 (43 N. W. R. 269), 1080 Chase V.Walker, 26 Me. 555, 607, 705 Chathappan v. Pydel, I. L. R. 15 Madras 403, 107 Chavent v. Schefer,59 Fed.R. 231, 455 Cheatham v. Morrisen, 37 S. C. 187 (15 S. E. R. 924), 1135 Cheesman v. Thorne, 1 Edw. Ch. 629, 970, 987 Cheney v. Cooper, 14 Neb. 415, (16N. W. R. 471), 168 Cheney v. Stone, 29 Fed. R. 885, 160 Chenvirappa v. Puttappa, I. L. R. 11 Bombay 708, 467 Cherry v. McCall, 23 Ga. 193, 958 Cherry v. Speight, 28 Tex. 503, 934 Chesapeake, etc., R. Co. v. Git- tings, 36 Md. 276, 816 Chesapeake and Ohio R. Co. v. Com., 88 Ky. 368 (11 S. W. R. 87), 1224 Chestnut v. Pennell, 92 111. 65, 998 Chetram v. Bahal Singh, 1880 Pun. R. No. 108, 62 diet Ram v. Bahal Singh, 15 Pun- jab R. 261, 57, 1016 Chicago, B. & Q. Ry. Co. v. Schaffer, 124 111. 112 (16 N. E. R. 239), 393 . 1-624, Vol. II, pp. 625-1335.] Chicago, etc., R. Co. v. Hoyt, 44 111. App. 48, 1302 Chicago, etc., R. Co. v. Maher, 91 111. 312, 266 Chicago, etc., R. Co. v. Swan, 120 Mo. 30 (25 S. W. R. 534), 1316 Chicago, etc., R. R.Co. v. Mallory, 101 111. 583, 312 Chicago, etc., Ry. Co. v. Black, 20 Pac. R. 96, 724 Chicago, etc., Ry. Co. v. Commis- sioners, 47 Kan. 766, 724 Chicago and Alton R. R.Co.v. Ma- her, 91 111. 312, 265 Chicago and A. Bridge Co.v. Anglo- American P. & P. Co., 46 Fed. R. 584, 996 Chicago & E. I. R. Co. v. Loeb, 118 111. 203 (8 N. E. R. 460), 265 Chicago and Rock Island R. R.Co. V. Hutchins, 34 111. 108, 1121, 1161, 1162 Chicago and Northwestern R. R. Co. V. Northern Line Packet Co., 70111. 217 1166 Chicago and Northwestern Ry. Co. V. Shultz, 55.111. 421, 943 Child V. Morgan, 51 Minn. 116 (52 N. W. R. 1127), 120 Chiles V. Champenois, 69 Miss. 603 (13 S. R. 840), 808 Chiles V.Drake, 2 Mete. (Ky.) 146, 956 Chilson V. Reeves, 29 Tex. 275, 473 Chinniya Mudali v. Yenkat Chella Pillai, 1880 Madras A. C. R. 329, 63 Chinniya JMudali v.Yenkata Chel- laPillai, 3 Madr. H. C. R. 320, 893 Chipman v. Fambro,16 Ark. 291, 1182 Chipman v. Martin, 13 Johns. 240, 288 Chipman v. Simmons, 16 Ark. 295, 1182 Chirac v. Reinacker, 2 Peters (26 U. S.) 613, • 1073 Chirac v. Reinecker, 2 Pet. 613, 11 Wheat. 280, 1075 Chisholm v. Morse, 11 U. C. C. P. 589, _ _ 197 Chokallnga Pillai v. Viruthalam, 4 Madr. H. C. R. 334, 318 Chouteau v. Gibson, 76 Mo. 38, 110 Chrisman v. Harman, 29 Gratt. 494 (26 Am. R. 387), 167 Christian v. Penn, 7 Ga. 434, 484 Christie Re, 5 Paige 242, 1039 Christmas v. Mitchell, 3 Ired. Eq. 535, 1040 Christy v. Spring Yalley Water Works, 68 Cal. 73 (S'Pac. R. 849), 487, 488 lii TABLE OF CASES. [Beferences are to pages, Vol. I, pp Christy v. Water Works, 84 Cal. 541 (24 Pac. Rep. 307, 68 Cal. 73, SPac. Rep. 849), 349 Chunder Coomar v. Sib Sundari, Indian L. R. 8 Calc. 631, 125 Chunder Nath v. Nihikaut, Indian L. R. 8 Calcutta 690, _ 1120 Chunni Lai v. Banaspat, Indian L. R. 9 Allahabad 23, 225, 289 Church's Appeal (Pa.), 7 Atl. R. 751, 400 Church v.Leavenworth,4 Day 274, 766 Cincinnati v. Diekmeier, 31 O. St. 242, 1 185 Cincinnati, etc., R. Co. v. Wynne, 14 Ind. 385, 86 Cist V. Zeigler, 16 S. & R. 282 (16 Am. D. 573), 607, 819 Citizens Bank v. Miller, 45 La. Ann. 493 (12 S. E. R. 516), 1085 Citizens Horse R. Co. v. City of Belleville, 47 111. App. 388, 1151 Citizens Savings Bank v. Oleson, 47 Iowa 492, _ 1062 City and County of San Francisco V. Holladay, 76 Cal. 18 (17 Pac. R. 942), 655 City Bank of N. 0. v. Walden, 1 La. Ann. 46, 157 City Council of Montgomery v. Gilmer, 33 Ala. 116, 1317 City of Bloomington v. Roush, 13 111. App. 339, 1178 City of Boston v. Worthington, 10 Gray (76 Mass.) 496 (71 Am. D. 678), 1163, 1166, 1172 City of Chicago v. Robbins, 2 Black (67 U. S.) 418, _ 1170 City of Cincinnati v. Diekmeier, 31 O. St. 242, 1185 City of Cohoes v. Morrison, 42 Hun (49 N. Y. Supr.) 216, 1167 City of Davenport v. C, R. I. & P. R. R. Co., 38 Iowa 633, 797 City of Denver v. Lobenstein, 3 Colo. 216, 724 City of Detroit v. Ellis, — Mich. — (61 N. W. R. 886), 1151 City of Elkhart v. Wickwire, 87 Ind. 77, 1178 City of Houston v. Voorhies, 70 Tex. 356 (8 S. W. R. 109), 644 City of Lafayette v. Nagle, 113 Ind. 425 (15 N. E. R. 1), 267 City of LaPorte v. Organ, 5 Ind. App. 369 (32 N. E. R. 342), 661 City of London v. Richmond, 2 Vernon 421 , 1004 City of Los Angeles v. Melius, 58 Cal. 16, «61 1-024, Vol. n,2W. 625-1335.'] City of Lowell v. Parker, 10 Mete. (51 Mass.) 309 (43 Am. D. 436), 1138 City of North Muskegon v. Clark, 62 Fed. R. 694, 661, 664 City of North Vernon v. Voegler, 103 Ind. 314 (2 N. E. R. 821 ), 268 City of Olathe v. Thomas, 26 Kan. 233, 1236 City of Portland v. Richardson, 54 Me. 46 (89 Am. D. 720), 1178 City of Philadelphia v. Ridge Ave. Ry. Co., 142 Pa. St. 484 (21 Atl. R. 982), 540 City of Rome, 49 Fed. R. 392, 749 City of San Antonio v. Lane, 32 Tex. 405, 946 City of San Francisco v. Holla- day, 76 Cal. 18, 817 City of St. Joseph v. Union Ry. Co., 116 Mo. 636 (22 S. W. R. 794), 1168 City of St. Louis v. Schulenburg, etc., Co., 98 Mo. 613 (12 S. W. R. 1045), 87 City of Zanesville v. Zanesville, etc., Co., 1 O. C. C. 123, 644 Claflin V. Fletcher, 10 Biss. 281, 800 Claflin V. Fletcher, 7 Fed. R. 851, 852 Clapp V. Thomas, 5 Allen 158, 192 Clark, Matter of, 62 Hun 275, 552, 602 Clark V. Blair, 14 Fed. R. 812, 623 Clark V. Clinton, 61 Miss. 337, 891 Clark V. Dew, 1 Russ. & M. 103, 74 Clark V. Dyer, 81 Tex. 339 (16 S. W. R. 1061), 394 Clark V. Farrow, 10 B. Mon. (49 Ky.) 446 (52 Am. D. 552), 1096 Clark V. Irvin, 9 O. 131, 962 Clark V. Keith, 106 U. S. 464, 1325 Clark V. Lamb, 8 Pick. 415, 835 Clark V. Montgomery, 23 Barb. 464, 1139 Clark V. Mumford, 62 Tex. 532, 1176 Clark V. Norman, 68 Hun (75 N. Y. Supr.) 372 (22 N. Y. Suppl. 849, 52 N.Y.St. Reporter 177), 1182 Clark V. Rowling, 3 N. Y. 216 (53 Am. D. 290), 414 Clark V. Sammons, 12 Iowa 368, 440, 442, 449 Clark V. Wolf, 29 Iowa 197, 1153 Clarke, Ex parte, 54 Cal. 412, 1267 Clarke v. Carrington, 7 Cranch (11 U. S.) 308, 1183 Clarkson v. Morgan, 6 B. Mon. (45 Ky.) 441, 1091, 1113, 1116 Claude v. Peat, 43 La. Ann. 161 (8 S. R. 884), 713 TABLE OF CASES, li lU [Beferences are to pages, Vol. I, pp Clav V. Claj', 2 Tex. Unreported Cases 357, 1303 Clav V. Deskins, 11 C. C. A. 229 (63 Fed. R. 3301, 652 Cla}'^ County v. Chickasaw Coun- ty, 64 Miss. 534 (1 S. R. 753), 169 Olayes v. Wliite, 83 111. 540, 321 Cleaton v. Chanibliss, 6 Rand. 86, 607 Cleek V. McGuffin, 89 Va. 324 (15 S. E. R. 896), 784 Clem V. State, 42 Ind.420 (13 Am. R. 369), 1234 Clemens v. Clemens, 37 N. Y. 59, 489 Clemens v. Clemens, 28 Wis. 637, 207 Clement v. Field, 147 U. S. 467, 439 Cleveland v. Creviston, 93 Ind. 31 (47 Am. R. 367), 729 Cleveland, etc., R. R. Co. v. Wy- nant, 134 Ind. 681 (34 N. E. R. 569), 1309 Clews V. Bathurst, 2 Str. 960, 5 Clink V. Thurston, 47 Cal. 21, 608, 789, 795 Clinton Bank v. Hart, 5 O. St. 33, 1066 Clock V. Commissioners, 99 U. S. 686, ' 654 Clodfelter v. Hulett, 92 Ind. 426, 113 Cloud V. Wiley, 29 Ark. 80, 123 Cluff V. Day, 141 N. Y. 580 (36 N. E. R. 182), 1303 Clyburn v. Revnolds, 31 S. C. 91 (9 S. E. R. 973 ^ 971 Clyne, In re, 52 Kan. 441 (35 Pac. R. 23), 94 Coal Co. V. Blatchford, 11 Wall. 172, 1194 Coalfield Co. v. Peck, 98 111. 139, 998 Cobb v. Smith, 38 Wis. 21, 816 Cobia v. State, 16 Ala. 781, 1290, 1292 Coble V. Clapp, 1 Jones Eq. 173, 1086 Coburn v. Goodall, 72 Cal. 498, (14 Pac. R. 190), 554 Cochran v. Couper, 2 Del. Ch. 27, 156 Cochran v. Fogler, 116 111. 194 (5 N. E. R. 383), 1098 Cockburn v. Thompson, 16 Vesey 321, 1008 Cockerill v. Stafford, 102 Mo. 57 fl4S. W. R. 813), 199 Coffey v. United States, 116 U. S. 436, 965, 968 Coffin V. Knott, 2 G. Greene 582 (52 Am. D. 537), 657 Coffin V. McCullough, 30 Ala. 107, 777 Coffman v. Brown, 7 Sm, & IM. 125 (45 Am. D. 299), 173, 174 Coggins V. Bulwinkle, 1 E. D. Smith 434, 303 . 1-624, Vol. II, pp. 625-7335.} Cohocs V. Morrison, 42 Hun (49 N. Y. Supr.) 216, 1167 Coiron v. Millaudon, 3 La. Ann. 664, 411 Coit V. Beard, 33 Barb. 357, 175 Coit V. Campbell, 82 N. Y. 509, 1115 Coit V. Tracy, 8 Conn. 268 (20 Am. D. 110), 549 Colburn v. Woodworth, 31 Barb. 381 137 Colbv V. Parker, 34 Neb. 610 (52 N."W. R. 693), 95 Colby V. Yates, 12 Heisk. (59 Tenn.) 267, 496 Cole V. Clarke, 3 Wis. 323, 1310 Cole V. Conolly, 16 Ala. 271, 126, 455 Cole V. Favorite, 69 111. 457, 1059 Cole V. Lafontaine, 84 Ind. 446, 930 Coleman's Appeal, 62 Pa. St. 252, 833 Coleman v. Hunt. 77 Wis. 263 (45 N. W. R. 1085), 1144 Coles V. Allen, 64 Ala. 98, 1093 Collard v. Delaware, F. & W. R. Co., 6 Fed. R. 246, 1069 Collector of Sholapur v. Nana, 1874 Bombay P. J. 14, 578 Collier v. Cunningham, 2 Ind. App. 254 (28 N. E. R. 341 ), 256 CoUingwood v. Brown, 106 N. C. 362 flOS. E. R. 868), 1085 Collins V. Benaett,46 N.Y.490, 427. 532 Collins V. Butler, 14 Cal. 223, 757 Collins V. Hvdorn, 135 N. Y. 320 (32 N. E. R. 69), 951 Collins V. Jennings, 42 Iowa 447, 591 Collins V. Lemasters, 1 Bailey's Law 348 (21 Am. D. 469), 1062 Collins V. Mitchell, 5 Fla. 364, 1135 Collins V. Smith, 109 N. C. 468 (14 S. E. R. 88), 407 Collinson v. Owens, 6 Gill & J. 4, 1002 Colliver v. Com., 90 Ky. 262 (13 S. W. R. 922), 1270 Colt v. Colt, 111 U. S. 566, 983 Colton V. Smith, 11 Pick. (28 Mass.), 311 Columbus and Shelbv R. R. Co. v. Watson, 26 Ind. 50, 273 Colvin V. Corwin, 15 Wend. 557, 231, 389 Commercial Assurance Co. v. AmericanCentral Insui-anceCo., 68 Cal. 430 (9 Pac. R. 712), 1166 Commissioners v. Fries, 22 Fla. 303, 738 Commissioners v. IMcIntosh, 30 Kan. 234 (1 Pac. R. 572), 97 Commissioners, Board of, v. Ap- plewhite, 62 Ind. 464, 335 liv TABLE OF CASES. [Beferences are to pages, Vol. I, 'pp Commissioners of Sewers v. Gel- latly, L. R. 3 Cli. D. (510, 1004, 1008 Com. V. Authonj', 2 Mete. (Ky.) 399, 1241 Com. V. Arner, 149 Pa. St. 35 (24 Atl. R. 83), 1218, 1220 Com. V. Arnold, 83 Ky. 1, 1215 Com. V. Bakeman, 105 Mass. 53, 1201, 1255 Com. V. Bowden, 9 Mass. 494, 1288 Com. V. Brelsford, 101 Mass. 61 (36 N. E. R. 677), 1227 Com. V. Bressant, 126 Mass. 246, 1295 Com. V. Bright, 78 Ky. 238, 1218 Com. V. Bubser, 14 Gray (80 Mass.), 83 Com. V. Carney, 152 Mass. 566 (26 N. E. R. 94), 1299 Com. V. Clair, 7 Allen 525, 1251 Com. V. Clue, 3 Rawle 498, 1282 Com. V. Connors, 116 Mass. 35, 1232, 1298 Com. V. Cutler, 9 Allen (91 Mass.) 486, 1225 Com. V. Le Clair, 147 Mass. 639 (18 N. E. R. 428), 1299 Com. V. Dunster, 145 Mass. 101 (13 N. E. R. 350), 1299 Com. V. Ellis, 160 Mass. 165 (35 N. E. R. 773), 1246 Com. V. Evans, 101 Mass. 25, 1247, 1248 Com. V. Feldman, 131 Mass. 588, 1247 Com. V. Fitzpatrick, 121 Pa. St.109 (15 Atl. R. 466), 1286 Com. V.Foster, 3 Mete. (60 Ky.) 1, 1214 Com. V. Fraher, 126 Mass. 265, 1258 Com. V. Fredericks, 155 Mass. 455 (29 N. E. R. 622), 1295 Com. V. Galligan, 156 MTass. 270 (30 N. E. R. 1142), 1264 Com. V. Gibson, 2 Va. Cas. 70, 1292 Com. V. Gilbert, 6 J. J. Marsh. 184, 1239 Com. V. Gillon, 2 Allen 602, 1299 Com. V. Goulet, 160 Mass. 276 (35 N. E.R. 780), 1298 Com. V. Gould, 118 Mass. 300, 1135 Com. V. Hart, 149 Mass. 7 (20 N. E. R. 310), 1265 Com. V. Hatton, 3 Gratt. 623, 1263, 1289, 1292 Com. V. Hamilton, 129 Mass. 479, 1266 Com. V. Harrison, 11 Gray (77 Mass.), 308, 1228 Com. V. Hawkins, 11 Bush (74 Ky.) 603, 1214 Com. V. Hoffman, 121 Mass. 369, 1253 Com. V. Hogan, 97 Mass. 122, 1227 1-624, Vol. II, pp. 625-1335.'] Com. V. Hudson, 14 Gray (80 Mass.) 11, 1225 Com. V. Kinney, 2 Va. Cases 139, 1218 Com. V. Loud, 3 Mete. (44 Mass.) 328 (37 Am. D. 139), 1204, 1260 Com. V. Maloney, 145 Mass. 205 (13 N. E. R. 482), 1264 Com. V. McCabe, — Mass. — (39 N. E. R. 777), 1227 Com. V. McCauley, 105 Mass. 69, 1227 Com. V. McCormick, 130 Mass. .61 (39 Am. R. 423), 1281 Com. V. Miller, 5 Dana (35 Ky.), 320, 1214 Com. V. Monahan, 9 Gray 119, 1250 Com. V. Moore, 147 Mass. 528, 1299 Com. V. Mortimer,2 Va. Cas. 325, 1252 Com. V. O'Donnell, 8 Allen (90 Mass.) 548, 1225 Com. V. Olds, 5 Litt. 137, 1257 Com. V. Purchase, 2 Pick. 521 (13 Am. D. 452), 1287 Com. V. Quann, 2 Va. Cas. 89, 1240 Com. V. Robinson, 126 Mass. 159, 1232 1299 Com. v.'Roby, 12 Pick. (29 Mass!) 496, 1218, 1237 Com. V. Scott, 121 Mass. 33, 1264 Com. V. Shea, 14 Gray (80 Mass.) 386, 1228 Com. V. Sheehan, 105 Mass. 192, 1227 Com. V. Skeels, 2 Pa. Dist. R. 761, 1215 Com. V. Smith, 2 Va. Cases 327, 1292 Com. V. Sommerville, 1 Va. Cases 164, 955 Com. V. Sullivan, 104 Mass. 552, 1234 Com. V. Sullivan, 156 Mass. 487, (31 N. E. R. 647), 1266 Com. V. Sutherland, 109 Mass. 342 1298 Com.' V. Trickey, 13 Allen (95 Mass.) 559, 1228 Com. V. Trimmer, 84 Pa. St. 65, 1201 Com. V. Tuck, 20 Pick. 356, 1264 Com. V. Walker, 3 Pa. Dist. R. 348, 1224 Com., use of Todd, v. Rhodes, 37 Pa. St. 60, 1139 Comstock V. Droham, 8 Hun (16 N. Y. Supr.) 373, 1183 Cone V. East Baltimore, etc., Soc, 40 Md. 380, 724 Coney v. Harney, 53 N. J. Law 53 (20 Atl. R. 736), 1198 Conger v. Chilcote, 42 Iowa 18, 1172, 1176 Conklin v. State, 25 Neb. 784 (41 N. W. R. 788), 1286 TABLE OF CASES. Iv [References are to pages, Vol. I, pp. 1-624, Vol. II, pp. 625-1335.'} Conn V. Bernheimer, 67 Miss. 498 (7S. R. 345), 891 Connecticut, etc., Ins. Co. v. Smith, 117 Mo. 261 (22 S. W. R. 623), 662 Conner v. Reeves, 35 Hun (42 N. Y. Supr.) 507, 1184 Connor v. Reeves, 103 N. Y, 527, (9 N. E. R. 439), 1136 Connollv v. Connollv, 26 Minn. 350(4N. W. R. 233\ 928 Connor v. Hall, 91 Ga. 62 (16 S. E. R. 266), 741 Connor v. Stanley 72 Cal. 656, (14 Pac. R. 3061, 389 Conry v. Caulfield, 2 Ball & B. 255 573 Consalus v. McConihe, 2 N. Y. S. 89 (17 N. Y. S. R. 538), 704 Consolidated, etc., ^Mining Co. v. Champion Mining Co., 62 Fed. R. 945, 134 Continental, etc., Ins. Co. v. Houser, 111 Ind. 266 (12 N. E. R. 479), 1310 Continental, etc., Ins. Co. v. Loud, etc., Co., 93 Mich. 193 (53 N. W. R. 394), 259, 389 Continental Life Ins. Co. v. Cur- rier, 58 Vt. 229 (4 Atl. R. 886), 86 Converse v. Colton, 49 Pa. St. 346, 263 Conyers v. Mericles, 75 Ind. 443, 296, 887 Cook v. Burnley, 45 Tex. 97, 88 Cook v. Castner, 9 Cush. 266, 433 Cook v. Carroll, etc., Co., 6 Tex. C. App. 326 (25 S. W. R. 1034), 140 Cook V. Cook, 2 Brevard 349, 262 Cook V. Ellis, 6 Hill 466, 958 Cook V. Moselev, 13 Wend. 277, 432 Cook V. Parham, 63 Ala. 456, 914, 1077 Cook V. Rice, 91 Cal. 664 (27 Pac. R. 1081), 126 Cook V. Vimont, 6 T. B. Mon. (22 Ky.) 284 (17 Am. D. 157), 380 Cooke V. Gill, L. R. 8 C. P. 107, 227 Cooley v.Brayton, 16 Iowa 10, 91, 505 Cooper V. Corbin, 105 111. 224, 1081 Cooper V. Hayes, 96 Ind. 386, 76 Cooper V. Randall, 59 111. 317, 266 Cooper V. State, 29 Tex. App. 8 (13 S. W. R. 1011, 25 Am. St. R. 712), 918 Corbell v. Zeluff, 12 Gratt. 226, 1309 Corbet v. Evans, 25 Pa. St. 310, 335 Corbley v. Wilson, 71 111. 209 (22 Am. R. 98), 964 Corl V. Rigsrs, 12 Mo. 430, 191 Cormier v. Battv, 9 J. & S. 70, 701 Cornell v. Green, 43 Fed. R. 105, 951 Corocran v. Chesapeake, etc.. Ca- nal Co., 94 U. S. 741, 1194, 1195, 1196 Corprew v. Corprew, 84 Va. 599 (5 S. E. R. 798), 152 Corrothers v. Sargent, 20 W. Va. 351, 658 Corse V. Sanford, 14 Iowa 235, 995 Costello V. Burk, 63 Iowa 361 (19 N. W. R. 247), 920 Cottingham v. Weeks, 54 Ga. 275, 963 Cotton V. Jones ''Tex. C. App.) 27 S. W. R. 191, 152 Coulter V. Davis, 13 Lea 451, 701 County of Mobile v. Kimball, 102 U. S. 691, 167 County of Warren v. Marcy, 97 U. S. 96, 1084, 1118 Cousins V. Jackson, 49 Ala. 236, 1136 Coville V. Gilman, 13 W. Va. 314, 56 Covington & Cin. Bridge Co. v. Sargent, 27 O. St. 233, 422 Cowan V. Wheeler, 25 Me. 267 (43 Am D. 283), 86 Cox V. Cox, 19 Ohio St. 502, 458 Cox V. Hartranft, 154 Pa. St. 457 (26 Atl. R. 304), 1135 Cox V. Maddux, 72 Ind. 206, 1063 Cox V. Thomas, 9 Gratt. (50 Va.) 312, 1142 Crabb v. Young, 92 N.Y. 56, 702 Craddock v. Turner, 6 Leigh (33 Va.) 116, 1139 Craft V. Perkins, 83 Ga. 760 (10 S. E. R. 357), 528 Cragin v. Carleton, 21 Me. 492, 912 Craig V. Cosbv, 81 Ga. 650 (8 S. E. R. 185), ' 721 Craig V. Ward, 1 Abb. Ct. of App. (N. Y.)454, 597 Craig V. Ward, 36 Barb. 377, 1180 Craighead v. Dalton, 105 Ind. 72 (4N. E. R. 425t, 482 Crain v. Beach, 2 Barb. 120, 259 Cramer v. Moore, 36 O. St 347, 881 Cramer v. Stone, 38 Wis. 259, 1321 Cranor v. Winters, 75 Ind. 301, 876 Craver v. Christian, 34 Minn. 397 (26 N. AV. R. 8), 174 Crawford v. Bersen, — Iowa — (60N. W. R. 205), 962 Crawford v. Edgerton, 39 Fed. R. 523, 494 Crawford v. Simonton, 7 Porter (Ala.) 110, 429,435 Crawford v. Turk, 24 Gratt. (65 Va.) 176, 1142 Crawford v. Ward, 7 Ga. 445, 1141 IVI TABLE OF CASES. [Beferences are to pages, Vol. I, pp Crawlin, Ex parte, 92 Ala. 101 (9 S. R. 334), 1266 Creighton v. Murphy, 8 Neb. 349, 935 Crenshaw v. Julian, 26 S. C. 283 (2 S. C. R. 133), 496 Crenshaw v. State, Martin and Yerger (8 Tenn.) 122 (17 Am. D. 788), 1231 Creswell v. Slack, 68 Iowa 110 (26 N. W. R. 42), 934 Crews V. Cleghorn, 13 Ind. 438, 168 Crips V. Talvande, 4 McCord's Law 20, 349 Crocker v. State, 47 Ga. 568, 1236 Crockett v. Crockett, 75 Ga. 202, 1302 Crockett v. Gray, 31 Kan. 346 (2 Pac. R. 809), 1322 Crockett v. Ronton, Dudley (Ga.) 254, 133 Croft V. Johnson, 8 Baxter 390, 161 Croft V. People, 15 Hun (22 N. Y. Supr.)484, 1204 Croft V. Steele, 6 Watts 373, 833 Cromwell v. County of Sac, 94 U. S. 351, 525, 532, 533, 671, 675, 852 Crooker v. Crooker, 57 Me. 395, 1086 Crosbv V. Baker, 6 Allen 295, 196 Crosby v. Gipps, 16 111. 352, 348 Crosbv V Jeroloman, 37 Ind.264, 297 Crosbv V. Winter, 54 Iowa 652 (7 N. W. R. 89), 1078 Cross V. Scarboro, 6 Baxter 134, 583 Crossman v. Davis, 79 Cal. 603 (21 Pac. R. 963), 151 Crouse v. Holman, 19 Ind. 30, 295 Crow V. Bowlbv, 68 111. 23, 1158 Crowlev v. Mellon, 52 Ark. 1 (11 S. W". R. 876), 133 Crum v. Boss, 48 Iowa 433, 750 Crum V. Wilson, 61 Miss. 233, 1159 Cryer v. Andrews, 11 Tex. 170, 1000 Cucullu v. Louisiana Ins. Co., 5 Martin N. S. 464 (16 Am. D. 199), 1047 Cullum v. Casev, 1 Ala. 351, 1272 Culver V. Phelps, 130 111. 217 (22 N. E. R. 809), 104 Cumberland, etc., Co. v. Sher- man, 20 Md. 117, 1302 Cummerford v. Paulus, 66 Mich. 648(33N. W. R. 741), 152 Cummings v. Bannon (Md.), 8 Atl. R. 357, 883 Cummings v. Colgrove, 25 Pa. St. 150, 606 Cummings v. Harrison, 57 Miss. 275, 1172 Cummins v. Railwav Co., 63 Iowa 397 (19 N. W. R. 268), 254 Cunningham V. Ashlej',45 Cal .485, 931 1-624, Vol. II, pp. 625-1335.'] Cunningham v. Schley, 68 Ga. 105, 173 Curry v. Mack, 90 111. 606, 1145 Curtis V. Gooding, 99 Ind. 45, 297 Curtis V. Hitchcock, 10 Paige 339, 1091 Curtis V. State, 22 Tex. App. 227 (3 S. W. R. 86), 1218 Curts V. Trustees of Bradstown, 6 J.J. Marsh. 536, 161 Gushing v. Laird, 107 U. S. 69, 1037 Cutler V. Cox, 2 Blackf. 178 (18 Am. D. 152), 1329 Cutter V. Evans. 115 Mass. 27, 1135 D Dacosta v. Villa Real, 2 Str. 961, 5 Daggett V. Daggett, 143 Mass. 516 (ION. E. R. 311), 809 Daggett V. Robins, 2 Blackf. 415 (21 Am. D. 752), 193 Daingerfield v. Smith, 83 Va. 81 (1 S. E. R. 599), 929 Dale V. Doddridge, 9 Neb. 138 (1 N. W. R. 999) 92 Dale V. Rosevelt, 1 Paige 35, 929 Dalhof V. Coffman, 37 Iowa 283, 170 Dalrymple v. Gamble, 68 Md. 523 (13 Atl. R. 156), 76 Dalton V. Bentlev, 15 111. 420, 347 Dalton V. Bowker, 8 Nev. 190, 1181 Daltor V. Lane, 13 Iowa 538, 485 Dame v. Wingate, 12 N. H. 291, 608 Damm v. Mason, — Mich. — (61 N. W. R. 3), 1079 Damon v. DeBar, 94 Mich. 594 (54 N. W. R. 300), 1311 Daniels v. State, 78 Ga. 98, 1294 Danziger v. Williams, 91 Pa. St. 234, 733 Darragh v. Kaufman, 2 Texas Un- reported Cases 97, 351 D'Arensbourg v. Chauvin, 6 La. Ann. 778, 192 Darrington v. Borland, 3 Porter 9, 1001 Daskam v. TJllman, 74 Wis. 474 (43 N. W. R. 321), 1179 Davenport v. Barnett, 51 Ind. 329, 481 Davenport v. C, R. I. & P. R. R. Co., 38 Iowa 6.33, 797 Davenport v. Hubbard, 46 Vt. 200, 426, 427 Davenport v. Mnir, 3 J. J. ]\Iarsh. (66 Ky.) 310 (20 Am. D. 143\ 1176 Davenport v. Sovil, 6 O. St. 459, 887 TABLE OF CASES. Ivii [References are to pages, Vol. I, pp David Bradley Mfg. Co. v. Eagle Mfg. Co., 57 Fed. R. 980 (6 C. C. A. (561), 88, 1179 Davidson v. Belleville and North Hastings Ry. Co., 5 Ontario Appeal Repcjrts 315, 365 Davidson v. Sliipman, 6 Ala. 27, 657 Davidson v. State, 63 Ala. 432, 751 Davidson v. State, 99Ind. 366, 1214 Davie v. Davis, 108 N. C. 501 (13 S. E. R. 240, 23 Am. St. R. 71), 849 Davies v. Mayor, 95 N. Y. 250, 329 Davis v. Barton, 130 Ind. 399 (30 N. E. R. 512), 349 Davis V. Bass, 4 Ind. 313, 101 Davis V. Bedsole, 69 Ala. 362, 88, 1333 Davis V. Brown, 94 U. S. 423, 527 Davis V. Davis, 65 Miss. 498 (4 S. R. 554), 205 Davis V. Durgin, 64 N. H. 51 (5 Atl. R. 908), 487 Davis V. Hedges, L. R. Q. B. 687, 425 Davis V. Kennedy, 105 111. 300, 101 Davis V. Krug, 95 Ind. 1, 1320 Davis V. McCorkle, 14 Bush 746, 1222 Davis V. Milburn, 4 Iowa 246, 1122 Davis V. Millaudon, 17 La. Ann. 97, 615 Davis V. Murphy, 2 Rich. Law 560 (45 Am. D. 749), 490 Davis V. Schaffner, 3 Tex. Civ. App. 121 (22 S. W. R. 822), 194 Davis V. Smith, 79 Me. 351 (10 Atl. R. 55), 1179 Davis V. Talcott, 14 Barb. 611, 421, 843 Davis V. Tallcot, 12 N. Y. 184, 421 Davis V. Wilbourne, 1 Hill. (S. C.) 27 (26' Am. D. 153), 1178 Dawley v. Brown, 79 N. Y. 390, 535 Dawson v. Baum, 3 "Wash. Ter. 464 (19Pac. R. 46) 285,876 Dawson v. Hartsfield, 79 N. C. 334, 414 Dawson v. Parham, 55 Ark. 286 (18S. W. R. 48), 606 Dawson v. Quillen, 43 Mo. App. 118, 144 Dawson Water Works Co. v. Car- ver, (Ga.) 20 S. E. R. 502, 568 Day V. Hill, 2 Spears' Law 628 (42 Am. D. 390), 1066 Dav V. Holland, 15 Ore. 464, 123 DaV V. Vallette, 25 Ind. 42, 619 DaVton V. Fisher, 34 Ind. 356, 993 Dean v. Chapin, 22 Mich. 275, 1039 Dean v. Ridgwav, (Miss.) 6 S. R. 236, ■ 169 Deane v. Loucks, 58 Hun (65 N. Y. Supr.) 555 (N. Y. Supr. 903), 427 . 1-624, Vol. 11, pp. 425-1335.'] Dear v. Reed, 37 Hun 594, 850 Debell v. Fox worthy, 9 B. Men. (48Ky.)228, 1094 Decatur Gas-Light and Coke Co. V. Howell, 92 111. 19, 265, 266 DeChambrun v. Campbell, 54 Fed. R. 231, 677 Decker's Estate, In re, 19 N. E. R. 66, 550 De Dousa v. Coles, 3 Mad. H. C. R. 405, 226 Deens v. Dunklin, 33 Ala. 47, 879 DeGraef v. Wyckoff, 118 N. Y. 1 (22 N. E. R. 1118), 435 De Graff v. Hovey, 16 Abb. Pr. 120, 924 DeGreiff v. Wilson, 30 N. J. Eq. 435, 1143 Deisher v. Gehre, 45 Kan. 583 (26 Pac. R.) 476 Delaney v.' People, 10 Mich. 241, 1239 Delaney v. Reade, 4 Iowa 292, 193 Deloach v. Turner, 9 Rich. L. 181, 197 DelVallev. Navarro, 21 Abb. N. C. 136, 781 Demarest v. Daig, 11 Abb. Pr. 9, 97 Demarest v. Darg, 32 N. Y. 281, 709 De Mora v. Concha, L. R. 29 Ch. D. 268 , 654, 1030 Den V. Lunsford, 4 Dev. & Bat. 407, 1248 Den, ex dem. v. Witherington, 2 Dev. & Bat. (L.) 433, 379 Denegre v. Denegre, 33 La. Ann. 689, 949 Denis v. Gayle, 40 La. Ann. 286 (4 S. R. 3), 473, 474 Dennett V. Chick, 2Me.(2Greenl.) 191 (11 Am. D. 69), 1063 Dennie v. Smith, 129 Mass. 143, 1138 Denny v. Bennett, 128 U. S. 490, 1144 Denny v. Reynolds, 24 Ind. 248, 800 Denobundhoov. Kristomonee, In- dian L. R. 2 Calcutta 152, 898, 902 Densmore v. Tomer, 14 Neb. 392 (15N. W. R. 734), 708 Dent V. Ashley, Hempstead 54, 934 Denver V. Lobenstein, 3 Colo. 216, 724 Denver City Irrigation and Water Co. V. Middaugh, 12 Colo. 434 (21 Pac. R. 565), 252, 500 Deodhari Singh v. Lewsurun, 3 Calcutta L. R. 395, 178 Deokee Nundun v. Kalee Per- shad, 8 W. R. 366, 403 Derbv v. Jacques, 1 Clif. 425, 192 Derleth v. DeGraaf , 19 J. & S. 369, 878 Des IMoines and Fort D. R. Co. v. Ballard, (Iowa) (56 N. W. R. 498), 382 Iviii TABLE OF CASES. [Beferences are to pages, Vol. I, pp Des Moines National Bank v. Harding, Iowa (53 N. W. R. m), 248 DeSousa v. Coles, 3 Madr. H. C. R. 406, 227 De St. Romes v. Carondelet, etc., Co., 24 La. Ann. 331, 496 DeSylva v. Henry, 3 Porter (Ala.) 132, 490 Detrick v. Migatt, 19 111. 146, 1130 Detrick v. Sharrar, 95 Pa. St. 521, 658 Devin v. City of Autumwa, 53 Iowa 461 (5 N. W. R. 552 1, 600 Devol V. Halstead, 16 Ind. 287, 1062 Dewey V. St. Albans Trust Co., 60 Vt. 1 (12Atl. R. 224), 1005 DeWolf V. Crandall, 2 Jones & Spencer (34 N. Y. Supr.) 14, 439 Dewsnap v. Davidson, R. I. (26 Atl. R. 902), 426 Dexter v. Clark, 35 Bard. 271, 175 Diamond v. Lawrence County, 37 Pa. St. 353 (78 Am. D. 429), 1086 Dick V. Powell, 2 Swan (32Tenn.) 632, 414 Dick V. AVebster, 6 Wis. 481, 821 Dickenv.Hays, (Pa.)7 Atl.R.58, 301 Dicken v. Morgan, 59 Iowa 157 (13N. W. R. 57), 1149 Dickerson v. Powell, 21 Ga. 143, 803 Dickey v. Heim, 48 Mo. App. 114, 634 Dickinson v. Eichorn, 78 Iowa 710(43N. W. R. 620), 1148 Dickinson v. Hayes, 31 Conn. 417, 532, 633 Dickinson v. Price, 64 Hun (71 Supr.) 149, 535 Dickison v. Mornington Tram- way Co., New Zealand Law 6 S. 0. & C. A. 132, 328 Dickson v. Todd, 43 111. 504, 1085, 1088 Diehl V. Marchant, 87 Va. 447, ( 12 S. E. R. 803), 751 Dietz V. Mission T. Co., 92Cal.92 (30Pac. R. 380), 741 Dill V. People, 19 Colo. 469 (36 Pac. R. 229) 1249 Dilley v. McGregor, 24 Kan. 361, 114 Dillinger v. Kelley, 84 Mo. 561, 197 Dimock v. Revere Copper Co., 117 U. S. 559, 413 Dinendronath v. Ramkumar, L. R. 8 Indian App. 65, 1190 Dinkar Ballal v. Hari Shridhar, I. L. R. 14 Bombay 206, 21, 515 Dinker Roval v. Sheo Golam Singh, 22 W. R. 172, 61 Dinkey v. Com., 17 Pa. St. 126 (55 Am. D. 542), 14 1-624, Vol. II, pp. 625-1335.'\ Dinomoyi Debia v. Anungo Moyi, 4 Cal. L. R. 600, 404 Dipert v. Jones, 4 Ind. App. 158 (30 N. E. R. 419), 1188 District of Columbia v. Railroad Co., 1 Mackey 314, 117» Dixon V. Corporation of Washing- ton, 4 Cranch C. C. 114, 1223 Dixon V. Merritt, 21 Minn. 196, 248 Dixon V. Sinclear, 4 Vt. 354, 145 Dixon V. Yadek, 59 Tex. 529, 661 D. M. Osborne & Co. v. Williams, 39 Minn. 353 (40 N. W. R. 165), 432 Doan V. Mauzev, 33 111. 227, 685 Dobbins v. State, 14 O. St. 493, 1287 Docter v. Furcti, 76 Wis. 153, 659 Dodd V. Scott, 81 Iowa 319 (46 N. W. R. 1057, 25 Am. St. R. 492), 472 Doe V. Gildart, 4 How. (Miss.) 267, 611 Doe V. Huddart, 2 C. M. & R. 316, 607 Doe V. Maxwell, 10 Ired. 110, 1248 Doe V. Perkins, 3 T. R. 749, 835 Doe V. Shufford, 4 Hawks 116, 124& Doe V. Wright, 1 A. & E. 763, 123, 803 Doekee Nundun v. Kalee Pershad, 8 W. R. 366, 1122 Doles v. State, 97 Ind. 555, 1282 Dolbeer v. Stout, 139 N. Y. 486 (34 N. E. R. 1102), 428 Dominick v. State, 40 Ala. 680, 1201 Donaho v. Smith, 50 Iowa 218, 396 Donahue v. Drexler, 82 Ky. 157 (56 Am. R. 886), 397 Donahue v. McCosh, 81 Iowa 296 (46 N. W. R. 1008), 345 Donnell v. Thompson, 10 Me. 170 (25 Am. D. 216), 273 Donnelly v. Wilcox, 113 N. C. 408 (18 S. E. R. 339), 146 Doody V. Higgins, 9 Hare (Ch.) Appendix, 32, 1186 Doona v. Kashmiri Mai, 11 Pun- jab R. 131, 33» Doonan v. Glynn, 28 W. Va. 715, 60, 656 Doorga Nath v. Kalee Narain, 24 W. R. 213, 223, 284 Doofrga Persad v. Doorga Kon- wari, Indian L. R. 4 Calcutta 190, 402 Doorga Ram v. Kally Kristo, 3 Calcutta L. R. 549, 56 Dorr V. Stockdale, 19 Iowa 269, 931 Dorrell v. State, 83 Ind. 357, 960 Dorris v. Erwin, 101 Pa. St. 239, 518 Dorsey v. Hammond, 1 Bland's Cli.463, 629 Dorsey v. Reese, 14 B. Mon. 157, 471 TABLE OF CASES. lix [References are to pages, Vol. I, pp. 1-624, Vol. II, pp. 625-1335.'] Dos Monev Dossee v. Joumenjoy, Indian L. R. 3 Calcutta 363, 221 Dotv V. Brown, 4 N. Y. 71 (53 Am. D. 350) 396, 535, 711 Dotv V. Burdick, 83 111. 473, 433 Douglass V. Ferris, 138 N. Y. 192 (33 N. E. R. 1041), 1139 Douglass V. Rowland, 24 Wend. 35, 910, 1183 Dover v. State, 75 Ala. 40, 1290 Dovey's Appeal, 97 Pa. St. 153, 1084 Downer v. Cross, 2 Wis. 371, 1324 Downin v. Sprecher, 35 ]\Id. 474, 988 Downing v. Diaz, 80 Texas 436 (16 S. W. R. 49), 949 Downs v.McMichael,6 Paige 139, 1122 Dovle V. Hallam, 21 Minn. 515, 464 Doyle V. Reilly, 18 Iowa 108 (85 Am. D. 582), 490 Dozier v. Dozier, 1 Dev. & Bat. Eq. 96, 927 Dozier v. Wilkerson, 76 Ga. 180, 400 Drake v. Chicago, etc. R. Co., 70 Iowa 59 (29 N. W. R. 804), 1302 Drake v. Mavor, etc., 77 N. Y. 611, 785 Drake v. Mitchell, 3 East 251, 288 Drake v. Perrv, 58 111. 122, 936, 938 Draper v. Stouvenel, 38 X. Y. 219, 261 Dresser v. Brooks, 3 Barb. 429, 414 Drinkhousev. Spring VallevWater Works, 87 Cal. 253 (25 Pac. R. 420), 1085 Drummond v. Prestman, 12 Wheaton (24 U. S.) 515, 1183, 1185 Drennan v. Bunn, 124 111. 175 (16 N. E. R. 100), 1171 Dry Dock, etc., Co. v. North and East River Rv. Co., 22 N. Y. Suppl. 556 (3 Misc. R. 61 ; 51 N. Y. St. Reporter 771), 537 Drvden v. Dryden, 2 Vict. Law R. (Eq.) 74, 68 Drvden v. St. Joseph, etc., R. Co., 23 Kan. 525, 724 Dubois V. Johnson, 96 Ind. 6, 713 Dubose V. State, 13 Tex. App.418, 1291 Duchess of Kingston's Case, 20 Howell's St. Tr. 355, 537, 3 Duden v. Malov, 43 Fed. R. 407, 89 Dudlev V. Stiles, 32 Wis. 371, 490 Dudsar Bibee v. Shakir, 15 W. R. 168, 898 Duerson v. Semonin (Ky.), 29 S. AV. R. 635, 915 Dnffv v. Grav, 52 Mo. 528, 373 Duffy v. Lytle, 5 Watts 120, _ 88 Duegan v. Village of Dalton City, 38111 . App. 25^, 795 Duke, Succession of, 42 La. Ann >52 (7 S. R. 327), 628 Dukes v. Broughton, 2 Spears' Law 620, 849 Dulanev v. Pavne, 101 IlL 325 (40 Am. R. 205)', 815 Dulin V. Prince, 29 111. App. 209, 374 Dulabh Jogi v. Narayan, 4 Ben. H. C. R. A. C. 110, 177 Dumbould v. Rowlev, 113 Ind. 353 (15N. E. R. 463;, 1189 Duncan v. Bancroft, 110 Mass. 267, 618, 821 Duncan v. Holcomb, 26 Ind. 378, 592 Duncan v. Stokes, 47 Ga. 593, 604 Duncan Brothers v. Jeetmull, I. L. R. 19 Calc. 372, 242 Dunckle v. Wiles, 5 Denio 296, 811 Dunckle v. Wiles, 11 N. Y. 420, 810, 865 Dunckle v. Wiles, 6 Barb. 515, 810 Dundas v. Weddell, L. R. 6 App. Cas. 249, 744 Dunham v. Bower, 77 N. Y. 76 (33 Am. R. 570i, 427 Dunham v. Carson, 37 S. C. 269 (15 S. E. R. 960), 160 Dunham v. N. E. Mutual Ins. Co., 1 Lowell 253, 1048 Dunklee v. Goodenough, 63 Vt. 459 (21 Atl. R. 494) 1329 Dunklee v. Goodenough, 65 Vt. 257 (26 Atl. R.988), • 144 Dunlap V. Edwards, 29 Miss. 41, 198 Dunlap V. Glidden, 34 Me. 517, 833 Dunn V. Barton, 2 Ind. App. 444 (28 N. E. R. 717), 1017 Dunn V. Pipes, 20 La. Ann. 276, 146 Dunn V. State, 70 Ind. 47, 1299 Dunning V. Seward, 90 Ind. 63, 1329 Dunnington v. Elston, 101 Ind. 373, " 1096 Dunnington v. Evans (Md.) (28 Atl. R. 1097), 989 Dunsford v. Brown, 23 S. C. 328, 1315 DuPont V. Davis, 35 Wis. 631, 1312 Durand v. Lord, 115 111. 610 (4 N. E. R. 483), 1115 Durant v. Abendroth, 97 N. Y. 132, 1031 Durant v. Essex Co., 8 Allen 103, 157 Durant v. Essex Co., 7 AVall. 107, 157 Duren v. Kee (S. C), 19 S. E. R. 492, 154, 735 Durham v. Giles, 52 Me. 206, 937 Durham v. AVilliams, 32 La. Ann. 962, 1199 Durnford, Succession of, 1 La. Ann. 92, 773 Durr V. Jackson, 59 Ala. 203, 637 Durst V. Amyx (Kv.), 13 S. W. R. 1087, ' 1022 Ix TABLE OF CASES. \_Befere7ices are to pages, Vol. I, pp Dutil V. Pacheco, 21 Cal. 438, 1178 Button V. Shaw, 35 Mich. 431, 209 Dutton V. Woodman, 9 Cush. 255 (57 Am. D. 46), 756, 832 Duval County v. Fries, 22 Fla, 303, 738 Duvall V. Farmers' Bank, 9 Gill & J. 31, 1320 Duvall V. Green, 4 Har. & J. 270, 929 Dwyer v. Dwyer, 26 Mo. App. 647, 714 Dwyer v. Goran, 29 Iowa 126, 196 Dyer Countv v. Chesapeake, etc., R. R. Co.; 87 Tenn. 712, 964 Dygertv. Dygert, 4 Ind. App. 276 (29 N. E. R. 490), 650 Dyson v. Leek, 5 Strobhart's Law 141, 336 E Eagles v. Kern, 5 Wharton 144, 1138 Earl V. Bull, 15 Cal. 421, 449 Earle v. Couch, 3 Mete. (60 Ky.) 450, 1096 Earle v. Earle, 33 S. C. 498 (12 S. E. R. 164), 412 Earle v. Hinton, 2 Strange 732, 400 Early v. Garland, 13 Grattan 1, 931 Eason v. Miller, 15 S. C. 194, 735 East N. Y., etc., R. Co. v. Elmore, 53 N. Y. 624, 737 Eastman v. Clark, 63 N. H. 31, 842 Eastman v. Cooper, 15 Pick. 276(26 Am. D. 600), 607, 608 Eastman v. Svmonds, 108 Mass. 567, " 512 Eastmure v. Lawes, 5 Bing. N. C. 444, 895 Eastmure v. Laws, 5 Bing. N. C. 444, 114 Easton v. Bratton, 13 Tex. 30, 863 Easton v. Pickersgill, 75 N. Y. 599, 97 Eaton V. Lyman, 26 Wis. 61, 1165 Eastwood V. Worrall (N. J. Eq.), 5 Atl. R. 180, 197 Ebersole v. Lattimer, 65 Iowa 164 (21 N. W. Rep. 500), 492 Eckert v. Binkley, 134 Ind. 614 (33 N. E. R. 619), 88, 89 Eckert v. Pickel, 59 la. 545 (13 N. W. R. 708), 555 Eddowes v. Hopkins, 1 Doug. 376, 835 Eddy V. Howard, 23 Iowa 175, 1070 Edgar v. Buck, 65 Mich. 356 (32 N. W. R. 644) 165 Edgell v. Sigerson, 26 Mo. 583, 732 Edgerlv v. Edgerly, 112 Mass. 53, 291 1-624, Vol. II, pp. 625-1335.'] Edmanson v. Best, 57 Fed. R. 531 (6 C. C. A. 471), 698 Edneyv.Edney,4JonesEq.l27, 1159 Edun V. Bechun, 8. W. R. 175, 13 Edward v. Ballard, 14 La. Ann. 362, 112 Edwards v. Bates County, 55 Fed. R. 436, 658 Edwards v. Gibbs, 11 Ala. 292, 929 Edwards v. MacConnell, Cooke (3 Tenn.) 304, 1131 Edwards v. Roys, 18 Vt. 473, 464 Edwards v. Stewart, 15 Barb. 67, 423 Effinger v. Kennev, (79 Va. 551), 407 EhleV. Bingham, '7 Barb. 494, 200 Eichert v. Schaffer, 161 Pa. St. 519 (29 Atl. R. 393), 464 Eikenberry v. Edwards, 71 Iowa 82 (32N. W. R. 183), 1066 Eisenlord v. Clum, 126 N. Y. 552 (27 N. E. R. 1024), 1130 Ekey v. Inge, 87 Mo. 493, 464 Ekran Mundul v. Holodhur, In- dian L. R. 3 Calcutta 271, 60 Ela V. Edwards, 13 Allen (95 Mass.) 48 (90 Am. D. 174), 934 Elahi Baksh v. Sheo Narayan, 17 W. R. 360, 178 Elbert v. Long, 43 Minn. 235 (45 N. W. R. 226), 507 Elder v. Farrell, — La. Ann. — (5 S. R. 71), 1173 Elder v. Frevert, 18 Nev. 446 (5 Pac. R. 69), 702' Elgin National Watch Co. v. Meyer, 29 Fed. R. 225, 887 Elkhart v. Wickwire, 87 Ind. 77, 1178 Ellington v. Crockett, 13 Mo. 72, 194 Elliott V. Havden, 107 Mass. 180 1068 Elliott V. Pell, 1 Paige 263, 573 Elliott V. Porter, 5 Dana (35 Ky.), 299 (30 Am. D. 689), 1068 Ellis V. Clarke, 70 Am. D. 603, 123 Ellis V. Clarke, 19 Ark. 420, 399 Ellis V. Crowl, 46 Kan. 100 (26 Pac. R. 454), 359 Ellis V. Jameson, 17 Me. 235, 912 Ellis V. Northern, etc., R. Co., 80 Wis. 459 (50 N. W. R. 397) (27 Am. St. R. 44), 1318 Ellis V. State, 25 Fla. 702 (6 S. R. 768), 1269 Ellis V. State Ins. Co., 68 Iowa 578 (27 N. W. R. 762), 1316 Eliza Smith v. Secretary of State for India, Indian L. R. 3 Cal- cutta 340, 23 Elson V. Comstock, 150 111. 303 (37 N. E. R. 207), 810, 1152 Elwood V. Beymer, 100 Ind. 504, 487 TABLE OF CASES. iXl [_Iieferences are to pages, Vol. I, pp Ely V. Wilcox, 26 Wis. 91, 294 Emam Momtazooddeen v. Rajkoo- mar Das, 14 Bombay L. R. 408, 221 Emamooddeen v. Futteh Ali, 3 Calcutta L. R. 447, 185 Embury v. Conner, 3 N. Y. 511 (53 Am. D. 325), 95,534 Emerson v. State, 43 Ark. 372, 1298 Emery v. Fowler, 39 Me. 326 (63 Am. D. 627), 1122, 1160, 1161 Emery v. Goodwin, 13 ]\Ie. 14, 874 Emery v. Wilson, 79 N. Y. 78, 309 Emma Silver Mining Co. v. Same, 7Fed. R. 401, 687 Emmel v. Hayes, 102 Mo. 186 (12 S. W. R. 521), 470 Emmert v. Stouffer, 64 Md. 543 (3 Atl. R. 293) (6 Atl. R. 177), 77 Emmons v. Dowe, 2 Wis. 322, 801 Emory v. Owings, 3 Md. 178, 1302 Enaetoollah v. Ameer Buksh, 25 W. R. 225, 774 Enfield v. Jordan, 119 U. S. 680, 1118 English V. Aldrich, 132 Ind. 500 (31 N. E. R. 456), 481 English V. Murray, 13 Tex. 366, 918 Ennis v. Smith, 14 How. (55 U. S.) 400, 1023, 1033 Ensign v. Bartholomew, 1 Mete. (Mass.) 274, 192 Eppright V. Kauffman,90 Mo. 25 (1 S. W. R. 736), 87 Eprightv. Kaufman, 35 Mo. App. 455, 348 Equitable Trust Co. v. Fisher, 106 111. 189, 475 Erhman v. Kendrick, 1 Mete. (58 Ky.) 146, 1113 Erwin v. Lynn, 16 O. St. 539, 326 Estate of Brown v. Wayne County, (Mo.) 27 S. W. R. 322, 651 Estate of High, 136 Pa.St. 222 (20 Atl. R. 422), 636 Estate of Holbert, 57 Cal. 257, 119 Estate of Hood, Matter of, 98 N. Y 363 292 Estate of Schaeffner, 45 Wis. 614,1323 Este V. Strong, 2 Ohio 401, 1017 Estelle V. Peacock, 48 Mich. 469 (12 N. W. R. 659), 1053 Estep V. Larsh, 21 Ind. 190, 606 Estes V. Chicago, etc., R. Co., 72 Iowa 235 (33 N. W. R. 647), 685 Estill V. Deckerd,4 Baxter (Tenn.) 497, 1056 Estill V. Earl, 2 Yerger 466, 843 Etters V. Wilson, 12 Rich. L. 145, 916 Evans v. Birge, 11 Ga. 265, 84, 658 Evans v. Borchard, Texas Civil App. (28 S. W. R. 258), 480 1-624, Vol. II, pp. 625-1335.'\ Evans v. Clapp, 123 Mass. 165, 845 Evans V. Collier, 79 Ga.319 (4 S. E. R. 266), 231 Evans v. Com., 8 Watts 398 (34 Am. D. 477), 1138 Evans v. McMahan, 1 Ala. 45, 173 Evans v. State, 54 Ark. 227 (15 S. W. R. 360), 1294 Evans V. Stokes, 1 Keen (15 Eng. Ch.) 25— A. D. 1836, 1006 Evansville Gas-Light Co. v. State, ex rel. Bretz, 73 Ind. 219, 96, 297 Everling v. Holcomb, 74 Iowa 722 (39N. W. R. 117), 1187 Ewald V. Waterhont, 37 Mo. 602, 776 Ewing V. McNairy, 20 O. St. 315, 209, 492 Ewing V. Sills, 1 Ind. 125, 1186 Ex parte Ador, 2 Q. B. 574, 516 Ex parte Barnsley, 3 Atk. 184, 1039 Ex parte Bradley, 48 Ind. 548, 1216 Ex parte Branch, 63 Ala. 383, 1271 Ex parte Bridewell, 57 Miss. 177, 94 Ex parte Brown,(Ala.)15S.R.602, 1292 Ex parte Clarke, 54 Cal. 412, 1267 Ex parte Crawlin, 92 Ala. 101 (9 S. R. 334), 1266 Ex parte Fenton, 77 Cal. 183 (19 Pac. R. 267), 1266 Ex parte Gale, R. M. Charlton (Ga.) 214, 228 Ex parte Hamilton, 65 Miss. 98 (3 S. R. 68), 94 Ex parte Kaine, 8 Blatch. 1, 93 Ex parte Partington, 13 M. & W. 679, 93 Ex parte Pattison, 56 INIiss. 161, 94 Ex parte Porter,16 Tex. App. 321, 1267 Ex parte Roberts, 19 S. C. 150, 747 Ex parte Rogers, 10 Tex. App.655, 1201 Ex parte Rosson, 24 Tex. App. 226 (5S. W. R. 666), 94 Ex parte Rowlandson, 3 P. Wms. 405, 1069 Ex parte Simmons, 62 Ala. 416, 1293 Ex parte Stice, 70 Cal. 51 (11 Pac. R. 459), 1213 Ex parte Young, L. R. 17 Ch. Div. 668, 1183 Ex parte Vincent, 43 Ala. 402, 1286 Eyler v. Hoover, 8 Md. 1, 1302 Eyster v. Gaff, 91 U. S. 521, 414 Ezzell V. Maltbie, 6 Ga. 495, 855 F Faber v. Hovey, 19 Am. R. 398, 123 Fagan v. McTier, 81 Ga. 73 (6 S. E. R. 177), 169 Ixii TABLE OF CASES. {^Eeferences are to pages, Vol. I, pp Fakirappa v. Pandurangappa, Indian L. R. 6 Bombay 7, 18 Fakir Baksh v. Mayadhari, 1888 Punjab R. No. 4, 107 Fahey v. Crotty, 63 Mich. 383 (29 N. W. R. 876), 678 Fahey v. Esterley, etc., Co., 3 N. Dak. 220 (55 N. W. R. 580), 1332 Fairchild v. Holly, 10 Conn. 474, 288 Fairfield v. McNany, 37 Iowa 75, 429 Fairman v. Bacon, 8 Conn. 418, 613 Faith V. City of Atlanta, 78 Ga. 779 (4 S. E. R. 3), 1166, 1178 Falls V. Gamble, 66 N. C. 455, 1054 Fanning v. Insurance Co., 37 O. St. 344, 1334 Parish v. New Mex. Min.Co., (N. Mex.) 21 Pac. R. 654, 160 Farnsworth v. Arnold, 3 Sneed. (35 Tenn.) 251, 1127 Farrar v. Clark, 97 Ind. 447, 491 Farrington v. Payne, 15 Johns. 432, 261 Farwell v. Brown, 35 Fed. R. 811, 480 Fash V. Ravesies, 32 Ala. 451, 1086 Fathuma v. Ayissa, Madras H. C. Su. Ap. No. 699, _ 222 Fatmabai v. Aishabai, I. L. R. 13 Bombay 242, 339 Faught V. Faught, 98 Ind. 470, 829 Faulder v. Silk, 3 Campbell 126, 1039 Faulkner v. Davis, 18 Gratt. (59 Va.) 651, 976, 989 Faust V. Baumgartner, 113 Ind. 139. (See Foust v. City of Hunt- ington, 15 N. E. R. 337), 955 Faust V. Faust, 31 S. C. 576 (10 S. E. R. 262), 480 Fay V. Ames, 44 Barb. 327, 1142 Fay V. Edwinston, 25 Kan. 439, 1141 Featherstone v. President of New- burgh, 71 Hun (78 N. Y. Supr.) 109 ( 24 N . Y . Suppl . 603 ) , 1160 Feigley v. Feigley, 7 Md. 537 (61 Am. D. 375), 1111 Fell V. Bennett, 110 Pa. St. 181 (5 Atl. R. 17), Felt V. Turnure, 48 Iowa 379, 662 Felton V. Smith, 88 Ind. 149 (45 Am. R. 454), 728 Fenn v. Dugdale, 31 Mo. 580, 940 Fenton, Ex parte, 77 Cal. 183, (19 Pac. R. 267) 1266 Fera v. Fera, 98 Mass. 155, 291 Ferguson v. Carter, 8 Ga. 524, 658 Ferguson v. Massachusetts Mu- tual Life Ins. Co., 22 Hun (29 N. Y. Supr.) 320, 245 Ferguson v. Town of Sheffield, 52 VL 77, 95 . 1-624, Vol. II, pp. 625-1335.'] Ferrall v. Bradford, 2 Fla. 608 (50 Am. D. 293), 1062 Ferrea v. Chabot, 63 Cal. 564, 1176 Ferrell v. Alder, 8 Humph. (27 Tenn.) 43, 1181 Ferrell v. Underwood, 2 Dev. Law 111, 172 Ferrer's Case, 6 Coke 7, 93 Ferrier v. Buzick, 6 Iowa 258, 1087 Ferris v. Berkshire Life Ins. Co. — Ind. — (38 N. E. R. 609), 464 Ferris v. Fisher, 67 Hun (74 N. Y, Supr.) 134, 21 N. Y. S. 1114, 51 N. Y. S. R. 536, 538 Fessenden v. Barrett, 50 Fed. R. 690, 799 Fetter v. Beale, 1 Salkeld 11 (1 Ld. Raymond 339) 265 Fiddler v. State, 7 Humph. 508, 1239 Fidelity Insurance, Trust and Safe Deposit Co. V. Gazzam, 161 Pa. St. 536 (29 Alt. R. 264), 407 Field V. Sims, 96 Ala. 540 (11 S. R. 763), 1334 Fields V. Law, 2 Root 320, 333 Fineld v. Edwards, 39 Mich. 264, 192 Finch V. Hollinger, 46 Iowa 216, 632 Finch V. State, 53 Miss. 363, 1275 Findlay v. Trigg, 83 Va. 539 (3 S. E. R. 142), 406 Findley v. Stewart, 46 Iowa 655, 918 Fink V. Martin, 5 La. Ann. 103, 333 Finley v. Hanbest, 30 Pa. St. 190, 88 Finnegan v. Campbell, 74 Iowa 1,58 (37 N. W.R. 127), 199 Finney v. Boyd, 26 Wis. 366, 1189 Finney v. Cochran, 1 AVatts & Serg. 112 (37 Am. D. 450), 1062 Finney V. Mayer, 61 Ga. 500, 414 Fire Association v. Dickey (Ky.), 3 S. W. R. 372, 594 Fireman's Ins. Co. v. Cochran, 27 Ala. 228, 873 Fireman's Ins. Co. v. McMillan, 29 Ala. 147, 1143 First Baptist Church v. Syms, 51 N. J. Eq. 363 (28 Atl. R. 461), 1002, 1003 First National Bank v. Indianap- olis Piano Mfg. Co., 45 Ind. 5, 1066 Fischer v. Quigley, 8 Wash. 327 (35 Pac. R. 1071), 372 Fischli V. Fischli, 1 Blackf. 360, 246, 458 Fish V. Benson, 71 Cal. 428 (12 Pac. R. 454), 92 Fish V. Follev, 6 Hitt. 54, 392 Fish V. Lightner, 44 Mo. 268, 764 Fishburne v. Ferguson, 85 Va. 321 (7 S. E. R. 361) 415 TABLE OF CASES. Ixiii [^References are to pages, Vol. I, pp Fisher v. Banta, 66 N. Y. 468, 1071 Fisher v. Com., 1 Bush (64 Ky.) 211 (89 Am. D. 620) 1230 Fisher v. Fisher, 98 INIass. 303, 288 Fisher v. State, 46 Ala. 717, 1292 Fisk V. Parker, 14 La. Ann. 491, 171, 615 Fiske V. Steele, 152 Mass. 260 (25 N. E. E. 2911, 433 Fitzgibbon v. Barrv, 78 Ya. 755, 989 Fitzpatrickv. Bradv, 6 Hill 581, 77 Flagg V. People, 40 Mich. 706 (3 Am. Cr. R. 70), 1263 Flahety v. Taylor, 35 Mo. 477, 205 Flanagan v. Cutler, 121 Mass. 96, 485 Flanagin v. Thompson, 4 Hughes 421, 765 Flanagin v. Thompson, 9 Fed. R. 177, 636 Flanders v. Hall, 159 Mass. 95 (34 N. E. R. 178), 782 Flandreau v. Downey, 23 Cal. 354, 374 Fleming v. McDonald, 60 Ind.278 (19 Am. R. 711), 1067 Fletcher V. Ferrel, 9 Dana (39 Ky.) 372 (35 Am. D. 143), 1087 Fletcher v. Holmes, 25 Ind. 458, 1057 Fletcher v. Jackson, 23 Yt. 581 (56 Am. D. 98). 1143 Flippen v. Dixon, 83 Tex. 421 (29 Am. St. R. 653, 18 S. W. R. 803), 138 FHtters v. Allfrev, L. R. 10 C. P. 29, * 366, 799 Florida S. R. Co. v. Brown, 23 Fla. 104 (1 S. R. 512), 661 Floyd V. Barr, 11 Pa. St. 41, 1147 FloVd V. Browne, 1 Rawle 121 (18 Am. D. 602), 1069, 1070 Floyd V. Ritter, 56 Ala. 356, 922 Fluker v. Herbert, 27 La. Ann. 284, 857 Fluty V. State, 45 Ark. 97, 1267 Foeg V. Greene, 16 Me. 282, 912 Fogg V. Plumer, 17 N. H. 112, 1131 Folgerv. Palmer,35 La. Ann. 814, 1061 FolTausbee v. Walker, 74 Pa. St. 306, 846 Folsom v.Clemence, 119 Mass. 473, 208 Folsom V. "Winch, 63 Iowa 477 (19 N. W. R. 305), 429 Foltz V. Prouse, 15 111. 434, 926 Fonda v. Denton, 13 La. Ann. 343, 320 Foote V. Gibbs, 1 Grav 412, 161, 670 Forcev's Appeal, 106 iPa. St. 508, 45 Ford V. Dovle, 44 Cal. 635, 97 Ford V. Foi-d, 88 Wis. 122 (59 N. W. R. 464), 87 Ford V. Ford, 68 Ala. 141, 35 Ford V. Newcomer, 14 La. Ann. 706, 930 . 1-624, Vol. II, pp. 62 5-1 335. '\ Forder v. Davis, 38 Mo. 107 593 Fore Dept. of Oshkosh v. Tuttle, 50 Wis. 552 (7 N. W. R. 549), 1309 Forgerson v. Smith, 104 Ind. 246 (3X. E. R. 806), 1321 Forist V. Bellows, 59 N. H. 229, 156 Foss V. Brentel, 14 La. Ann. 798, 157, 1122 Foster V. Hinson, 76 Iowa 714 (720 (39N. W. R. 682), 243 Foster v.. Konkright, 70 Ind. 123, 440, 441 Foster v. ]\rcDivit, 9 Watts 341, 608 Foster v. Millner, 50 Barb. 385, 199 Foster v. State, 25 Tex. App. 543 (8S. W. R. 664), 1297 Foster v. State, 88 Ala. 182 (7 S. R. 185), 1232 Foster v. State, 39 Ala. 229, 1255 Foster v. The Richard Busteed, 100 Mass. 409, 748 Foster v. Wells, 4 Tex. 101, 130, 861 Fowle V. New Haven and North- ampton Co., 107 Mass. 352, 392 Fowler V. Atkinson, 6 Minn. 603, 134 Fowler v. Bavldon, 9 Hare (Ch.) Appendix 78, 1196 Fowler v. Burgess, 7 l\Iass. 14, 490 Fowler v. Osborne, 111 N. C. 404 (16 S. E. R. 470), 1122 Fowler v. Savage, 3 Conn. 90, 924 Fowler v. State, 85 Ind. 538, 1287 Fowlkes V. State, 14 Lea 14, 130, 832 Fox V. Althorp, 40 O. St. 332, 503 Fox V. Fox, 4 La. Ann. 135, 922 Fox V. Reeder, 28 O. St. 181 (22 Am. R. 370), 1114 Fox V. State, 50 Ark. 528 (S. W. R. 836), 1215 Fox V. WoodruS, 9 Barb. 498, 414 Foye V. Patch, 132 Mass. 105, 44 Francis v. Wood, 81 Kv. 16, 658 Frank v. Jenkins, 22 O. St. 597, 954 Frank v. ^Nlainwaring, 2 Beavan 115, 1039 Frank v. Meyers, 97 Ala. 437 (11 S. R. 832), 935 Franklin v. State, 85 Ga. 570 (11 S. E. R. 876, 8 Am. Cr. 291), 1220 Franklin Savings Bank v. Taylor, 53 Fed. R. 854 (4 C. C. A. 55, 9 U. S. A. 4001, 981 Eraser v.Citv Council, 19 S.C.384, 1002 Frantz v. Ireland, 4 Lans. 278, 838 Frauenthal's Appeal, 100 Pa. St. 290, 97 Fraves v. Worms, 10 C. B. (N. S.) 149, 1330 Free v. Beatlev, 95 Mich. 426 (54 N. W. R. 910), 462 Ixiv TABLE OF CASES. '[References are to pages, Vol, I, X)P Freeland v. People, 16 111. 380, 1219 Freeinau v. Freeman, 9 Heisk. (56 Tenn.) 301, 988 Freeman v. McAninch (Texas Sup.), 27 S. W. 97, 430 Freeman v. State, 119 Ind. 501 (21 N. E. R. 1101), 1225 French v. Howard, 14 Ind. 455, 442, 728 French v. Neal, 24 Pick. (41 Mass.) 55, 1065 French v. Successors of the Loyal Co., 5 Leigh (32 Va.) 627, 1091 Fresno Milling Co. v. Fresno, etc., Co., 101 Cal. 582 (36 Pac. R. 412), 126 Friar v. Wilmot, 23 New Bruns- wick 545, 131 Frisby v. Parkhurst, 29 Md. 68, 1317 Fritz V. State, 40 Ind. 18, 1214 Fromlet v. Poor, 3 Ind. App. 425 (29N. E. R. 1081), 864 Fry V. Taylor, 1 Head (38 Tenn.) 594, 1024 Fulton's Estate, In re, 51 Pa. St. 9Q4 935 Fuller V. Eastman, 81 Me. 284 (17 Atl. R. 67), 697 Fuller V. Hamilton County, 53 Fed. R. 411, 790 Fuller V. Shattuck, 13 Gray (79 Mass.) 490, Fulton V. Hanlow, 20 Cal. 450, 164 Funk V. Funk, 35 Mo. App. 246, 262 Furguson v. Glaze, 12 La. Ann. 66>, 1137 Furlong v. Banta, 29 N. Y. Suppl. 985 (61 N. Y. St. Rep. 253), 948 Furneaux v. First National Bank, 39 Kan. 144 (17 Pac. R. 854), 449 Fuselier v. Babineau, 14 La. Ann. 764, 1140 Fusz V. Trager, 39 La. Ann. 292 (IS. R. 535), 1135 Futteh Singh v. Luchmee Kooer, 13 Ben. L. R. A. 37, 177 G Gaar, Scott & Co. v. Hurd, 92 111. 315, 892 Gaffnevv. Circuit Judge, 85 Mich. 138 (48 N. W. R. 478), 1266 Gage V. Brewster, 31 N. Y. 218, 96 Gage V. Downey, 79 Cal. 140 (19 Pac. R. 113)," 486 Gage V. Ewing, 114 111. 15, 767 Gage V. Ewing, 107 111. 11, 156 1-624, Vol. II, pp. 625-1335.'] Gage V. Goudv, 141 111. 215 (29 N. E. R. 896, 30 N. E. R. 320), 916 Gage V. Holmes, 12 Gray 428, 893 Gage V. McGregor, 61 N. H. 47, 1080 Gaillard v. Porcher, McMullen's Eq. 358, 747 Gaines v. Kennedy, 53 Miss. 103, 309 Gainus v. Bowman, 10 Heisk. 600, 157 Gaither v. AVelch,3 Gill & J. 259, 929 Gaitjara Begam v. jNIosita Reg, 15 Punjab Reports 299, 58 Galbreath v. Estes, 38 Ark. 699, 1085 Gale, Ex parte, R. M.Charl (Ga.) 214, 228 Gale V. Best, 20 Wis. 44, 172 Gallaher v. Citv of Moundsville, 34 W. Va. 730 (26 Am. St. R. 942) (12 S. E. R. 859), 101 Gallego V. Attorney-General, 3 Leigh 450, 132 Gallup V. Lichter, 4 Colo. App. 296 (35 Pac. R. 985). 661 Galveston, H. & S. A. R. Co. v. Kutac, 72 Tex. 643 (11 S. W. R. R. 127), 1130 Gama v. Amira, 1884 Punjab R. No. 29, 545 Gamble v. Nunn, 5 Sneed (37 Tenn.) 465, 1195 Gammon v. Cottrell, 87 Ind. 213, 440 Ganes Ghandra v. Ram Kumar, 3 Bombay L. R. A. C. 119, 220, 343 Ganesh Rai v. Kalka Prasad, In- dian L. R. 5 Allahabad 595, 189 Gangwere's Estate, In re, 14 Pa. St. 417, 1039 Gannon v. People, 127 111. 607 (21 N. E. R. 525), 1262 Gano V. Chicago, etc., R. Co., 66 AVis. 1 (27 N. W. R. 838), 1318 Gan Savant v. Narayan Dhond, I. L. R. 7 Bom. 469, 17, 1010 Garber v. Commonwealth, 7 Pa. St. (7 Barr) 265, 1137 Gardere v. Columbian Ins. Co., 7 Johns. 514, 610 Gardiner v. People, 6 Park. Cr. R. 155, 1265 Gardner v. Buckbee, 3 Cowan 120 (15 Am. D. 256), 535,708 Gardner v. Raisback, 28 N. J. L. 71, 210, 582 Gardner v. Stratton, 89 Va. 900 (17 S. E. R. 553), 489 Garlick v. Dunn, 42 Ala. 404, 1272 Garner v. Burleson, 26 Tex. 348, 1135 Garnett v. Macon, 6 Call. (U. S. Cir. Ct.) 308, 1002 Garrard v. Hull, — Ga. — (20 S. E. R. 357), 1081 TABLE OF CASES. Ixv [Beferences are to pages, Vol. I, pp Garrett v. Greenwell, 92 Mo. 120 (4 S. W. R. 441),, 143 Garrifk v.Chamberlain, 97111.620, 148 Garrison v. Baagage Transporta- tion Co., 94 Mo. 130 (6 S. ^V. R. 701), 1163 Garrott v. Johnston, 11 Gill & J. 173 (35 Am. D. 272), 622 Garst, In re, 10 Neb. 78 (4 N. W. R. 511), 1266 Garton v. Botts, 73 Mo. 274, 607 Garwood v. Garwood, 29 Cal. 514, 68, 721, 842 Gaskell v. Gaskell, 6 Simons 643, 986 Gaskill V. Dudley, 6 Mete. (47 IMass.) 546 (39 Am. D. 750), 1148 Gates V. Goreham, 5 Vt. 317 (26 Am. D. 303), 383 Gates V. McLean, 79 Cal. 42, 192 Gates V. Preston, 41 N. Y. 113, 423 Gates V. Ryan, 115 Mass. 596, 446 Gattman v. Gunn, (Miss.) 7 S.R. 285, 146 Gaucher v. Clayton, 34 Law Jour- nal N. S. Eq.' 239, 520 Gay V. Stancell, 76 N. C. 369, 462 Gayer v. Parker, 24 Neb. 643 (39 N. W. R. 845), 604, 1134 Gaylord v. Dodge, 31 Ind. 41, 1194 Geary v. Bangs, 138 111. 77 (27 N. E. R. 462), 748 Geekie v. Kirby Carpenter Co., 106 U. S. 379, 1080 Gehr v. Miller, (Pa.) 8 Atl. R. 926, 464 Geiser Threshing Machine Co. v. Farmer, 27 Minn. 428 (8 N. W. R. 141), 440 Gelston v. Hoyt, 3 Wheaton (15 U. S.) 246, 1047 Geneva Nat. Bank v. Independent School District, 25 Fed. R. 029, 623 Gerard v.People,4 111. 362, 1259, 1263 Gerber v. Friday, 87 Ind. 366,_ 1309 Gerdtzen v. Cockrell, 52 Minn. 501 (55 N. W. R. 58), 1305 German-American, etc., Co. v. Shallcross, 147 Pa. St. 485 (23 Atl. R. 770, 30 Am. St. R. 751), 832, 873 Gerould v. Wilson, 81 N. Y. 573, 1137 Gerrish v. Bragg, 55 Vt. 329, 939 Gerrish v. Pratt, 6 Minn. 53, 130 Ghasee Khan v. Kallu, 1 Agra. 152, 182 Ghisa V. Runjit, 1880, Punjab R. No. 121, 578 Gholam Husain v. Mahomed Kahn, 1877 Punjab R. No. 56, 23 Ghursobhit v. Ramdut, I. L. R. 5 Calcutta 923, 183 E 1-624, Vol. II, pp. 625-1335.'\ Gibbons v. Peralta, 21 Cal. 629, 1006 Gibbs V. Bryant, 1 Pick. (18 Mass.) 118, ■ 1062 Gibler v. Trimble, 14 Ohio 323, 1093 Gibson V. Chouteau, 7 Mo. App. 1, 566 Gibson v. Com., 2 Va. Cas. Ill, 1292 Gibson v. Green, 89 Va.524 (16 S. E. R. 661), 296 Gibson v. Hale, 57 Tex. 405, 335 Gibson v. Robinson, 90Ga.756 (16 S. E. R. 969), 610 Gibson v. State, 26 Fla. 109 (7 S. R. 376^, 1265 Giffard v. Hort, 1 Sch. & Lefroy 386, 156, 971, 989 Gilchrist v. Bale, 8 Watts 355 (34 Am. D. 469), 607 Gilbert v. Earl, 47 Vt. 9, 844 Gilbert v. Neal, 2 La. Ann. 904, 721 Gilbert v. Thompson, 9 Cush. 348, 44 Gilbreath v. Jones, 66 Ala. 129, 801 Giles V. Canary, 99 Ind. 116, 1066 Gill V. Cole (1 Har. & J. 403), 391 Gill V.Morris, llHeisk. (58Tenn.) 614, 1159 Gillespie v. Alexander, 3 Russell 130, 1000 Gillespie v. To ranee, 25 N. Y. 306, 426 Gillett V. Lee, 2 Texas Unreported Cases 743, 456 Gillingham v. Charleston Tow- boat and Transportation Co., 40 Fed. R. 649, 1166 Gilman v. Foote, 22 Iowa 560, 1066 Gilman v. Rives, 10 Pet. 298, 661 Gilmer v. Morris, 30 Fed. R. 476, 661 Gilmer v. Morris, 46 Fed. R. 333, 660 Gilmer v. O'Neal, 32 La. Ann. 979, 501 Gilmore v. McClure, 133 Ind. 571 (33 N. E. R. 351), 1328 Gilmore V. Williams, Mass. (38 N. E. R. 976), 432 Gilson V. Bingham, 43 Vt. 410, 419 Giltinan v. Strong, 64 Pa. St. 242, 1145 Girardin v. Dean, 49 Tex. 243, 351 Girdhar v. Dayabhai, I. L. R. 8 Bombay 174, 213 Girod V. Pargoud, 11 La. Ann. 329, 146 Gist V. Davis, 2 Hill Ch. 335 (29 Am. D. 89), 767 Givens v. Thompson, 110 Mo. 432 (19S. W. R. 833), 329 Glaize V. Citizens' National Bank, 116 Ind. 492 (18 N. E. R. 450), 1159 Glasner v. Weisberg, 43 Mo. App. 214, 151 Glass V. Wheehss, 24 La. Ann. 397, 199 Ixvi TABLE OF CASES. [Beferences are to pages, Vol. I, pp Glaze V. Watson, 55 Tex. 563, 1082 Gleasou v. Knapp, 56 Mich. 291 (22 N. W. E. 865, 56 Am. E. 388), 459 Gleason v. Wilson, 48 Kan, 500 (29 Pac. E.), 1079 Glenn v. Savage, 14 Oregon 567 (13 Pac. E. 442), 450 Glenn v. Springs, 26 Fed. E. 494, 996 Glenn v. State, 46 Ind. 368, 961 Glenn v. Williams, 60 Md. 93, 995 Glide V. Dwyer, 83 Cal. 477 (23 Pac. E. 706), 1196 Glisson V. Herring, 2 Dev. Law 156, 272 Gloucester Isinglass and Glue Co. V. LePage, 30 Fed. E. 370, 1166 Gnanambal v. Parvathi, I. L. E. 15 Madr. 477, 18, 943 Gobind Chunder v. Afzul Eab- bani, Indian L. E. 9 Calcutta 426, 59 Gobind Chunder v. Guru Churn, I. L. E. 15 Calcutta 94, 1097, 1121 Gobind Chunder v. Taruck Chun- der, I. L. E. 3 Calcutta 146, 59 Goble V. Dillon, 86 Ind. 327 (44 Am. E. 308), 423 Goddard v. Selden, 7 Conn. 515, 833 Godding v. Colorado Springs Live- stock Co., 4 Colo. App. 14 (34 Pac. E. 942), 941 Godnow V. Litchfield, 63 Iowa 275 (19N. W. E. 226), 111 Goenenv. Schroeder, 18 Minn. 66, 476 Goforth V. State,22Tex.App.405, 1233 Goix V. Low, 2 Johns. Cases 480, 1047 Golab Chand v. Prosonno Coom- ary, 11 Bombay L. E. 332, 1125 Goldberg v. Dougherty, 39 N. Y. Super. Ct. 91, 385 Golding v. State, 31 Fla. 262 (12 S. E. 525), 1216 Goldschmidt v. County of Nobles, 37 Minn. 49, 572 Goldschmidt v. Mills, 33 N. W. R. 544, 572 Goldsmid v. Stonehewer, 9 Hare (Ch.) Appendix 38, 1196 Golson V. Dunlap, 73 Cal. 157 (14 Pac. E. 576), 457 Goode V. State, 70 Ga. 752, 1253 Goodenow v. Litchfield, 59 Iowa 226 (9 N. W. E. 107) (13 N. W. R. 86), 157, 396, 797 Goodman v. Pocock, 15 Q. B. 576, 367 Goodness v. Williams, 2 Younge & Collier (21 Eng. Ch.) 595, 987 Goodnow V. Smith, 97 Mass. 69, 922 , 1-624, Vol. II, pp. 625-1335.] Goodnow v. Stryker, 62 Iowa 221 (14 N. W. E. 345 and 17 N. W. E. 506), 1169 Goodrich v. The City, 5 Wall. 566, 86 Goodrich v. Yale, 8 Allen (90 Mass.) 454, 335 Goodrich v. Yale, 97 Mass. 15, 237 Goodsell V. West. U. Tel. Co., 23 J. & S. 173, 650 Goodwin v. Snyder, 75 Wis. 450 (44 N. W. E. 746), 922 Goodwin v. Wilson, 1 Blackford 344, 1136 Gooroo Dutt v. Sooroo, 16 W. E. 264, 896 Gopal V. Ganeshdas, 8 Bengal H. C. E. A. C. J. 97, 106 Gopalan v. Valia Tamburatti, 15 » Punjab R. 268, _ 1011 Gopalayyan v. Eaghupati, 3 Mad- ras H. C. E. 217, 574 Gordinier's Appeal, 89 Pa. St. 528, 97 Gordon v. Johnson, 3 Colo. App. 139 (32 Pac. E. 347), 633 Gordon v. Eobinson, 14 U. C. C. P. 566, 120 Gordon v. State, 71 Ala. 315, 1212 Gormley v. State, 37 O. St. 120, 1232 Goss V. McClaren, 17 Tex. 107 (67 Am. D. 646), 1318 Gossom V. Donaldson, 18 B. Mon. (57 Ky.) 230 (68 Am. D. 723), 1113 Gottheb V. Fred W. Wolf Co., 75 Md. 126 (23 Atl. E. 198), 309 Gottlieb V. Thatcher, 34 Fed. R. 435, 922 Gould V. Evansville, etc., E. Co., 91 U. S. 526, 661, 665 Gould V. Hayden, 63 Ind. 443, 96 Gould V. Hendrickson, 96 111. 599, 1085, 1087 Gould V. Stanton, 16 Conn. 12, 1085, 1087 Gouraud v. Gouraud, 3 Eedfield (N. Y. Surrogate) 262, ' 1029 Gour Monee Dabee v. Eead, Tay. & B. 83, 1120 Governor V. Bancroft, 16 Ala. 605, 104 Governor v. Shelby, 2 Blackford 26, 1141 Covin V. DeMiranda, 79 Hun (86 N. Y. Supr.) 329 (29 N. Y. S. 347,60N. Y. S. E. 586), 360 Gowri Koer v. Audh Koer, I. L. R. 10 Calc. 1087, 25 Goya Pershad v. Terinee Kant, 23 W. R. 149, 521 Grace v. Martin, 47 Ala. 135, 1136 TABLE OF CASES. Ixvii {^Beferences are to pages, Vol. I, pp Grafton v. Brigham, 70 Hun (77 N. Y. Sup.) 181, 24 N. Y. S. 54, 54 N. Y. S. E. 103, 537 Grag? V. Richardson, 25 Ga. 556 (71 Am. D. 190), 1181 Graham v. Tankerslev, 15 Ala. 634, ' 1187 Grand Rapids Savings Bank v. Warren, 52 Mich. 557 (18 N. W. R. 356), 995 Grand Trunk Rv. Co.v. McMillan, 16 Can. S. Ct! 543, 657 Granger v. Singleton, 32 La. Ann. 898, 165 Grant v. Bennett, 96 111. 513, 1102 Grant v. Ramsey, 7 O. St. 157, 733 Graves v. Bulkley, 25 Kan. 249 (38 Am. R. 249), 1141 Graves v. Butcher, 24 Kan. 291, 114 Graves v. Flowers, 51 Ala. 402 (23 Am. R. 555), 1001 Graves v. White, 13 Tex. 123, 832 Gravett v. Malone, 54 Ala. 19, 1139 Gray v. Dougherty, 25 Cal. 266, 195 Gray v. Gillilan,' 15 111. 453 (60 Am. D. 761), 607, 837 Gray v. Gray, 34 Ga. 499, 658 Gray v.McDonald, 104 Mo. 303 (16 S. AV. R. 398), 963 Gray v. Pingrv, 17Vt.419 (44 Am. D. 345), " 609, 1328 Gray v. Tyler, 40 Wis. 579, 336, 880 Gray v. Thomas, 83 Tex. 246 (18 S. W. R. 721), 461 Graydon v. Hurd, 55 Fed. R. 724 (5 C. C. A. 258), 480 Grayson v. Williams, Walker (Miss.) 298, ' 228 Great Falls Mfg. Co. v. Worster, 45 N. H. 110, 1135 Green v. Clark, 12 N. Y. 343, 945 Green v. Clark, 5 Denio 497, 856 Green v. Glynn, 71 Ind. 336, 491 Green v. Goings, 7 Barb. 652, 593 Green v. Iredell, 31 S. C. 588 (10 S. E. R. 545), 722 Green v. Sanborn, 150 Mass. 454 (23 N. E. R. 224), 787 Green v. Slayter, 4 Johns. Ch. 38, 1109 Green v. Thompson, 5 Me. 224. 199 Green v. Yonder Ahe, 36 Mo. App. 394, 364 Green v. White, 7 Blackford 242, 1086 Greenabaum v. Elliott, 60 Mo. 25, 490 Greenlaw v. Williams, 2 Lea (70 Tenn.) 533, 1174, 1178 Greenlee v. Gaines, 13 Ala. 198, 399 Greenlief v. Ludington, 15 Wis. 558, 134 Greenup v. Crooks, 50 Ind. 410 41 . 1-624, Vol. II, pp. 625-1335.'] Greenwood v. New Orleans, 12 La. Ann. 426 146 Greenwood v. State, 6 Baxter (Tenn.) 567, 956 Gregory v. Burrall, 2 Edw. Ch. 417, 86 Gregory v. Kenvon, 34 Neb. 640 (52 N. W. R. 685), 88 Gregory v. Molesworth, 3 Atk. 626, " 58 Greiner v. Klein, 28 Mich. 12, 1022 Gridley V. Conner, 4 La. Ann. 416, 509 Grigsbv v. May, 84 Tex. 240 (19 S. W. R. 343}, 631 Griffin v. Doe, 12 Ala. 783, 915 Griffin v. Hodshire, 119 Ind. 235 (21 N. E. R. 741), 247 Griffin v. Long Island R. Co., 102 N. Y. 449 (7 N. E. R. 735), 780 Griffin v. Sarsfield, 2 Demarest 4, 375 Griffin v. Seymour, 15 Iowa 30 (83 Am. D. 396), 667, 669 Griffin v. Wallace, 66 Ind. 410, 205 Griffith v. Gillum, 31 Mo. App. 33, 1077 Griffith v. Lovell, 26 Iowa 226, 1080 Grimmet v. Henderson, 66 Ala. 521, 1139 Grish Chunder v. Ramessuree Dabee, 22 W. R. 308, 225 Grisham v. State, 19 Tex. App. 504, 1267 Griswold v. Miller, 15 Barb. 520, 1039 Grommes v. St. Paul Trust Co., 147 111. 634 (35 N. E. R. 820), 1184 Grotenkemper v. Carver, 4 Lea 375, 659 Grow v. Albee, 19 Yt. 540, 437 Grumley v. Webb, 48 Mo. 562, 1305 Grund v. Tucker, 5 Kan. 70, 996 Guedel v. People, 43 111. 226, 1252 Guentherv. People, 24 N. Y. 100, 1232 Gueret v. Audouy, 62 L. J. Q. B. 633, " 86 Guernsey v. Carver, 8 Wend. 492 (24 Am. D. 60), 229, 366 Guerry v. Ferryman, 6 Ga. 119, 696 Guest V. City of Brooklyn, 79 N. Y. 624, ' ' 311 Guest v. Warren, 9 Exch. 379, 321 Gulabchand v. Dhondi, 11 Bom- bay H. C. R. 64, 1089, 1090 Gulf, C. & S. F.Rv. Co. V. James, 73 Tex. 12 (10 fe*. W. R. 744), 1071 Gumani v. Ram Padarath, I. L. R. 2 Allahabad 838, 288 Gummer v. Trustees, 50 Wis. 247 (6 N._W. R. 885), 193 Gunsrabishen v. Roghoonnath, I. 'L.R. 7 Calcutta 381, 124 Ixviii TABLE OF CASES. iBeferences are to pages, Vol. I, pp Gungadhur v.Umasoondery,Boni- bay L. R. Suppl. Vol. F. B. 672, 1048 Gunn V. Peakes, 36 -Minn. 177 (30 N. W. R. 466), 167 Gunn V. Wades, 62 Ga. 20, 401 Gunter v. State, 83 Ala. 96 (3 S. R. 600), 1289, 1292 Gurnea v. Seeley, 66 111. 500, 119 Giitchess V. Whiting, 46 Barb. 139, 878 Guy V. Fisher & Burnett Lumber Co., — Tenn. — (23 S. W. R. 972), 1129 Gwin V. Smur, 49 Mo. App. 361, 886 Gwin V. Waggoner, 116 Mo. 143 (22 S. W. R. 710), 1303 Gwynn v. Hamilton, 29 Ala. 233, 926 H Haas V. Taylor, 80 Ala. 459 (2 S. R. 633), 155 Hackleman v. Harrison, 60 Ind. 156, 938 Hackworth v. Zollars,30 Iowa 433, 491 492 Hancock v. O'Rowke, 4 N. Y. s! 185, 653 Haddock v. Perham, 70 Ga. 572, 1143 Hadley v. Green, 2 Tyrwhitt390 (2 Crompton & J. 374), 390,894 Hagerthy v. Bradford, 9 Ala. 567, 1186 Haggin v. Clark, 71 Cal. 444 (9 Pac. R. 723, 12 Pac. R. 478), 1319 Hahn v. Bealor, 132 Pa. St. 242 (Bealor v. Hahn, 19 Atl. R. 74), 962 Hahn v. Miller, 68 Iowa 745, 28 N. W. Rep. 51, 396, 604, 612, 821 Haight V. City of Keokuk, 4 Iowa 199, 73 Haile v. Hill, 13 Mo. 612, 1192 Hailey v. Ano, 62 Hun 618 (16 N. Y. S. 589), 811 Hailey v. Ano, 136 N. Y. 569 (32 N. E. R. 1068, 42 Am. St. R. 764), 811, 1119 Hailey v. Boyd, 64 Ala. 399, 1139 Heilman v. Kroh, 155 Pa. St. 1 (25 Atl. R. 751), 103 Haines v. Flinn, 26 Neb. 380 (42 N. W. R. 91), • 327 Hair v. Wood, 58 Tex. 77, 1085 Haji Hasam Ibrahim v. Man- charam, I. L. R. 3 Bom. 137, 897 Halbert v. Alford (Tex.), 12 S. W. R. 77, <430 1-624, Vol. 11, pp. 625-1335.'] Haldeman v. United States, 91 U. S. 584, 146, 147, 172 Hale V. Hale, 146 111. 227 (33 N. E. R. 858), 971 Haley v. Haley, Cal. (14 Pac. R. 92), 375 Hall V. Caperton, 87 Ala. 285 (6 S. R. 288), 688 Hall V. Dodge, 38 N. H. 346, 52, 86 Hall V. Edrington, 8 B. Mon, (47 Ky.) 47, 335 Hall V. Forman, 82 Ky. 505, 321, 390, 874 Hall V.Hall, 28 W.R.(Eng.), 664, 178 Hall V. Lowther, 22 W. Va. 570, 1302 Hall V. Vanier, 7 Neb. 397, 127 Hall V. Warren, 9 Vesey Jr. 605, 1039 Hall V. Zeller, 17 Or. 381, 21 Pac. Rep. 192, 608, 778 Hall Lumber Co. v. Gustin, 54 Mich. 624 (20 N. W. R. 616), 1106 Hallack v. Gagnon, 4 Colo. App. 3G0 (36Pac. R. 70), 314 Haller v. Pine, 8 Blackf. 175 (44 Am. D. 762), 607 Hamil v. Mcllroy, 76 Cal. 312 (18 Pac. R. 377), 649 Hamill v. Ward, 14 Colo. 277 (23 Pac. R. 330), 1062 Hamilton, Ex parte, 65 Miss. 98 (3 S. R. 68), 94 Hambleton v. Glenn, 72 Md. 351 (20 Atl. R. 121), 237 Hamilton v. Quinby, 46 111. 90, 248 Hamilton B. A. v. Reynolds, 5 Duer 671, 749 Hamilton v. State, 36 Ind. 280, 1218 Hamilton v. State, 3 Tex. App. 643, 956 Hamilton v. State, 8 S. R. 761, 639 Hamilton V. Wright, 30 Iowa480, 1022 Hamlet v. Fletcher, 36 La. Ann. 551, 439 Hammer v. Woods, 6 Tex. Civ. App. 179 (24 S. W. R. 942), 473 Hammergen v. Schurmeier, 3 Fed. R. 77, 169 Hammond v. Inloes, 4 Md. 138, 1302 Hammond v. Paxton, 58 Mich. 393 (25N. W. R. 321), 1115 Hamner v. Pounds, 57 Ala. 348, 842 Hampton v. Dean, 4 Tex. 455, 842 Hanchett v. Gardner, 138 111. 571 (28N. E. R. 788), 495 Hanchey v. Coskey, 81 Ala. 149 (1 S. R. 259), 677 Hancock V. Lopez, 53 Cal. 362, 807 Hand v. Taylor, 4 Ind. 409, 1178 Handley v. State, 16 Tex. App. 444, 1202 TABLE OF CASES. Ixix \_Ii<-j\ fences are to pages, Vol. I, pp Hanley v. Foley, 18 B. Mon. 519, 788 Hanlev V. McMasters, 15 Vic. Law 322,' 637 Hanna v. Read, 103 111. 596 (40 Am. R. 608), 76, 508 Hanse v. Cowing, 1 Lans. 288, 823 Hanson v. Patterson, 17 Ala. 738, 795 Hapgood V. Ellis, 11 Neb. 131 (7 N. W. R. 845), 573 Haramohini v. Dhanmani, 1 Ben. L. R. A. C. 138, 341 Harbig v. Freund, 69 Ga. 180, 400 Hardaway v. Drummond, 27 Ga. 221 (73 Am. D. 730', 928 Hardin v. Hardin, 38 Tex. 616, 462 Hardin v. Parmerlee, 28 Minn. 4-50 (ION. W. R. 773), 137 Hardins v. Hale, 2 Grav 399, 888 Harding v. Larkin, 41 111. 413, 1173 Hardwick v. Hook, 8 Ga. 3-54, 915 Hardv v. Gascoignes, 6 Porter 447^ 113 Hardv v. Hardv, 97 Cal. 125 (31 Pac. R. 906), ■ 665 Hardy v. Mills, 35 Wis. 141, 564 Hardy V. Nelson, 27 ;Me. 525, 1178 Hargus v. Goodman, 12 Ind. 629, 815 Hari Naravan v. Ganpatrav, I. L. R. 7 Bombay 272, 404 Harjeebun Doss v.Bhuswan Doss, 7 Bombay L. R. 110.^ 226 Harlan v. Berr\', 4 G. Greene (Iowa) 212, ■ 1066 Harman v. Louisville, N. O. &.T. R. Co., 87 Tenn. 614 (11 S. W. R. 703), 328 Harmon v. Auditor of Public Ac- counts, 123 111. 122 (13 N. E. R. 161), 312, 614, 1157 Harmon v. Bvram, 11 W. Ya. 511, ' 1103 Harmon v. Struthers, 48 Fed. R. 260, 25 Harp v. State, 59 Ark. 113 (26 S. W. R. 714), 1294 Harper v. Campbell, — Ala. — 1 14 S. R. 650), 465 Harper v. Harper, 53 Fed. R. 35, 209 Harper v. McCombs, 109 N. C. 714 (14 S. E. R. 41), 151 Harrell v. Whitman. 20 Ala. 519, 1017 Harrington v. McNaushton, 20 Yt. 293, ^ 414 Harris v. Barnhart, 97 Cal. 546(32 Pac. R. 589), 126 Harris v. Colquit, 44 Ga, 663, 400 Harris v. Davis, 1 Cliittv 625, 835 Harris v. Dunn, 18 r."C. Q. B. 352, 1063 1-624, Vol. II, pp. 625-1335.'] Harris v. Harris, 36 Barb. 88, 76 Harris v. Plant, 31 Ala. 639, 1198 Harris v. Preston, 10 Ark. 201, 173 Harrison v. Clark, 87 N. Y. 572, 1137 Harrison v. Godbold, 1 McGloin (Iowa) 178, 615, 767 Harrison v. State, 36 Ala. 248, 12-54 Harrison v. Stewardson, 2 Hare 530, 1007 Harryman v. Roberts, 52 Md. 64, 93 Harsahai v. Maharaj Sineh, In- dian L. R. 2 Allahabad 294, 23 Harsh v. Griffin, 72 Iowa 608 (34 N. W. R. 441), 930 Hart v. Bates, 17 S. C. 35, 468 Hart V. Deamer, 6 Wend. 497, 1039 Hart V. Steedman, 98 Mo. 452 (11 S. W. R. 993), 1086 Hartford Ins. Co. v. Davenport, 37 Mich. 609, 389 Hartlev v. Gregorv, 9 Neb. 279 (2 N. W. R. 878). " 1328 Hartnett v. Adler, 15 Dalv 69 (2 N. Y. S. 713), 621 Hartshorn v. Railroad Co., 52 Iowa 613 ^3 N. W. R. 648), 254 Harvey v. Head. 68 Ga. 247, 1135 Hars'ev v. Osborn, 55 Ind. 535, 574 Har\'ie v. Turner, 46 Mo. 444, ^ 92 Hasbrouck v. Lounsbury, 26 N. Y. 598 " 1197 Haskins v. Com., ^Kv.) 1 S. W. R. 730, ' 1263 Hassell v. Nutt, 14 Tex. 260, 130 Hastings v. Drew. 76 N. Y. 9, 997 Hastings v. Drew, 50 How. Pr. 254, ~ 997 Hastv V. Berrv, (Ky.) 1 S. W. R. 8 " " 336 Hatch V. Bartle, 45 Pa. St. 166, 1128 Hatch V. Coddinaton, 32 Minn. 92 (19 N. W. R. 393), 873 Hatfield v. Hatfield, 20 How. St. Tr. 395, 5 Hathappen v. Rvdel, Indian L. R. ^ 15 :dadras 403, 91 'Haughwout V. Murphv, 22 N. J. Eq^. 531, " 1102 Haverlv v. Alcott, 57 Iowa 171 (10 N. W. R. 3261, 1104 Havis V. Taylor, 13 Ala. 324, 915 Hawes v. Anglo-Saxon Petroleum Co., 101 Mass. 385, 996 Hawes v. Rucker, 94 Ala. 166 (10 I S. R. 85). 1072 Hawk V. Evans, 76 Iowa 593 (41 N. W. R. 368), 99 Hawkins v. Glenn, 131 IT. S. 319. 996 Hawkins V. Hatton, 1 Nott & Mc- Cord3l8 (9 Am. D. 700), 1068 Ixx TABLE OF CASES. \_Beferences are to pages, Vol. I, pp Hawkins v. Lambert, 18 B. Mon. 1 57 Ky.) 99, 290 Hawkins v. Ragsdale, 80 Ky. 353 (44 Am. R. 483), 459 Hawkins v. State, 1 Porter 475 (27 Am. D. 641), 1231 Hawkins v. Wills, 49 Fed. R. 506 (IC.C.A. 339j(4U. S.App.274), 465 Hawks V. Truesdell 99 Mass. 557, 121 Hawley v. Dawson, 16 Oregon 344 (18 Pac. R. 592), 1199 Hawley v. Simons, 102 111. 115, 885 Hawley v. Singer, 5 Demorest 82, 621 Hawley v. Smith, 45 Ind. 183, 752, 1311 Hawley v. Warner, 12 Iowa 42, 801 Hawthorne v. Beckwith, 89 Va. 786 (17 S. E. R. 241), 989 Hayden v. Bucklin, 9 Paige 511, 1103 Hayes v. Bickelhoupt, 24 Fed. R. 806, 1132 Hayes v. Nourse, 114 N. Y. 595, 1114 Haves v. Reese, 34 Barb. 151, 757 Hayes v. Seaver, 7 Me. 237, 1139 Haves v. Shuttuck, 21 Cal. 51, 518 Haynes v. Ordway, 58 N. H. 167, 746 Havnes v. Ordway, 52 N. H. 284, 123, 128 Hayner v. Stanly, 8 Sawyer 214 (13 Fed. R. 217), 656 Haynie v. McAnally, (Tex. C. App.) 27 S. W. R. 431, 656 Hays V. Gas Light, etc., Co., 29 Ohio St. 330, 1194 Hazard v. Chicago, B. and Q. R. R. Co., 4 Bissel 453, 509 Hazon v. Reed, 30 Mich. 331, 490 Hazen v. Tillman, 5 N. J. Eq. (1 Halsted's Ch.) 363, 1001 Hazir Gazi v. Sonamonee Dassee, I. L. R. 6 Calcutta 31, 1009 Head v. Meloney, 111 Pa. St. 99 (2 Atl. R. 195), 350 Head v. Perry, 1 T. B. Mon. 253, 926 Heard v. Lodge,20 Pick. (37 Mass.) 53 (32 Am. D. 197), 1136 Heard v. Pulaski, 80 Ala. 502 (2 S. R. 343>, 697 Hearn v. Boston, etc., R. R. Co., (N. H.) 29 Atl. R. 970, 847, 1162 Heath's Estate, In re, 58 Iowa 36 (UN. W. R. 723), 126 Hebrew, Succession of, 13 La. Ann. 212, 415 Heckerman v. Young, 134 N. Y. 170 (31 N. E. R. 513, 30 Am. St. R. 655), 1064 Hedrick v. Ilwaco Ry. & Nav. Co., 4 Wash. St. 400 (30 Pac. R. 714), 331 1-624, Vol II, pp. 625-1335.'] Heichew v. Hamilton, 4 G. Greene 317 (61 Am. D. 122), 777 Heick V. Voight, 110 Ind. 279 (11 N. E. R. 306), 87 Heikes v. Com., 26 Pa. St. 513, 1201 Heirs of Hoover v. York, 35 La. Ann. 573, 828 Heirs of Ludlow v. Kidd, 3 Ohio 541, 1096 Heizer v. Hatch, 86 N. Y. 614, 1172 Helm V. State, 67 Miss. 562 (7 S. R. 487), 1287, 1296 Helm y. State, 66 Miss. 537 (6 S. R. 322), 1257 Helmbold v. Man, 4 Whart. 409, 96 Helphrey v. Redick, 21 Neb. 80 (31 N. W. R. 256), 1082 Hemendro Coomar v. Rajendro- lall, Indian L. R. 3 Calcutta 363, 1064 Hemstead v. Citv of Des Moines, 63 Iowa 36 (IS'N. W. R. 676), 270 Hempstead v.Watkins, 6 Ark. 317 (42 Am. D. 696), 86, 471 Henck v. Barnes, 32 N. Y. S. 840, 744 Hendershot v. Ping, 24 Iowa 134, 96 Henderson v. Cabell, 83 Tex. 541 (19 S. W. R. 287), 739 Henderson v. Henderson, 3 Hare (25Eng. Ch.) 100, 411, 894 Henderson v. Hill, 64 Ga. 292, 400 Henderson v. Kenner, 1 Rich. L. 474, 832 Henderson v. Moss, 82 Tex. 69 (18S. W. R. 555), 128 Henderson v. Staniford, 105 Mass. 504, 96 Hendricks v. Clounts, 91 Ga. 196 (17 S. E. R. 119), 170 Henkel v. State, 27 Tex. App. 510 (11 S. W. R. 671), 1222 Henley y. Mayor, 6 Bing. 100, 835 Henningerv. Heald, 51 N. J. Eq. — (26 Atl. R. 449), 166 Henry v. Woods, 77 Mo. 277, 111 Hensicker v. Lamborn, 13 Ind. 468, 296 Hensley v. State, 107 Ind. 587 (8 N. E. R. 692), 1295 Henson v. Veatch, 1 Blackford 369, 373 Hentig v. Redden, 46 Kan. 231 (26 Am. St. R.91,26 Pac. R. 701), 464 Hepburn y. Sewall, 5 Harris & J. 211 (9 Am. D. 511), 1068 Hereth v. Yandes, 34 Ind. 102, 732 Heroman v. Louisiana Institute, etc., 34 La. Ann. 805, 429 Herring v. N. Y., etc., R. Co. 105 N. Y. 340 (12 N. E. R. 763), 914 TABLE OF CASES. Ixxi [Beferences are to pages, Vol. I, pp. 1-624, Vol. 11, pp. 625-1335.'] Herrington v. Herrington, 27 Mo. 560, 1102 Herrington v. State, 87 Ala. 1 (5 S. R. 831), 1292 Herrison v. Stewart, 93 U. S. 155, 1193 Herriter v. Porter, 23 Cal. 385, 261 389 Hersey v. Benedict, 15 Hun 282, ' 912 Hersev v. Long, 30 Minn. 114 (14 N. E. R. 508), 1176 Hess V. Heebie, 6 S. & R. 57, 235 Hessel v. Johnson, 124 Pa. St. 233 (16 Atl. R. 855), 1193 Hewitt V. Stewart, 11 La. Ann. 100, 146 Hewlett v.Pilcher, 86 Cal. 542 (24 Pac. R. 781), 1079 Hlielut Chunder v. Kishen Go- bind, 16 W. R. 128, 574 Hiatt V. Brooks, 17 ^'eb. 33 (22 ]S'. W. R. 73), 1317 Hibler v. Shipp, 78 Ky. 64, 172 Hibshman v. Dulleban, 4 Watts 183, 66 Hickerson v. City of Mexico, 58 Mo. 61, 795, 865 Hickox V.Chicago, etc., R. Co.,94 Mich. 237 (53 X. W. R. 1105), 1312 Hicks V. Chapin, 67 111. 375, 807 Higbee v. Bowers, 9 Mo. 354, 127 Higgins V. Mayer, 10 How. Pr. 363, 608 Higgins V. Shaw, 2 Drurs' & W. 361, " 1101 High's Estate, 136 Pa. St. 222 (20 Atl. R. 422), 636 Hightower v. Beall, 66 Ga. 102, 400 Hightower V. Cravens, 70 Ga. 475, 249 Hikmatulla v. Iman Ali, I. L. R. 12 Allahabad 206, 218, 241 Hifands v. Com., Ill Pa. St. 1 (2 Atl. R. 70, 56 Am. R. 235), 1257, 1285 Hilands v. Com., 114 Pa. St. 372 (6 Atl. R. 267), 1255 Hildebrand v. McCrum, 101 Ind. 61, 39, 555 Hill V. Baine, 15 R. I. 75 (23 Atl. R. 44), 1160 Hill V. Cooper, 6 Or. 181, 469 Hill V. Day, 34 N. J. Eq. 150, 1039 Hill V. Freeman, 7 Ga. 211, 852 Hill V. Hoover, 9 Wis. 15, 103 Hill V. Huckabee, 70 Ala. 183, 630 Hill V. Jov, 149 Pa. St. 243 (24 AtL R. 293) 293 Hill v. Lancaster, 88 Kv. 338 (11 " S. W. R. 741, " 473 Hill V. Morse. 61 Me. 541, 1066 Hill V. National Bank, 97 U.S. 450, 505 Hill V. Stevenson, 63 Me. 364 (18 Am. R. 231), 928 Hill V. Tucker, 13 How. (54 U. S.) 458, 934 Himes v. Kiehl, 154 Pa. St. 190 (25 Atl. R. 632), 103 Hindlev v. Haslam, L. R. 3 Q. B. Div. 481, 428 nine V. K. & D. M. R. Co., 42 Iowa 636, 1077 Hines v. State, 24 Ohio St. 134, 1279 Hirshfield v. State, 11 Tex. App. 207, 1234 Hitchin v. Campbell, 2 Wm. Bl. 826, 894 Hite V. Long, 6 Randolph (27 Va.) 457 (18 Am. D. 7191, 387 Hite V. State, 9 Yerger 357, 1252 Kites V. Irvine, 13 Ohio St. 283, 350 Hoag V. Town of Greenwich, 133 N.'Y. 152 (30 K. E. R. 842), 884 Hobbs V. Duff, 23 Cal. 596, 471 Hobbs V. McMakin, — Ky. — (4 S. W. R. 793), 934 Hobbs V. Parker, 31 Me. 143, 42 Hobson V. Commonwealth, 1 Duvall (62 Kv. ) 172, 330 Hobson V. Doe" 4 Blackf. 487, 1320 Hobson V. Yancy, 2Gratt. (43 Va.) 73, 1139 Hodge V. Mitchell, 27 Miss. 560, 133 Hodge V. Shaw, 85 Iowa 137 (52 N. W. R. 8), 395 Hodges V. Eddv, 52 Vt. 434, 841 Hodgins v. Price, 132 Mass. 196, 433 Hodgman's Estate, In re, 140 N. Y. 421 (35 N. E. R. 660), 131 Hodsden v. Caldwell, 1 Lea (69 Tenn.) 48, 406 Hoffman v. State, 20 Md. 425, 1257 Hoffman v. Stigers, 28 la. 302, 920 Hoggatt V. Crandall, 39 La. Ann. 976 (3 S. R. 89^ 738 Hoegatt V. Thomas, 35 La. Ann. 298, 429 Hoisineton v. Brakev, 31 Kan. 560 (3Pa^c. R. 353), " 1129 Hoke V. Lowe, 48 111. App. 126, 1133 Holbert's Estate, 57 Cal. 257, 119 Holbrook v. Holbrook, 15 Me. 9, 1173 Holcombe v.Commissioners,89 N. C. 346, 768 Holland v. Hatch, 15 0. St. 464, 193 Hollev V. Acre, 23 Ala. 603, 1136 Hollidav V. Coleman, 2 Munf. 162, 706 Hollowav V. Jones, 143 Pa. St. 564 (22 Atl. R. 710), 724 Hollowell V. MacDonnell, 8 U. C. C. P. 21, 1062 Holman v. Langtree, 40Ind. 349, 1062 1: XX 11 TABLE OF CASES. [^References are to images, Vol. I, p]) Holmes v. Chicago, etc., R. Co., 94 111. 439 192 Holt V. 'state, 38 Ga. 187, 1214 Holton V. Gleason, 26N. H. 501, 192 Holton V. Taylor, 80 Ga. 508 (6 S. E. R. 15), 645 Honaker v. Cecil, 84 Ky. 202 (1 S. W.R. 392), 473 Hood, Matter of Estate of, 98 N. Y. 363, 292 Hooke V. Wood, 2 How. (Miss.) 867, 696 Hooker v. Hubbard, 102 Mass. 239, 507 Hooper v. Hooper, 32 W. Va. 56 (9 S. E. 637), 1002 Hooper v. Pair, 3 Porter 401 (29 Am. D. 259), 922 Hooper v. State. 30 Tex. App. 412 (17 S. W. R. 1066,28 Am.St.R. 926), 1254 Hoosier Stone Co. v. Louisville, New Albany and Chicago R. Co., 131 Ind. 575 (31 N. E. R. 365), 992 Hoover v. Kilander, 135 Ind. 600 (34 N. E. R. 697), 441 Hoover v. Mitchell, 25 Gratt. 387, 146 Hoover v. York, 35 La. Ann. 573, 828 Hope v. Mayor, etc., 72Ga.246, 1051 Hopf v. Myers, 42 Barb. 270, 231 Hopkins v. Hopkins, 40 Wis. 462, 1316 Hopkins v. Hopkins, 1 Atkyns 581, 970 Hopkins v. Langton, 30 Wis. 379, 923 Hopkins v. Lee, 6 Wheat. 109, 86 Hopkins v. McCann, 19 111. 113, 930 Hopkins v. Shelton, 37 -Ala. 306 (Ala. Sel. Cas. 303), 192 Hopkins v. Stout, 6 Bush 375, 930 Hopkins v. Taylor, 86 111. 436, 995 Hoppaugh V. McGrath, 53 N. J. Law 81 (21 Atl. R. 106\ 994 Hoppin V. Avery, 87 Mich. 551 (49N. W. R. 887), 644 Horn V. Jones, 28 Cal. 194, 1085 Horry v. Frost, 10 Rich. Eq. 109, 347 Horsley v. Fawcett, 11 Beav. 565, 1196 Horton v. Bassett, 17 R. I. 129 (20 Atl. R. 234), 244 Horton v. Hamilton, 20 Tex. 606, 130 Horton v. N.Y. Central R. R. Co., 63 Fed. R. 897, 346 Hostetter v. City of Pittsburgh, 107 Pa. St. 419, 1135 Hotchkiss V. Nichols, 3 Day 138, 556 Hough V. Waters, 30 Cal. 309, 465 House V. Lockwood, 137 N. Y. 259 (33 N. E. R. 595), 38 1-624, Vol. II, pp. 625-1335.'] Houston V. Boyston, 1 Sm. & M. (Miss.) 238, 114 Houston V. Musgrove, 35 Tex. 594, 296 Houston V. Timmermann, 17 Ore- gon 499 (21 Pac. R. 1037), 1212 Houston v. Voorhies, 70 Tex. 356 (8 S. W. R. 109), 644 Houston, etc., R. Co. v. Sherley (Tex. C. App.) 24 S. W. R. 809, 1324 Jloustoun V. Sligo, L. R. 29 Ch. Div. 448, 773 Howard, In matter of, 9 Wall. (76 U. S. 175), 1000 Howard v. Albro, 100 Mass. 236, 785 Howard v. Daly, 61 N. Y. 362, 366 Howard v. Glenn, 85 Ga. 238 (11 S. E. R. 610), 995 Howard v. Kennedy, 4 Ala. 592 (39 Am. D. 307), 1086 Howard v. Kimball, 65 Me. 308, 512 Howard v. Robinson, 5 Cush. (59 Mass.) 119, 1082 Howard v. State, 8 Tex. App. 447, 1212 Howe V. Chesley, 56 Vt. 727, 1146 Howe V. First Nat. Bank (Pa. St.) 1 Atl. R. 787, 113 Howe V. Harding, 84 Tex. 74 (19 S. W.R. 363), 260 Howe V. Lewis, 121 Ind. 110 (22 N. E. R. 978), 621 Howell V. Budd, 91 Cal. 342 (27 Pac. R. 747), '^3 Howell V. Goodrich, 69 111. 556, 746 Howell V. McCracken, 87 N. Car. 399, 288 Howell V. Wilson, 2 Blackf. 418, 1186 Howitt V. Blodgett, 61 Wis. 376 (21 N. W. R. 292), 923 Ilowlett V. Tarte, 10 C. B. N. S. (100 E. C. L.) 813, 519, 521, 532 Hoyle V. Farquharson, 80 Mo. 377, 333 Iloyt V. Greene, .33 Mo. App. 205, 1059 Hubbard v. Flynt, 58 Miss. 266, 350 Hubert v. Fera, 99 Mass. 198 (96 Am. D. 732), 1027 Hudelmeyer V. Hughes, 13 Mo. 87, 507 Hudgin V. Hudgin, 6 Gratt. (47 Va.) 320 (52 Am. D. 124), 1001 Hudson V. Carman, 41 Me. 84, 997 Hudson V. Nashua, 62 N. H. 591, 147 Hudson V. State, 9 Tex. App. 151 (35 Am. R. 732), 1234 Huff V. State, — Tex. Crim. —(24 S. W. R. 903), 1216 Hughes V. Cornelius, 2 Shower 232, 8 Ilnehes v. Jones, 116 N. Y. 67 (22 N. E. R. 446), 40, 1044 TABLE OF CASES. Ixxiii rjReferences are to pages, Vol. I, pp Hughes V. Jones, 2 Md. Ch. 178, 853 Hughes V. Lane, 25 Tex. 356 662 Hughes V. People, 8 Colo. 536 (9 Pa. E. 50, 5 Am. Cr. R. 80), 956 Hughes V. Rees, 9 Ontario 198, 60S Hughes V. U. S., 4 Wall. 232. 167, 767 Hughes V. United Pipe Lines, 119 N. Y. 423 (23 X. E. R. 1042), 944 Hughes V. Walker, 14 Ore. 481 (13 Pac. R. 450), 192 Huiskamp v. Moline "Wagon Co., 121 U. S. 310, 942 Hukill V. Guffev, 37 W. Va. 425 (16 S. E. R. 544), 688 Hull V. Chaffin, 54 Fed. R.437 (4 C. C. A. 414, 12 U. S. A. 206), 980 Hume V. Franzen, 73 Iowa 25 (34 N. W. R. 490), 1077 Humpfner v. D. M. Osborne & Co., 2 S. Dak. 310 (50 N. W. R. 88), 833 Humphreys v. N. Y. L. and W. R. Co., 56 Hun 634, 1326 Humphreys v. Stafford, — Miss. — 13S. R.'865, 458 Humphries v. Browne, 19 La. Ann. 158, 98 Hungerford's Appeal, 41 Conn. 322, 836 Hunt V. Bates, 7 R. I. 217, 1069 Hunt V. Acre, 28 Ala. 580, 930, 1024 Hunt V. Brown, 146 Mass. 253 (15 N. E. R.5S7), 415,-433 Hunt V. Citv of Jacksonville, 34 Fla. 504 (16 S. R.398), 956 Hunt V. Haven, 52 X. H. 162, 910 Hunt V. Hunt, 13 X. J. Eq. (2 Beaslev) 161, 1039 Hunt V. Terril, 7 J. J. Marsh. (30 Ky.) 67, 1065 Hunter v. Birnev, 27 Grant's Ch. (U. C.) 204, ■ 865 Hunter v. Burlington, etc., R. Co,, 76 la. 490 (41 N. W. R. 305), 684 Hunter v. Carroll (X. H.), 29 Atl. R. 639, 119, 815 Hunter v. Davis, 19 Ga. 413, 561 Hunter v. Stewart, 31 L. J. Ch. 346, 893 Hunter V. Stewart, 4De Gex, F. & J. 168, 112, 245 Huntinsrton v. Jewett, 25 Iowa 249 (95 Am. D. 788), 999 Huntineton v. Rumnill,3 Day 390, 912 Huntlev v. Holt, 59 Conn. 102 (22 Atl. R. 34), . 163 Hurd V. McClellan. 1 Colo. App. 327 (29 Pac. R. 181), 1052 Hurlbutt V. Butenop, 27 Cal. 50, 1007 Hurley v. State, 6 0. 399, 1286 1-624, Vol. II, pp. 625-1335.1 Hurrosoondar^' V. Jughobundhoo, I. L. R. 6 Calcutta 203, 108 Hurrv Behari v. Pargun, I. L. R. 19 Calcutta 656, 180, 774 Hurst V. Bank of Australasia, 2 Victorian Rep. 217, 486 Hurst V. :Means, 2 Sneed 545, 196 Hurst V, State, 86 Ala. 604 (6 S. R. 120), 1229 Hurt v.State,25 Miss. 378, 1216, 1232 Hurt V. West, 87 Ya. 78 (12 S. E. R. 141), 927 Hutchinson v. Bank of Wheeling, 41 Pa. St, 42, 963 Hutchinson v. Chicago, etc., R, Co., 41 Wis. 541, 1310 Hutchinson v, Dearing, 20 Ala. 798, 399 Huvghe V, Brinkman, 34 La. Ann. 1179, 475 Huzzard v. Nagle, 40 Pa. St. 178, 1184 Hvatt V. Bates, 35 Barb. 308, 94 HVde V. Noble, 13 X. H. 494 (38 Am. D. 508^, 954 Hvden v. State, 40 Ga. 476, 169 Hvde Park v. Corwith, 122 111. 441 (12X. E. R. 238), 738 Hymes v. Estev, 116 X'. Y, 501 (22 N, E. R, 1087), 56-5 Iglehart v. State, 2 Gill & J. 235, 1137, 1139 Ihmsen v. Ormsby, 32 Pa. St. 198, 342 Illinois Central R. Co. v. Grabill, 50 111. 241, 266 Illinois Central Rv. Co. v. Slater, 139 111. 190 (28 N. E. R. 830), 323 Imdad AH v. Boonvad Ali, 14 W, R. 92, " 277 Imrit Kooer v. Debee Pershad, 18 W. R. 201, 1190 Indarjit Prasad v. Richha Rai, I. L. R. 15 Allahabad 3, 547, 775 Inayat Khan v. Rahmat Bibi, I, L. R. 2 Allahabad 97, 60 Inderlied v. Whalev, 32 2f. Y. Suppl. 640, ■ 328 Indiana, Bloomington and West- ern Rv. Co. V. Koons, 105 Ind. 507 (5N. E. R. 549), ^ 352 Indiana, etc., Bank v. First Xat. Bank, 9 Ind. App. 185 (36 N. E. R. 382), 1308 Indiana Farmers' Live Stock Ins. Co. V. Stratton, 4 Ind. App. 566 (31 N. E. R. 380), 434 Ixxiv TABLE OF CASES. [References are to pages, Vol. I, pp ' Indianapolis, D. and W. Ry. Co. V. Center Township, 130 Ind. 89 (28 N. E. R. 439), 362 Indianapolis, etc., Co. v. Clark, 21 Ind. 150, 889 Ingram v. Smith, 1 Head 4]1, 573 Inhabitants of Bangor v. Bruns- wick, 33 Me. 352, 759 Inhabitants of Lower Alloways Creek v. Moore, 15 N. J. Law (3 Green) 140, 1158 Inhabitants of Milford v. Hol- brook, 9 Allen (91 Mass.) 17 (85 Am. D. 735), 1167 Inhabitants of Sturbridge v. Franklin, 160 Mass. 149 (35 N. E. R. 669), 1026 Inman v. Mead, 97 Mass. 310, 922 In Matter of Howard, 9 Wall. (76 U. S.) 175, 1000 In Matter of Sumner, 10 Benedict 34 999 In re Allison, 13 Colo. 525 (22 Pac. R. 820), 1235 In re Baird, 84 Cal. 95 (24 Pac. R. 167, 936 In re Blair, 4 Wis. 522, 93 In re Blythe's Estate, 99 Cal. 472 (34 Pac. R. 108), 126 In re Brown, 1 Abb. Pr. 108, 1042 In re Clyne, 52 Kan. 441, 94 In re Decker's Estate, 19 N. E. R. 66, 550 In re Estate of Meeker, 45 Mo. App. 186, 1316 In re Estate of Nahuapa, 3 Ha- waiian 400, 120 In re Fulton's E8tate,51 Pa.St.204, 935 In re Gangwere's Estate, 14 Pa. St. 417, 1039 In re Garst, 10 Neb. 78, 1266 In re Heath's Estate, 58 Iowa 36 (11 N. W. R. 723), 126 In re Hodges' Estate, 63 Vt. 661 (22 Atl. R. 725), 378 In re Hodgman's Estate, 140 N.Y. 421 (35 N. E. R. 660) 131 In re May, L. R. 25 Ch. Div. 231, 773 In re Metropolitan Ry. Co., 58 Hun 563 (12 N. Y. Supl. 859), 111 In re Persse, 1 Malloy 439, 1041 In re Selleck, lllN. Y. 284, 550 In re Smith, 68 Cal. 203, 637 In re Smith, 1 Russ. 348, 1001, 1044 In re Snell, 31 Minn. 110 (16 N. W. R. 692) 93 In re Strau"t,'l26 N. Y. 201 (27 N. E.R. 259), 1196 In re Thomas' Will, 111 N. C. 409 (16 S. E. R 226), 463 , 1-624, Vol. II, pp. 625-1335.'] In re Underbill, 117 N. Y. 471 (22 N. E. R. 1120), 132 In re Vedder's Estate, 17 N. Y. S. 93 552 In re Vedder's Will, 2 Connolly 548 (15 N. Y. S. 798, 40 N. Y. S. R. 119), 552 In re Watts' Estate, 158 Pa. St. 1 (27 Atl. R. 861), 1179 In re AVolfe's Estate, 137 N. Y. 205 (33 N. E. R. 156), 796 Inslee v. Hampton, 11 Hun (18 N. Y. Supr.) 156, 438 Insurance Co. v. Harris, 97 IT. S. 331, 88 Irby V. McKissack, 8 Yerger 42, 916 Ireland v. Emmerson, 93 Ind. 1 (47 Am. R. 364), 893 Irish Am. Bank v. Ludlum, 56 Minn. 317 (57 N. W. R. 927), 834 Irvin V. State, 7 Tex. App. 78, 1201 Irwin V. Backus, 25 Cal. 214 (85 Am. D. 125), 1136 Isaacs V. Clark, 12 Vt. 692 (36 Am. D. 372), 608 Ittiachan v. Velapi^an, I. L. R. 8 Madr. 484, 1013 Ives V. Mies, 5 Watts 323, 1178 Ives V. Van Epps, 22 Wend. 155, 426 Jackson v. Andrews, 7 Wend. 152 (22Am. D. 674), 1087 Jacks V. Bell, 3 C. & P. 316, Jacobs V. Case, (Ky.) 1 S. W. R. 6, 1022 Jackson v. Centerville, Moravia and Albia Ry. Co., 64 Iowa 292 (20 N. W. R. 442), 1086 Jackson v. Dickenson, 15 Johns. 309 (8 Am. D. 236), 1102 Jackson v. Elliott, 49 Tex. 62, 166 Jackson v. Griswold, 4 Hill 522, 1159 Jackson v. Lodge, 36 Cal. 28, 608, 656 Jackson v. State, 14 Ind. 327, 1230 Jackson v. State, (Ala.) 15 S. R. 351, 1271 Jackson v. St. Paul, etc., Ins. Co., 99 N. Y. 124, 737 Jackson v. St. Paul, etc., Ins. Co., 33 Hun 60, 737 Jackson v. Warren, 32 111. 331, 1098 Jacobs v. Hill, 2 Leigh (29 Va.) .393, 1142 Jacobson v. Miller, 41 Mich. 90 (1 N. W. R. 1013), 532 TABI.E OF CASES. Ixxv [Beferences arc to pages, Vol. I, pp. 1-624, Vol. II, pp. 625-1335.'] Jadu Lai v. Ram Gholam, Indian L. R. 1 Allahabad 76, 405 Jaeatjit Singh v. Sarabjit, I. L. R. fy Calcutta 159, 183 Jagatjit Singh v. Sarabjit Singh, L. R. 18 I. App. 176, 775 Jamaica, etc., Corp. v. Chandler, 121 Mass. 1, _ 613 Jamaitunnisa v. Lutfunnissa, I. L. R. 7 Allahabad 615, 12, 18, 546, 774 Jama Singh v. Kamrunissa, I. L. R. 3 Allahabad 132, 574 Jamborv. State, 75 Wis. 664 (44 N. W. R. 963), 1266 James v. James, 81 Tex. 373 (16 S. W. R. 1087), 634 James v. Newton, 142 Mass. 366 (8N. E. R. 122), 259 James v. State, 7 Blackf. 325, 1334 Jameson v. McCoy, 5 Heisk. 108, 1312 Janes v. Brown, 43 Iowa 568, 807 Janes v. Cleghorn, 63 Ga. 335, 654 Jarboe v. Severiu, 112 Ind. 572 (14 N. E. R. 490), 469, 471 Jarboe v. Smith, 10 B. Hon. 257 (52 Am. D. 641), 146 Jardine Skinner v. Shama Soon- duree, 13 W. R. 196, 278 Jarnigan v. Fleming, 43 Miss. 710 (55 Am. D. 303, note), 322 Jarvis v. Driggs, 69 N. Y. 143, 536 Jarvis v. Manlove, 5 Harrington (Del.) 452, 962 Jarrett v. Self, 90 N. C. 478, 232 Jarvis v. State, 19 O. St. 585, 1215 Jay V. Carthage, 48 Me. 353, 192 Jay V. De Groot, 2 Hun 205, 97 Jayne v. Piatt, 47 O. St. 262 (24 . N. E. R. 262), 1135 Jefferies v. Allen, 34 S. C. 189 (13 S. E. R. 365), 504 Jeffus V. Allen, 56 Tex. 195, 1021 Jehan v. Saivak, 1 Agra F. B. 109, 301 Jenkins v. International Bank, 111 111. 462, 636 Jenkins v. Johnston, 4 Jones' Eq. 149, 156 Jenkins v. Harrison, 66 Ala. 345, 881 Jenkins v. State, 76 Md. 255 (23 Atl. R. 608j, 1136 Jenkinson v. Ewing, 17 Ind. 505, 296 Jennison v. Inhabitants of West Springfield, 13 Gray 544, 759 Jennings v. Jones, 2 Redfield 95, 949 Jeo Lai Singh v. Surfun, 11 Cal- cutta L. R. 483, 180 Jepson V. International, etc.. Alli- ance, 17 R. I. 471 (23 Atl. R. 15), 854 Jericho v. Town of Underbill, 67 Vt. — (30 Atl. R. 690), 145 Jesse V. Carter, 28 Ala. 475, 1313 Jessup V. Spears, 38 Ark. 457, 335 Jex V. Jacob, 7 Abb. N. C. 452, 316, 366 Jharoo v. Raj Chunder, Indian L. R. 12 Calcutta 399, 1121 Jiban Das v. Durga Persad, I. L. R. 21 Calcutta 252, 340 Jibunti Nath v. Shib Nath, I. L. R. 8 Calcutta 822, 227, 289 Jinks V. Lewis, — Ga. — (20 S. E. R. 6), 1085 Jogendro Deb v. Funindro Deb, L. R. 6 I. App. 237, 1008 Johnson v. East Tenn., etc., R. Co., 90 Ga. 810 (17 S. E. R. 121), 879 Johnson v. Jacob, 11 Bush (74 Ky) 646, 985 Johnson v. Johnson, (Colo.) 36 Pac. R. 898, 154 Johnson v. Latta, 84 Mo. 139, 100 Johnson v. Longmire,39 Ala. 143, 927 Johnson v. Lovelace, 61 Ga.62, 528, 645 Johnson v. Luxton, 41 N.Y. Super. 481, 385 Johnson v. Morse,! 1 Allen 540, 812, 813 Johnson v. Murphy, 17 Tex. 216, 327 Johnson v. Pate, 90 N. C. 334, 657 Johnson v. Provincial Ins. Co., 12 Mich. 216, 208 Johnson v. Smith, 8 Johns. 383, 93 Johnson v. State, 29 Ark. 31 (21 Am. R. 154). 1216, 1232, 1263 Johnson v. State, 27 Fla. 245 (9 S. R. 208), 1216 Johnson v. State, 59 Miss. 543, 956 Johnson v. State, 19 Tex. App. 453 (53 Am. R. 385), _ 1218 Johnson v. Union Switch and Sig- nal Co., 59 N. Y. Supr. (13 N. Y. Suppl. 612), 940 Johnson v. Vance, 86 Cal. 110 (24 Pac. R. 862), 679 Johnson v. Weld, 8 La. Ann. 126, 910 Johnson v. White, 13 Sm. & M. 584, 892 Johnson Companv v. Wharton, 152 U. S. 252, ■ 87, 97 Johnston v. Forstall, 3 La. Ann. 446, 792 Jones V. Blake, 2 Hill's Ch. (S. C.)629, 434,950 Jones V. Commercial Bank, 78 Ky. 413, 296 Jones V. Com., 86 Va. 740 (10 S. E. R. 1004\ 1288 Jones V. De Graffenreid, 60 Ala. 145, 779 Ixxvi TABLE OF CASES. [References are to images, Vol. I, x>p Jones V. Doles, 3 La. Ann. 588, 1135 Jones V. Graham, 3(3 Ark. 383, 168 Jones V. Howard, 3 Allen 223, 192 Jones V. Jamison, 15 La. Ann. 35, 96 Jones V. Jones, 15 Tex. 463 (65 Am. D. 174), 934 Jones V. Kilbreth, 49 0. St. 401, 817 Jones V. Kirksey, 10 Ala. 839, 498 Jones V. Kolisenski, 11 Ala. 607, 1017 Jones V. Kuhn, 34 Kan. 414 (8 Pac. R. 777), 592 Jones V. McNarrin, 68 Maine 334 (28 Am. R. 661, 1110 Jones V. Milbank, 6 Lans. (6 N. Y. Supr.)73, 1031 Jones V. Murphy, 18 La. Ann. 634, 88, 89 Jones V. Perkins, 54 Me. 393, 856 Jones V. Randall, 1 Cowper 17, 609 Jones V. Richardson, 5 Mete. 247, 114 Jones V. Scriven, 8 Johns. 453, 707 Jones V. State, 97 Ala. 77 (12 S. R. 274 ^ 1279 Jones V. State, 15 Ark. 261, 1264 Jones V. State, 55 Ga. 625, 1212 Jones V. State, 66 Miss. 380 (6 S. R. 231), 1236, 1244 Jones V. State, 13 Tex. 168 (62 Am. D. 550), 1216, 1232 Jones V. Thorne, 80 N. C. 72, 101 Jones V. Underwood, 35 Barb. 211 (13 Abb. Pr. 393), 200 Jones V. Vert, 121 Ind. 140 (22 N. E. R. 882), 586 Jones V. Weathersbee, 4Strob. L. 5 (51 Am. D. 653), 816 Jonmenjov Mullick v. Dossmoney Dossee L L. R. 7 Calcutta 714, 289 Jordan v. Faircloth, 34 Ga. 47, 1316 Jordan v. Faircloth, 27 Ga. 372, 133 Jordan v. Van Epps, 85 N. Y. 427, 487 Jordan v. Everett, — Tenn. — (24 S. W. R. 1128), 1085 Jordon v. Volkenning, 72 N. Y. 300, 1135 Josephine v. State, 39 Miss. 613, 1286 Jouralman v. Massengill, 86 Tenn. 81 (5 S. W. R. 719), 1328 Jov V. State, 14 Ind. 139, 1273 Judice V. Kerr, 8 La. Ann. 462, 1081 Judson V. Connolly, 5 La. Ann. 400, ' 610 Juggodumba Dossee v. Tarakant, 6 Calcutta L. R. 127, 110 Juggut Chunder v. Kishwanund,2 Bombay S.D. A. Sel. Rep. 160, 1125 Jumoona Dassee v. Bamasoonde- ree, 2 W. R. 148, 224, 280 Justice V. Justice, 3 Ired. L. 58, 862 . 1-624, Vol. II, pp. 625-1335.'] K Kaawihi v. Noa, 5 Hawaiian 381, 68 Kaawihi v. Rose, 5 Hawaiian 382, 68 Kabe v. The Vessel "Eagle," 25 AVis. 108, 102 Kachar Ala Chela v. Hghadbhai, I. L. R. 17 Bombay 35, 776 Kahn v. Kahn, 24 Neb. 709 (40 N. W. R. 135), 368 Kaine, Ex parte, 3 Blatch. 1, 93 Kaka v. Bhola, No. 96, Punjab R. 1881, _ 403 Kakaji Ranoji v. Rapuji Madhav- rav, 8 Ben. H. C. R. A. C. 208, 187 Kalaeokekoi v. Kahele, 7 Hawai- ian 147, 759 Kalidhun v. Shiba Nath, I. L. R. 8 Calcutta 483, 221, 287 Kali Krishna Tagore v. Secretary of State, L. R. 15 T. App. 193, 774 Kalishunkur Doss v. Gopal Chun- der Dutt, I. L. R. 6 Calcutta 49, 1015 KameshwarPershadv. Rajkumari Ruttun Koer, L. R. 19 Indian App. 234, 16, 216 Kaminer v. Hope, 9 S. C. 253, 1137 Kanai Lall v. Sashi Bhuson, I. L. R. 6 Calcutta 781, 185 Kane v. Moorehouse, 46 Conn. 300, _ 208 Kannan v. Tenju, Indian L. R. 5 Madras 1, 344 Kanne v. Minneapolis, etc., Ry. Co., 33 Minn. 419 (23 N. W. R. 854), 97 Kansas, etc., R. Co. v. Merrill, 25 Kan. 421 2.54 Karr v. Parks, 44 Cal. 46, 331 Kartick Chandra v. Sridhar Man- dal, I. L. R. 12 Calcutta 563, 191 Kashee Kishore v. Kristo Chun- der, 22 W. R. 464, 902 Kaufman v. Keenan, 2N. Y. SupL 395, _ 102 Kaufman v. Schneider, 35 111. App. 256, _ _ 97 Kauhi V. Keoni Kiaikulani, 3 Ha- waiian 356, 556 Kavanaugh v. Shaughnessy, 41 Mo. App. 657, 257 Kave V. City of Louisville (Ky), 14S. W. R. 679; 1147 Keahi v. Bishop, 3 Hawaiian 546, 68, 75 Keater v. Hock, 16 Iowa 23, 661 TABLE OF CASES. Ixxvii {^References are to pages, Vol. I, pp Keater v. People, 32 Mich. 484, 1251 Keating v. Springer, 146 111. 481 (34N. E. R. 805), 433 Keedv v. Long, 71 Md. 385 (18 Atl. R. 704), 36G Keeton v. Com., 92 Ky. 522 (18 S. W. R. 359), 1234 Keithler v. State, 10 Sm. & M. 192, 918 Kellar v. Stanley, 86 Kv. 240 (5 S. W. R. 477), ' 1100 Keller v. Stolzenback, 20 Fed. R. 47, 160 Kellogg V. Fancher, 23 Wis. 21 (99 Am. D. 96), 1103, 1119 Kellogg V. Gilbert, 10 Johns. 220 (6Am. D. 335), 173 Kellv V. Board of Public Works, 25 Gratt. 755, 833 Kelly V. Hancock, 75 Ala. 229, 772 Kellv V. Town of :Milan, 21 Fed. R.'842, 153 Kelly V. U. S., 27 Fed. R. 616, 1276 Kelsey v. Murphv, 26 Pa. St. 78, 156 Kelsev v. Ward, 38 N.Y. 83, 532, 733 Kemper v. Com., 85 Ky. 219 (3 S. W. R. 159), 9?6 Kempner v. Comer, 73 Tex. 196 (11 S. W. R. 194), 288, 296, 330 Kenan v. Miller, 2 Kelly (Ga.) 325, , 135 Kendall v. Hamilton, L. R. 4 App. Cases 504, 1063, 1132 Kendall v. State, 65 Ala. 492, 1291 Kenn's Case, 7 Coke 138, 4, 30 Kennard v. Carter, 64 Ind. 31, 1062 Kennedy v. Brown, 21 Kan. 171, 1135 Kennedy v. Hazelton, 128 U.S.667, 685 Kennedy v. McCarthy, 73 Ga. 346, 681 Kennedy v. Scovil, 14 Conn. 61, 824 Kenney v. Phillipy, 91 Ind. 511, 488 Kent V. Church of St. ]\Iichael, 136 N. Y. 10 (32 N. E. R. 704), 974, 986 Kent V. Kent, 82 Va. 205, 570 Kentv. Kent, 1 Hun 529, 929 Kent V. Lasley, 48 Wis. 257, 1072 Kenworthy V. Stevens, 132Mass. 123, 446 Kenyon v. Wilson, 78 Iowa 408 (43 N. W. R. 227), 327 Keokuk, etc., R. Co. v. Donnell, 77 Iowa 221 (42 N. W. R. 176), 162 Keokuk Gaslight and Coke Co. v. Citv of Keokuk, 80 Iowa 137 (45 N. W. R.555), 251 Keokuk, etc., R. Co. v. Missouri, 152 U. S. 301, 797, 1078 Kern v. Wilson, 82 Iowa 407 (48 N. W. R.910), 194 Kerr v. Chess, 7 Watts 367, 608 1-624, Vol. II, IW. 625-1335.'] Kerr V. Hays, 35 N. Y. 331, 835- Kerr v. Simmons, 9 Mo. App. 376, 274 Kerrison v. Stewart, 93 U. S. 155, 1194, 1196 Kesar Singh v. Jawand Singh, 1884Punj. R. No. 142, 403 Ketchum v. Thatcher, 12 Mo. App. 185, 123, 127 Kevser v. Sutherland, 69 Mich. 4o5 (26 N. W. R. 865), 812, 814 Kezar v. Elkins, 52 Yt. 119, 429 Khedaroonissa v. Boodhee, 13 W. R. 317, 28a Kidd v. Laird, 76 Am. Dec. 472, 60 Kidd V. Laird, 15 Cal. 161, 612 Kieffer v. Ehler, 18 Pa. St. 388, 1118 Kilander v. Hoover, 111 Ind. 10 (11 N. E. Rep. 796), 441, 1327 Kilgore v. Kilgore, (Ala.) 15 S. R. 897, 928 Kimbro v. Yirginia, etc., Ry. Co., 56 Ga. 185, 667 Kimmel v. Benna, 70 Mo. 52, 87, 464 Kimpton v. Willev, 9 M. G. & S. 719, 233 King V. Brigham, 23 Ore. 262 (31 Pac. R. 601), 641 King V. Chase, 15 N. H.9(41 Am. Dec. 675), 51,54,1160 King V. Clarke, 2 Hill's Ch. (S. C.) 611, 934 King V. Faber, 51 Pa. St. 387, 999 Kine V. Hoare, 13 ISI. &. W. 494, 1062 King V. People, 5 Hun 297, 1258 King V. Townshend, 141 N. Y, 358 (36 N. E. R. 513), 804 King V. Townshend, 65 Hun 567, 804 Kingsbury V. Kettle, 90 Mich. 476 (51 N. W. R. 541), 649 Kingsley V. Davis, 104 Mass. 178, 1062 Kinports v. Pawson, 36 AV. Ya. 237 (15 S. E. R. 66), 723 Kinsman v. Kinsman, 1 Russ. & Mylne 622, 1098, 1101, 1114 KipV. Brigham, 6 Johns. 158, 1178 Kirk V. Blashfield, 6 T. & C. 509, 135 Kirkv. Goodwin, Kan. (36 Pac. R. 1057), 299 Kirk V. Kirk, 137 N. Y. 510 (33 N. E. R. 552), 986 Kirkpatrick v. McElrov, 41 N. J. Eq. 539 (7 Atl. R. 647), 893 Kirkpatrick v. Stingley, 2 Ind. 269, 888 Kisan v. Anandram, 10 B. H. C. R. 433, 18 Kishan Sahai v. Aladad Khan, I. L. R. 14 Allahabad 64, 91, 107 Kisononund v. Nursingh Doss, 1 Marsh. 485, 1125 Ixxviii TABLE OF CASES. \_References are to pages, Vol. I, pp Kitchen v. Campbell, 3 Wilson 304 (2 Wm. Bl. 827i, 604 Kitchen v. Clak, 1 Mo. App. 430, 820 Kitson V. Hillabold, 95 Ind. 136, 1065 Kitson V. Farwell, 132 111. 327, 79, 746 Kitson V. People, 23 N. E. R. 1024, 79, 746 Kittredge v. Holt, 58 N. 11. 191, 892 Kitts V. Willson, Ind. (39 N. E. R. 313), 379 Klauber v. Sandiego, etc., Co., 98 Cal. 105 (32 Pac. R. 876), 1317 Kleinschmidt v. Binzel, 14 Mont. 31 (35 Pac. R. 460), 667 Knapp V. Town of Marlboro, 31 Vt. 674, 1187 Knapp V. Town of Marlboro, 34 Vt. 235, 1179 Knapp V. Railroad Co., 20 Wall. 177, 1194 Knickerbocker v. Wilcox, 83 Mich. 200 (47 N. W. R. 123), 1183 Knight V. Nelson, 117 Mass. 458, 1008, 1070 Knockerbocker v. Ream, 42 Kan. 17 (21 Pac. R. 795), 1332 Knorr v. Peerless Reaper Co., 23 Neb. 636 (37 N. AV. R. 465), 501 Knott V. Cunningham, 2 Sneed 195, 1068 Knotts V. Stearns, 91 U. S. 638, 972 Knowlton v. Hanbury, 117111. 471 (5N. E. R. 581), Knowlton v. New York and N. E. R. Co., 147 Mass. 606 (18 N. E. R. 580), Knowlton v. Warner, 25 111. Aj^p. 221, Knox V. State, 89 Ga. 259 (15 S. E. R. 308), 1253 Knox v.Waldoborough, 5 Me. 185, 192 Knoxville National Bank v. Hani- rick, 67 Iowa 583 (25 N. W. R. 816), 1145 Koelsch V. Mixer, (Ohio St.) 39 N. E. R. 417, 583 Koenig v. Morrison, 44 Mo. App. 411, 237 Kohlheimer v. State, 39 Miss. 548, 1297 Komola Kaminy Debia v. Loke Nath, I. L. R. 8 Calcutta 825, 286 Konerrav v. Gurrav, I. L. R. 5 Bombay 589, 213 Koogler v. Hoffman, 1 McCord's L. 495, 921 Koon V. Mallett, 68 Iowa 205 (26 N. W. R. 74), 704 Koons V. Blanton, 129 Ind. 383 (27 N. E. R. 334), 459 156 390 163 1-624, Vol. II, pp. 625-1335.'] Kramer v. Matthews, 68 Ind. 172, 1333 Kramph v. Hatz, 52 Pa. St. 525, 1182 Krapp V. Eldridge, 33 Kan. 106 (5 Pac. R. 372), 197 Krause v. Herbert, 16 Oregon 429 (18 Pac. R. 852), 951 Krekeler v. Ritter, 62 N. Y. 372, 607 Krenji Amma v. Raman Menon, Indian L. R. 15 Madras 497, 515 Krishna Behari Roy v.Brojeswari, L. R. 2 I. App. 283, 647, 630, 774 Krishnappa v. Bahira, 8 Bombay H. C. R. 59, 1089 Kristo Kinkur v. Ram Dhun, 18 W. R. 326, 318 Kronshage v. Chicago, M. and St. P. Ry. Co., 45 Wis. 500, 250 Krutsinger v. Brown, 72 Ind. 466, 168 Kudrat v. Dinu, Indian L. R. 9 Allahabad 155, 189 Kunhi Kuttusu v. Kunhayan Kutti, 3 Indian J. 13, 897 Kunnock Chunder v. Guru Dass, I. L. R. 9 Calcutta 919, 283 Kurtz V. Carr, 105 Ind. 574 (5 N. E. R. 692), 240 Kuntz V. Kaufman, 31 Mo. App. 397 1172 Kyle V. Mays, 22 Ala. 692, 1136 Lachman v. Lahar, 10 Punjab R. 178, 513 Lacroix v. Lyons, 33 Fed. R. 437, 1052 Lacy V. Eller, 8 Ind. App. 286 (35 N. E. R. 847), 734 Lafayette, City of, v. Nagle, 113 Ind. 425 (15N. E. R. 1), 267 Laidley v. Kline, 8 W. Va. 218, 929 Laird v. City of DfeSoto, 32 Fed R. 652, ' 617 Lakshman v. Dasrat, Indian L. R. 6 Bombay 172, 1088 Lakshmandas v. Dasrat, I. L. R. 6 Bombay 172, 1090 Lala V. Buli, Indian L. R. 4 Cal- cutta 789, 1121 Laland v. Rose, 11 La. Ann. 268, 637 Lalu Mulji V. Kashibai, Indian L. R. 10 Bombay 400, 1120 Lamar v. Knott, 74 Ga. 379, 464 Lamar v. Scott, 4 Rich. Law 516, 463 Lamar Ins. Co. v. Gulick, 102 111. 41, 998 Lamb v. Gatlin, 2 Dev. & Bat. Eq. 37, 1003 TABLE OF (?ASES. IXXIX {^Eeferences are to pages, Vol. I, pjy. 1-624, Vol. II, pp. 625-1335.'] Lamb v. McConkev, 76 Iowa 47 (40 N. W. R. 77j; 249 Lambert v. Sanford, 2 Black 137, 173 Lambert v. Smith, 1 Cranch C. C. 361, 1047 Lambeth v. Garber, 6 Ala. 870, 929 Lamout v. Cheshire, %b N. Y. 30, 1084 Lamontagne v. Harvev L. Co., 84 Wis. 331 (54 N. W. R. 583) 863 La Motte v. Harper, 88 Ga. 26 (13 S. E. R. 804), 702 L'Amoureux v. Crosbv, 2 Paige, 422, ■ 1039 Lampen v. Kedgewin, 1 Mod. 207, 661, 767 Lampton v. Jones, 5 T. B. Mon. 246, 607, 831 Lanata v. Planas. 2 La. Ann. 544, 923 Land v. Keirn, 52 :Miss. 341, 493 Lander v. Arno, do Me. 26, 949 Landers v. George. 49 Ind. 309, 493 Landis v. Hamilton, 77 3Io. 554, 1059 Landon v. Townshend, 112 Js. Y. 93 (19 X. E. R. 424), 951 Landsberg V. Lewis, 6 N.Y. Suppl. 561, 252 Lane v. Lane, 80 Me. 570 (16 Atl. R. 323), 86 Lane v. Starkey, 20 Xeb. 586 (31 X. W. R. 238), 1317 Langdon v. Evans, 3 Mackey 1, 861 Langdon v. Raiford, 20 Ala. 532, 104 LaPorte v. Organ, 5 Ind. App. 369 (32 X. E. R. 342), 661 Larum v. AVilmer, 35 Iowa 244, 1122 Last Chance "Water Ditch Co. v. Heilbron, 86 Cal. 1 (26 Pac. R. 523), 823 Lathrop v. Chenev, 29 Xeb. 454 (45 X. W. R. 617), 885 Lathrop v. Knapp, 37 Wis. 307, 560, 1311 Latta V. Russ, 8 Jones' Law 111, 538 Lauer v. Bandow, 48 Wis. 638 (4 X. W. Rep. 774),. 1062 Laupher v. State, 14 Ind. 327, 1230 Law V. McDonald, 62 How. Pr. 340, 388 Lawless v. Lawless, 47 Mo. App. 523,. 738 Lawrence v. Beecher, 116 Ind. 312 (19 X. E. Rep. 143), 328 Lawrence v. Cabot, 9 J. & S. 122, 832 Lawrence v. Citv of Milwaukee, 45 Wis. 306, ' 582 Lawrence v. Havnes, 5 X. H. 33 (20 Am. D. 554), 1024 Lawrence v. Hunt, 10 Wend. 80 (25 Am. D. 539), 623 Lawrence v. People, 2 111. 414, 1291 Lawrence v. Ware, 37 Ala. 533 (Ala. Select Cases 477), 938 Lawrence Savings Bank v. Stev- ens, 46 Iowa 429, 417 Lawson v. Conawav, 37 W. Va, 159 (16 S. E. Rep. "564), 423 Lawson v. Shotwell, 27 Miss. 630, 458 Lawton v. Perrv, 40 S.C. 255 (18 S. E. Rep. 861"), 96 Lawver v. Smith, 1 Denio 207, 956 Lazell V. Miller, 15 Mass. 207, 378 Lea V. Deakin, 11 Bissel 23, 1132, 1190 Lea V. Lea, 99 Mass. 493 (96 Am. D. 772), 646 Leavens v. Ewins, 67 Vt. — (31 Atl. Rep. 297), 825 Leavitt v. Wolcott, 95 X. Y. 212, 602 Lebanon v. Mead, 64 X. H, 8 (4 Atl. Rep. 392), 1178 Lee V. Kaiser, 80 Mo. 431, 192 Lee V. Kingsbury-, 13 Tex. 68, 512 Lee V. Stahl, 13 Colo. 174 (22 Pac. Rep. 436), 1302 Lee V. State, 26 Ark. 260 (7 Am. Rep. 611), 1269 Lee V. Thompson, 99 Ala. 95 (11 So. Rep. 672), ' 413 Lesand v. Rixey, 83 Va. 862 (3 S. E. Rep. 864), 616 Legg V. Britton, 64 Vt. 652 (24 Atl. Rep. 1016), 947 Leggett V. Lippincott, 50 X. J. Law 402 (14 Atl. R. 577), 502 Leggott V. Great Xorthern Rv. Co., L. R. 1 Q. B. Div. 599, " 946 LeGuen v. Gouverneur, 1 John- son's Cases (1 Am. D. 121), 472,484 Lehigh, etc., Co. v. Xew J., etc., Co., 55 X. J. L. 350 (26 Atl. R. 920), 655 Lehman v. Bradley, 62 Ala. 31, 929 Lehman v. Glenn, 87 Ala. 618 (6 S. R. 44), 995 Lehman v. Stone, (Tex. App.) 16 S. W. R. 784, 914 Leinkauffv. Munter, 76 Ala. 194, 1020 Leitch V. AVells. 48 X. Y. 585, 1102 Leitch V. Wells, 48 Barb. 637, 1108 Lemunier v. McCearlv, 37 La. Ann. 133, " 119, 474 Lenoir v. Moore, 61 Miss. 400, 1065 Lenoir v. Wilson, 36 Ala. 600, 285, 364 Lentz V. Wallace, 17 Pa. St. 412 (55 Am. D. 569), 866 Leonard v. Barker, 5 Den. 220, 156 Leonard v. Sussex, 2 Vernon 526, 972 Leonard v. Whituev, 109 Mass.265, 495 Leonard v. Yohn, 68 Wis. 587 (32 X. AV. R. 702), 414 Ixxx TABLE OF CASES. [References are to 'pages, Vol. I, pp Leoux V. Burton, 30 La. Ann. 576, i 1122 Leslie v. Bonte, 130 lU. 498 (22 N. E. R. 594), 936 Lessee of Lore v. Truman, 10 O. St. 45, 660 Lesslie v. State, 18 O. St. 390, 1215 Lester v. State, 33 Ga. 329, 1287 Level V. Hall, Cro. Jac. 284, 130, 1329 Levi V. McCraney, 1 Morris 91, 936, 937 Levin v. Standard Fashion Co., 16 Daly 404 (11 N. Y. Suppl. 706), 368 Levy V. State, 6 Ind. 281, 956 Lewis and Nelson's Appeal, 67 Pa. St. 153, 42 Lewis V. Baker, 151 Pa. St. 529 (25 Atl. R. 99), 885 Lewis V. Boston, 130 Mass. 339, 252 Lewis V. Davis, 8 Daly 185, 170 Lewis V. Knox, 2 Bibb (5 Ky.) 453, : 1184 Lewis V. Lewis, 106 Mass. 309, 712 Lewis V. Mew, 1 Strobhart's Eq. 180, _ 1107 Lewis V. N. 0. Savings Institution, 33 La. Ann. 1463, 337 Lewis V. Ocean, etc., Co., 125 N. Y. 341 (26N. E. R. 301), 741 Lewis V. Robertson, 100 Ala. 146 (14 S. R. 166), 1199 Lewis V. Smith, 11 Barb. 52, 479 Lewis V. State, — Tex. Crim. — (24S. W. R. 906), 1231 Lewis V. State, 1 Tex. App. 323, 1212 Lewis V. Tams, 4 Philadelphia 276, 999 Lichty V. Lewis, 63 Fed. R. 535, 1020 Liddell v. Chidester, 84 Ala. 508 (4S. R. 426), 735 Lieb V. Lichtenstein, 121 Ind. 483 (23N. E. R. 284), 700 Lightfootv. Wilmot, 23 Mo. App. 5 832 Liginger v. Field, 78 Wis. 367 (47 N. W. R. 613), 913 Lilhoffer V. Herr, 17 Serg. & Rawle 319 (17 Am. D. 658), 402 Lillis V. Emigrant Ditch Co., 95 Cal. 553 f30^Pac. R. 1108), 663 Lilly V. Tobbein, 103 Mo. 477 (15 S. W. R. 618), 1025 Lilse V. Rhea, 9 Mo. 172, 127 Linberg v. Finks (Tex. C. App.), 25 S. W. R. 789, 816 Lincoln Nat. Bk. v. Virgin, 36 Neb. 735 (55 N. W. R. 218), 689 Lindell v. Liggett, I Mo. 432 (14 Am, D. 298). 154 1-624, Vol. II, pp. 625-1335.'] Lindlev v. Snell, 80 Iowa 103 (45 N. W. R. 726), 300 Lindsev v. Sayre, (Ky.) 2 S. W. R. 678, 1020 Lindsley v. Thompson, 1 Tenn. Ch. 272, 251 Lindsey v. Town of Danville, 46 Vt. 144, 1018 Linington v. Strong, 111 111. 152, 1319 Linney v. Wood, 66 Tex. 22 (17 S. W. R. 244), 803 Linton v. Crosby, 61 Iowa 293 (16 N. W. R. 113), 622 Linton v. Crosby, 61 Iowa 401 (16 N. W. R. 342), 622 Linton v. Harris, 78 Ga. 265 (3 S. E. R. 278), 805, 1159 Lippman v. Campbell, 40 Mo. App. 564, 1133 Lipscome v. Postell, 38 Miss. 476 (77 Am. D. 651), 1139 Litch v. Clinch, 136 111. 410 (26 N. E. R. 579), 529 Litch V. Clinch, 35 111. App. 654, 429 Lithgow V. Com., 2 Va. Cases 297, 1232 Littlefield v. Huntress, 106 Mass. 121, 622 Littleton v. Fritz, 65 Iowa 488 (22 N. W. R. 641), 1148 Littleton v. Richardson, 34 N. H. 179 (66 Am. D. 759), 1163, 1167 Little wood v. Mayor, 89 N. Y. 24 (42 Am. R. 271), 947 Livingston v. Bishop, 1 Johns. 290, 1068 Livingston v. Gibbons, 4 Johns. Ch."570, 1148 Llewhellyn v. Ram Sunder Sahoy, 2 L. R. 50, 60 Lloyd V. Johnes, 9 Vesey Jr. 37, 971 Lloyd V. Tracy, 53 Mo. App. 125, 924 Loakman v. State, 32 Tex. Crim. 563 (25 S. AV. R. 22), 1212 Lock V. Norborne, 3 Modern 142 (A. D. 1690), 1001 Locke V. Winston, 10 Ala. 849, 609 Lockyer v. Ferrvman, L. R. 2 Appeal Cases 519, 17, 291 Loeb V. Willis, 100 N. Y. 231 (3 N. E. R. 177), 156 Logan V. Caffrey, 30 Pa. St. 196, 235, 236, 389 Logan V. U. S., 144 U. S. 263, 1287 Logg V. People, 8 111. App. 99, 1232 Lohman v. People, 1 N. Y. 379, 1218 Lombard v. Gregory, (la.) 55 N. W. R. 471, 1310 London v. Richmond, 2 Vernon 421, 1004 TABLE OF CASES. lxx> XI [^Beferetices are to pages, Vol. I, pj). 1-624, Vol. IT, pp. 625-1335,'} London Bank v. Orchard, L. R. 4 I. App. 127, 107 Long V. Baugas, 2 Ired, L. 290 (38 Am. Dec. 694), 79 Long V. Trexler, (Pa.) 8 Atl. R. 620, 821 Long V. Waring, 25 Ala. 625 (60 Am. D. 533), 167 Long V. Webb, 24 Minn. 380, 508 Long V. Yonge, 2 Simons 369 (A. D. 1830), 1006 Loomis V. Cowen, 106 111. 660, 1321 Lorance v. Piatt, 67 Miss. 183 (6 S. R. 772), 60, 72 Lord V. Cannon, 75 Ga. 300, 1179 Lord V. Chadbourne, 42 Me. 429 (66 Am. Dec. 290), 169 Lord V. Thomas, 36 Pac. R. 372, 10 Lore V. State, 4 Ala. 173, 1272 Lore V. Truman, 10 O. St. 45, 660 Lorillard v. Clyde, 99 N. Y. 196 (1 N. E. R. 614), 121 Lorillard v. Clyde, 102 N. Y. 59 (6 N. E. R. 104), 678 Lorillard v. Clyde, 122 N. Y. 41 (25N. E. R. 292), 729 Lorraine v. Long, 6 Cal. 452, 471 Lorton v. State, 7 Mo. 55 (37 Am. D. 179), 1234 Los Angeles v. Melius, 59 Cal. 444, 661 Los Angeles v. Melius, 58 Cal. 16, 661 Lothrop V. Southworth, 6 Mich. 436, 1135 Loudenback v. Collins, 4 0. St. 251, 166, 167 Louis V. Brown Township, 109 U. S. 162 (3 S. C. R. 92), 640, 1119 Louisiana Levee Co. v. State, 31 La. Ann. 250, 1199 Louisiana State Bank v. Orleans Nav. Co., 3 La. Ann. 294, 731 Louisville & N. R. R. v. Orr, 91 Ky. 109 (15 S. W. R. 8), 380 Louisville, etc., Ry. Co. v. Terrell (Ind. App.), 39N. E. R. 295, 645 Louisville, etc., Ry. Co, v. Wvlie, 1 Ind. App. 136 (27 N. E". R. 122) 133 Louw V. Davis, 13 Johns. 227, 198 Love V. Belk, 1 Ired. Eq. 163, 472 Love V. Gibson, 2 Fla. 598, 1182 Love V. Waltz, 7 Cal. 250, 733 Lovejoy v. Murray, 3 Wall. (70 U. S.) 1, 1053, 1069 Lovell V. Arnold, 2 Munf. 167, 919 Lovett V. State, 80 Ga. 255 (4 S. E. R. 9121, 1287 Lovett V. State, 33 Fla. 389 (14 S. R. 837), 1291 F Low V. Bartlett, 8 Allen (90 Mass.) 259, 934 Low V. Mussey, 41 Vt. 393, 156 Low V. Pratt, 53 111. 438, 1118 Lowder v. Noding, 8 Ired. Eq. 208, 472 Lowe V. State, 57 Ga. 171 (1 Phal- en's Cr. C. 233), 1234 Lowry v. McDurmott, 5 Yerger 225, 611 Lowry v. McMillan, 8 Pa. St. 157 (49 Am. D. 501), 173 Lucas V. San Francisco, 28 Cal. 591, 110 Lucas V. Lecompte, 42 111. 303, 228 Lucas V. The Governor, 6 Ala. 826, 1141 Luce V. Dexter, 135 Mass. 23, 1067 Lucesco Oil Co. v. Brewer, 66 Pa. St. 351, 205 Luchmun Sahoy v. Ramsarn, 20 W. R. 144, 221, 282 Ludeling v. Chaffe, 40 La. Ann. 645 (4 S. R. 586), 477 Ludlow V. Kidd, 3 O. 541, 1096 Ludlow V. Marion Tp., etc., Co. 101 Ind. 176, 1329 Lumber Co. v. Buchtel, 101 U. S. 638, 556, 732 Lupton V. Lupton, 2 Johns. Ch. 614, 132 Lyman, Matter of, 60 Hun 82 926 Lyman V. Becannon, 29 Mich.466, 832 Lyman v. Faris, 53 Iowa 498 (5 N. W. R. 621), 1153 Lyman v. State, 47 Ala. 686, 1257 Lynch v. Jackson, 31 Ga. 668, 117, 951 Lynch v. Swanton, 53 Me. 100, 756 Lyon V. Park, 111 N. Y. 350 (18 N. E. R. 863), 1115 Lyon V. Perin, etc., Co., 125 U. S. 698, 858 Lyon V. Robbins, 45 Conn. 513, 356 Lyon V. Stanford, 42 N. J. Eq. 411 (Stanford V.Lyon, 7 Atl. R. 869), 1019 Lyons v. Cooledge, 89 111. 529, 1157 Lyster v. Lyster, 111 Mass. 327, 605 Lythgoe v. Lvthgoe, 75 Hun (82 N. Y. Supr.) 147 (26 N. Y. Suppl. 1063), 1026 Mc McAllister v. Brooks, 22 Me. 80, 1016 McArthur v. Scott, 113 U. S. 340, 982 M'Broom v. The Governor, 4 Por- ter (Ala.) 90, 1142 Ixxxii TABLE OF CASES. \^lleferences are to pages, Vol. I, pp McBurnie v. Seaton, 111 Ind. 56 (12 N. E. R. 101), 951, 1331 McCaffrey v. Carter, 125 Mass. 330, 209 McCain v. Louisville and Nash- ville R. R. Co., (Kv.) 22 S. W. R. 325, ' 322 McCall V. Jones, 72 Ala. 368, 191 McCallev v. Robinson, 70 Ala. 432, " 655 McCalley v. Wilburn, 77 Ala. 549, 399 McCampbell v. Mason, 151 Til. (38 N. E. R. 672), 971, 979 McCampbell v. McCampbell, 5 Litt. 92, 86 McCarthv v. Goodwin, 8 Mo. App. 380, 414 McCartney v. Osburn, 118 111. 403 (9 N. E. R. 218), 76 McCauley v. Rogers, 104 111. 578, 1086 McCauley v. State, 26 Ala. 135, 1272 McClelIanv.Downey,63Cal.520, 1136 McClelland v. Ridgeway, 12 Ala. 482, 1065 McClesky v. State, 4 Tex. Civ. App. 322 (23 S. W. R. 518), 1152 McClun v. Condit, 27 INIinn. 45 (6 N. W. R. 399), 733 McClure v. Colclough, 5 Ala. 65, 1141 McClure v. :McClure, 65 Ind. 482, 1066 McComb V. Frink, 149 U. S. 629, 881 McCombie v. Davies, 6 East 538, 272 McConnell v. Downs, 48 111. 271, 1178 McCorkle v. State, 14 Ind. 39, 1273 McCormick v. Grundy County, 24 Iowa 382, 1066 McCoy V. McCoy, 29 W. Va. 794 (2 S. E. R. 809), 561 McCoy V. Monte, 90 Ind. 441, 1194 McCoy V. Nichols, 4 How. (Miss.) 31, 1002 McCoy V. State, 46 Ark. 141, 1234, 1238 McCravey v. Remson, 19 Ala. 430 (54 Am. D. 194), 83 McCreary v. Casey, 45 Cal. 128, 465 McCreary v. Com., 29 Pa. St. 323, 1272 McCreery v. Fuller, 63 Cal. 30, 146 McCreery v. Everding, 54 Cal. 168, 1073 McCullough V. Hellman, 8 Ore. 191, 288 McCutchen v. Miller, 31 Miss. 65, 1086 McDole v. McDole, 106 111. 452, 316 McDonald v. Bear River, etc., Co., 15 Cal. 145, 562 McDonald v. Christie, 42 Barb. 36, 199 . 1-624, Vol. II, p)p. 625-1335.'\ McDonald v. Davis, 105 N. Y. 508 (12N. E. R. 40), 414 McDonald v. Green, 9 Sm. & M. 138, 1302 McDonald v. Gregory, 41 Iowa 513, 111, 502, 940 McDonald v. Matney, 82 Mo. 358, 924 McDonald v. IMcDonald, 50 Ala. 26, 407 McDonald v. Mobile Ins. Co., 65 Ala. 358, 26, 658 McDonogh, Succession of, 24 La. Ann. 33, 614 McDougald v. Rutherford, 30 Ala. 253, 88 IMcDowell v.Langdon, 3 Gray 513, 805 McDowell v. Goldsmith, 24 Md. 214, 923 McElmurray v. State, 21 Tex. App. 691(2S. W. R. 892), 1215 McElwee v. Blackw^ell, 101 N. C. 192 (7 S. E. R. 893), 941 McEvoy V. Bock, 37 Minn. 402 (34 N. W. R. 740), 365 McEwen v. Bigelow, 40 Mich. 215, 509 McFadden v. Com., 23 Pa. St. 12, 1257 McFadden v. Fritz, 110 Ind. 1 (10 N. E. R. 120), -800 McFarlane v. Cushman, 21 Wis. 401, 197 McGaffrey v. Benson, 40 La. Ann. 10 (3 S. R. 393), 888 McGatrick v. Wason, 1 O.St. 566, 155 McGee v. Overby, 12 Ark. (7 Eng.) 164, 1070 McGilvrey v. Avery, 30 Vt. 538, 88 McGregor v. Tabor, — Tex. Civil App. — (26 S. W. R. 443), 1186 McGuire v. Shelby, 20 Ala. 456, 929 Mcllwrath v. Hollander, 73 Mo. 105 (39 Am. R. 484), 1087 Mcintosh V. Lown, 49 Barb. 550, 240, 252, 274, 316 McKay v. Fee, 20 XJ. C. Q. B. 268, 335 McKay v. McKay, 33 W. Va. 724 (11 S. E. R. 213), 929 McKee v. St Louis, K. & N. Ry. Co., 49 Mo. App. 174, 394 McKinzie v. Baltimore and Ohio R. Co., 28 Md. 161, 802, 1054 McKenzie v. L'An^.oureux, 11 Barb. 516, 1071 McKissick v.McKissick,6Humph. (25 Tenn.) 74, 374 McKnight v. Bell, 135 Pa. St. 358 (19 Atl. R. 1036), 607 McKnight v. Devlin, 52 N. Y. 399, 832, 833 TABLE OF CASES. Ixxxiii [References are to pages, Vol. I, pp. 1-624, Vol. II, pp. 625-1335.'] McLane v. Bovee, 35 Wis. 27, 376 McLane v. Spence, 11 Ala. 172, 119 McLaughlin v. Bank of Potomac, 7 How. (48 U. S.I 220, 1137 McLaughlin v. Doane, 40 Kan. 392 (19Pac. R. 853), 664 McLaughlin v. Great Western Ins. Co., 20 N. Y. Suppl. 536, 536 McLaughlin v. Hill, 6 Yt. 20, 855 McLaughlin v. McGee, 79 Pa. St. 217, 169 McLean v. Hansen, 37 111. App. 48, 191 McLean v. Hugarin, 13 Johns. 184, " 878 McLean v. McLean, 90 N. C. 530, 96 McLean v. Meek, 18 How. (59 U. S.) 16, 934 McLendon v. McClaun, 60 Ga. 244, 1322 McLennan v. McMonies. 23 U. C. Q. B. 114, 942 McLennan V. Prentice, 85 Wis. 427 i55 X. W. R. 764), 1317 McLeod V. Bertschy, 34 Wis. 244, 1323 McLeod V. Lee, 17 Nev. 103 (28 Pac. R. 124), 838 McMahan v. Geiger, 73 Mo. 145 (39 Am. R. 489), 592 McMahon v. :Macv, 51 N. Y. 155, 997 McMakin v. Fowler, 34 S. C. 281 (13 S. E. R. 534), 852 McMaster v. Arthur, 33 S. C. 512 (12S. E. R. 308), 473 McMaster v. Yernon, 3 Duer 249, 1062 McMicken v. Morgan, 9 La. Ann. 208, 310 McNairy v. Mayor, etc., 2 Baxter 251, 1304 McNamara v. Arthur, 2 Ball & B. 349, 168, 886 jMcNamee v. Moreland, 26 Iowa 96, 1060 McNaughton v. City of Elkhart, 85 Ind. 384, 1178 McNeelv v. Hyde, 46 La. Ann. — (15 So. R. 167), 10 McNutt V. Trogden, 29 W. Ya. 469 (2 S. E. R. 3281, 948 McPherson v. Hansel, 13 N. J. Eq. 299, 1086 McRea v. Mavor, 59 Ga. 168 (27 Am. R. 3901" 956 McReady v. Rogers, 1 Neb. 124, 120 McRevnolds v. Kansas City, etc., R. Co., 34 Mo. App. 581, 164 McSweeney v. Carney, 72 Ind. 430, 1333 McTighe v. McLane, 93 Ala. 626 (11 S. R. 117), 837 McWhorter v. Andrews, 53 Ark. 307 (13 S. W. R. 1099), 507,508 McWhorter v. Norris, (Ind.) 34 N. E. R. 854, 168 Mc Williams v. Kalbach, 55 Iowa 110(7N. W. R. 463), 805 McWilliams v. Morrell, 23 Hun 162, 765 McWilliams v. Walthall, 77 Ga. 7, 400 M Mabry v. Henry, 83 N, C. 298, 98, 102 Macdougall v. Knight, L. R. 25 Q. B. Div. 1, 373 Mack V. Levy, 60 Fed. R. 751, 758 Mack V. Lew, 59 Fed. R. 468, 957 Mackev v. Fisher, 36 Minn. 347 (31 N. W. R. 363), 1179 Mackintosh v. Gill, 12 Ben. L. R. 37, 317 Macreadvv. Schenck, 41 La. Ann. 456 (6 S. R. 517), 1141 Madan Mohan v. Shersanker, In- dian L. R. 12 Calcutta 482, 316 Madan Mohan Lai v. Sheo Sanker Sahai I. L. R. 12 Calcutta 482, 277 Maden v. Emmons, 83 Ind. 331, 1284 Maddox v. Humphries, 30 Tex. 494, 1105 Madhavan v. Keshavan, I. L. R. 11 Madr. 191, 1015 Madhavi v. Kelu, I. L. R. 15 Madr. 264, 515, 577 Maarrath v. Hardy, 4 Bing. N. C. 782 (33E. C. L. 974), 1016 Magruder v. Randolph, 77 N. C. 79, 230 Magwire v. Labeaume, 7 Mo. App. 179, 1073 Magwire v. T\'ler, 40 Mo. 406, 290 Magundeo v. Mahadeo Singh, I. L. R. 18 Calcutta 647, 546 Mahabir Pershad v. Macnaghten, L. R. 16 I. App. 107, 431 Mahala v. State, 10 Yerg. 531, 1286 Maher v. State, 53 Ga. 448(21 Am. R. 269), 88, 1202, 1295 Mahima Chandra v. Raj Kumar, I. B. L. R. A. C. 1, 56 Mahomed Riasat Ali v. Hasin Banu, I. L. R. 21 Calcutta 157, 280 Mahonev v. Prendergast, 58 Hun 611 (12 N. Y. S. 869), 582 Ixxxiv TABLE OF CASES. \^References are to pages, Vol. I, pp Mahoney v. Van Winkle, 33 Cal. 448, 374 Mail V. Maxwell, 107 111. 554, 1157 Maize v. Bowman, 93 Ky. — (19 S. W. R. 589), 567 Majors v. Cowell, 51 Cal. 478, 935 Maksud AH v. Nar^is Dye, I. L. R. 20 Calcutta 322, 219, 281 Maktum v. Imam, 10 Ben. H. C. R. 293, 403 Malette v.' Arnold, 83 Iowa 55 (48 N. W. R. 1060:, 373 Malev V. Sliattuck, 3 Cranch (6 U.S.) 458, 1037 Malloney v. Horan, 49 N. Y, 111 (10 Am. R. 335), 462 Mallory v. Mariner, 15 Wis. 177, 249 Mally V. Mally, 52 Iowa 654 (3 N. W. R. 670), 477 Malone v. Carroll, 33 Ala. 191, 1303 Malskv V. Schumacher, 27 N. Y. Suppl. 331 (7 Misc. R. 8, 56 N. Y. St. R. 840), 1130 Manappa Mudali v. McCarthy, I. L. R. 3 Madras 192, 56 Manhattan L. Ins. Co. v. Brough- ton, 109U. S. 121, 192 Manju Nath v.Venkatesh Govind, I. L. R. 6 Bombay 61, 21, 106, 108 Manigault v. Deas, Bailey's Eq. 283 295 Manley v. Staples, 62 Vt. 153 (19 Atl.R. 983), 827 Manly v. Kidd, 33 Miss. 141, 291, 926 Manii v. City of Rich Hill, 28 Mo. App. 497, 309 Mann v. Edwards, 34 111. App. 473, 1066 Mann v. Rogers, 35 Cal. 316, 374 Manning v. Irish, 47 Iowa 650, 228 Manns v. Bank, 73 Ind. 243, 297 Manny v. Harris, 2 Johns. 24 (3 Am. D. 386), 857 Manual Fruval v. Sanagapalli, 7 Madras H. C. R. Ill, 1088, 1090 Man Singh v. Narayan Das, I. L. R. 1 Allahabad 480, 546 Mansfield v. N. Y. Central, etc., R. Co., 102 N. Y. 205 (6 N. E. R. 386), _ 88 Manufacturing Co. v. Price, 4 S. C. 338, 1080 Mapes V. State, 13 Tex. App. 85, 1275 Maple V. Beach, 43 Ind. 51, 1057 Maple V. Railroad Company, 40 O. St. 313 (48 Am. R. 685), 1070 Marble v. Keys, 9 Gray (75 Mass.) 221, 387 Marceau v. Travelers' Ins. Co., lOlCal. 338(35Pac. R. 856), %3 1-624, Vol. II, pp. 625-1335.'] Marcellus V. Countryman, 65 Barb. 201, 850 Marchioness of Londonderry v. Baker, 3 Giff. 128, s. c. 3 De Gex, F. & J. 701, 244 Marks v. Aspinall, 8 Vict. L. R. (Law) 116, 43,696 Marks v. Barker, New Zealand Law 5 S. C. 428, 261 Marks v. Nashville Marine and Fire Ins. Co., 6 La. Ann. 126, 1048 Marks v. Sigler, 3 O. St. 358, 912 Marks v. Sullivan, 9 Utah 12 (32 Pac. R. 668), 1131 Marlatt v. Clary, 20 Ark. 251, 1186 Marlborough v. Sisson, 31 Conn. 332, 347 Marmaud v. McCready, 3 Russell & Chesley (12 Nova Scotia) 166, 422 Marquis of Cholmondeley v. Clin- ton, 2 Jacobs & Walker 1, 970 Marriott v. Hampton, 7 Term Re- port 265, 490 Marsh v. Keith, 1 Dr. & Sm. 342, 222 Marsh V. Mandeville, 28 Miss. 122 414 Marsh v. Masterson, 18 J.& S. 187, 889 Marsh v. Masterson, 101 N.Y. 401, 889 Marsh v. Pier, 4 Rawle 273 (26 Am. D. 131), 607, 636 Marsh v. Smith, 73 Iowa 295 (34 N. W. R. 866), 1179 Marshall v. Croom, 60 Ala. 121, 922 Marshall v. Pinkham, 73 Wis. 401 (41 N. W. R. 529), 1018 Marshall v. State, 8 Ind. 498, 1203 Marsteller v. Marsteller, 132 Pa. St. 517 (19 Atl. R. 344), 115, 741 Marston v. Swett, 66 N. Y. 206, 607 Martin v. Blattner, 68 Iowa 286 (25 N. W. R. 131 and 27 N. W. R. 244), 963 Martin v. Cowles, 2 Dev. & Bat. Law 101 (A. D. 18361, 1165 Martin v. Elerbe, 70 Ala. 326, 925 Martin v. Hodge, 47 Ark. 378 (1 S. W. R. 694), 168 Martin v. Gernandt, 19 Pa. St. 124, 40 Martin v. Kennedy, 2 B. & P. 69, 604 Martin v. Roney, 41 O. St. 141, 312, 767 Martin v. Tally, 72 Ala. 23, 1136 Martin v. Walker, 43 La. Ann. 1019 (10 S. R. 365), 473 Marvin v. Dutcher, 26 Minn. 391 (4 N. W. R. 685), 35 Marvin v. Welder, 31 Neb. 774 (48 N. W. R. 825), 113 Mason v. Alston, 9 N. Y. 28 (59 Am. D. 515), 250 TABLE OF CASES. Ixxxv [Beferences are to pages, Vol. I, pp Mason v. Eldred, 6 AVall. (73 U. S. 231), 1062 Mason v. Kellogg, 38 Mich. 132, 832, 1178 Mason v. State, 29 Tex. App. 24 (14 8. W. R. 71), 1232 Mason v. Summers, 24 Mo. App. 174, 199 Masser v. Strickland, 17 Serg. & Rawle 354 (17 Am. D. 668), 1138 Massey v. Lemon, 5 Ired. L. 557, 863 Massie v. Heiskell, 80 Va. 789, 1312 Masson v. Saloj', 12 La. Ann. 776, 1086 Masten v. Olcott, 24 Hun 587, 815 Masters v. Varner, 5 Gratt. 168 (50 Am. D. 114), 921 Mathes v. Cover, 43 Iowa 512, 1079 Matheson v. Grant, 2 How. 263, 835 Mattair v. Card, 19 Fla. 455, 400 Matter of Bernheimer, 47 Hun 567, 102 Matter of Brooklyn W. & N. R. Co., 19 Hun (26 N. Y. Sup.) 314, 1025 Matter of Clark, 62 Hun 275, 552, 602 Matter of Estate of Hood, 98 N. Y. 363 292 Matter of Lyman, 60 Hun 82, 926 Matter of Peoples', etc.. Institu- tion, 10 Benedict 38, 429 Matter of Price, 12 Hun 508, 93 Matter of Roberts, 59 How. Pr. 136, 711 Matter of Spelman v. Terry, 74 N. Y. 448, 130 Matthew v. Osborne, 13 C. B. 919, 607, 803 Matthews v. Duryee, 45 Barb. 69, 479 Matthews v. Green, 12 Phila- delphia 341, 449 INIatthews v. Houghton, 11 Me. 377, 1016 Matthews v. Lawrence, 1 Denio 212(43 Am. D. 665), 1199 Mattews v. Lucie, 55 Vt. 308, 256 Matthews v. Sands, 29 Ala. 136, 1308 Mattinglv v. Louisville, etc., Co., (Kv.)25S.W. R. 830, 168 Mattox V. Helm, 5 Litt. 185, 92 Maulden v. Armistead, 30 Ala. 480, 1312 Mauldin v. Clark, 79 Cal. 51 (21 Pac. R. 351), 680 Maupin v. Compton, 3 Bibb (6 Ky.) 214, 1186 INIauldin v. Gossett, 15 S. C. 565, 927 Maxwell v. Connor, 1 Hill's Ch. 15, 400 1-624, Vol. II, pp. 625-1335.'] Maxwell v. First Nat. Bank, (Tex. C. App.) 24 S. W. R. 848, 127 May, In re, L. R. 25 Ch. D. 231, 773 Maybee v. Avery, 18 Johns. 352, 964 I\Iayer v. Wick, 'l5 O. St. 548, 104 Mayo y. Brown, (cited) 20 How. St. Tr. 398, 7, 1029 Mayo y. Wood, 50 Cal. 171, 1000 Mayor v. Brady, 70 Hun (77 N. Y. Sup.) 250 (24 N. Y. Suppl. 296), 1167 Mayor v. Brad-% 81 Hun (88 N. Y. Sup.) 440 (30N. Y. Suppl. 1121), 1167 Mayor v. Tudor, 74 Tex. 471 (12 S. W. R. 117), 808 Mayor of Paterson v. Baker (N. J. Eq.), 26 Atl. R. 324, 725 Mead v. City of Boston, 3 Cush. (57 Mass.)" 404, 964 Mead v. Mitchell, 17 N. Y. 210 (72 Am. D. 455), 987 Mead v. Mitchell, 5 Abb. Pr. 92, 1194 Meagley v. City of Binghamton, 13''Hun (43 N. Y. Supr.) 171, 1122 Means v. Hicks, 65 Ala. 241, 1138, 1182 Means v. Sanders, 14 Ga. 113, 1188 Meeker, In re Estate, 45 ]Mo. App. 186, 1316 ]Meer Mahomed v. Forbes, V. AV. R. Act 10 Rul. 90, 220 Megee y. Beirne, 39 Pa. St. 50, 1023, 1024 Megerle v. Ashe, 33 Cal. 74, 509 Mehaffy v. Lytle, 1 Watts 314, 1178 MeiersV. Pinover, 21 111. App. 551, 756 Meiss v. Gill, 44 O. St. 253 (6 N. E. R. 656), 607 Mellisent y. Mellisent, (cited) 20 How. St. Tr. 424, 6 Memmer v. Carey, 30 Minn. 458 (15N. W. R. 8t7), 229 ]\rercein v. People, 25 Wend. 64, 94 Merchants' Bank v. Chandler, 19 Wis. 434, 996 INIerchants' Bank y. Schulenburg, 48 Mich. 102, 842 Merchants' Ins. Co. v. Algeo, 31 Pa. St. 446, _ 273 INIerchants', etc.. Line v. Lyon, 4 McCrarv 145, 861 Merchant's' Nat. Bk. v. Good, 21 W. Va. 455, 929 Meredith v. Santa Clara, etc.. Association, 56 Cal. 178, 856 INIeriam v. Rundlett, 13 Pick. (30 Mass.) 511, 1016 Merriam v. Dovey, 25 Neb. 618 (41 N. W. R. 550), 436 Ixxxvi TABLE OF CASES. [Beferences are to pages, Vol. I, pp Merriam v. Sewall, 8 Gray (74 Mass.) 316, 1023 Jilerriam v. Whittemore, 5 Gray 316, 708 Merriam v. Woodcock, 104 Mass. 326, 749 Merrick's Estate, 5 Watts & S. 9, 1070 Merrill v. New England Ins. Co., 103 Mass. 245, 934 Merrill v. Stowe, (Me.) 3 Atl. R. 649, 808 Merrill v. Tobin, 82 Iowa 529 (48 N. W. R. 1044), 492, 883 Merriman v. Barker, 121 Ind. 72 (22 N. E. R. 992), 1063 Merritt v. Campbell, 47 Cal. 542, 146 Merritt v. Morse, 108 Mass. 270, 832 Merriweather v. Block, 31 Mo. App. 170, 1023 Merscheim v. Musical M. P.Union, 55 Hun 608 (8 N. Y. S. 702), 704 Mervine v. Parker, 18 Ala. 241, 399, 401 Messenger v. N. E. M. Life Ins. Co., 59 Fed. R. 416, 157 Metcalf V. Gilmore, 63 N. H. 174, 55 Metcalf V. Smith, 40 Mo. 572, 1102 Metcalfe v. Pulvertoft, 2 Vesey & Bearne 200, 1085 Methard v. State, 19 O. St. 363, 1249 Methodist Churches v. Barker, 18 N. Y. 463, 1135 Metropolitan Ry. Co., In re, 58 Hun 563 (12 N. Y. Suppl. 859), 111 Meux V. Anthony, 11 Ark. (6 Eng.) 411, 1085 Meux V. Maltby, 2 Swanton's Ch. 276, 1004 Mey V. Gulliman, 105 111. 272, 158 Meyers v. Hill, 46 Pa. St. 9, 464, 832 Miami County National Bank v. Barkalow, 63 Kan. 68 (35 Pac. R. 842, 100 Michan v. Wyatt, 21 Ala. 813, 1021 Middleton v. Kansas City, etc., R. Co., 62 Mo. 579, 1131 Middletown Mfg. Co. v. Phila- delphia, etc., R. Co., 145 Pa. St. 187 (22 Atl. R. 748), 198 Midland Railway Co. v. Martin, (1893) 2 Q. B. 174, 225 Miles V. Caldwell, 2 Wall. 35, 832 Miles V. Craig, 6 La. Ann. 753, 956 Miles V. Wingate, 6 Ind. 458, 607 Millard v. Missouri, K. & I. R. R. Co.,20Hun(27N.Y. Supr.)191, 237 Millard v. Missouri, etc., Co., 86 N. Y. 441, 337 Millcreek Township v. Reed, 29 Pa. St. 195, 1023 . 1-624, Vol. 11, pp. 626-1335.2 Mill Dam Foundry v. Hovey, 21 Pick. 417, 445 Miller v. Blackett, 47 Fed. R. 547, 1191 Miller V. Boss, 23 N.Brunswick 439, 235 Miller v. Covert, 1 Wend. 487, 231 Miller v. Foster, 76 Tex. 479 (13 S. W. R.529), 990 Miller v. Kershaw, Bailey's Eq. 479, 1103 Miller v. Liggett and Myers To- bacco Co., 2 McCreary 375, 1053 Miller v. Manice, 6 Hill 114, 607 Miller v. McGuckin, 15 Abb. N. C. 204, 169 Miller v. Miller, 150 Mass. IH (22 N. E. R. 765), 714 Miller v. Rhoades, 20 O. St. 494, 1178 Miller v. Sherry, 2 Wall. (69U.S.) 237, 1107 Miller v. State, 8 Ind. 325, 1274 Miller v. Thayer, 74 Cal. 351 {16 Pac. R. 187), 664 Miller v. Union Switch and Signal Co., 59 Hun (66 N. Y. Supr.) 624 (13 N. Y. Suppl. 711), 316 Miller v. White, 60 N. Y. 137, 995, 997 Milligan v. Browarsky, 147 Pa. St. 155 (23 Atl. R. 398), 304 Millikan v. City of Lafayette, 118 Ind. 323 (20 N. E. R. 847), 599 Milliken v. Whitehouse, 49 Me. 527, 995 MilHkin v. Smoot, Tex. (12 S. W. R. 59), 388 Mills V. Pettigrew, 45 Kan. 573 (26 Pac. R. 33), 159 Mills V. Traylor, 30 Tex. 7, 1078 Mills V. Witherington, 3 Dev. and Bat. Law 433, 379 Mims V. West, 38 Ga. 18 (95 Am. D. 379), 1118 Mimnaugh v. Partlin, 67 Mich. 391 (34 N. W. R. 717), 425 Miner v. Clark, 15 Wend. 425, 1176 Miner v. Medbury, 7 Wis. 100, 1324 Minor v. Walter, 17 Mass. 237, 507, 509 Misir Raghobardial v. Rajah Sheo Baskh Singh, L. R. 9 Indian App. Cas. 197, 29, 69 Missouri Pac. R. Co. v. Levy, 7 Mo. App. 601, 760 Missouri Pac. Ry. Co. v. Scam- mon, 41 Kan. 521(21 Pac. R. 590), 326 Missouri Pacific R. Co. v. Twiss, 35 Neb. 267 (53 N. W. R. 76), 1171 Mitchell v. Brewster, 28 111. 163, 1062 Mitchell V. Chisholm, (Minn.) 58 N. W. R. 873, 136 TABLE OF CASES. Ixxxvii [Seferences are to pages, Vol. I, pp Mitchell V. Cook, 29 Barb. 243, 166 Mitchell V. French, 100 Ind. 334, 880 Mitchell V. Gillaspie, 25 Ga. 346, 869 Mitchell V. Insley, 33 Kan. 654 (7 Pac.R. 201), 553 Mitchell V. Jenkins, 5 B. & Adol. 594, 80 Mitchell V. Libbey, 33 :\Ie. 74, 1067 Mitchell V. Metropolitan Elevated Ry. Co., 56 Hun (63 N.Y.Supr.) 54c, 1001 Mitchell V. Mitchell, 6 Md. 224, 1325 Mitchell V. Rainev, 3 Dev. & Bat. Law 61, 1118 Mitchell V. Robertson, 15 Ala. 412, 497 Mitchell V. Sanford, 11 Ala. 695, 490 Mitchell V. State, 42 O. St. 383, 1214 Mixon V. State, 55 Ala. 129 (28 Am, R. 6951, 1283 Moale V. Hollins, 11 Gill & J. 11 (33 Am. D. 684), 1063 Mobaruck Hosseinv.SheoGobind, 18 W. R. 61, _ 183 Mobile Ins. Co. v. Columbia and Greenville R. Co., S. C. (19 S. E. R. 858), 259 Mobin Chunder v. Mookta Soon- duree Debee, 7 Bombay L. R. App. 38, 1123 Moch V. Garthwaite, 11 La. Ann. 287, 313 Modhusudun Shah v. Brae, I. L. R. 16 Calcutta 300, 522 Motizooddeen v. Amooddeen, 23 W. R. 58, 190 Mohan Lai v. Bilaso, Indian L. R. 14 Allahabad 512, 286 Mohan Lai v. Ram Dial, I. L. R. 2 Allahabad 843, 188 Mohima Chundra v. Asradha Cas- sia, 15 Bengal L. R. 251, 783 Mohr v. Tulip, 44 Wis. 274, 1309 Mohubut Mundul v. Shoorendre Nath Rov, 4 W. R. S. C. C. R. 20, 271 Molton V.' Miller. 3 Hawks (N. C.) 490, ' 933 Momtazooddeen v. Rajcoomar, 15 Bengal L. R. 408, 289 Momtazuddin Malaomed v. Raj Koomer Das, 14 Bengal L. R. 408, 21 Monarque v. Monarque, 80 N. Y. 320, 975, 987 Moni Rov v. Raj Runsi Koer, 25 W. R. "393. 64 Monks v. McGradv, 71 Tex. 134 (8 S. W. R. 617),' 705 Monohur Lall v. Gouri Sunkur, I. L. R. 9 Calcutta 283, 278 . 1-624, Vol. II, pp. 625-1335.} JNIontgomery v. Clark, 2 Atk. 378, 74 Montgomery v. Gilmer, 33 Ala. iier 1317 Montgomery v. Vickerv, 110 Ind. 211 (11 X. E. R. 38,1," 933, 1054 Montsomerv Iron Works v. Smith, 98 Ala. 644 ( 13 S. R. 525;, 255 Montrose v. Wanamaker, 134 N. Y. 590 (31 N. E. R. 252), 1330 Mon Mohun Sirkar v. Secretary of State, I. L. R. 17 Calcutta968, 340 Moodv V. State, 84 Ind. 433, 330 Moom'ey v. Mass, 22 Iowa 380 (92 Am. b. 395), 479 Moore v. Alexander, 96 N. C. 34 (1 S. E. R. 536), 1140 Moore v. Barclay, 23 Ala. 739, 1307 Moore v. Citv of Albanv, 98 N. Y. 396, ' ' 1149 ^loore V. Davidson, 22 S. C. 92, 1320 Moore v. Dunn, 41 O. St. 62, 661 Moore v. Felkel, 7 Fla. 44, 948 Moore v. Garner, 109 N. C. 157, (13S. E. R. 768), 99 Moore v. Kelley, 47 Ark. 219 (1 S. W. R. 97), 486 Moore v. People, 14 How. (55 U. g \ 1Q QgQ Moore v. Rogers, 19 111. 347, 1062 Moore v. State, 59 Miss. 25, 1255 Moore v. State, 114 Ind. 414 (16 N. E. Rep. 836) 246 ]Moore v. State, 32 Tex. Crim. 405 (25 S. W. Rep. 1120), 1219 Moore v. State, 71 Ala. 307, 1218, 1221 Moore v. Williams, 132 111. 589 (24 X. E. Rep. 619) 126 Moottoo Yijava v. Katama Natch- iar, 11 M. I. A. 73, 402 Moran v. Mansur, 63 N. H. 377, 811 Moran v. Plankinton, 64 Mo. 337, 208 Moran v. Vi-edenburgh, Hill & Denio 392. 1063 Morch V. Raubitschek, 159 Pa. St. 559 (28 Atl. Rep. 369), 958 Morev v. Commonwealth, 108 Mass. 433, 1209 Morgan v. Burr, 58 N. H. 470, 606, 607 Morgan v. Chicago, etc., Ry. Co., 83 Wis. 348, 170. 292 Morgan v. Muldoon, 82 Ind. 347, 1177, 1180 Morgan v. Skidmore, 55 Barb. 263, 385 Morgan v.Skidmore,3Abb.N.C.92, 385 Morgan v. State, 34 Tex. 677, 1253 Morgan v. State, 12 Ind. 448, 1265 Morgan v. State, 13 Ind. 215, 1265 Morgan v. Winston, 2 Swan (32 Tenn.) 471, 1186 Ixxxviii TABLE OF CASES. [lieferences are to pages, Vol. I, pp Morin v. St. Paul U. & M. M. Co., 33 Minn. 176 (22 N. W. Eep. 251), 1036 Moro Abaji v. Narayan, Indian L. Rep. 11 Bombay 355, 515 Moro Raghunath v. Balaji Trim- bak, I. L. Rep. 13 Bombay 45, 302 Morrell v. Morgan, 65 Cal. 575 (4 Pac. Rep. 580), 661, 664 Morris v. Burgess, N. C. (21 S. E. Rep. 27), 490 Morris v. Curry, 41 Ark. 75, 399 Morris v. Floyd, 5 Barb. 130, 499 Morris v. Lucas, 8 Blackf. 9, 1186 Morris v. Webber, Moo. (K. B.) 225, 6 Morrisette v. State, 77 Ala. 71, 1262, 1263 Morrison v. Clark, 55 Tex. 437, 130 Morrison v. Fishel, 64 Ind. 177, 1066 Morrow v. State, 14 Lea 475, 1253 Morse v. Elms, 131 Mass. 15.1, 802 Morse v. Marshall, 97 Mass. 519, C19 glQ Morse v. Traynor, 26 Neb. 594 (42 N. W. R. 719), 1133 Morton v. Outland, 18 O. St. 383, 506 Morton v. Packwood, 3 La. Ann. 167, 1002 Mosby V. Wall, 23 Miss. 81 (55 Am. D. 71), 881 Moseley v. State, 33 Tex. 671, 1257 Mosbier v. Norton, 100 111. 63, 1302 Mosman v. Sanford, 52 Conn. 23, 76, 837 Moss V. Anglo-Egyptian, etc., Co., L. R. 1 Ch. App. 108, 245, 1327 Moss V. Asbbrooke, 12 Ark. 369, 658 Moss V. McCullough, 5 Hill 131, 1143 Mott V. Hazen, 27 Vt. 208, 1135 Moulton V. Libbev, 15 N. H. 480, 52 Mount V. Com., 2 Duval 93, 1263 Mount V. Manhattan Co., 43 N. J. Eq. 25 (9 Atl. R. 114), 1086 Mount V. Scholes, 120 111. 394 (11 N. E. R. 401), 1329 Mount V. State, 14 O. 295 (45 Am. D. 542), 1265 Mowry v. Davenport, 6 Lea 80, 922 Mueller v. Henning, 102 111. 646, 700 Muhammad Ali Khan v. Muham- mad Azamat Ali Khan, 1882 Punjab R. No. 64, 24 Muhammad Din v. Rahim Gul, 1886 Punjab R. No. 6, 215 Muhammad Salim v. Nabian Bibi, Indian L. R. 8 Allahabad 282, 176, 179, 189 . 1-624, Vol. II, pp. 625-1335.'] Mull V. McKnight, fe7 Ind. 525, 1326, 1329 Mullen V. Scott, 9 La. Ann. 173, 1141 Muluk Fuqeer Buksh v. Manohur Doss, 2 Allahabad H. C. R. 29, 338 Muncie National Bk. v. Brown, 112 Ind. 474 (14 N. E. R. 358), 288, 296 Munford v. Overseers of Poor, 2 Randolph (23 Va.) 313, 1141 Mumford v. State, 39 Miss. 558, 1259 Mungul Pershad Dichit v. Grija Kant Lahiri, L. R. 8 I. App. 123, 105 Munn v. Shannon, 86 la. 363 (53 N. W. R. 263), 200 Munro v. Jeter, 24 S. C. 29, 380 Munro v. Meech, 94 Mich, 596 (54N.W. R. 290), 843 Munroe v. Luke, 19 Pick. (36 Mass.) 39. 1192 Munson v. Munson, 30 Conn. 425, 162 Murdock v. Brooks, 38 Cal. 596, 1135 Murdock v. Gaskill, 8 Baxter 22, 658 Murphy v. Com., 23 Grat. (64 Va.) 960, 1219 Murphy v. Orr, 32 111. 489, 1326, 1329 Murphy v. State, 25 Neb. 807 (41 N. W. R. 792), 1232, 1233 Murphy v. State, 7 Coldw. 516, 1292 Murray v. Aiken, etc., Co., 39 S. C. 457 (18 S. E. R. 5) , 1319 Murray v. Ballou, 1 Johns. Ch. 566, 1102 Murray v. Blachford, 1 Wend. 583 (19 Am. D. 537), 1102 Murray v. Green, 64 Cal. 363 (28 Pac.'R. 118), 376 Murray v. Lovejov, 2 Clifford 191, 1053 Murreil v. Smith, 51 Ala. 301, 477 Mussumat v. Mussumat, 8 Suth. W. R. 175, 29, 69 Mussey v. Bates, 65 Vt. 449 (27 Atl. 'R. 1671, 356 Muttu Chetti v. Muttan Chetti, I. L. R. 4 Madras 296, 211 Muttukumarappa v. Arumuga, I. L. R. 7 Madras 145 547 Mutual Life Ins. Co. v. Newton, 50 N. J. L. 571 (14 Atl. R. 756), 874 Mutual Benefit Life Ins. Co. v. Tisdale, 91 U. S. 238, 1031 Myers v. County of Johnson, 14 Iowa 47, 111 Meyers v. Kingston Coal Co., 126 Pa. St. 582 (17 Atl. R. 891), 695 Mynning y. Detroit, etc., R. Co. 67 :\Iich. 677 (35 N. W. R. 811), 1317 Myrick v. Selden, 36 Barb. 15, 1113 TABLE OF CASES. Ixxxix [Beferences are to pages, Vol. I, pp N Naftzger v. Gregg, 99 Cal. 83 (33 Pac. R. 757), 126 Nagathat v. Ponnusami, Indian L. R. 13 Madras 44, 284 Xahomed Salim v. Nabian Bibi, I. L. R. 8 Allahabad 285, 16 Xakuapa, Estate of, In re, 3 Ha- waiian 400, 120 Nance v. State, 17 Tex. App. 385, 1252 Isarain Das v. Faiz Shah, 1889, ^ Punjab R. Xo. 157, 548, 774 Narain Dat v. Bhairo Bukhsh, I. L. R. 3 Allahabad 189, 405 Narasamma v. Kanava, Indian L. R. 4 Madras 134, " 545, 775 Narasinea Ran v. Venkatanara- yana,l. L. R. 16 Madras 481, 225 Naravan v. Pandurang, 12 Ben. H.'T. R. 148, 343 Naravan Gop v. Pandurang, I. L. R. "5 Bombay 685, 1009 Naro Balvant v. Ramchandra, In- dian L. R. 13 Bombav 326, 222, 281 Nash v.Hant, 116 Mass.' 237, 119, 120 Nashua, etc., Co. v. Boston, etc., Co., 51 Fed. R. 929 (2 C. C. A. 642, 5 r. S. A. 97), 1320 Nashville, Chattanooga & St. Louis Rv. Co. V. United States, 113 U. S.'261, 258 Nathans v. Hope. 77 N. Y. 420, 326 Nathu Singh v. Rura, 16 Punjab R. 23, 61 National Bank v. Hansee, 15 Abb. N. C. 488, 100 National Exchange Bank v. Mc- Loon, 73 Me. 498, 259 National Fire Ins. Co. v. McKav, 5 Abb. Pr. N. S. 445, " 938 National Stock Yards v. Wisarins Ferrv Co., 112 111. 384, "" 696 Nave V. Adams, 107 Mo. 414 (17 S. W. R. 958, 28 Am. St. R. 421), 656, 1122 114 156 o.q.q Nave V. Wilson, 33 Ind. 294, Neafie v. Neafie, 7 Johns. Ch. 1 (11 Am. D.380), Neale v. Ellis, 1 D. & L. 163, Near v. Donnellv, 93 Mich. 460 (83N. W. R. 616), 272 Ned V. State, 7 Port. 187, 1286 Needham v. Gillaspy, 49 Ind. 245, 662 Neeson v. Citv of Trov, 29 Hun (36 N. Y. Supr.) 173," 1021 Nehal Sinsrh v. Chunda Singh, 1890 Punjab R. No. 140, 578 1-624, Vol. II, pp. 625-1335.1 Neil v. Tolman, 12 Ore. 289 (7 Pac. R. 103), 821 Nelson v. Bamett, — Mo. — (27 S. W. R. 520), 409 Nelson v. Bevins, 19 Neb. 715 (28 N. W. R. 331), 401 Nelson v. Conch, 15 C.B. (N. S.) 99, 1328 Nelson v. Nelson, 117 Pa. St. 278 (11 Atl. R. 61>, 698 Nemettv v. Navlor, 100 N. Y. 562 (3N.E. R. 497), 422 Nesbit V. Riverside Independent District, 144 U. S. 610, 238, 526 Nesbit V. Independent School Dis- trict, 25 Fed. R. 635, 526 Nettleton v. Beach, 107 Mass. 499, 490 Nevill V.Matthews, Walker( Miss.) 377, 159 Newberry v. Blatchford, 106 111. 584, 1320 Newby v. Caldwell, 54 Iowa 102 i6N. W. R. 154), 419 Newell V. Carpenter, 118 Mass. 411, 824 New Eng. Bank v. Lewis, 8 Pick. 113, 196 Newington v. Levy, L. R. 6 C. P. 180, 153, 217 New Jersev Franklinite Co. v. Ames, 12'N. J. Eq. 507, 1194 Newman V. Chapman, 2 Randolph 93 , 14 Am. D. 766), 1083, 1103 New Orleans, etc., Co. v. Citv of New Orleans, 14 Fed. R. 373, 614 Newport and Cin. Bridge Co. v. Douglass, 12 Bush (75 Kv.) 673. 382 Newson v. State, 2 Ga. 60, 1257 Newton v. Earl of Egmont, 5 Sim- ons 130, 1005, 1008 Newton v. Hook, 48 N. Y. 676, 537 New York Ins. Co. v. Clemmitt, (77 Ya. 366 1 407 New York Fireman Ins. Co. v. De Wolf, 2 Cowen 56, 1047 New York, etc., R. Co., v. Mc- Henry, 17 Fed. R. 414, 96 New York, etc., Telephone Co. v. Metropolitan, etc., Co.. 81 Hun 453 (31 N. Y. Supl. 213), 101 Nichols V. Burton,5 Bush (68 Ky.) 320, 1063 Nichols V. Campbell, 10 Gratt. (51 Ya.560s 1107 Nichols V. Day, 32 N. H. 133 (64 Am. D. 358), 930 Nichols V. Dibrell. 61 Tex. 539, 472 Nichols V. Hail. 5 Neb. 194, 127 Nichols V. MacLean, 101 N. Y. 526 (5 N. E. Rep. 347), 1151 xc TABLE OF CASES. lEeferences are to pages, Vol. I, pp Nichols V. Marsh, 61 Mich. 509 (28 N. W. Rep. 699), 380 Nichols V. Murphy, 36 111. App. 205, 757 Nichols V. Stevens, (Mo.) (25 S. W. Rep. 578), 996 Nichols V. Levy, 5 Wall. 433, 687 Nickelson v. Ingram, 24 Tex. 630, 661 Nickerson v, Rockwell, 90 111. 460, 321, 326 Nicklaus v. Roach, 3 Ind. 78, 1062 Nickless v. Pearson, 126 Ind. 477 (26 N. E. Rep. 478), 662,948,1302 Nilikant Banerji v. Suresh Chan- dra, Indian L. Rep. 12 Calcutta 414, 1120 Nill V. Comparet, 79 Am. D. 411, 123, 126 Nil Money Singh v. Heera Lall Dass, Indian L. R. 7 Calcutta 23, 121 Nilo Ramchandra v. Govind Bal- lal, I. L. R. 10 Bombay 24, 214 Nilvaru v. Nilvaru, I. L. R. 6 Bom- bay 110, 17, 124 Nims V. Vaughn, 40 Mich. 356, 429 Nirman Singh v. Phulman Singh, I. L. R. 4 Allahabad 65, 216 Nivin v. Stevens, 5 Harrington 272, 813 Nobin Chunder v. Nim Chand, 17 W. R. 191, 574 Nodine v. Greenfield, 7 Paige 544, 970 Noel v. Karper, 53 Pa. St. 97, 1039 Nolan V. State, 55 Ga. 521, 1274 Nono Singh v. Anand Singh, In- dian L. R. 12 Calcutta 294, 227, 286 Noonan v. Orton, 27 Wis. 300 1320 Norfolk v. Am. Steam Gas Co., 108 Mass. 404, 832 Norris v. Amos, 15 Ind. 365, 1328 Norris v. Hall, 18 Me. 332, 1016 Norris V. He, 152 111. 90 (38 N. E. R. 762), 1110 Norris v. Mersereau, 74 Mich. 687 .42N. W. R. 153), 1141 North V. Mudge, 13 Iowa 496 (81 Am. D. 441), 1062 North Bank v. Brown, 50 Me. 214, 88 North Vernon, City of, v. Voegler, 103 Ind. 314 (2 N. E. R. 821), 268 Northern Bank v. Deckebach, 83 Ky. 154, 1087 Northern Pac. R. Co. v. St. Paul, etc., R. Co., 47 Fed. R. 536, 168 North Muskegon v. Clark, 62 Fed. R. 694, 661, 664 Northwestern, etc.R. Co. v. Fraz- ier, 25 Neb. 42 (40 N. W. R. 604) , 254 1-624, Vol. II, pp. 625-1335.^ Northwestern Brewing Co. v. Manion, 145 111. 182 (34 N. E. R. 50), 732 Norton v. Birge, 35 Conn. 250, 1107 Norton v. Bohart, 105 Mo. 615 (16 S. W. R. 598), 193 Norton v. Doherty, 3 Gray 372 (63 Am. D. 758), 604, 872 Norton v. Huntoom, 43 Kan. 275 (22 Pac. R. 565), 1302 Norton v. Huxlev, 13 Gray 285, 878 Norton v. Moshier, 114 111. 146, 1316 Norton v. Wallace, 1 Rich. Law 507, 1137 Norvell v. Lessueur, 33 Gratt. 222, 653 Norwood v. Kirby, 70 Ala. 397, 433 Nowak V. Knight, 44 Minn. 241 (46 N. W. R. 348), 941 Noyes v. Evans, 6 Vt. 628 (27 Am. D. 579), 1333 Noves V. Kern, 94 111. 521, 695 Nuffur Merdha v. Ram Lall, 15 W. R. 308, 1120 Nund Lall v. Aboo Mahomed, I. L. R. 5 Calcutta 597, 282 Nundo Lall v. Bidhoo, I. L. R. 13 Calcutta, 17, 545 Nur Muhammad v. Jamun, 1890 Punjab R. No. 153, 20 Nympsfield v. Woodchester, 2 Strange 1172 (A. D. 1743), 1045 O'Beirne v. Lloyd, 43 N. Y. 248, 231 Obhoy Churn v. Bhoobun Mohun, 12 W. R. 524, 574 O'Brian v. Com., 1 Am. Cr. R. 520, 1284 O'Brian v. Browning, 49 How. Pr. 109, 999 O'Brien v. Browning, 11 Hun (18 N. Y. Supr.) 179, 999 O'Brien v. Mayor, 28 Hun (35 N. Y. Supr.) 250, 365 O'Brien v. Moffitt, 133 Ind. 660 (33 N. E. R. 616), 482 O'Brien v. Putney, 55 Iowa 292 (7 N. W. R. 615), 1110 O'Brien v. State, 91 Ala. 25 (— S. R. 560), 1228 Ocean Ins. Co. v. Francis, 2 Wend. 64, 1047 Ocean Steam Navigation Co. v. Compania Transatlantica Es- panola, — N. Y. — (39 N, E. R. 360), 1174 TABLE OF CASES. xci \Beferences are to pages, Vol. I, P2). 1-624, Vol. II, pp. 625-1335.'\ Ocean Steam Navigation Co. v. Compania Transatlantica Es- panola, 134 N. Y. 461 (31 N. E. R. 987 ; 30 A. St. R. 685), 1164 Ochiltree v. Chicago, etc., R. Co. (Iowa), 62 N. W. R. 11, 579 O'Connor v. Irvine, 74 Cal. 435 (16 Pac. R. 236), 687 O'Connor v. N. York, etc., Co., 28 N. Y. S. 544 (8 Misc. R. 243), 572 O'Connor v. State, 9 Fla. 215, 1270 O'Connor v. State, 28 Tex. App. 288 (13 S. W. R. 14), 1296 O'Connor v. Varney, 10 Gray 67 (Mass.) 231, 439 O'Connor v. Walter, 37 Neb. 267 (55 N. W. R. 867), 474 Odom v. Beverly 32 S. C. 107 (10 S. E. R. 835), 559 O'Donohue v. Hendrix, 17 Neb. 287 (22 N. W. R. 548), 1302 O'Drian v. Com., 6 Bush 563, 1284 Oetgen v. Ross, 54 111. 79, 464 Oetgen v. Ross, 47 111. 142 (95 Am. D. 468), 1072,1092 Ofiutt V. Offutt, 2 H. & Gill 178, 172 Offutt V. John, 8 Mo. 120 (40 Am. D. 125), 607, 1188 O'Fowke V. Hadcock, 114 N. Y. 541 (22N. E. R. 33), 653 Oglesby V. Attrill, 20 Fed. R.570, 688 Ogsbury v. LaFarge, 2 N. Y. 113, 159 OnSara V. McDonnel, 93 U. S.150, 983 Ohio, etc., R. Co. v. Hill. 7 Ind. App. 255 (34 N. E. R. 646), 1317 Okhoy Coomarv. Mahatap Chun- der I. L. R. 5 Calcutta 24, 221 Olathe v. Thomas, 26 Kan, 233, 1236 Olcott V. Little, 9 N. H. 259 (32 Am. D. 357), 1063 Oldham v. Mclver, 49 Tex. 556, 49 Oldham v. Stephens, 45 Kan. 369 (25 Pac. R. 863), 919 O'Leary v. Snediker, 16 Ind. 404, 296 Oleson v. Merrihaw, 45 Wis. 397, 162, 196, 197 Oleson V. State, 20 Wis. 58, 1229 Oliver v. Holt, 11 Ala. 574 (46 Am. 228), 228 Olmstead v. Bach, 78 Md. (27 Atl. R. 501\ 368, 370 Olmstead v. Bach, (Md.) (25 Atl. R. 343), Omaha, etc., R. Co. v. O'Neill, 81 la. 463 (46N. W.R. 1100), Omaha & R. V. R. Co. v. Standen, 22 Neb. 343 ^35 N. W. R. 183), O'Neal V. Brown, 21 Ala. 482, O'Neil V. Percival, 25 Fla. 118 (5 S. R. 809), 191 369 914 393 262 Ordinary v. Condy, 2 Hill's Law 313, 1137 Oregon Ry. Co. v. Oregon Ry. & Nav. Co., 28 Fed. R. 505, 528 Oregonian Rv. Co. v. Oregon, etc., Co., 27 Fed. R. 277, 669 O'Reilly v. Nicholson, 45 Mo.160, 1085 Orendorff v. Utz, 48 Md. 298, 259 Orr v. Mercer County, etc., Ins. Co., 114 Pa. St. 387 (6 Atl. R. 6961 153, 538 Orthwein v. Thomas, — 111. — (1 N. E. R. 564), 1074 Osage City Bank v.Jones, 51 Kan. 379 (32 Pac. R. 1096), 591 Osborne v. Atkins, 6 Gray (72 Mass.) 423, 392 Osborne & Co. v. Williams, 39 Minn. 353 (40 N. W. R. 165), 432 Osbourn v. Fallows, 1 Russ & M. 741, 978 Osgood v. Manhattan Co., 3 Cow. 612, 929 Osterhout v.Roberts,8 Cowen 43, 1068 Osterhout v. Shoemaker, 3 Hill 513, 1039 Otago, etc.. Investment Co. v. Burns, 2 New Z. Ct. of App. 551, 70 Ottawa Gas Co. v. Graham, 28 111. 73, 266 Oursler v. Baltimore, etc., R. Co., 60 Md. 358, 655 Outramv. Morewood, 3 East 346, 513, 518, 535, 810, 812, 813 Overstreet v. Root, 84 Tex. 26 (19 S. W. R. 298), 382 Overton v. Rogers, 99 Ind. 595, 102 Overton v. Searcv, Cooke (Tenn.) 36 (5 Am. D. 665), 86 Owen v. Boerum, 23 Barb. 187, 236 Owens V. Link, 48 Mo. App. 534, 549 Owens V. Rawleigh, 6 Bush 656, 800 Owners of Steamboat Farmer v. McCraw, 26 Ala. 189 (62 Am. D. 718), 954, 1331 Pace V. Dossev, 1 Stew. 20, 1329 Packard v. Hill, 7 Cow. 434, 1329 Packer v. People, 8 Colo. 361 (8 Pac. R. 564), 1292 Packet Company v. Sickles, 6 Wall. 580, ■ 861 Page V. Com., 27 Gratt. 954, 1297 Pase V. Com., 26 Gratt. (67 Va.) 9^43, 1232 Page V. Freeman, 19 Mo. 421, 1068 XCll TABLE OF CASES. {^Beferences are to pages, Vol. I, pp Pahlwan Singh v. Risal Singh, I. L. R. 4 Allahabad 55, 516 Paine v. Schenectady Ins. Co., 12 R. I. 440, 834 Paine v. State, 7 Black. 206, 130, 1329 Painter v. Hogue, 48 Iowa 426, 164 Palamal v. Maya, 1890 Punjab R. No. 146, 216, 548 Paland v. Chicago, etc., Co., 44 La. 1003 (11 S. R. 707], 1302 Palmer v. Great Western Ins. Co., 30 N. Y. Supplement 1044, 1122 Palmer v. Hayes, 112 Ind. 289 (13 N. E. R. 882), 150, 933, 1061 Palmer v. Hussey, 87 N. Y. 303, 818 Palmer v. Russell, 43 N. H. 625, 53 Palmer v. Sanger, 143 111. 34 (32 N. E. R. 390), 833 Palmer v. Temple, 9 Ad. & El. 508, 197 Palmer v. Temple, 1 Perry & Dev. 179, 197 Parchman v. State, 2 Tex. App. 228, 1252 Parbhu Lai v. Mylne, Indian L. R. 14 Calcutta 401, 1191 Pari Mai v. Vasanda Ram, 1877 Punjab R. No. 33, 900 Parker v. Davis, 8 Jones* Law 460, 1040 Parker v. Legett, 12 Rich. L. 198, 812, 832 Parker V. Leggett, 13 Rich. L. 171, 812 Parker v. Moore, 59 N. H. 454, 1078, 1131 Parker v. Obenchain, ''Ind.) 39 N. E. R. 869, 100 Parker v. Pomeroy, 2 Wis. 112, 1309 Parker v. Roberts, 63 N. H. 431, 432 Parker v. Scogin, 11 La. Ann. 629, 1153 Parker v. Shannon, 137 111. 376 (27 N. E. R. 525), 472 Parker v. Spencer, 61 Tex. 155, 662 Parker v. Straat, 39 Mo. App. 616, 1122 Parker v. Thompson, 3 Pick. 429, 831 Parkes v. Clift, 9 Lea (77 Tenn.) 524, 290 Parks V. Dunlap, 86 Cal. 189 (25 Pac. R. 916), 160 Parks V. Jackson, 11 Wend. 442 (25 Am. D. 656), 1094 Parks V. Moore, 13 Vt. 183 (37 Am. D. 589), 621 Parks V. Railroad Co., 33 Wis. 413, 254 Parks V. Richardson, 35 Mo. App. 192, 756 Parmenter v. Binkley, 28 O. St. 32, 479 Parnell v. Hahn, 61 Cal. 131, 139, 699 Parr v. State, 71 Md. 220 (17 Atl. R. 1020), 1137, 1140 Parrish v. Ferris, 2 Black 606, 701 1-624, Vol. II, pp. 625-1335.'] Parrott v. Hodgson, 46 111. App. 232, 475 Parry v. American Opera Co., 19 Abb. New Cases 269, 366 Parsons v. Hoyt, 24 Iowa 154, 1091 Parsons v. Riley, 33 W. Va. 464 (10 S. E. R. 806), 174 Parthasaradi v. Chinna Krishna, I. L. R. 5 Madras 309, 25 Partington, Ex parte, 13 M. & W. 679, 93 Parvati v. Kisansing, Indian L. R. 6 Bombay 569, 1121 Paschall v. Bullock, 80 N. C. 329, 413 Pasewalk v. Bollman, 29 Neb. 519 (45 N. W. R. 780, 26 Am. St. R. 399), 1184 Patrick v. Roach, 21 Tex. 251, 361 Patrick v. Shaffer, 94 N. Y. 423, 745 Pattaravy v. Audimula, 5 Madras H. C. R. 419, 223 Patten v. Chicago, etc., Co., 36 Wis. 413, 1323 Patterson v. Anderson, 40 Pa. St. 359, 1128 Patterson v. State, 70 Ind. 341, 1265 Patterson v. State, 91 Ala. 58 (8 S. R. 756), 969 Patterson v. Wold, 33 Fed. R. 791, 301 Pattie V. Wilson, 25 Kan. 326, 335 Pattison, Ex parte, 56 Miss. 161, 94 Pattison v. Jones, 27 Ind. 457, 889 Patton V. Hamner, 33 Ala 307 and 28 Ala. 618, 251 Patton V. Loughridge, 49 Iowa 218, 461 Paul V. Witman, 3 Watts & S. 407, 1178 Pave V. Waring, 76 N. Y. 463, 1097 Peake v. Baltimore & Ohio R. Co., 26 Fed. R. 495, 326 Peale v. Routh, 13 La. Ann. 254, 401 Pearce v. Jackson, 84 Tex. 515 (19 S. W. R. 690), 336 Pearson v. Darrington, 32 Ala. 227, 1308 Pearson v. Keedy, 6 B. Mon. (45 Ky.) 128 (43 Am. D. 160), 1116 Peaslee v. Staniford, Brayton 140, 1127 Peck V. State, 137 N. Y. 372(33N. E. R. 317 ; 33 Am. St. R. 738), 945 Peebles v. Reading, 8 S. & R. 484, 873 Pegram v. Isabell, 2 Hen. & M. 193, 925, 1024 Pelton v. Mott, 11 Vt. 148 (34 Am. D. 678), 150 Pence v. Armstrong, 95 Ind. 191, 297 Pence v. Uhl, 11 Neb. 320 (9 N. W. R. 40), 193 Peniston v. Somers, 15 La. Ann. 679, 772 TABLE OF CASES. XClll [Beferences are to pages, Vol. I, x*? Penouilh v. Abraham, 43 La. Ann. 214 (9 S. R. 36), G15 Pentz V. Kuester, 41 Mo. 447, 593 People V. Alibez, 49 Crl. 452 (1 Am. Cr. R. 345). 1234 People V. Allen, 1 Park. Cr. 145, 1247 People V. Apgar, 35 Cal. 389, 1215 People V. Barnie, 49 Cal. 342, 1291 People V. Barric, 49 Cal. 342, 1263 People V. Beaudiy, 91 Cal. 213 (27 Pac. R. 610), 1151 People V. Bebee, 1 Barb. 379, 96 People V. Bentlev, 77 Cal. 7 (18 Pac. R. 799), ' 1212 People V. Brady, 56 N. Y. 182, 93 People V. Burch,5 N. Y. C. R. 529, 1255 People V. Burtnett, 13 Abb. Pr. 8 (5 Park. 113), 93 People V. Cage, 48 Cal.323, 1257, 1286 People V. Carter, 119 N. Y. 557 (23 N. E. R. 926), 799 People V. Carty, 77 Cal. 213 (19 Pac. R. 490), 1216 People V. Casborus, 13 Johns. 351, 1259, 1263 People V. Cignarale, 110 N. Y. 23 (17 N. E. R. 135), 1217 People V. Crook, 10 Mich. 164, 1204 People V. Curtis, 76 Cal. 57 (17 Pac. R. 941) 1291 People V. Daw's, 3 Abb. Pr. 450, 1137 People V. Defoor, 100 Cal. 150 (34 Pac. R. 642), 1215 People V. Dolan, 51 Mich. 610 (17 N. W. R. 78, 4 Am. Cr. R. 308), 1272 People V. Donahue, 24 N. Y.Suppl. 437 (70 Hun 317), 1146 People V. Dowhng, 84 N. Y. 478, 1232 People V. Gardner, 62 Mich. 307 (29N. W. R.19), 1274 People V. Goldstein, 32 Cal. 432, 1258 People V. Goodwin, 18 Johns. 187 (1 Wheeler's Cr. C. 470), 1287 People V. Gordon, 99 Cal. 227 (33 Pac. R. 901), 1216 People V. Gordon, 40 Mich. 716 (3 Am. Cr. R. 26), 1263 People V. Greene, 100 Cal. 140 (34 Pac. R. 630), 1277 People V. Hall, 80 N. Y. 117, 86 People V. Hall, 104 N. Y. 170 (10 N. E. R. 135), 83 People V. Hamburg, 84 Cal. 468 (24 Pac. R. 298), 961 People V. Hardisson, 61 Cal. 378, 1263 People V. Harrison, 82 111. 84, 1062 People V. Helbing, 61 Cal. 620, 1263, 1291 People V. Higgins, 59 Cal. 357, 1276 . 1-624, Vol. II, pp. 625-1335.'] People V. HoUadav, 93Cal. 241 (29 Pac. R. 54, 27 Am. St. R. 186), 817, 954 People V. Holladav, 102 Cal. 661 (36 Pac. R. 927),' 1302 People V. Holladav, 5 Pac. R. 798, 655 People V. Horn, 70 Cal. 17 (11 Pac. R. 470), 1270 People V. Hughes, 41 Cal. 234, 1251 People V. Huuckeler, 48 Cal. 331 (1 Am. Cr. R. 507), 1220 People V. Hurlburt, 67 How. Pr. 362, 93 People V. James, 97 Cal. 400 (32 Pac. R. 317), 1278 People V. Johnson, 38 N.Y. 63 (97 Am. Dec. 770), 43, 543 People V. Johnson, 37 Barb. 602 (14 Abb. Pr. 416), 566 People V. Keefer, 65 Cal. 232 (3 Pac. R. 818), 1216 People V. Kenvon, 93 Mich. 19 (52 N. W. R. 1033), 955 People V. Knapp, 26 Mich. 112, 1216 People V. Krummer, 4 Park. Cr. R. 217, 1240 People V. Kuhn, 67 Mich. 463 (35 N. W. R. 88), 1265 People V. Leland, 25 N. Y. Suppl. 943 (56 N. Y. St. Rep. 73), 959 People V. Lowden, (Cal.) 8 Pac. R. 66, 486 People V. Majors, 65 Cal. 138 (3 Pac. R. 397, 52 Am. R. 295), 1234, 1235 People V. March, 6 Cal. 543, 1263 People V. McCloskey, 5 Park. Cr. 57, 1212 People V. M'Gowan, 17 Wend.386,1214 People V. McNealy, 17 Cal. 332, 1252 People V. Meakin, 133 N. Y. 214 (30 N. E. R. 828), 955 People V. Meakim, 8 N. Y. Cr. R. 308 (15N. Y. S. 917), 1249 People V. Mitchell, 100 Cal. 328 (34 Pac. R. 6981, 913 People V. :Murrav, 89 Mich. 276 (56 N. W. R. 995, 28 Am. St. R, 294), 1263 People V. Murray, 73 N. Y. 535, 1125 People V. Nichols, 3 Park. Cr. Rep. 579 1*^55 People V. Nv Sam Chung, 94 Cal. 304 (29 Pac. R. 642), 1218 People V. Olcott, 2 Johns. Cas. 301, 1292 People V. O'Learv, 77 Cal. 30 (18 Pac. Rep. 856, ' 1294, 1295 People V. Olwell, 28 Cal. 456, 1263, 1291 xciv TABLE OF CASES. [lieferences are to pages, Vol. I, pp. 1-624, Vol. II, pp. 625-1335.'] People V. Oreileus, 79 Cal. 178 (21 Pac. Rep. 724), 1252 People V. Palmer, 109 N. Y. 413 (5 N. Y. Crim. Rep. 101, 17 N. E. R. 213), 1217 People V. Parrow, 80 Mich. 567 (45 N. W. R. 514), 1212 People V. Peck, 4 N. Y. Cr. R. 148, 1240 People V. Pline, 61 Mich. 247 (28 N. W. R. 83), 1287 People V. Price, 74 Mich. 37 (41 N. W. R. 853), 1263 People V. Purcell, 16 N. Y. Suppl. 199 1220 People V. Richards, 5 N. Y. Cr. R. 355, 1201 People, V. Rochester, etc., R. R. Co., 76 N. Y. 294, 955 People V. Rohrs, 49 Hun (56 N. Y. Supr. 150), (1 N. Y. Suppl. 672, 16 N. Y. St. Rep. 782), 966 People V. Ross, 85 Cal. 383 (24 Pac. Rep. 789), 1282 People V. Sanders, 4 Park. Cr. R. 196 1219 People V. Schmidt, 64 Cal. 260 " (30 Pac. Rep. 814), 1268 People V. Sinell, 131 N. Y. 571 (39 N. E. R. 47), 1226 People V. Skidmore, 27 Cal. 287, 632 People V. SmalHng, 94 Cal. 112 (29 Pac. Rep. 421), 1278 People V. Smith, 93 Cal. 490 (29 Pac. Rep. 57 and 247), 954 People V. Smith, 57 Barb. 46, 1212 People V. Smith, 51 Barb. 360, 292 People V. Smyth, 28 Cal. 21, 1125 People V. Stephens, 51 How. Pr. 235, 661, 667 People V. Stephens, 62 Hun 548, 621 People V. Stephens, 79 Cal. 428 (21 Pac. R. 856), 1231 People V. Stevens, 13 Wend. 341, 955 People V. Supervisors, 20 Hun 196, 768 People V. Travers, 77 Cal. 176 (19 Pac. R. 268), 1291 People V, Van Heuren, 5 Park. Cr. R. 66, 1234 People v. Varnum, 53 Cal. 630, 1297 People v. Vilas, 36 N. Y. 459 (93 Am. D. 520), 192 People V. Warren, 109 N. Y. 615 (15 N. E. R. 880), 1218 People V. Warren, 1 Park. Cr. 338, 1234 People V. Webb, 38 Cal. 467, 1249 People V. White, 68 Mich. 648 (37 N. W. R. 34), 1263, 1296 People V. Woods, 84 Cal. 441 (23 Pac. R. 1119), 1203 People's, etc., Institution, Matter of, 10 Benedict 38, 429 People's Savings Bank v. Eberts, (Mich.) 55 N. W. R. 996, 700 Peoria Ins. Co. v. Perkins, 16 Mich. 380, 532 Pepper v. Donnelly, 87 Ky. 259, 768 Pepper v. Dunlap, 5 La. Ann. 200, 615 Percy v. Foote, 36 Conn. 102, 655 Periasami v. Tevar, 2 Calc.L.R. 81, 575 Perine v. Dunn, 4 Johns. Ch. 140, 156 Perkins v. Bragg, 39 Ind. 507, 474 Perkins v. Moore, 16 Ala. 9, 1136, 1329 Perkins v. Moore, 16 Ala. 17, 662, 667 Perkins v. Parker, 10 Allen 22, 843 Perkins v. Walker, 19 Vt. 144, 518, 802, 1328 Perry v. Dickerson, 7 Abb. New Cases 466, 252 Perry v. Dickerson, 85 N. Y. 345 (39 Am. R. 663), 368 Perry v. Harrington, 2 Mete. (43 Mass.) 368 (37 Am. D. 98), 331 Perry v. Lewis, 49 Miss. 443, 877 Perry v. Little Rock, etc., R. Co., 44 Ark. 383, 1302 Perry v. Meadowcraft, 10 Beavan 122, 1026 Perry v. McLendon, 62 Ga. 598, 94 Perry v. Mills, 76 Iowa 622, 316 Persse, In re, 1 Malloy 439, 1041 Porter v. Barclay, 18 O. St. 546, 1094 Peterman v.Huhng (31 Pa.St.432), 400, 464 Petersine v. Thomas, 28 O. St. 596, 458 Peterson v. Nehf , 80 111. 25, 1055 Peterson v. Weissbein, 75 Cal. 174 (16 Pac. R. 769), 665 Peterson v. Weissbein, 80 Cal. 33 (22 Pac. R. 56), 738 Petrie v. Nuttall, 11 Exch. 569, 963 Pettengill v. City of Yonkers, 1 N. Y. Suppl. 805 (15 N. Y. St. Re- porter 854), 1020 Petty v. Mays, 19 Fla. 652, 916 Powell V. State, 17 Tex.App.345, 1257 Peyton v. Spiers, 16 La. Ann. 135, 374 Pfennig v. Griffith, 29 Wis. 618, 862 Phelan v. Gardner, 43 Cal. 306, 560 Phelps v. Harris, 101 U. S. 370, 880 Philipowskiv.Spencer,63Tex.604,1329 Phillips v. Berick, 16 Johns. 136 (8 Am. D. 299), 833 Phillips V. Bossard, 35 Fed. R. 99, 207 Phillips V. Jamieson, 51 Mich. 153 (17 N. W. R. 318^ 679 PhilHps V. Lewis, 109 Ind. 62, 130 Phillips V. Lloyd, R. I. (25 Atl. R. 909), 426 PhilUps V. Moore, 100 U. S. 208, 1042 TABLE OF CASES. XCV {Beference.s are to images, Vol. I, j^jj. 1-624, Vol. II, pp. 625-1335.'\ Phillips V. People, 55 111. 429, 1205 Phillips V. People, 88 111. 160, 1259 Phillips V. Pullen, 45 N. J. Eq. 830 (18 Atl. R. 849), 689 Phillips v.Queen, (Ky.) 3 S. W. R. 146, 100 Phillips V. State, 85 Tenn. 551 (3 AV. R. 434), 1235 Phillips V. Thompson, 3 Stewart & Porter 369, 298 Phillips V. Winter, (Cal.) 37 Pac. R. 154, 488 Phillips v.Wormley, 58 Miss. 398, 157 Phillpotts V. Blasdell, 10 Nev. 19, 149 Philpottv. Brown, 16 Neb. 387 (20 N. W. R. 288), 168 Phosphate Sewage Co.v.Molleson, L. R. 4 Appeal Cases 801, 291 Phundo V. Jangi Nath, I. L. R. 15 Allahabad 327, 24, 579 Pickens v. Oliver, 32 Ala. 629, 1323 Pickett V. Bates, 3 La. Ann. 627, 922 Pickett V. Ford, 4 How. (5 Miss.) 246, 1170 Pickett V. Pipkin, 64 Ala. 520, 922 Pico V. Webster, 14 Cal. 202 (73 Am. D. 647), 1141 Picquet v. McKay, 2 Blackf. 465, 607 Piedmont Coal and Iron Co. v. Green, 3 W. Va. 54, 295 Piel V. Finck, 19 Mo. App. 338, 236 Pierce v. Hilton, (Cal.) 36 Pac. R. 595, 169 Pierce v. Kneeland, 9 Wis. 23, 103 Pierro v. St. Paul & N. P. R. Co., 37 Minn. 314 (34 N. W. R. 38), 390 Pierro v. St. Paul & Northern Pac. Ry. Co., 39 Minn. 451 (40 N. W. R. 520), 389 Pierson v. Catlin, 18 Vt. 77, 86 Pignolet V. Geer, 19 Abb. Pr. 264, 102 Pike V. McDonald, 32 Me. 418 (54 Am. D. 597), 414 Pillow V. King, 55 Ark. 633 (18 S. W. R. 764),' 882 Pirn V. Currell, 6 M. & W. 234, 925 Pine Lake Iron Co. v. Lafayette Car AVorks, 53 Fed. R. 853, 89 Pinney v. Barnes, 17 Conn. 420, 233, 426 Pinyan v. Berry, Ark. (12 S. AV. R. 241), 486 Pioneer Savings, etc., Co. v. Bartsch, 51 Minn. 474 (53N.W. R. 764), 586 Piper V. City of Boonville, 32 Mo. App. 138, 795 Pishaway v. Runnels, 71 Tex. 352 (9 S. W. R. 260), 430, 789 Pitkin V. Leavitt, 13 Vt. 379, 1179 Pitman v. Town of Albany, 34 N. H. 577, 582, 1024 Pitt V. Cobcroft, 2 N. S. AV. S. Ct. R. 314, 812 Pittapur Raja v. Buchi Sitayya, L. R. 12 I. App. 16, 513 Pittapur Raji v. Surj'a Rau, L. P. 12 I. App. 119, 220, 280 Pittman V. Chrisman, 59 Miss. 124, 229, 232, 364 Pitton V. Walter, 1 Str. 162, 120 Pittsburgh, etc., R. Co.'s Appeal, (Pa.) 4 Atl. R. 385, 76 Pittsburgh, Fort AVayne and Chi- cago R. Co. V. Reno, 123 111. 273 (14 N. E. R. 195), 1065 Pitts V. Fugate, 41 Mo. 405, 1178 Pittsford V. Chittenden, 68 Vt. 49 (3 Atl. R. 323), 759 Pizano v. State, 20 Tex. App. 139 (54 Am. R. 511), 1264 Plate V. N. Y., etc., R. Co., 37 N. Y. 472 (5 Tr. App. 165), 820 Platner v. Best, 11 Johns. 530, 335 Platz V. Burton, etc., Co., 23 N. Y. S. 385 (7 Misc. R. 473), 1318 Pleasants v. Clements, 2 Leigh 474, 880 Plicque v. Perret, 10 La. (19 O. S. 318) 198, 93 Plummer v. AVoodburne, 4 B. & C. 625, 1330 Poage V. State, 3 O. St. 229, 1284 Pochelu V. Kemper, 14 La. Ann. 308, 604 Pollard V. Railroad Co., 101 U. S. 223, 309 Pollitz V. Farmers' Loan and Trust Co., 53 Fed. R. 210, 1193 Pollock V. Cohen, 32 O. St. 514, 1320 Poole V. Dilworth, 26 AA^ A' a. 583, 660 Poole V. Seney, 70 la. 275 (24 N. AV. R. 520, 30 N. AV. R. 634), 126 Poor V. Darrah, 5 Hous. 394, 193 Poorman v. Mitchell, 48 Mo. 45, 103 Pope V. Durant, 26 la. 233, 737 Pope V. Frazee, 5 S. C. 269, 485 Pope V. Nance, 1 Stewart (Ala.) 354, 1180 Pope V. State, 63 Miss. 53, 1224 Porche v. Ledoux, 12 La. Ann. 350, 1017 Porter, Ex parte, 16 Tex. App. 321, 1267 Porter v. Bagby, 50 Kan. 412 (31 Pac. R. 1058), 940 Porter v. Cobb, 22 Hun (29 N. Y. Supr.) 278, 388 Porter v. Doe, 10 Ark. 186, 1311 Porter v. Kingsbury, 77 N. Y. 164, 661 Porter v. Morere, 30 La. Ann. 230, 310 XCVl TABLE OF CASES. {^Beferences are to pages, Vol. I, pp Porter v. Vaughn, 26 Vt. 624, 159 Porter v. Wagner, 36 O. St. 471, 886 Port Huron, etc., R. Co. v. Voor- hies, 50 Mich. 506 (15 N. W. R. 88"^^ 254 Portis'v. Hill, 30 Tex. 529 (98 Am. D. 481), 1117 Portland v. Richardson, 54 Me. 46 (89 Am. D. 720), 1178 Portland, etc., Co. v. Coulter, 23 Ore. 131 (31 Pac. R. 280), 1323 Portsmouth Savings Bk. v. Hart, 83 Mich. 646 (47 N. W. R. 595), 738 Post V. Mockall, 8 Bland's Ch. 486, 929 Post V. Pearson, 108 U. S. 418, 661 Post V. Smilie, 48 Vt. 185, 206 Poston V. Jones, 2 Dev. & Bat. Law 294, 803 Potter V. Baker, 19 N. H. 166, Potter V. Gates, 56 Hun (63 N. Y. Supr.) 639 (9 N. Y. Suppl. 87), 429 Potvin V. Denny Hotel Co., 9 Wash. 316 (— Pac. R. 320), 491 Poultney v. Sandgate, 35 Vt. 146, 760 Powell V. Campbell, 20 Nev. 232 (20 Pac. R. 156), 1112 Powell V. Dayton, etc., Co., 14 Ore. 22 (12 Pac. R. 665), 1302 Powell V. Rogers, 105 111. 318, • 1308 Powell V. State, 89 Ala. 172 (8 S. R. 109), 1221 Powell V. Williams, 14 Ala. 476 (48 Am. D. 105), 1087 Powers V. Chelsea Savings Bank, 129 Mass. 44, 694 Powers V. Davenport, 101 N. C. 286 (7 S. E. R. 747), 902 Powers V. Scholtens, 79 Mich. 299 (44 N. W. R. 613), 1072 Poyserv. Minors, 7 Q. B. D 336, 17 Pramada Dasi v. Lakhi Narain, Indian L. R. 12 Calcutta 63, 218, 290 Pranjivan v. Baju, I. L. R. 4 Bom- bay 34, 1091 Pratap Chandra v. Swarnamayi, 4 Bengal L. R. 113, 277, 339 Pratt V. Jones, 64 Tex. 694, 1035 Pray v. Hegeman, 98 N. Y. 351, 47 Preacher's Aid Society V.England, 106 111. 125, 173 Preble v. Board of Supervisors, 8 Biss. 358, 1118 Premanund Ram'v. Ram Churn, 20 W. R. 482, 899 Prentiss V. Holbrook,2 Mich. 372, 1128 Prescottv. Barnes, (Iowa) 1 N. W. R. 660, 727 Prescott v. Payne, 44 La. Ann. 650 (11 S. R. 140) 809 1-624, Vol. II, pp. 625-1335.'] Preslarv. Stall worth, 37 Ala. 402, 1182 Preston v. Fitch, 64 Hun (71 N. Y. Supr.) 636 (19 N. Y. Suppl. 849, 46 N. Y. St. Rep. 588), 934 Preston v. Rickets, 91 Mo. 320 (2 S. W. R. 793), 688 Preston v. Tubbin, IVern. 286, 1114 Prewittv. Kenton, 3 Bibb (6 Ky.) 280, 1187 Price, Matter of, 12 Hun 508, 93 Price v. Campbell, 5 Call 115, 407 Price v. Dewey, 11 Fed. 104, 688 Price V. Dewey, 6 Saw. 493, 685 Price V. Emerson, 14 La. Ann. 141, 611 Price V. Holman, 135 N. Y. 124 (32 N. E. R. 124), 319 Price V. Price, 23 Ala. 609, 1302 Price V. State, 19 Ohio 423, 1201 Price V. State, 96 Ala. 1 (11 S. R. 128), 1223 Priest V. Deaver, 22 Mo. App. 276, 259 Priest V. Wheelock, 58 111. 114, 96 Priestly v. Fernie, 3 Hurlstone & Coltman 977, 1132 Priestman v. Thomas, L. R. 9 Pro. Div. 70, 49 Priestman v. Thomas, L. R. 9 Pro. Div. 210, 49 Pritchard v. Farrar,116 Mass.213, 1178 Pritchard v. Woodruff,36 Ark. 196, 661 Probate Court v. Gale, 47 Vt. 473, 454 Proctor V. Cole, 104 Ind. 373 (3N. E. R. 106 and 4 N. E. R. 303), 958 Proctor V. Proctor, 105 N. C. 222 (10 S. E. R. 1036), 930 Prosunno Jumari Debya v. Golab Chand Raboo, L. R. 2 Indian Appeals 145, 1125 Proudfoot V. Lawrence, 9U. C. Q. B. 269, 335 Providence Institute v. Barr, 17 R. I. 131 (20 Atl. R. 245), 95 Pruitt V. Holly, 73 Ala. 369, 606 Puffer V. Graves, 26 N. H. 256, 1017 Pugh V. Holt, 27 Miss. 461, 156 Puncharam v. Krishna Ravi, Ap- peal No. 1271 of 1887, _ 621 Punnoo Singh v. Nirghin Singh, I. L. R. 7 Calcutta 298, 179, 180 Purcell V. Jaycox, 59 N. Y. 288, 402 Pursun Gopal v. Poornanund, 21 W. R. 272, 176, 178 Purumsookh v. Soobhan, 2 Agra 323, 285 Putali V. Tulja, I. L. R. 3 Bombay 223, 178 Puterbaugh v. Puterbaugh, 7 Ind. App. 280 (33 N. E. R. 808), 931 Putnam v. Clark, 34 N. J- Eq. 532, 86, 116 TABLE OF CASES, XCVll {^References are to pages,' Vol. I, pp Putt- V. Eawstern, 3 Mod. l'(T. Raym. 472, 2 Show. 211), 605 Q Quackenbush v. Ehle, 5 Barb. 469, 197 Quarles v. Kerr, 14 Gratt. (55 V.) 48, 485 Queen v. Leigh, 10 Ad. & El. 398, 924 Queen v. Morris, L. R. 1 Crown Cas. 90, 1237 Quick V. Brenner, 120 Ind. 364 (22N. E. R.326), 506 Quinby v. Strauss, 90 N. Y. 664, 606 Quinn v. Ohlerking, 37 111. App. 315, 359 Quinn v. Quinn, 16 Vt. 426, 962 Quintin v. Yard, 1 Eq. Cases Abridged 74, 1004 Quitzow V. State, 1 Tex. App. 47 (28 Am. R. 396), 1230 R Radford v. Folsom, 3 Fed. R. 199, 570 Radha Prasad Singh v. Lai Sahab Rai, I. L. R. 13 Allahabad 53, 175 Radhabai Anantrav, Indian L. R. 9 Bombay 198, _ 1125 Radhasvam v. Sibu, Indian L. R. 15 Calcutta 647, 1091 Radhia v. Beni, Indian L. R. 1 Allahabad 560, _ 899 Radhika v. Radhamani, Indian L. R. 7 Madras 96, 1097 Raehobar Dial v . Sheobaksh Singh, L. R. 9 Indian App. 197, 13 Ragland v. Calhoun, 36 Ala. 606, 1136 Rassdale v. Vicksburg, etc., R. Co., 62 Miss. 480, 167 Rahimbhov v. Turner, Indian L. R. 17 Bombay 341, 1124 Railroad, etc., Co. v. Blair, (X. Y.)39N. E. R. 962, 916 Railroad Companv v. National Bank, 102 V. S. 14, 1066 Railroad Co.v.Nolan, 48 N.Y.513, 1196 Raj Kishen v. Radha Madhub, 21 W. R. 349, 1121 Raj Kishen Moorerjee v. Radka Madhub Holdar, 21 W. R. 349, 1088 Raiah of Pittapur v. Sri, etc., L. R. 12 Indian App. 16, 1043 Rajah, etc.. v. Mussumut, etc., L. R. 12 Indian App. 23, 22, 29, 69 Rake v. Pope, 7 Ala. 161, 731, 833 G . 1-624, Vol. II, pp. 625-1335.'] Rakhal Dass v. Hira Motee Dasi, 22 W. R. 282, 783 Ralston v. Wood, 15 111. 159, 1136 Ramabhadra v. Jagannatha, In- dian L. R. 14 Madras 328, 341 Ramchandra v. Naravan, Indian L. R. 11 Bombay 216, 578 Ramchandra Bhimaji v. Abaji Parashram, 1886 Bombay P. J. 15, ■ 578 Ramchandra Jivaji v. Khatal Mahomed, Indian L. R. 10 Bombay 28, 175 Ram Charan v. Reazuddin, In- dian L. R. 10 Calcutta 856, 185 Ram Gobind v. Mungur Ram, 13 Calcutta L. R. 83, 181 Ramireddi v. Subbareddi, I. L. R. 12 Madras 500, 774 Rami Sami v. Vira Sami, 1880 Madras H. C. R. 277, 63 Ram Kirpal v. Rup Kuari, L. R. 11 Indian App. 37, 91, 105 Ram Krishna v. Vithal, I. L. R. 15 Bombay 89, 65 Ramlal v. Chhabnath, Indian L. R. 12 Allahabad 578, 16, 91, 110 Ram Lai v. Tula Ram, Indian L. R. 4 Allahabad 97, 23 Ram Narain v. Bisheshar Prasad, I. L. R. 10 Allahabad 411, 1009, 1010, 1127 Ramnath Rov v. Bhagbut, 3 W. R. Act 10, Rule 140, 177 Ramnath Rov v. Chunder Sekhur, 4 W. R. 50, 125 Ramsar v. Hamilton, 2 Kerr (N. B.) 511, 292 Ramsey County Building Society y. Lawton. 49 Minn. 362 (51 N. W. R. 1163), 315 Ram Sewak y. Nakched, I. L. R. 4 Allahabad 261, 222, 286 Ram Soondur v. Delanney, 20 W. R. 103, ■ 279 Ram Soondur v. Krishno Chun- der, 17 TT. R. 380, 318 Ramtanu v. Komal Lochan, 3 Bombay L. R. App. 37, 1123 Rand y. Gutter, 56 Me. 339, 1063 Rand y. Rand. 58 X. H. 536, 307 Randall y. Puff, 101 Cal. 82 (35 Pac. R. 440), 1087 Randle y. Carter, 62 Ala. 95, 929 930 933 Ranney y. Hieby, 12 Wis.'ei, 'l310 Rapeh-e y. Prince, 4 Hill 119 (40 Am! D. 267), 1185 Rarey y. Lee. 7 Ind. App. 518 (34 N. E. R. 749), 820 XCVlll TABLE OF CASES. \_Beferences ase to pages, Vol. I, pp Raridan v. Cent., etc., R. Co., 69 la. 527 (29 N. W. R. 599), 1309 Rathboue v. Hooney, 58 N.Y. 463, 949 Ravji Narayan v. Krishnaji, Bom- bay li. C. R. 139, 1102 Ray V. Yarnell, 118 Ind. 112 (20 N. E. R. 705), 1189 Read v. Allen, 58 Tex. 380, 1072 Read v. Allen, 56 Tex. 182, 1021, 1191 Read v. Allen, 56 Tex. 176, 1072 Read v. Brown, 22 Q. B. D. 131, 227 Reast V. Donald, 84 Tex. 648 (19 S. W. R. 795), 832 Re Christie, 5 Paige 242, 1039 Red V. Morris, 72 Tex. 554 (10 S. W. R. 681), 798 Redden v. Baker, 86 Ind. 191, 1023 Redden v. Metzger, 46 Kan. 285 (26 Am. St. R. 97, 26 Pac. R. 689), 334 Redden v. Tefft, 48 Kan. 302 (29 Pac R. 157) 92 Reddick v. Keesling,129 Ind. 128 (28 N. E. R. 316), 146 Redheimer v. Pyron, Spears' Eq. 134, 86 Redmond v. Coffin, 2 Dev. Eq, 437, 1002 Reed v. Douglas, 74 Iowa 244 (37 N. W. R. 181), 492 Reed v. Orton, (Pa. ) 6 Atl. R. 360, 1178 Reese v. State, 8 Ind. 416, 1286 Reeves v. Plough, 46 Ind. 350, 102 Reformed Protestant Dutch Church V. Brown, 54 Barb. 191, 316 Regina v. Blakemore, 2 Den. Cr. Cas. 410 (6 British Cr. Cas. 408, 21 L. J. S. M. C. 60), 1248 Regina V. Bingham, 2 New South Wales Law R. 90, 1209 Regina v. Brettel, 1 Car. & M. 606 (41 E. C. L. 331), 1230 Reg. V. Connell, 6 Cox Cr. C. 178, 1255 Reg. V. Douglass, 4 New South Wales S. C. 157, 1254 Regina v. Elrington, 9 Cox Cr. C. 86, 1220, 1222 Reg. V. Fogg, 3 N. S. W. S. C. R. 215, 1255 Regina v. Fontaine Moreau, 11 Ad. & El. N. S. (63 E. C. L. 1028), 964 Regina v. Hartington Middle Quarter. 4 El. & Bl. 780, 42, 761, 1045 Reg. V. Haughton, 1 El. & Bl. 501, 1248 Regina v. Hutchings, L. R. 6 Q. B. D. 300, 71 Regina v. Hutchins, L. R. 5 Q. B. D. 353, 71 l-624,]Vol. II, pp. 625-1335.'] Regina v. Miles, L. R. 24 Q. B. Div. 423, 1218, 1221 Regina v. Morris, 10 Cox Cr. C. 480, 1218 Reg. V. Smith, 34 U. C. Q. B. 552 (1 Am. Cr. R.511), 1255 Regina v. Tancock, 13 Cox Cr. C. 217, 1218 Reg. V. Vaux, 4 Coke 44 (1 Lead. Cr. Cas. 513), 1267 Regina v. Walker, 2 M. & Rob. 446, 1218, 1221 Regina v. Wye, 7 Ad. & El. 761 (34E. C. L. 399), 1046 Reich V. Cochran, 74 Hun (81 N. Y. Supr.) 551, 26 N. Y. S. 443, 57 N. Y. S. R. 159, 537 Reid V. Huston, 55 Ind. 173, 450 Reilly v. Bader, 50 Minn. 199 (52 W. R. 522), 506 Reinders v. Koppelmann, 68 Mo. 482, 985 Ilemington Paper Co. v. O'Dough- erty, 81 N. Y. 474, 554 Renick v. Ludington, 20 W. Va. 511, 1322 Renkert v. Elliott, 11 Lea (79 Tenn.)235, 1159 Ressequie v. Bvers, 52 Wis. 650, 423 Rex V. Catterall, 6 Maull & S. 83, 1045 Rex V. Garden, (cited) 20 How. St. Tr. 402, 8 Rex V. Inhabitants, 13 East 411, 1239 Rex V. Inhabitants of Ridgeley, 8 T. R. 620, 761 Rex V. Jennings, 1 Russ. Ry. 388, 1234 Rex V. Gates, 4 State Tr. 44, 609 Rex \ . Plant, 7 C. & P. 575, 1253 Rex V. Herefordshire, 1 B. & Ad. 672(20E. C. L. 644), 232 Rex V. Hinxworth, Cald. 42, 761 Rex V. Richardson, (cited) 20 How. St. Tr. 473, 9 Rex V. Rudgelv, 8 T. R. 620, 1045 Rex V. Sheen, 2 C. & P. 634, 1201 Rex V. St. Mary Lambeth, 6 T. R. 615, 761 Rex V. Sterling, (cited) 20 How. St. Tr. 473, 9 Rex V. Suddis, 1 East 306, 93 Rex v.Towcester, 4 Doug.240, 761,1045 Rex V. Warden of Fleet, C. A. Q. B. (12 Modern) 337, 962 Rex V. Vandercomb, 2 Leach Cr. C. 816, 1254 Rex V. Vincent, 1 Str. 481, 8 Rev V. Hartington, 4 El. & Bl. 780, 761 Reynolds v. Babcock, 60 Iowa 289, 787 Revnoldsv.Franklin,47 Minn. 145, 347 Reynolds v. Garner, 66 Barb. 310, 193 TABLE OF CASES. XCIX [^References are to pages, Vol. I, pp Eevnolds v. Hennessy, 17 R. I. 169 (23 Atl. R. 639), 156 Reynolds v. Lincoln, 71 Cal. 183 (12Pac. R. 449), 687 Reynolds v People, 83 111. 479, 1253 Reynolds v. Pittsburgh, Cincin- nati and St. Louis Rv. Co., 29 O. St. 602, ' 1065 Reynolds v. Reynolds, 24 Wend. 193 459 Reynolds v. State, 3 Ga. 53, 1257 Reynolds y. Sutliff, 71 Iowa 549 (32N. W. R. 502)^ 844 Rhoads y. City of ^Metropolis, 144 111. 580 (33 N. E. R. 1092), 618 Rhoards v. City of Metropolis, 36 111. App. 123, 795 Rhode y. Green, 26 Ind. 83, ^ 1187 Riayatullah Hhany. Xasir Khan, I." L. R. 6 Allahabad 616, 279 Rice V. Carey, 4 Ga. 558, 1308 Rice y. Garrett, 12 La. Ann. 755, 451 Rice y. King, 7 Johns. 20, 604 Rice V. Rice, — N. J. Eq. — (23 Atl. R. 946), 1031 Rice y. Rice, 14 B. JMon. (53 Ky.) 417, 1178 Richard v. Porter, 6 T. B. Mon. 1 , 927 Richardson y. City of Boston, 19 How. 263, 607 Richardson v. City of Boston. 24 How. (65 U. S.) 188, 962 Richardson y. Eagle Machine Works, 78 Ind. 422 (41 Am. R. 584), 368 Richardson y. Hadsall, 106 111. 476, 1082 Richardson v. Hobart, 1 Stewart 500 (18 Am. D. 70), 921 Richardson v. Jones, 16 Mo. 177, 737 Richardson y. Jones, 58 Ind. 240, 1328 Richardson y . Mellish, 3 Bing. 334, 835 Richardson y. Richards, 36 5linn. Ill (SON. W. R. 457), 1018 Richardson y. Watson, 23 Mo. 34, 737 Richardson y. White, 18 Cal. 102, 1085 Richmond, etc., R. R. Co. y. Tleed, 83 Ind. 9, 1308 Richter y. Fresno, etc., Co., 101 Cal. 582 (36 Pac. R. 412), 126 Richter y. Jerome, 123 XJ. S. 233 (8 Sup. Ct. Rep. 106), 1194, 1196 Riddle y. Baker, 13 Cal. 295, 1135 Rider y. Kelso, 53 Iowa 367 (5 N. W. R. 509), 1087 Ridgley y. Stillwell, 27 Mo. 128, 788 Rider v. Union India Rubber Co., 4 Bosw. 169, 800 Rider y. Union India Rubber Co., 28 N. Y. 379, 892 . 1-624, Vol. II, pp. 625-1335.'] Rigge y. Burbidge, 15 Meeson & Wellsby 598, 419 Riggs y. Pursell, 74 N. Y. 370, 97 Riker y. Hooper, 35 Vt. 457 (82 Am. D. 646), 965 Riley y. Hale, 158 Mass. 240 (33 X. E. R. 491 1 433 Riley y. McCord, 21 Mo. 285, 96 Rinard y. West, 92 Ind. 359, 1310 Rinker y. Bissell, 90 Ind. 375, 1194 Rippy V. Gant, 4 Ired. Eq. 443, 1040 Rislev y. Squire, 53 Barb. 280, 207 Ritchie y. Talcott, 31 N. Y. Sup- plement 196, 360 Payers y. Rivers, 65 Iowa 568 (22 X. AV. R. 679), 374 Riyerside Co. y. Townsend, 120 111. 9 (9 X. E. R. 65), 92 Roach y. Privett, 90 Ala. 391 (24 Am. St. R. 819, 7 S. R. 808), 429, 434 Roach y. Riyerside Water Co., 74 Cal. 263 (15 Pac. R. 776), 1085 Ro Bards y. Lamb, 89 Mo. 303 (1 S. W. R. 222), 407 Robert y. Weiler, 55 Miss. 249, 414 Roberts, Ex parte, 19 S. C. 150, 747 Roberts y. Cooper, 20 How. 467, 1302 Roberts y. Hamilton, 56 Iowa 683 (ION. W. R. 236), 600 Roberts y. Heim, 27 Ala. 678, 114 Roberts y. Johnson, 48 Tex. 133, 327 Roberts y. Lovejoy, 60 Tex. 253, 765 Roberts y. Xorris,'67 Ind. 386, 195 Roberts t. Robeson, 27 Ind. 454, 864 Roberte y. State, 14 Ga. 8 (58 Am. D. 528), 1213 Robertson y. Smith, 18 Johns. 459, 1062 Robertson V. Van Cleaye, 129 Ind. 217 (26N. E. R. 899), 1194 Robertson y. Wright, 17 Grat. 534, 1002 Robbins y. Chicago, 4 Wall. (71 U. S.) 658, 1170 Robbins y. Collier, 3 New Mex. 231 (5 Pac. R. 538), 697 Robbins v. Harrison, 31 Ala. 160, 233, 429 Robbins v. People, 95 III. 175, 956 Robins y. Crutchley, 2 Wilson 118 7 Robinson y. Allison, 97 Ala. 596 (12 S. R. 382 and 604), 704 Robinson y. Baskins, 53 Ark. 330 (14 S. W. R. 93), 1184 Robinson y. Boyd, — Tenn. — (23 S. W. R.72), 455 Robinson y. Com., 88 Ky. 386 (11 S. Vr. R. 210), 1270 Robinson y. Com., 32Gratt.866, 1269 TABLE OF CASES. \_Beferences are to pages, Vol. I, pp Robinson v. Crowninshield, 1 N. H. 76, 426 Robinson v. Crummer, 5 Gilman, 218, 433 Robinson v. Duleep Singh, L. R. 2 Ch. Div. 798, 773 Robinson v. Kruse, 29 Ark. 575, 801 Robinson v. Lane, 14 Sm. & M. 161, 837 Robinson v. Merchants', etc., Co., 16R. I. 217(19 Atl. R. 113), 192 Robinson v. Morse, 26 Vt. 392, 236 Robinson v. N. Y., etc., Ry. Co., 64 Hun 41 (18 N. Y. S. 728) (46 N. Y. S. R. 35), 618 Robinson v. Parks, 76 Md. 118, 692 Robinson v. Robinson, 39 Vt. 267, 827 Robinson v. State, 23 Tex. App. 315 (4 S. W. R. 904), 1293 Robinson v. State, 21 Tex. App. 160 (17 S. W. R. 632), 1217 Robinson V. Sutton, 2 A. K. Marsh. 304, 811 Robinson v. Walker, 81 Ala. 404 (1 S. R. 347), 477 Robinson v. Wiley, Hempstead, 38, 429 Robinson v. Wilkins, 74 Ga. 47, 694 Robinson v. Windham, 9 Porter 397, 869 Roby V. Eggers, 130 Ind. 415 (29 N. E. R. 365), 274, 335, 1060 Roby V. Rainsberger, 27 O. St. 674, 320 Rocco V. State, 37 Miss. 357, 1298 Rockwell V. Brown, 36 N. Y. 207, 322 Rockwell V. District Court, 17 Colo. 118 (29 Pac. R. 454) (31 Am. St. R. 265), 97 Rockwell V. Langley, 19 Pa. St. 502, 866 Rodgers v. Bell, 53 Ga. 94, 1073 Rodgers v. Levy, 36 Neb. 601 (54 N. W. R. 1080), 144 Rodman v. Devlin, 23 Hun (30 N. Y. Supr.)590, 258 Rodman v. Michigan, etc., R. Co., 59 Mich. 395 (26 N. W. R. 651), 661 Roe V. Roe, 52 Kan. 724 (35 Pac. R. 808), 307 Rogers, Ex parte, 10 Tex. App. 655, 1201 Rogers v.Higgins, 57 111. 244, 311, 313 Rogers v. Hoenig, 46 Wis. 361, 101 Rogers v. Holden, 13 111. 293, 83 Rogers v. Kimsey, 101 N. C. 559 (8 S. E. R. 159), 926 Rogers v.Libbev, 35 Me. 200, • 802, 831 Rogers v. Moore, Rice 60, 1068 Rogers v. Ratcliff, 3 Jones' L. 225, 556 1-624, Vol. II, pp. 625-1335.'\ Rogers v. Roberts, 58 Md. 519, 1021 Rogers v. Rochester, 21 Hun 44, 1302 Rogers v. Rogers, 1 Daly 194, 114 Rogers v. Rogers, 37 W. Va. 407 (16 S. E. R. 633), 699 Rogers v. Rogers, 3 Paige 379, 1194 Rogers v. Western, etc., Fire Ins. Co., 1 La. Ann. 161, 414 Rohm V.Borland (Pa.) 7Atl.R. 171, 964 Roll V. Davidson, (Pa. St.) 30 Atl. R. 987, 140 Rolls V. State, 52 Miss. 391, 1216 Romaine v. Judson, 128 Ind. 403 (26 N. E. R. 563 and 28 N. E. R. 75), 1057 Rookminee Kooer v. Ram Tohul, 21 W. R. 223, 276 Root V. Dill, 38 Ind. 169, 1062 Roper V. Rowlett, 7 Lea (75Tenn.) 320, 1186 Rose V. City of Yonkers, 31 N. E. R. 236, 196 Rose V. Hawly, 133 N. Y. 315, 196 Rose V. Hawlev, 141 N. Y. 366(36 N. E. R. 335)", _ 196,795 Rose V. Smith, 5 Hawaiian 377, 68 Rosenmuelierv. Lampe,89Ill. 212 (31 Am. R. 74), 365 Rosenthal V. McMann, 93 Cal. 505 (29 Pac. R. 121) 174 Rosenthal v." Reni'ck, 44 111. 202, 934 Ross V. Pritchard, 15 La. Ann. 531, 141 Rosse V. Rust, 4 Johns. Ch. 300, 159 Rosson, Ex parte, 24 Tex. App. 226 (5 S. AV. R. 666), 94 Roulhac V. Brown, 87 N. C. 1, 97 Routledge v. Hislop, 2 E. & E. 549, 221 , 366 Routt V. Grennwood, etc., Co., 18 Colo. 132 (31 Pac. R. 858), 1325 Rowe V. Smith, 16 Mass. 306, 490 Rowlandson, Ex parte, 3 P. Wms. 405, 1069 Royce v. Burt, 42 Barb. 339, 856 Royce v. Burt, 42 Barb. 655, 832 Royston v. Horner, 75 Md. 557 (24 Atl. R. 25), 149 Ruble V. State, 51 Ark. 170 (10 S. W. R. 262), 1226 Ruckelschaus v. Oehme, 48 N.J. Eq. 436 (22 Atl. R. 184), 86 Rucker v. Steelman, 97 Ind. 222, 744 Rudd v. Johnson, 60 Tex. 91, 931 Rudder v. State, 29 Tex. App. 262 (15 S. W. R. 717), 1274 Ruddle V. Horine, 34 Mo. App. 616, 205 Rudolph V. German Mutual Ins. Co., 71 111. 190, 119 TABLE OF CASES. CI [Beferences are to pages, Vol. I, pp Rneeger v. Indianapolis & St. L. RrR. Co., 103 111.449, 311 Ruff V. Doty, 26 S. C. 173 (1 S. E. R. 707), 477 Ruff V. Ruff, 85 Pa. St. 333, 591 Rulo V. State, 19 Ind. 298, 1282 Rumford Chemical Works v. Hecker, 2 Ban. & A. Pat. Gas. 351, 125 Rumsey v. N. Y. & N. E. R. Co., G3 Hun (70 N. Y. Supr.) 200 (17 N. Y. Supr. 672, 45 N. Y. St. Reporter 33), 394 Run Bahadur Singh v. 'Luchoo Koer, L. R. 12 I. App. 23, 13, 545 Rung Rav v. Sidhi Mahomed, In- dian L. R. 6 Bombay 484, 12, 176, 178 Runkel v. Phillips, 9 Philadelphia 619, 934 Rupkuari v. Ramkirpal, I. L. R. 3 Allahabad 143, 21 Russel V. Mallon, 38 Cal. 259, 1073 Russel & Erwin Mfg. Co. v. Car- penter, 5 Hun (12 ^. Y. Supr.) 162, 1066 Russel V. Epler, 10 111. App. 304, 550 Russell V. Farquhar, 55 Tex. 355, 1122 Russell V. Kirkbride, 62 Tex. 455, 1107 Russell V. Lamb, 49 Fed. R. 770, 136 Russell V. ]McCall, 141 N. Y. 437 (36 N. E. R. 498), 1068 Russell V. Place, 94 TJ. S. 606, 145, 623, 759 Rust V. State, 31 Tex. Grim. 75 (19 S. W. R. 763), 1212 Ryan v. Kingsbery, 89 Ga. 228 (15 S. E. R. 302), 418 Ryan v. Kranz, 25 Minn. 362, 120 Ryder V. Loomis, 161 Mass. 161 (36 N. E. R. 836), 465 Byer v. Atwater, 4 Day 431, 622 S Sabeer Khan v. Kalli Das, 1 W. R. 199 221 Sabin v.'sherman, 28 Kan. 289, 1157 Sabins v. McGhee, 36 Pa. St. 453, 608 Sac County Bank v. Hooper 77 Iowa 435" (42 N. W. R. 363) , 796 Sacket v. McCord, 23 Ala. 851, 636 Sadava Pillai v. Chinni, I. L. R. 2 Madras 352, 897 Saddler v. Apple, 9 Hump. (28 Tenn.) 342, 261 Saddler v. Kennedy, 26 W. Va. 636, ' 929 Sage V. McAlpin, 11 Cush. 165, 780 1-624, Vol. II, pp. 625-1335.] Sage V. Harpending, 49 Barb. 166, 123 Sager v. Blain, 44 N. Y. 445, 892 Salah Munisa v.Mohesh Chander, 16 W. R. 85, 64 Salig Ram v. Tribhawan, 1885 Al- lahabad W. M. 171, 189 Salle V. Light, 4 Ala. 700 (39 Am. D. 317), 1186 Salter v. Salter, 80 Ga. 178 (4 S. E. R. 391), 191 Saltmarsh v. Bo^ver, 34 Ala. 613, 634 Salyer v. State, 5 Ind. 202, 1136 Saminatha v. Rangathammal, In- dian L. R. 12 Madras 285, 290 Samis y. King, 40 Conn. 298, 1051 Sampson y. Ohleyer, 22 Cal. 200, 1073 Samuel y. Dinki'ns, 12 Rich Law 172 (75 Am. D. 729), 1073,1074 Samuel y. Fidelity, etc., Co., 76 Hun 308 (27 N. Y. S. 741), 137 San Antonio y. Lane, 32 Tex. 405, 946 Sanders y. Godley, 36 Ala. 50, 1312 Sanders y. McDonald, 63 Md. 503, 1102 Sanders y. Peck, 131 111. 407 (25 N. E. R. 508), 1322 Sanders y. State, 55 Ala. 42, 1214 Sanderson y. Caldwell, 2 Aiken 195, 1068 Sanderson y. Daily, 83 X. C. 67 100 Sanderson y. Peabody, 58 X. H. 116, 844, 854 Sandoyal y. Rosser, (Tex. C.App.) 26S. AV.R. 930, 569 San Francisco y. Holladay, 76 Cal. 18 (17Pac. R. 942), 655, 817 Sanger y. Lpton, 91 U. S. 56, 996 Santa Cruz Co. v. Board of Super- yisors, 62 Cal. 40, 95 Sargent y. Dayis, 3 La. Ann. 353, 934 Sargent y. Fitzpatrick, 4 Gray 511, 114 Sarup Sing y. Jowahir Singh, 16 Punjab R. 66, 574 SathappaA^-ar y. Periasami, I. L. R. 14 Madras 1, 212 Satterlee y. Bliss, 36 Cal. 489. 910, 1121 Satterwhite y. Sherley, 127 Ind. 59 (25 N. E. R. 1100), 492 Saul y. His Creditors, 7 Martin N. S. 425 (9 Martin (La.) 601), 1193 Sauls y. Freeman, 24 Florida 209 (4 S. R. 525), 1150 Sayage y. French, 13 111. App. 17, 390 Savage v. Glenn, 10 Ore. 440, 450 Sayage y. Gunter, 32 Ala. 467, 192 Sayage y. Steyens, 128 Mass. 254, 1067 Sayefand v. Green, 36 Wis. 612, 1176 Sayery y. Sypher, 39 Iowa 675, 402 Sawyer v. Boyle, 21 Tex. 28, 39 Cll TABLE OF CASES. [Beferences are to pages, Vol. I, pp Sawyer v. McAdie, 70 Mich. 386, 1077 Sawyer v. Woodbury, 7 Gray 499 (66 Am. D. 518), 624 Sayles v. Tibbits, 5 R. I. 79, 158 Saylor v. Hicks, 36 Pa. St. 392, 120 Sayre v. Harpold, 33 W. Va. 553, 490 Savward v. Nunan, 6 Wash. 87, s. c. 32 Pac. R. 1022, 637 Sayward v. Thayer, 9 Wash. 22 (36 Pac. R. 966), 637 Scarlett v. Gorham, 28 HI. 319, 1091 Scates V. King, 110 111. 456, 1080 S. C. Chesapeake, etc., R. R. Co. V. Dyer County, 11 S. AV. R. 943, 964 Schaeffner, Estate of, 45 Wis. 614, 1323 S. C. Hall Lumber Co. v. Gustin, 54 Mich. 624 (20 N. W. R. 610), 1106 Scharff v. Noble, 67 Miss. 143 (6 S. R. 843), 1062 Schattschneider v. Johnson, 39 Wis. 387, 99 Scheible v. Slagle, 89 Ind. 323, 123 Scherer v. Ingerman, 110 Ind. 428 (11 N. E. R. 8, and 12 N. E. R. 304), 1198 Scherff v. Missouri, etc., R. Co., 81 Tex. 471 (17 S. W. R. 39, 26 Am. St. R. 828), 663 Schive V. Fausold, 137 Pa. St. 82 (20 Atl. R. 403), 335 Sehmidt v. Glade, 126 111. 485, 258 Schmidt v. Zahensdorf , 30 la. 498, 199 Schnell v. Blohm, 40 Hun 378, 307 School District v. Stocker, 42 N. J. L. 115, 518 Schott V. Youree, 142 111. 233 (31 N. E. R. 591), 1135 Schriver v. Eckenrode, 87 Pa. St. 213, 887 Schroeder v. Lahrman, 26 Minn. 87 (1 N. W. R. 801), 1052 Schroers v. Fisk, 10 Colo. 599 (16 Pac. R. 285), 665 Schulenberg v. Merchants' Bank, 11 N. W. R. 826, 842 Schulze's Appeal, 1 Pa. St. 251 (44 Am. D. 126), 999 Schurmeier v. Johnson, 10 Minn. 319, 120 Scofleld V. Churchill, 72 N. Y. 565, 1139 Sconce v. Long Bell Lumber Co., 54 Mo. App. 509, 856 Scotland County v. Hill, 132 U. S. 107, 1119 Scott V. Calvit, 3 How. (4 Miss.) 148, 1023, 1024 Scott V. Coleman, 6 T. B. Mon. (21 Ky.) 73, 1087 1-624, Vol. II, pp. 625-1335.1 Scott V. Colmesnil, 7 J. J. Marsh. (30Ky.)416, 1062 Scott V. Drennen, 9 Daly 226, 1128 Scott V. Rogers, 77 Iowa 483 (42 N. W. R. 377), 1110 Scott V. Stebbins, 91 N. Y. 605, 381 Scott V. United States, Morris (Iowa) 142, 1129 Scott V. Ware, 64 Ala. 174, 929 Scribner v. York, 88 Iowa — (55 N. W. R. 10), 635 Scully V. C, B. & Q. R. Co., 46 Iowa 528, _ 165 Scully V. Lowenstein, 56 Miss. 652, 885 Seabright v. Seabright, 33 W. Va. 152 (lO.S. E. R. 265), 1319 Sease v. Dobson, 34 S. C. 345 (13 S. E. R. 530), 879 Seat V. Cannon, 1 Humph. (20 Tenn.) 470, 1137 Seaton v. Hixon, 35 Kan. 663 (12 Pac. R. 22) 197 Seckler v. Delfs, 25 Kan. 159, 662 Secombe v. Steele, 20 How. (61 U. S.) 94, 1087 Secor V. Singleton, 41 Fed. R. 725, 583, 1190 Secor V. Sturgis, 16 N. Y. 548, 232 366 1329 Seddon v. Tutop, 6 T. R. 607, ' 198 Seidenbach v. Riley, 111 N. Y. 560 (19 N. E. R. 275), 1313 Seller v. Northern Bank, 86 Ky. 128 (5 S. W. R. 536), 1321 Seitzinger v. Ridgway, 9 Watts 496, 464 Selleck, In re, 111 N. Y. 284, 550 Sellman v. Bowen, 8 Gill & J. 50 (29 Am. D. 524), 698 Selz V. Presburger, 40 N. J. L. 396 (8 Atl. R. 118), 97 Semple v. McCrary, 46 Iowa 37, 1093 Senat v. Findlay, 51 Iowa 20 (50 N. W. R. 575), 918 Serapurn v. LaCroix, 1 La. 373, 1017 Sergeant V. Ewing, 36 Pa. St. 156, 1001 Sergeson v. Sealey, 2 Atk. 412, 1039 Sessions v. Johnson, 95 U. S. 347, 1062, 1068 Sessions v. Sherwood, 78 Mich. 234 (44 N. W. R. 263), 166 Seventh Day Adventist Pub. Assn. V. Fisher, 95 Mich. 274 (54 N. AV. R. 759), 429 Severin v. Eddy, 52 111. 189, 1162 Severin v. People, 37 111. 414, 1219 Sevey v. Chick, 13 Me. 141, 1073 Sewall V. Robbins, 139 Mass. 164 29 N. E. R. 650), 819 TABLE OF CASES. cm [Beference.s are to pages, Vol. I, pp Sewell V. Scott, 35 La. Ann. 553, 660 Shackleford v. Cunningham, 41 Ala. 203, 401 Shadal Khan v. Aminullah Khan I. L. R. 4 Allahabad 92, 577 Shafer v. Stonebraker, 4 Gill & J. 345, 607, 1334 Shaffer v. Scuddy, 14 La. Ann. 575, 464 Shaffer v. State, 27 Ind. 131, 1287 Shafkat-unnissa v. Shib Sahai, I. L. R. 4 Allahabad 171, 302 Shah Newaz v. Mowaz, 3 Punjab R. 80, 182 Shaikh Punju v. Oodoy, 18 W. A. 337, 271 Shailapa v. Balapa, Indian L. R. 7 Bombay 446, 317 Shama Churn v. Prosunno Comar, Calcutta L. R. 251, 64 Sham Singh V. Khask Singh, 1880 Punjab R. No. 107, 191 Shankar Baksh v. Day a Shanka, L. R. 15 I. App. 66, 243 Shankaran v. Kesavan, I. L. R. 15 Madras 6, 1014 Shannon v. Woollard, 12 Lea 663, 881 Sharkey v. Bankston, 30 La. Ann. 891 935 Sharkey v. Evans, 46 Ind. 472, 682 Sharp V. Gray, 6 B. Mon. (44 Ky.) 4, 1068, 1070 Sharpe v. Freeman, 45 N. Y. 802, 923 Sharon v. Hill, 26 Fed. R. 337, 126 Shattuck V. Bascom, 105 N. Y. 39 (12 N. E. R. 283), 1079 Shaw V. Barnhart, 17 Ind. 183, 333 Shaw V. Beers, 25 Ala. 449, 383 Shaw V. Broadbent, 129 N. Y. 114 (29 N. E. R. 238), 91, 505 Shaw V. Railroad Company, 100 U. S. 605, _ 1196 Shaw V. Railroad Company, 5 Gray 162, 1194 Shay V. McNamara, 54 Cal. 169, 910 Shearer v. Field, 27 N. Y. S. 29 (6 Misc. R. 189), -805 Shears v. Dusenbury, 13 Gray (79 Mass.) 292, 400 Sheble v. Strong, 128 Pa. St. 315 (18 Atl. R. 397), _ 754 Sheehy v. Manderville, 6 Cranch (9U. S.)253, 1062 Sheets v. Jovtier, — Ind. App. — (38N. E. R. 830), 1177 Sheldon v. Armstead, 7 Gratt. (48 Va. ) 264, 1004 Sheldon v. Bradley, 37 Conn. 324, 887 Sheldon v. Carpenter, 4 N. Y. 579 (55 Am. D. 301], 321 1-624, Vol. II, pp. 625-1335.} Sheldon v. Edwards, 35 N. Y. 279 (87 Am. D. 353), 637, 719 Sheldon v. Kibbe, 3 Conn. 214 (8 Am. D. 176), 1068 Sheldon v. Railway Co., 29 Minn. 318 (13 N. W. R. 134), 253 Sheldon v. Patterson, 55 III. 507, 608 Sheldon v. Van Vleck, 106 111. 45, 173 Shelley v. Wright, Willes 9, 1328 Shelton v. Brown, 22 La. Ann. 162, 95 Shelton v. Johnson, 4 Sneed (36 Tenn.) 672 (70Am. D. 265), 1087 Shenandoah National Bank v. Read, 86 Iowa 136 (53 N. W. R. 96), 1135 Shenandoah Valley R. Co. v. Grif- fith, 76 Va. 913, 999 Sheo Churun v. Fakera, I. L. R. 6 Calcutta 91, 575 Sheoraj Nundun Singh v. Deo Nundun Singh, 24 W. R. 23, 183 Sheojari v. Kashinath, I. L. R. 7 Allahabad 252, _ 20 Sheo Ratan Singh v. Sheo Sahai, I. L. R. 6 Allahabad 358, 212 Sheo Shunkur Sahoy v. Hridoy Narain, I. L. R. 9 Calcutta 143, 277, 316 Shepard v. Pebbles, 38 Wis. 373, 1143 Shepard v. Pettit, 30 Minn. 119 (14N. W. R. 511), 120 Shepard v. Stockham, 45 Kan. 244 (25 Pac. R. 559), 695 Shepardson v. Gary, 29 Wis. 34, 387 Shepherd v. Moodhe, 29 N. Y. Suppl. 392 (8 Miscellaneous R. 607, 61 N. Y. St. R. 52), 361 Shepherd v. People, 25 N. Y. 406, 1289 Shepherd v. Willis, 19 O. 142, 821 Sherburne v. Strawn, 52 Kan. 39 (34 Pac. R. 405), 1086 Sheridan v. Andrews, 49 N. Y. 478, 1084 Shex'idan v. Andrews, 3 Lans. (3 N. Y. Supr.) 129, 464 Sherman v. Dilley, 3 Nev. 21, 832 Sherman v. Sherman, (R. I.) 30 Atl. R. 459, 613 Sherry v. Foresman, 6 Blackf. 56, 661 Sher Singh v. Dava Ram, I, L. R. 13 Allahabad 564, 107 Shettles worth v. Hughey, 9 Rich. L. 387, 812, 832 Shibbu Mul v. Paira Singh, 12 Punjab R. 224, 61 ShibKristoDahv.AbdoolSobhan, 15 W. R. 408, 283 CIV TABLE OF CASES. [Beferences are topages, Vol. I, pp. Shipman v. Rollins, 98N. Y.311, 1000 Shirland v. Union Natl. Bank, 65 Iowa 96 (21 N. W. R. 200), 473 Shirley v. Fearne, 33 Miss. 653 (69 Am. D. 375), 1188 Shivalingaya v. Nagalingaya, In- dian L. R. 4 Bombay 247, 1126 Shivapa v. Dod Nagay, I. L. R. 11 Bombay 118, 942 Shober v. Robinson, 2 Murphy 33 (A. D. 1811), 1165 Shokhee Bewa v. Mehdee Mun- dul, 9 W. S. 327, 176 Shook V. Lyon, 16 Daly 420 (11 N. Y. Suppl. 720), 262 Shores v. Doherty, 75 Wis. 616 (44 N. W. S. 747), 922 Shores v. Hooper, 153 Mass. 228 (26N. E. R. 846), 1032 Shotwell V. Lawson, 30 Miss. 27 (64 Am. D. 145), 1087 Shoup V. Shoup, 15 Pa. St. 361, 437 Shridar Vinayak v. Narayan, 11 Bombay H. C. R. 224, 896 Shridhar Vino.yak v. Narayan, 11 Bengal H. C. R. 224, 281 Shumake v. Nelms, 25 Ala. 126, 349 Shumate v. Farquier County, 84 Va. 574 (5 S. E. R. 570), 751 Shunick v. Thompson, 25 111. App. 619, 294 Shutesbury v. Hadley, 133 Mass. 242, 1165 Sidensparker v. Sidensparker, 52 Me. 481, 922 Sigmon v. Hawn, 86 N. C. 310, 397 Simco V. State, 9 Tex. App. 338, 1234, 1263 Simes v. Zane, 24 Pa. St. 242, 454 Simmons, Ex parte, 62 Ala. 416,' 1293 Simmons v. Taylor, 91 Tenn. 363 (18 S. W. R. 867), 359 Simmons v. U. S., 142 U. S. 148 (12S. C. R. 171), 1279 Simonds v. Creswell, 10 La. Ann. 318 294 Simpson v. Dugger, 88 Va. 963 (14 S. E. R. 760), 415 Simpson v. Lewis, 19 La. Ann. 453, 1169 Simson v. Hart, 14 Johns. 63, 97 Sims V. Boynton, 32 Ala. 353, 918 Sims V. Reed, 12 B. Mon. 51, 1302 Sims V. State, 66 Miss. 33 (5 S. R. 525), 1253 Sims V. State, 21 Tex. App. 649 (1 S. W. R. 465), 1230 Singery v. Attorney-General, 2 Har. & J. 487, 37 Sintzenick v. Lucas, 1 Esp. 43, 835 1-624, Vol. II, pp. 625-1335.'] Sipple V. People, 10 111. App. 144, 1216, 1234 Sisk V. Woodruff, 15 111. 15, 1187 Sitaram v. Amir Begam, Indian L. R. 8 Allahaba4 334, 16 Sivers v. Sivers, 97 Cal. 518 (32 Pac. R. 571), 663 Six Carpenters' Case, 8 Coke 290, 272 Skeen v. Springfield Engine and Thresher Co., 42 Mo. App. 158, 262 Sketchley v. Smith, 78 Iowa 542 (43 N. W. R. 524), 751 Skidmore v. Brieker, 77 111. 164, 1219 Skinner v. Franklin County, 56 Fed. R. 783 (6 C. C. A. 118), 526 Skinner v. Walter A. Wood M. and R. M. Co., 65 Hun (72 N. Y. Supr.) 622 (20 N. Y. Suppl. 251, 47 N. Y. St. Reporter 506) 232, 346 Skoglund V. Minneapolis Street Ry. Co., 45 Minn. 330 (47 N. W. R. 1071), 307 Slade V. Slade, 58 Me. 157, 713 Slaughter v. Bevans, 1 Pin. 348, 874 Slauson v. Englehart, 34 Barb. 198, 201, 234 Slauter v. Chenowith, 7 Ind. 211, 934 Slee V. Hyde Park, (111.) 14 N. E. R. 697, 738 Slevin v. Brown, 32 Mo. 176, 87 Sloan V. Creasor, 22 U. C. Q. B. 127, 873 Sloan V. Price, 84 Ga. 171 (10 S. E. R. 601), 528 Slocomb V. De Lizardi, 21 La. Ann. 355 (99 Am. D. 740) 112, 558 Sloo V. Lea, 18 O. 279, 1062 Sly V. Hunt, 159 Mass. 151 (34 N. E. R. 187) 826, 1247 Small V. Haskins, 26 Vt. 209, 123, 810 Smeaton v. Austin, 82 Wis. 76 (51 N. W. R. 1090), 677 Smith, In re, 68 Cal. 203, 637 Smithy In re, 1 Russ. 348, 1041, 1044 Smith V. Auld, 31 Kan. 262 250 Smith V. Baldwin, Iowa (52 N. W. R. 495), 491 Smith V. Ballantvne, 10 Page 101, 933 Smith V. Berry, 37 Me. 298, 200 Smith V. Black, 9 Serg. & R. 142 (11 Am. D. 686), 1062, 1063 Smith V. Brittenham, 109111. 540, 1096 Smith V. Brunswick, 80 Me. 189 (13 Atl. 890), 823 Smith V. Chicago, M. & St. P. Ry. Co., 83 Wis. 271 (53 N. W. R. 550), 336 TABLE OF CASES. cv [References are to pages, Vol. I, pp. 1-624, Vol. II, pp. 625-1335. '\ Smith V. Chicago, etc., R. Co., 50 N. W. R. 497, 336 Smith V. Com., 7 Gratt. 593, 1235 Smith V. Flovd Countv, 85 Ga. 420 (11 S. E. R. 8501, ' 192 Smith V. Gavle, 58 Ala. 600, 1072 Smith V. Gorham, 119 Ind.436 (21 N. E. R. 10961, 1051 Smith V. Great Western Ry. Co., 6 U. C. C. P. 151, 352 Smith V. Hemstreet, 54 N. Y. 644, 86 Smith V. Hooks, 19 Ala. 101, 383 Smith V. Hornsbv, 70 Ga. 552, 658 Smith V. Hodsdon, 78 Me. 180 (3 Atl. 276), 1116 Smith V. Hudson, 53 Ark. 178 (13 S. W. R. 1093), 679 Smith V. Jones, 15 Johns. 229, 218 '''^8 389 Smith V. Kemochen, 7 How! 198,' 696 Smith V. Leddv, 50 Iowa 112, 485 Smith V. Lee, "82 Tex. 124 (17 S. W. R. 598), 600 Smith V. Lewis, 45 La. Ann. 1457 (14S. R. 221), 93 Smith V. McCluskey, 45 Barb. 610, 378 Smith V. McCool,16 Wall. 560, 662, 789 Smith V. McNeal, 109 U. S. 426, 172 Smith V. Moonelis, 18 N. Y. Suppl. 135 (44 N. Y. St. R. 638 1, 316 Smith V. Mosbv. 98 Ind. 445, 494 Smith V. Palmer, 6 Cush. 513, 433 Smith V. Pretty, 22 Wis. 655, 1092 Smith V. Sahler, 1 Neb. 310, 125 Smith V. Schreiner, (Wis.) 56 N. W. R. 160), 126 Smith V. Sherwood, 4 Conn. 276 (lOAm. D. 143) 511,857 Smith V. Singleton, 2 McMullan's Law 184, 1067 Smith V. Smith, 50 N. H. 212, 847 Smith V. Smith, 79 N. Y. 634, 1162 Smith V. Smith, 22 la. 516, 609 Smith V. State, 68 Ala. 424, 1216 Smith V. State, 79 Ala. 257, 1214 Smith V. State, 85 Ind. 553, 1201 Smith V. State, 67 Miss. 116 (7 S. R. 208), 1211 Smith V. State, 41 N. J. L. 598, 1263 Smith V. State, 22 Tex. App. 350 (3S. W. R. 258), 1212 Smith V. State. 22 Tex. App. 196 (2 S. W. R. 542), 1288 Smith V. Stratton, 56 Vt. 362. 1017 Smith V. Talbot, 11 Ark. 666, 833 Smith V. Town of Ontario, 18 Blatch. 454, 734 Smith V. Town of Ontario, 4 Fed. R. 386, 33 Smedly v. Tucker, 3 Philadelphia 259 236 Smitii V. Walker, 77 Ga. 289 (3 S. E. R. 256), 803 Smith's Will Case, 52 Wis. 543 (8 N. W. R. 617, 9X. W. R. 665), 389 Smith V. Wright, 71 111. 167, 654 Smock V. Reichwine, 117 Ind. 194 (19 N. E. R. 7761, 501 Snapp V. Porterfield, 14 La. Ann. 405, 916 Snapp V. Snapp, 87 Ky. 554 (9 S. W. R. 705), 473 Snell, In re, 31 Minn. 110 (16 N. W. R. 692) 93 Sneli V. Campbell, 24 Fed. R. 880, 312 Snidery. Greathouse, 16 Ark. 72, 1182 Snodgrass v. Branch Bank, 25 Ala. 162, 1081 Snorgrass v. Moore, 30 Mo. App. 239 353 Snowy. Alley, 144 Mass. 546, 446 Snow y. Prescott, 12 N. H. 535, 490 Snowman v. Harford, 62 Me. 434, 1086 Snowman v. Harford, 57 Me. 397, 1086 Snyder v. McComb, 39 Fed. R. 292, 881 Sobev V. Beiler, 28 Iowa 323, 1060 SolleV y. Clayton, 12 Colo. 30 (20 Pac. R. 351), 622 Somers y. Schmidt, 24 Wis. 417 (1 Am. R. 191), 1176, 1177 Soonder Bebee v. Khilloo Mul, 2 Allahabad H. C. R. 90, 219 SoorjomoneeDayee y.Duddanund Mohapatter, L. R. Suppl. Vol. Indian App. C. 212, 677 Soorjomonee Dayee v.Saddanund, 12 Bengal L. R. 304, 243, 774 Sorenson v. Smart, 5 Ontario 678, 490 Sorrell y. Carpenter, 2 P. Wm. 482, 1114 Soursin y. Salorgne, 14 Mo. App. 486, 366 Souter y. Baymore, 47 Am. D. 513. 123, 126 South Coyington and C. S. Ry. Co. y. Gest, 34 Fed. R. 628, 1173 Southern, etc., Co. y. Reams, 105 N. C. 283 (11 S. E. R. 467), 570 Southern, etc., R. Co. v. Purcell, 77Cal. 69 (18Pae. R. 886), 679 Southern, etc., Co. y. St. Paul, etc., Co., 55 Fed. R. 690 (5 C. C. A. 249, 12 U. S. A. 320), 264, 783 Southside R. R. Co. y. Daniel, 20 Gratt. (61 Va.) 344, 390 Southworth y. State, 42 Ark. 270, 1218, 1221, 1248 CVl TABLE OF CASES. \_References are to pages, Vol. I, pp Soward v. Coppage, (Ky.) 9S. W. Eep. 389, 937 Sparhawk v. Wills, 6 Gray (72 Mass.) 163, 315 Sparhawk v. Wills, 5 Gray 423, 764 Sparks v. Etheredge, 89 Ga. 790 (15 S. E. R. 672), 764 Sparks v. Walton, 4 Philadelphia 93, 688 Spaur V. McBee, 19 Oregon 76 (23 Pac. Rep. 818), 469 Spaulding v. Arlington, 126 Mass. 492, 136 Spaulding v. Warner, 59 Vt. 646 (11 Atl. R. 186), 454 Speer v. Crawter, 2 Meriv. 417, 642 Speer v. James, 94 N. C. 417, 930 Spence v. Etter, 8 Ark. (3 Eng.) 69, 1082 Spence v. Insurance Co., 40 Ohio St. 517, 296 Spencer v. Banister, 12 La. Ann. 766, 451 Spencer v. Dearth, 43 Vt. 98, 1065, 1160 Spencer v. Williams, L. R. 2 Pro. & Div. 230, 68 Sperry v. Com., 9 Leigh 623, 1275 Spinks v. Glenn, 67 Ga. 744, 400 Spitley V. Frost, 15 Fed. R. 299, 104 Spivey v. Morris, 18 Ala, 254 (52 Am. D. 224), 1068, 1070 Spoon V. Baxter, 31 Mich, 279, 86 Spradling v. Conway, 51 Mo. 51, 130 Sprague v. White, 73 Iowa 670 (35 N. W. R. 751), 1084 Sprick V. Washington County, 3 Neb. 253, 127 Springer v. Bien, 128 N. Y. 99 (27 N. E. R. 1076), 550 Springs v. Schenck, 106 N. C. 153 (11 S. E. R. 646), 631 Spruill v.Trader, 5 Jones' Law 39, 999 Spurr V. North Hudson County R. Co., 56 N. J. L. 346 (28 Atl. R. .582), 1067 Squires v. Whipple, 2 Vt. Ill, 833 Sri Devi v. Kelu Eradi, I. L. R. 10 Madras 79, 1013 Srilphen v. Houdlette, 60 Me. 447, 459 Srimati Kamini Debi v. Asutosh Mookerjee,L. R. 15 Indian App. 159, 828 Stacy V. Thrasher, 6 How. (47 U. S. ) 44, 934 Stadeker v. His Creditors, 12 La. Ann. 817, 293 Stahl V. Stahl, 114 111. 375, 461 Stahl V. Roost, 34 Iowa 475, 96 , 1-624, Vol. II, pp. 625-1335.'] Stamp V. Franklin, 144 N. Y. 607 (39 N. E. R. 634), 1021, 1198 Stamp V. Franklin, 75 Hun (82 N. Y.Supr.) 373 (27 N. Y. Suppl. 84), 1020 Stanbrough v. Cook, 83 Iowa 705 (49 N. W. R. 1010), 1086 Standard Foundry Co. v. Schloss, 43 Mo. App. 304, 841 Standifer v. Bush, 8 Sm. & M. (Miss.) 383, 114 Standish v. Parker, 2 Pick. 20 (13 Am. D. 393), 812 Stanley v. Bracht, 42 Ark. 210, 873 Stannard v. Hubbell, 123 N. Y. 520 (25 N. E. R. 1084) 60, 544, 551 Stannard v. Hubbell, 56 Hun 450, 613 Stanton v. Hennessey, 78 Hun (85 N. Y. Supreme) 287 (28 N. Y. Suppl. 855, 60 N. Y. St. Rep. 254), 1131, 1132 Stanton v. Kenrick, 135 Ind. 282 (35 N. E. R. 19), 294 Staples V. Goodrich, 21 Barb. 317, 232 Staples V. White, 88 Tenn. 30, S. C. 12 S. W. R. 339, 1102 Stapleton v. King, 40 la. 278, 795 Star Glass Co. v. Morey, 108 Mass. 570, 433 Stark V. Starr, 94 U. S. 477, 352 Starke v. Woodward, 1 N. & McC. 329, 88, 89 Starke v. Wilson, 65 Ala. 576, 929 Starr v. Pease, 8 Conn. 541, 459 State, ex rel., v. Battle, 7 Ala. 259, 1286 State V. Abram, 4 Ala. 272, 1271 State V. Alman, 64 N. C. 364, 1286 State V. Ammons, 3 Murphy 123, 1250 State V. Anderson, 89 Mo. 312 (1 S. W. R. 135), 1215 State V. Arthur, 32 Mo. App. 24, 1259 State V. Banks, — Md. — (24 Atl. R. 540), 1143 State V. Barbour, 17 Ind. 526, 169 State V. Barr Dry Goods Co., 45 Mo. App. 96, " 870, 878 State V. Batt, 40 La. Ann. 582 (4 S. R. 495), 1082 State V. Bechdel, 34 Minn. 360 (34 N. W. R. 334), 94 State V. Behimer, 20 O. St. 572 (14 Am. R. 752), 1215 State V. Bell, 81 N. C. 591, 1281 State V. Belden, 33 Wis. 121 (12 Am. R. 7481, 1216 State V. Benham, 7 Conn. 414, 1234 State V. Benjamin, 14 S. R. 71, 1292 State V. Bierwirth, 47 Mo. App. 551, 100 TABLE OF CASES. evil [Eeferences are to pages, Vol. I, pp. 1-624, Vol. II, pp. 625-1335.'] State V. Birmingham, Busbee's L. 120, 1252 State V. Blackman, 35 La. Ann. 483, 1276 State V. Blahut, 48 Ark. 34 (2 S. W. R. 190), 1299 State V. Blaisdell, 59 N. H. 328, 1262 State V. Blancbard, 74 Iowa 628 (38 N. W. R. 519), 1250 State V. Boiler, 47 Fed. R. 415, 805 State V. Boothe, 68 Mo. 546, 104 State V. Bowen, 45 Minn. 145 (47 N. W. R. 650), 1204 State V. Bradley, 45 Ark. 31, 1257 State V. Brannon, 55 Mo. 63 (17 Am. R. 643), 1293 State V. Braun, 31 Wis. 600, 1266 State V. Briggs, 11 Atl. R. 423, 94 State V. Briggs, 27 S. C. 80 (2 S. E. R. 854), State V. Brown, 49 Vt. 437, State V. Brown, 33 S. C. 151 (11 S E. R. 641), State V. Brown, 75 Iowa 768 (39 N. W. R. 829), 1227 State V. Bruffev, 11 Mo. App. 79, 1232 State V. Bruffey, 75 Mo. 389, 1232 State V. Brutch, 12 Ind. 381, State V. Buffalo County, 6 Neb 454, State V. Burton, 47 Kan. 44 (27 Pac. R. 141), 1150 State V. Byron, 20 Mo. 210, 1239 State V. C. and L. R. R. Co., 13 S. C. 290, State V. Caldwell, 8 Baxter 576, State V. Callendine, 8 Iowa 288, State V. Cameron, 3 Heisk. 78, State V. Garland, 90 N. C. 668, State V. Casey, Busbee's Law 209, 1204 State V. Central Pacific R. Co., 10 Nev. 47, 1023 State V. Chaffin, 2 Swan (32 Tenn.) 493, 1218 State V. Champeau, 52 Vt. 313 (36 Am. R. 754), 1257 State V. Cincinnati Gas-Light and Coke Co., 18 O. St. 262, 1153 State V. Clark, 32 Ark. 231, 1232, 1262 State V. Clark, 69 Iowa 196 (28 N. W. R. 537), 1259 State V. Clark, 2 Tvler 277, 1251 State V. Clark, 69 Iowa 196, 1263 State V. Colerick, 3 O. 487, 1141 State V. Colgate, 31 Kan. 511 (47 Am. R. 507, - Pac. R. 346), 1209 State V. Comfort, 22 Minn. 271, 1242 State V. Commissioners, 3 Hill's Law (S. C.) 239. 1232 1285 843 1252 207 86 1157 1238 1269 1252 1287 State V. Commissioners, 2 Murphy 371, 1240 State V. Coombs, 32 Me. 529, 1225 State V. Cooper, 13 N. J. Law (1 Green) 361 (25 Am. D. 490), 1209 State V. Copeland, 65 Mo. 497, 1287 State V. Coste, 36 Mo. 437 (88 Am. D. 148), 1158 State V. Cowan, 29 Mo. 330, 956 State V. Crane, 4 Wis. 400, 1286 State V. Crutch, 1 Houston Cr. C. 204, 1268 State V. Damon, 2 Tyler, 387, 1234 State V. Davis, 2 Ired. L. 153, 1297 State V. DeGraffenreid, 9 Baxter (68 Tenn.) 287, 1212 State V. Deliesseline, 1 McC. 52, 86 State V. Dunston, 78 N. C. 418, 1207 State V. Eads, 15 loM'a 114, 1082 State V. Egglesht, 41 Iowa 574 (20 Am. R. 612), 1234 State V. Elden, 41 Me. 165, 1265 State V. Elder, 65 Ind. 282 (32 Am. R. 69). 1207 State V. Ellison, 4 Lea 229, 1255 State V. Emerv, 59 Vt. 84 (7 Atl. R. 129), ' 1282 State V. English, 14 Mont. 399 (36 Pac. R. 8151, 1235 State V. Ephraim, 2 Dev. & Bat. L. 162, 1277 State V. Falconer, 70 Iowa 416 (30 N. W. R. 655), 1258, 1274 State V. Faulkner, 39 La. Ann. 811 (2 S. R. 539), 1223 State V. Fley, 2 Brev. 338, 94 State V. Foster, 3 McCord's Law 442, 960 State V. Foster, 33 Iowa 525, 1219, 1220 State V. Gannon, 11 Mo. App.502, 1232 State V. Giles, 103 N. C. 391 (9 S. E. R. 433), 159 State V. Gill, 33 Ark. 129, 1242 State V. Glasgow, Dud. (S. C.)40, 1239 State V. Gleason, 56 Iowa 203 (9 N. W. R. 126), 1218, 1220 State V. Graham, 73 Iowa 553 (35 N. W. R. 628), 1227 State V. Grav, 100 Mo. 516 (13 S. W. R. 806), 629 State V. Hackett, 47 Minn. 425 (50 N. W. R. 472), 1212 State V. Hall. 9 N. J. L. 256, 1285 State V. Hamilton. 67 Miss. 217, 639 State V. Hard, 25 Minn. 460, 748 State V. Harnsby, 8 Rob. (La.) 583, 1232 State V. Hart, 331Kan. 218 (6 Pac. R. 288), 1268 CVlll TABLE OF CASES. \_Beferences are to pages, Vol. I, x>p State V. Hattabough, 66 Ind. 223, 1219, 1266 State V. Haynes, 35 Vt. 565, 843 State V. Hays, 2 Lea 156 (2 Am. Cr. R. 630), 1263, 1276 State V. Hazledahl, 2 N. Dak. 521 (52 N. W. R. 315), 1283 State V. Helveston, 38 La. Ann. 314, 1212 State V. Hennesey, 23 O. St. 339 (1 Phalen's Cr. 0. 224), 1234 State V. Hoeflinger, 33 Wis. 594, 1322 State V. Hosrard, 12 Minn. 293, 959 State V. Holt, 27 Mo. 340 (72 Am. D. 273), 1136 State V. Horneman, 16 Kan. 452 (2 Am. Or. R. 427), 1209 State V. Honeycutt, 74 N. C. 391, 1287 State V. Hornsby, 8 Rob. (La.) 583 (41 Am. D. 314), 1263, 1266 State V. Hudkins, 35 W. Va. 247 (13 S. E. R. 367), 1300 State V. Hull, 53 Miss. 626, 1140 State V. Inness, 53 Me. 536, 1225 State V. Jangraw, 61 Vt. 39 (17 Atl. R. 733), 1227 State V. Jefferson, 66 N. C. 309, 1279 State V. Jeffors, 64 Mo. 376, 1272 State V. Jenkins, 70 Md. 472, 663 State V. Jenkins, 20 S. C. 351, 1251, 1267 State V. Jesse, 3 Dev.& Bat. L. 98, 1254 State V. Johnson (Mo.), 27 S. W. R. 399, 1051 State V. Jones, 89 Mo. 470 (1 S. W. R. 355), 126 State V. Jones, 16 Kan. 608, 1266 State V. Joseph, 40 La. Ann. 5 (3 S. W. R. 405), 1216 State V. Judge, 35 La. Ann. 214, 820 State V. Kattlemann, 35 Mo. 105, 1215 State V. Knouse, 33 Iowa 365, 1263 State V. Krug, 94 Ind. 366, 767 State V. Kuhuke, 30 Kan. 462 (2 Pac. R. 689), 1227 State V. Larrabee. 3 Pin. 166 (3 Chand. 179), 159 State V. Layton, 25 Iowa 193, 1227 State V. Leach, 120 Ind. 124 (22 N. E. R. Ill), 1287 State V. Lee, 114 N. C. 844 (19 S. E. R. 375), 1262 State V. Leunig, 42 Ind. 541, 1260 State V. Lewis, 2 Hawks 98 (11 Am. D. 741), 1218 Statev.Lindley, 14Ind.430, 1224, 1225 State V. Linton, 42 Minn. 32 (43 N. AV. R. 571), 1267 State V. Littlefield, 70 Me. 452 Y 35 Am. R. 335), ' 1218 . 1-624, Vol. 11, pp. 625-1335.'] State V. Locklin, 59 Vt. 654 (10 Atl. R. 464), 1210, 1218 State V. Maher, 35 Me. 225, 1225 State V. Mainor, 6 Ired. L. 340, 1238 State V. Malone, 28 La. Ann. 80, 1251 State V. Martin, 30 Wis. 216 (11 Am. R. 567), 1216 State V. Martin, 76 Mo. 337, 1212 State V. Maxwell, 51 Iowa 314 (1 N. W. R. 6661, 836 State V. McBride, 76 Ala. 51, 497 State V. McCarty, 1 Bay 334, 1231 State V. McCord, 8 Kan. 232, (12 Am. R. 469, 1 Green's Cr. Law R. 406), 1216 State V. M'Cory, 2 Blackford 5, 1203 State V. McGill, 65 Vt. 547 (27 Atl. R. 430), 1228 State V. McGlvnn, 20 Cal. 233, 1023, 1024 State V. Mclntire, 59 Am. D. 566, 123 State V. McMinn, 34 Ark. 160, 1251 State V. Mead, 4 Blackford 309, 1204 State V. Meekins, 41 La. Ann. 543 (6 S. R. 822), 1268 State V. Mikesell, 70 Iowa 176 (30 N. W. R. 474), 1220 State V. Moon, 41 Wis. 684 (2 Am. Cr. R. 64), 1263 State V. Morgan, 95 N. C. 641, 1213 State V. Moriarity, 50 Conn. 415, 1228 State V. Morphin, 37 Mo. 373, 1234 State V. Morrison, 3 Dev. & Bat. L. 115, 1277 State V. Morton, 18 Mo. 53, 833 State V. Murray, 55 Iowa 530 (8 N. W. R. 350), 1218 State V. Nash, 86 N. C. 650 (41 Am. R. 472), 1236 State V. Nash, 46 La. Ann. 194 (14 S. R. 607), 1281 State V. Nathan, 5 Rich. Law 219, 1212 State V. Nelson, 7 Ala. 610, 1242, 1285 State V. Nelson, 26 Ind. 366, 1287 State V. Nichols, 38 Ark. 550, 1221 State V. Norvell, 2 Yerger 24 (24 Am. D. 458), 1232, 1242, 1259, 1263 State V. Nunnellv, 43 Ark. 68, 1298 State V. Nutt, 28"Vt. 598, 1226 State V. Ohver, 39 La. Ann. 470 (2 S. R. 194), 1289 State V. Owen, 78 Mo. 367, 1232, 1233 State V. Page, 63 Ind. 209, 1329 State V. Parham, 5 Jones' L. 416, 1238 State V. Parish, 43 Wis. 395, 1259 State V. Parish, 8 Rich. Law 322, 1209 State V. Parker, 66 Iowa 586 (24 N. W. R. 225), 1258, 1273 State V. Paterno, 43 La. Ann. 614 (9 S. R. 442), 1265 TABLE OF CASES. CIX {^Eeferences are to pages, Vol. I, pp State V. Patterson, 116Mo.505 (22 S. W. R. 696), 1265 State V. Patterson, 88 Mo. 88, 1263 State V. Phillips, 104 N. C. 786 (10 S. E. R. 463 1, 1219, 1222 State V. Pierce, 77 Iowa 245 (42 N. W. R. 181), 1258 State V. Pike, 74 N. C. 531, 1137 State V. Pitts, 57 Mo. 85, 1293 State V. Pool, 4 Lea 363, 1287 State V. Porter, 2 Hill (S. CI 610, 1251 State V. Priebnow, 16 Neb. 131 (19 N. W. R. 628), 1267 State V. Prince, 63 N. C. 529, 1269 State V. Pritchard, 16Nev. 101, 1281 State V. Rainev, 74 Mo. 229, 1153 State V. Ramsburg, 43 :Md. 325, 498 State V. Rankin, 4 Coldwell ^44 Tenn.) 145, 959 State V. Redman, 17 Iowa 329, 1263. 1292 State V. Reid, — X. C. — (20 S. E. R. 468), 956 State V. Reinhart (Ore.), 38 Pac. R. 822, 1288 State V. Revels, Busbee's L. 200. 1253 State V. Risher, 1 Rich. L. 219, 1252 State V. Roberts, 98 N. C. 756 (3 S. E. R. 682), 89 State V. Robinson, 46 La. Ann. 769 (15 S. R. 146), 1257 State V. Ross, 4 Lea (72 Tenn.) 442, 1211 State V. Rust, 31 Kan. 509 (3 Pac. R. 428), 1265 State V. Severson, 79 Iowa 750 (45 N. W. R. 305), 1232, 1233 State V. Shaw, 5 La. Ann. 342, 1268 State V. Shephard, 7 Conn. 54, 1218 State V. Shelly, 98 N. C. 673 (4 S. E. R. 530), 1222 State V. Shirer, 20 S. C. 392, 1257 State V. Shiichardt, 18 Neb. 454 (25 N. W. R. 722), 1278 State V. Sias, 17 N. H. 558, 1255 State V. Slv. 4 Oregon 277, 956 State V. Small, 31 Mo. 197, 606 State V. Smith, 53 Ark. 24 (13 S. W. R. 391), 1221 State V. Smith, 87 la. 723 (55 N. W. R. 198). 1267 State V. Snvder, 98 Mo. 555 (11 S. W. R. 1036), 1262 State V. Snvder (Mo.), 12 S. W. R. 369, 1260 State V. Sommers (Minn.), 61 N. W. R. 907, 1274 State V. Sonnerkalb, 2 Nott. & McC. 280, 1239 State V. Spurgln, 1 McCord 252, 1292 . 1-624, Vol. II, pp. 625-1335.'] State V. St. Clair, 42 La. Ann. 755 (7S. R. 713), 1232 State V. Standi fer, 5 Porter 523, 1214 State V. Stanly, 4 Jones's Law 290, 1214 State V. State. 43 Vt. 324, 1218 State V. Staylor, 17 Atl. 392, 663 State V. Sterrenbers, 69 Iowa 544 (29 N. W. R. 457), 1226 State V. Stevens, 114 N. C. 873 (19 S. E. R. 861), 1226 State V. Stock, 38 Kan. 154 and 184 ( State v. Count v of Rush, 16 Pac. R. 106 and 799), 1150 State v. Stone, 75 Iowa 215, 1240 State V. Stout, 39 N. W. R. 275, 1240 State V. Struble, 71 Iowa 11 (32 N. W. R. 1), 1297 State V. Sullivan, 9 Mont. 490 (24 Pac. R. 23), 1252 State v. Sutton. 4 Gill 494, 1292 State V. Tatman, 59 Iowa 471 (13 N. W. R.632), 1272 State V. Tavlor, 2 Bailev L. 49, 1239 State V. Tavlor. 34 La. Ann. 978, 1541 State V. Thompson, 10 Mont. 549 (27 Pac. R. 349), 1262 State V. Thornton, 37 Mo. 360, 956 State V. Thurston, 2 McMullen's L 38*^ 1235 State V. Tisdale, 2 Dev. & Bat. Law 159, 1204 State V. Torinus. 28 Minn. 175 (9 N. W. R. 725)', 381 State V. Townsend, 2 Harrington 543, 1214 State V. Tweedv, 11 Iowa 350, 1216, 1232 State V. Valentine, 6 Yerar. 533, 1292 State V. Vaughan, 29 Iowa 286, 1276 State V. Vincent, 36 La. Ann. 770, 1267 State V. Vines, 34 La. Ann. 1079, 1238 State V. Van Horton, 26 Iowa 402, 1264 State V. Walker, 26 Ind. 346, 1288 State V. Walters, 16 La. Ann. 400, 1263, 1292 State V. Ward, 48 Ark. 36 (2 S.W. R.191), 1257,1268 State V. Warner, 14 Ind. 572, 1212 State V. Washington, 90 N. C. 664, 1281 State V. Washington, 89 N. C. 535 (45 Am. R. 700), 1281 State V. Waterman, 87 Iowa 255 f54 N. W. R. 359), 836, 1247 State V. Weaver, 13 Ired. L. 203, 1277 State v. Webber, 76 Iowa 686 (39 N. W. R. 286), 1201 ex TABLE OF CASES. \_Beferences are to pages, Vol. I, pp State V. Wheeler, 62 Vt. 439 (20 Atl. R. (301), 1227 State V. Wightman, 26 Mo. 515, 1254 State V. Wiles, 26 Minn. 381 (4 N. W. R. 615;, 1218 State V. Williams, 94 N. C. 891, 1248 State V. Wilson, 50 Ind. 487, 1274, 1275,1287 State V. Wiseman, 68 N. C. 203, 1282 State V. Wister, 02 Mo. 592, 1294 State V. Woodruff, 2 Day 504, 1288 State V. Wyse, 33 S. C. 582 (12 S. E. R. 556), 1257 State V. Yancy, 1 Carolina Law Repository 519, 957 State Bank v. Bridges, 11 Rich. Law 87, 374 State Bank v. Ellis, 30 Ala. 478, 929 State Bank of St. Louis v. Bartle, 114 Mo. 276 (21 S. W. R. 816), 572 State, etc., Bank v. Rude, 23 Kan. 143, 655 State, ex rel. Battle, 7 Ala. 259, 1276 State, ex rel. Tracey, v. Cooley, — Minn. — (60 N. W. R. 338), 532 State Nat. Bank v. Northwestern, etc., Co., 35 Iowa 226, 611 State, use of Story, v. Jennings, 14 O. St. 73, 1138 Stayner's Case, 33 O. St. 481, 628 St. Croix, etc., Co. v. Mitchell, (S. Dak.) 57 N. W. R. 236, 1302 Steadman v. Lee, 61 Ga. 58, 414 Steamboat Farmer v. McGraw, 31 Ala. 659, 954 Steamboat Lile v. Lyon, 12 Fed. R. 63, 619 Steam Gauge, etc., Co. v. Mey- rose, 27 Fed. R. 213, 623 Stean v. Anderson, 4 Harrington 209, 813 Stedman v. Patchin, 34 Barb. 218, 833 Steele, Succession of, 7 La. Ann. Ill, 861 Steele v. Lineberger, 59 Pa. St.303, 930 Steele v. Taylor, 1 Minn. 274, 1087 Steelman v. Sites, 35 Pa. St. 216, 198 Steen v. Mark, 32 S. C. 286 (11 S. E. R. 93), 357 Stein V. Ashby, 30 Ala. 363, 1323 Stein V. Steamboat Prairie Rose, 17 O. St. 471 (93 Am. D. 681), 348 Steinbach v. Relief Fire Ins. Co., 77 N. Y. 498 (33 Am. R. 655), 875 Stephens v. Fox, 83 N. Y. 313, 997 Stephens v. Shafer, 48 Wis. 54 (33 Am. R. 793), 1142 Stepleton v. Dee, 132 Mass. 279, 150 Sterling v. State, 25 Tex. App. 716 (9 S. W. R. 45), 1264 , 1-624, Vol. II, pp. 625-1335.'] Sterner v. Gower, 3 Watts & S. 136, 235, 833 Sterns v. Marks, 35 Barb. 565, 915 Steuben Countv Bank v. Alberg- er, 83 N. Y. 274, 97 Stevens v. DuBarry, 1 Mackey 294, 697 Stevens v. Damon, 29 Vt. 421, 207 Stevens v. Fassett, 27 Me. 266, 1300 Stevens v. Hughes, 31 Pa. St. 381, 608, 811 Stevens v. Lockwood, 13 Wend. 644 (28 Am. D. 492), 236 Stevens v. Miller, 13 Gray 283, 114 Stevens v. Pendleton, 83 Mich. 342 (47 N. W. R. 1097), 1145 Stevens v. Taft, 8 Gray 419, 808 Stewart v. Dent, 24 Mo. Ill, 359 Stewart v. McFarlane, 1 Allen (N. Bruns.) 233, 808 Stewart v. Montgomery, 23 Pa. St. 410, 933 Stewart v. Morrison, 81 Tex. 396 (17 W. R. 15, 26 Am. St. R. 821), 1137 Stewart v. Nelson, 79 Mo. 522, 143 St3wart V. Register, 108 N. C. 688 (13 S. E. R. 234), 430 Stewart v. State, 15 O. St. 155, 1273, 1284 Stewart v. Stebbins, 30 Miss. 66, 1310 Stewart v. Stewart, 43 Ga. 294, 396 Stice, Ex parte, 70 Cal. 51 (11 Pac, R. 459), 1213 Stickel V. Steel, 41 Mich. 350, 232 Stifel V. Lynch, 7 Mo. App. 326, 231 Stillwell y. Glascock, 47 Mo. App. 554, 1302 Stilphen v. Houdlette, 60 Me. 447, 462 Stilphen v. Stilphen, 58 Me. 508, 462 Stingley v. Kirkpatrick, 8 Blackf. 186, 888 St. John v. St. John's Church, 15 Barb. 346, 915, 916 St. John's, etc.. Church v. Burge, (Miss.) 2 S. R. 254, 1330 St. Johnsbury, etc., R. Co. v. Hunt, 59 Vt. 294 (7 Atl. R. 277), 1318 St. Joseph V. Union Ry Co., 116 Mo. 636 (22 S. W. R. 794), 1168 St. Joseph, etc., R. Co. v. Steele, 63 Fed. R. 867 (11 C. C. A. 470), 798 St. Louis V. Schulenburg, etc., Co.,98Mo.613(12S. W.R.248), 87 St. Louis Mat. L. Ins. Co. v. Cra- vens, 69 Mo. 72, 912 St. L. andS. F. Rv. Co.v.Trimble, 54 Ark. 354 (15'S. W. R. 899), 348 St. Luke's V. St. Leonard's, 2 Anst. 386, 642 Stocks V. State, 91 Ga. 831 (1& S. R. 847), 1283 TABLE OF CASES. CXI [J2e/erewces are to pages, Vol. I, pp Stockton V. Copeland, 30 W, Va. 674 (oS. E. R. 143), 111 Stockton V. Ford, 18 How. 418, 205 Stockton V. Knock, 73 Cal. 425 (15 Pac. R. 51j, 607, 715 Stockton Building and Loan As- sociation V. Chalmers, 75 Cal. 332(17 Pac. R. 229), 951 Stockwell V. Silloway, 113 Mass. 384, 711 Stoddard v. Burton, 41 Iowa 582, 941 Stoddard v. Mcllwain, 9 Rich. L, 451. 889 Stoddard v. Myers, 8 0. 203, 1117 Stoddard v. Thompson, 31 Iowa 80, 933, 1053 Stodghill V. Chicago, B. and Q. R. R. Co., 53 Iowa 341 (5 N. W. R. 495), 392, 396 Stokes V. Fraley, 5 Jones L. 377, 815 Stokes V. Morrow, 54 Ga. 597, 1079 Stone V. Conellv, 1 Mete. (58 Ky.) 652 (71 Am. D. 499), 1116 Stone V. Dickinson, 5 Allen (87 Mass.) 29, 1071 Stone V. Elliott, 11 O. St. 252, 1118 Stone V. St. Louis, etc., Co., 155 Mass.267(29N.E.R.623), 782, 850 Stone V. Tvree, 30 W. Va. 687 (5 S. E. R. 871), 1103 Stone V. United States, 64 Fed. R. 667 (12 "C. C. A." 451), 966 Stone V. Wood, 16 111. 177, 1002 Stoops V. Wittier, 1 Mo. App. 420, 1145 Stoops V. Woods, 45 Cal. 439, 999 Story V. Story Commercial Co., 100 Cal. 41 (34 Pac. R. 675), 126 Stout V. Lye, 103 U. S. 66, 1104 Stout V. Taul, 71 Tex. 438 (9 S. W. R. 329), 1072 Stovall V. Banks, 10 Wall. (77 U. S.) 583, 1137 Stovall V. Carmichael, 52 Tex. 383, 1191 Stowell V. Chamberlain, 60 N. Y. 272, 604 Stowell V. Chamberlain, 3 T. & C. 374, 661 St. Patrick's, etc., Church v. Daly, 116 111. 76 (4 N. E.R. 241), 1308 St. Paul National Bank v. Can- non, 46 Minn. 95 (48 N. W. R. 526, 24 Am. St. R. 189), 1061 Strang v. Beach, 11 O. St. 283, 887 Strang v. Moog, 72 Ala. 460, 684 Stratton v. Perry, 2 Tenn. Ch. 633, 414 Strauss v. Ayres, 87 Mo. 348, 999 Strauss v. Meertief, 64 Ala. 299, 842 , 1-624, Vol. II, pp. 625-1335.'] Strayer v. Johnson, 110 Pa. St. 21 (1 Atl.R. 222), 1189 Street v. Augusta Ins. and Bank- ing Co., 12 Rich. Law 13, 1048 Street v. Beckman, 43 Iowa 496, 837 Stricknev v. Goudy, 132 111. 213 (23N. E. R. 1034;, 685 Stringer v. Adams, 98 Ind.539, 693 Strong V. Hooe, 41 Wis. 659, 410 Strong V. Grant, 2 INIackey 218, 618 Strong V. Lawrence, 58 Iowa 55(12 N.W. R. 74, 922 Strong V. Phoenix Ins. Co., 62 Mo. 289, 1074, 1163, 1179 Strother v. Butler, 17 Ala. 733, 833 Strvker v. Goodnow, 123 U. S. 527, 1059 Stuart V. Com., 28 Gratt. (69 Va.) 950 1232 Stuart V. Heiskell, 86 Va. 191 (9 S. E. R. 984), 1323 Stuart V. Preston, 80 Va. 625, 407 Stull V. Davidson, 12 Bush (75 Ky.) 167, 1140 Stults V. Forst, (Ind.) 34 N. E. R. 1125, 168 Stump V. Hornback, 109 Mo. 272 (18 S. W. R. 37), 1324 Sturdy v. Jackaway, 4 Wall. (71 U. S.) 174, 464 Sturges V. Beach, 1 Conn. 507, 934 Sturgis V. Rogers, 26 Ind. 1, 110 Sturtevant v. Randall, 53 Me. 149, 831, 940 Stutz v. Handley, 41 Fed. R. 531, 996 Stuvvesant v. Hone, 1 Sandf. Ch. 419, 1091 Subba Rau v. Rama Rau, 3 Madr. H. C. R. 376, 224 Subbaraya v. Krishna, Indian L. R. 6 Madras 159, 240 Subbayya v. Venkatesappa, I. L. R. 6 Madras 49, 285 Succession of Anderson, 12 La. Ann. 95, 293 Succession of Andrew, 16 La. Ann. 197, 159 Succession of Dumford, 1 La. Ann. 92, 773 Succession of Duke, 42 La. Ann, 252 (7 S. R. 327), 628 Succession of Hebrew, 13 La. Ann. 212, 415 Succession of Mann, 4La. Ann.28, 407 Succession of McDonogh, 24 La. Ann. 33, 614 Succession of Stafford, 2 La. Ann. 886, 611 Succession of Steele, 7 La. Ann. Ill, 861 CXll TABLE OF CASES. \^Iieferences are to pagee, Vol. I, pp Succession of Wilson, 12 La. Ann. 591, 926 Sudduruddin v. Bani Madhub, Indian L. R. 15 Calcutta 145, 284 Sugg V. Thornton, 132 U. S. 524 (lOS. C. R. 163), 237 Sullivan v. Baxter, 150 Mass. 261 (22 N. E. R. 895), 208 Sultan Ahmad v. Maula Bakhsh, Indian L. R. 4 Allahabad 21, 217 Summers v. Bergner and Engel Brewing Co., 143 Pa. St. 114 (22 Atl. R. 707), 965 Sumner, Matter of, 10 Benedict 34, 999 Sundhya Mala v. Dabi Churn, In- dian L. R. 6 Calcutta 715, 514 Supervisors v. Kennicott, 94 U. S. 498, 1321 Supples v. Cannon, 44 Conn. 424, 749 Surrendernath v. Brojonath, In- dian L. R. 13 Calcutta 356, 18, 574 Susquehanna, etc., Ins. Company's Appeal, 105 Pa. St. 615, 434 Susquehanna, etc., Ins. Co. v. Mardorf, 152 Pa. St. 22 (25 Atl. R. 234), 836 Sutcliffe V. State, 18 O. 469 (51 Am. D. 459), 1263 Sutherlin v. Mullis, 17 Ind. 19, 392 Sutor v. Miles, 2 B. Mon. (41 Ky.) 489, 1091 Sutto Churn v. Obhoy Nund, 2 W. R. (Act 10, R. 31), 318 Sutton V. Pollard, — Ky. — (29 S. W. R. 637), 1192 Suydam v. Barber, 18 N. Y. 468 (75 Am. D. 254), 1062, 1064 Swantx V. Pillow, 50 Ark. 300 (7 S. W. R. 167), 1086 Swantz V. Muller, 27 111. App. 320, 392 Sweeny v. Daugherty, 23 Iowa291, 208 Sweet v. Tuttle, 14 N. Y. 465, 558 Sweezey v. Stetson, 67 Iowa 481 (25 N. W. R. 741), 95 Swensen v. Cresop, 28 O. St. 668, 490 Swindel v. State, 32 Tex. 102, 1251 Switzer v. Miller, 59 Ind. 561, 1329 Syad Yar Hhan v. Ram Chand, ■ 1882 Punjab R. No. 24, 215 Syndics de Lacolle v. Duquette, 15 L. C. Jurist 304, 725 T Tadlock v. Eccles, 73 Am. D. 213, 123 Talbott V. Barber, Ind. App. (38 N. E. R. 487), 418 1-624, Vol. II, pp. 625-1335.] Tarn V. Shaw, 10 Ind. 469, 1186 Tarns V. Lewis, 42 Pa. St. 402, 303 Tarns V. Richards, 26 Pa. St. 97, 387 Tankerslv v. Pettis, 71 Ala. 179, 141, 406 Tanner, etc., Co. v. Hall, 89 Ala, 628 (7 S. R. 178), 256 Tanner v. Mills, 50 Ala. 356, 1138 Tarbell v. Tarbell, 57 Vt. 492, 557 Tarbox v. Hartenstein, 4 Baxter (63Tenn.)78, 366 Tarini Prasad v. Khudumani De- bia, 5 Bombay L. R. 187, 221 Tarini Prasad v. Raghab Chan- dra, 5 Bombay L. R. 184, 221 Tarleton v. Johnson, 25 Ala. 300 (60 Am. D. 515), 852 Taruck Chunder v. Panchu Mo- hini I. L. R. 6 Calcutta 791, 318 Taswell v. Stone, 4 Burr. 2454, 123 Tate V. Hunter, 3 Strobh. Eq. 136, 86 Tate V. Jordon, 3 Abb. Pr. 392, 1102 Tatro V. Tatro, 18 Neb. 395 (25 N. W. R. 571), 459 Tattersall v. Hass, 1 Hilton 56, 192 Tatum v. Rosenthal, 95 Cal. 129 (30 Pac. R. 136, 29 Am. St. R. 97), 995 Taylor v. Abbott, 41 Pa. St. 352, 464 Taylor v. Barnes. 69 N. Y. 430, 1183 Taylor v. Barron, 35 N. H. 484, 934 Taylor v. Castle, 42 Cal. 367, 604, 878 Taylor v. Chambers, 1 Iowa 124, 449 Taylor v. Claypool, 5 Blackford 557, 1062 Taylor v. Dustin, 43 N. H. 493, 824 Taylor v. Heitz, 87 Mo. 660, 240 Taylor v. Johnson, 17 Ga. 521, 1141 Tavlor v. Jones, 3 La. Ann. 619, 859 Taylor v. Larkin, 12 Mo. 103 (49 Am. D. 119), 192 Taylor v. Manhattan R. Co., 63 Hun (60 N. Y. Supr.) 305 (6 N. Y. Suppl.488), 1131 Tavlor v. Means, 73 Ala. 468, 915, 919 Taylor v. Sindall, 34 Md. 38, 99 Taylor v. State, 35 Tex. 97, 1252, 1257 Taylor v. Taylor, 62 Hun 623 (17 N.Y. S.16i,42N. Y. S. R.435), 681 Taylor v. Taylor, 63 Hun 303, 681 Taylor v. Taylor, 26 Abb. N. C. 360 (14 N. Y. S. 420), 681 Taylor V. Yarbrough,13 Gratt. 183, 157 Teal V. Hinchman, 69 Ind. 379, 297 Teal V. Terrell, 48 Tex. 491, 613 Teat V. State, 53 Miss. 439, 1238, 1257, 1285 Temple v. Scott, 143 111. 290 (32 N. E. R. 366^ 973 Temple v. Williams, 91 N. C. 82, 1017 tablp: of cases. CXlll \^Eeferences are' to pages, Vol. I, pp Terrerri v. Jutte, 159 Pa. St. 244 (28 Atl. R. 225), 370 Terrett v. Cowenhoven, 11 Hun (18 N. Y. Supr.)320, 472 Terrill v. Boulware, 24 Mo. 254, 1017 Territory v. Dorman, 1 Ariz. 56 (25Pac. E. 5161. 1263 Territory v. King, 6 Dak. 131 (50 N. W.'R. 623), 1296 Territory v. Stocker, 9 Montana 6 (22Pac. E. 496), 1210 Territory y. Willard. 8 Montana 328 (21 Pac. R. 301), 1212 Terry v. Hammonds, 47 Cal. 32, 661 Terry v. Town of AVaterburj', 35 Conn. 526, 94 Texas & P. Ry. Co. v. Nelson, Tex. Ciy. App. (29 S. AV. R. 78), 308 Thakur Shankar Baksh y. Dya Shankar, L. R. 15 Indian App. 66, 175 Thanakoti v. Muniappa, I. L, R. 8 Madras 496, 1013 Tharpe v. Dunlap, 4 Heisk. (51 Tenn.) 674, 1102 Thatcer v. Gottlieb, 59 Fed. R. 872, 8 C. C. A. 334, 1312 Thayer v. New England Litho- graphic Co., 108 Mass. 523, 995 The City of Rome, 49 Fed. R. 392, 749 Theisen y. McDayid, — Fla. — (16S. R. 321), 956 The Odorilla v. Baizley, 128 Pa. St. 283 (IS Atl. R. 511), 314 Thiele v. Axell, 5 Tex. Civil App. 548 (24 S. W. R. 552), 1181 Third Reformed Dutch Church y. Fox, 12 Philadelphia 296, 954 Thisler y. Miller, 53 Kan. 515 (36 Pac. R. 1060), 387 Thomas y. Baker, 41 Kan. 350 (21 Pac. R. 252), 1057 Thomas y. Bland, 91 Ky. 1 (14 S. W. R. 955), 93, 767 Thomas v. Coe, 51 Hun r58 N. Y. Supreme 481 (4 N. Y. Suppl. 253, 21 N.Y. State Reporter 632 ), 943, 1197 Thomas v. Hubbell, 15 N. Y. 405 (69 Am. D. 6191, 1142 Thomas v. Hubbell, 35 N. Y. 120, 1142 Thomas y. Joslin, 36 Minn. 1 (29 N. W. R. 344), 876 Thomasy. Junction City Irre. Co., 80 Tex. 550 (16 S. W. R. 324), 821 Thomas v. Ketteriche, 1 Ves. 333, 68 Thomas y. McDaneld, — Iowa — .55 N. W. R. 499), 478 Thomas y. Merry, 113 Ind. 83 (15 N. E. R. 244), 929 H 1-G24, Vol. II, pp. 625-133o.'\ Thomas v. State, 40 Tex. 36, 1214 Thomas y. Sterns, 33 Ala. 137, 925 Thomas y. Stewart, 92 Ind. 246, 610 Thomas y. Thomas, 33 Neb. 373 i50N. W. R. 170) (29 Am. St. R. 483), 1329 Thomason y. Odum, 31 Ala. 108, 173 Thompson v. Badham, 70 N. C. 141, 925 Thompson y. Clark, 4 Hun (11 N. Y. Supr.) 164, 1092 Thompson y. Clay. 3 T. B. Men. 359 (16 Am. D."l08), 161 Thompson v. Cragg, 24 Tex. 582, 948 Thompson y. Emmet, 15 111. 415, 1062 Thompson y. Griffin, 69 Tex. 139 (6 S. ^y. R. 410). 123, 126, 1335 Thompson y. Hawley, 16 Ore. 251 (19Pac. R.84), 1302 Thompson y. ^lanrow, 1 Cal. 428, 721 Thompson y. McKay, 31 Cal. 221, 335, 396 Thompson y. Mylne, 4 La. Ann. 206, ■ 119 Thompson v. Mvrick, 24 Minn. 4, 36, " 374 Thompson y. Roberts, 24 How. 233, 692, 1122 Thompson v. Rogers, 2 Breyard 410, 876 Thompson v. Schuster, 4 Dak. 163 (28N. W. R. 858), 454 Thompson y. Smith, 79 Me. 160 (8 Atl. R. 687), 95 Thompson v. Thompson, 132 Ind. 288 i31N. E. R. 529), 460 Thompsony.r. S., 155 U. S. 271 (15S. C. R. 73), 1276 Thompson y. Wineland, 11 Mo. 243, 878 Thoms V. Sewell, 30 La. Ann. 359, 371 Thoms y. Southard, 2 Dana (32 Ky.) 475 (26 Am. D. 467), 1087 Thomsen v. McCormick, 136 111. 135 (26 N. E. R. 373), 1072, 1073 Thomson y. Blanchard, 2 Lea (70 Tenn.) 528, 538 Thomson y. MacGregor, 81 N. Y. 592, 1140 Thoreson y. Minneapolis Harvest- er Works, 29 Minn. 341 (13 N. ^Y. R. 156), 432 Thornton v. Eppes, 6 Fla. 546, 887 Thrift y. Delanev, 69 Cal. 188 (10 Pac. R. 4751, " 464 Thropp y. Susquehanna Mutual Life Ins. Co., 125 Pa. St. 427 (17 Atl. R. 473), 115 Thrustout v. Troublesome, An- drews 297, 780 cxiv TABLE OF CASES. \^Eef€i-ences are to pages, Vol. I, pp Thurst V. West, 31 N. Y. 210, 863 Thurston v. Spratt, 52 Me. 202, 1179 Thurstou V. Thurston, 99 Mass. 39, 714 Thwing V. Great Western Ins. Co., Ill Mass. 93, 1048 Thyila Kandi Ummatha v. Kun- hamed, I. L. R. 4 Madras 308, 184, 339, 898 Tibbetts v. Shapleigh, 60 N. H. 487, 509 Tidwell V. Witherspoon, 21 Fla. 359 (58 Am. R. 665), 322 Tierney v. Abbott, 46 Wis. 329, 1198 Tiffany v. Stewart, 60 Iowa 207 (14 N. W. R. 241), 1077 Tillenv v. Wolverton, 64 Minn. 75 (55 N. W. R. 822), 1321 Tilley v. Bridges, 105 111. 336, 748 Tillison v. Tillison, 63 Vt. 411 (22 Atl. R. 531), 713 Timmons v. Dunn, 4 O. St. 680, 440 Tilson V. Davis, 32Gratt. (73 Va.) 92 292 Tilto'n V. Cofield, 93 U. S. 163, 1086 Tilton V. Gordon, 1 N. H. 33, 490 Tioga R. V. Blossburg, etc., R^, 20 Wall. 137, 780 Tirupati v. Narasimha, I. L. R. 11 Madras 210, , 278 Tisdale v. Connecticut Mutual Life Ins. Co., 26 Iowa 170 and 28 Iowa 12, 1031 Toby V. Brown, 11 Ark. (6 Eng.) 308 314 Todd'v. City of Chicago, 18 111. App. 565, 1178 Tolerton v. Williard, 30 0. St. 579, 1112 Toll V. Alvord, 64 Barb. 668, 1178 Tompkins v. Hyatt, 28 N. Y. 347, 876 Toomy v. Hale, 100 Cal. 172 (34 Pac. R. 644), 786 Toope V. Prigge, 7 Daly 208, 298 Tootle V. Wells, 39 Kan. 452 (18 Pac. R. 692), 230 Toponidhee Dhirj Girv. Sreeputty Sahaneeputty, I. L. R. 5 Cal- cutta 832, 14, 56 Torbett v. Godwin, 62 Hun (69 N. Y. Supr.) 407 (27 Abb. New Cases 444, 17 N. Y. Suppl. 46, 42N. Y. St. R. 323), 995 Toronto Gen. Trust Co. v. Chi- cago, etc., R. Co., 123 N. Y. 37 (25 N. E. R. 198^, 1196 Torrey v. Pond, 102 Mass. 355, 677 Torrey v. Schneider, 74 Tex. 116 (11 S. W. R. 1068), 1071 Towle V. Towie, 46 N. H. 431, 1135 Town V. Lamphere, 34 Vt. 365, 605 1-G24, Vol. II, pp. 625-1335.'] Town of Cabot v. Town of Wash- ington, 41 Vt. 168, 759 Town of Bethlehem v. Town of Watertown, 51 Conn. 490, 1046 Town of Bethlehem v. Town of Watertown, 47 Conn. 237, 1046 Town of Jericho v. Town of Un- derbill, 67 Vt. — (30 Atl. R. 690). 145 Town of Marlborough v. Sisson, 31 Conn. 332, 347 Town of Lyons v. Cooledge, 89 111. 529, _ 1157 Town of Pittsford v. Chittenden, 58 Vt.. 49 (3 Atl. R. 323), 759 Towns V. Nims, 5 N. H. 259 (20 Am. D. 578), 50 Townsdin v. Shrader, 39 Kan. 286 (18 Pac. R. 186), 152 Townsheud v. Frommer, 125 N. Y. 446 (26 N. E. R. 805), 976 Township of Little Falls v. Town- ship of Bernards, 44 N. J. Law (15Vroom)621, 1046 Tracey v. Shumate, 22 W. Va. 474, 820 Tracy v. Goodwin. 5 Allen (87 Mass.) 409, ' 1138 Tracy v. Mahoney, 105 Mass. 90, 1135 Tracy v. Merrill, 103 JNIass. 280. 196 Trafton v. United States, 3 Story 646, 1062 Train v. Gold, 5 Pick. (22 Mass.) 380, 1178 Tranquebar v. Nathambedu, 6 Madras H. C. R. 238, 1090 Trask v. Hartford and New Haven R. R. Co., 2 Allen (84 Mass.) 331, 389 Trautwein v. Twin City Iron Works, 65 Minn. 264 (56 N. W. R. 750), 433 Travis v. Topeka Supply Co., 42 Kan. 625 (22 Pac. R. 991), 1094 Trayhern v. Colborn, 66 Md. 277 (7 Atl. R. 459), 612, 655 Treadway v. McDonald, 51 Iowa 663 (2 N. W. R. 567), 481, 1086 Treadwell v. Stebbins, 6 Bosw. 538, ' 733 Treasurers v. Bates, 2 Baily'sLaw 362, 1066 Treasurers v. Oswald, 2 Bailey's Law 214, 1066 Treftz v. Pitts, 74 Pa. St. 343, 464, 832 Trentman v. Wiley, 85 Ind. 33, 637 Trescott v. Barnes, 51 Iowa 409, 145 Trescottv. Lewis, 12 La. Ann. 197, 97 Trimble v. Boothby, 14 O. 109 (45 Am. D. 526), 1092 TABLE OF CASES. CXV lEefereiices are to pages, Vol. I, pp Trimble v. Fariss, 78 Ala. 260, 594 Triplett v. Com., 84 Ky. 193 (1 S. W. R. 84), 1212 Triplett v. Gill, 7 J. J. Marsh. 432, 86 Trittipo V. State, 13 Ind. 360, 1203 Troy V. Smith, 33 Ala. 469, 922 Truitt V. Truitt, 38 Ind. 16, 1085 Trustees of Leake v. Lawrence, 11 Paige 80, 934 Trustees of Xewburgh v. Galatian, 4 Cowen 340, 1178 Tuberson v. State, 26 Fla. 472 (7 S. R. 858), 1294 Tubbesing v. Citv of Burlington, 68 Iowa 691 (24 N. W. R. 514), 797 Tuck V. Moses, 68 Me. 461, 641 Tucker V. Rohrback. 13 Mich. 73, 130 Tulsi Ram v. Ganga Ram, L L. R. Allahabad 252, 222 Tumlin v. Parrott, 82 Ga. 732 (9 S. E. R. 718), 963 Turlev v. Turlev, 1 Pickle (Tenn.) 25r(l S. W. R. S91\ 632 Turner v. Allen, 66 Ind. 252, 869 Turner v. Gates, 90 Ga. 731 (16 S. E. R. 971), 658 Turner V. Hitchcock, 20 Iowa 310, 1068 Turner v. Staples, 86 Va. 300 (9 S. E. R. 1123), 1302 Turner v. State, 40 Ala. 21, 1292 Turpin v. Brannon, 3 McCord's Law 261, 1077 Turpin v. State, 4 Blackf. 72, 1239 Tuska V. O'Brien, 68 X. Y. 446, 518, 591, 800 Tute V. James, 60 Vt. 124, 1141 Tutt V. Price, 7 Mo. App. 194, 832 Tut.t V. State, — Tex. Grim. App. — (29 S. W. R. 268 , 1224 Tuttle V. Harrill, 85 X\ C. 456, 790 Tattle V. Turner, 28 Tex. 759, 1086 Twohy V. Armstrong, 15 U. C. C. P. 269, 120 Tyler v. Willis, 35 Barb. 213, 350 Tvler Mining Co. v. Sweeney. 54 "Fed. R. 284 (4 C. C. A. 329" , 527 Tvng V. Clarke, 9 Hun (16 N. Y. "Supr.) 269, 996 Tyree v. Magness, 1 Sneed 33 Tenn.) 275, 937 Tyres v. Kennedv, 126 Ind. 523 (26N. E. R. 394), 943 Tysen v. Tompkins, 10 Daly 244, 744 U TTdaiya Tevar v. Katama Natch- iar, 2 Madras H. C. R. 131, 894 Udmi V. Neki, 15 Punjab R. 202, 189 1-624, Vol. n,pp. 625-1335.1 Ukha V. Daga, Indian L. R. 7 Bombay 182, 343 Ulrich V. Drischell, 88 Ind. 354, 364 Umar Ali v. Shah Ali Mahomed, 5 Punjab R. 164. 513 Umlaui V. Umlauf, 117 111. 580 (6 N. E. R. 455, 57 Am. R. 880), 717 Ummatha v. Kunhamed, Indian L. R. 4 Madras 388, 222 Umrao Lai v. Behari Singh, I. L. R. 3 Allahabad 297, 338 Underbill, In re, 117 N. Y. 471 (22 N. E. R. 1120), 132 Underwood v. French, 6 Ore. 66 (25 Am. R. 500), 849 Unglish V. Marvin, 128 N. Y. 380 (28 N. E. R. 634), 799 Union Bank v. Hodges, 11 Rich. Law 480, 1062 Union Central Life Ins. Co. v. Schidler, 130 Ind. 214 (29 N. E. R. 1071), 383 Union, etc., Ins. Co. v. Kirohoff, 149 111. 536 (36 N. E. R. 1031), 1324 Union P. R. Co. v. Kelley, 4 Colo. App. 325 (35 Pac. R. 923), 168 Union R. R. & T. Co. v. Traube, 59 Mo. 355, 337 Union School Tp. v. First Nat. Bk.,102 Ind. 464(2 N.E.R.194), 1309 L^nion Trust Co. v. Southern Navigation Co., 130 U. S. 565, 1084 United Society of Shakers v. Un- derwood, 11 Bush (74 Ky.; 265 (21Am. R. 214, 1068 United States v. Barnhart, 22 Fed. R. 285, 959 United States v. Bow'man,2 Wash. C. C. 328 (Fed. Gas. No. 14631), 1251 United States v. Burch, 1 Cranch C. C. 36, 1223 United States v. Cashiel, 1 Hughes 552, 956 United States v. Clark, 31 Fed.R. 710, 956 United States v. Denicke, 35 Fed. R. 407, 1251 United States v. Flecke, 2 Bene- dict 456, 1223 United States v. Lee, 4 Cranch C. C. 446, 1230 United States v. Harmison, 3 Swayer 556, 1231 United States v.Houston,4 Cranch C. C. 261, 9rv United States v. Marigold. 9 How. (50U. S.)560, 959 Ignited States v. McKee, 4 Dillon 128. 953 ex VI TABLE OF CASES. {^References are to pages, Vol. I, pp United States v. McNeal, 1 Gall. 387 (Fed. Cas. No. 15700), 1251 United States v. Miner, 11 Blatch- ford 511, 1213 United States v. Morris, 1 Curt. 23, 1280 United States v. Nourse, 9 Pet. 8, 697 United States v. Olsen, 57 Fed. R. 579, 955 United States v. Parker, 120 U. S. 89, 152 United States v Peaco, 4 Craneh C. C. 601, 1219 United States v. Perez, 9 Wheat. 579, 1276, 1280 United States v. Rand, 53 Fed. R. 348 (3 C. C. A. 556, 5 U. S. A. 230), 740 United States v. Riley, 5 Blatch. 204, 1258 United States v. Schneider, 35 Fed. R. 107, 969 United States v. Shoemaker, 2 Mc- Lean 114, 1257 United States v. Three Copper Stills, 47 Fed. R. 495, 1223 United States v. Walker, 109 U. S. 258, 925 United States,'Bank of, v. Schultz, 3 Ohio 61, ' 310 United States, etc., Co. v. Asbes- tos Felting Co., 18 Blatchford 310, 1053 United States Express Co. v. Smith, 35 111. App. 90, 401 United States Trust Co. v. Roche, 116 N. Y. 120 (22 N. E. R.265), 978 Unreported Case (cited), 20 How. St. Tr. 397, 6 Uppfalt V. Woermann, 30 Neb. 189 (46 N. W. R. 419), 466 Uran v. Houdlette, 36 Me. 15, 414 V Vahle V. Brackenseik, 145 111. 231 (34N. E. R. 524), 196 Vail V. Rinehart, 105 Ind. 6 (4 N. E. R.), 413 Valentine v. Farnsworth, 21 Pick. (38 Mass.) 176, 1178 Valentine v. Mahoney,37 Cal.389, 933, 1073 Van Alstine v. McCarty, 51 Barb. 326, 1073 Van Alstvne v. Ind. P. & C. R. R. Co.,'.34 Barb. 28, 535 Van Buren v. Wells, 53 Ark. 368 (14 S. W. R. 38), 956 1-624, Vol. II, pp. 625-1335.1 Van Buskirk v. Warren, 34 Barb. 457, 1080 Van Camp v. Fowler, 61 Hun (68 N. Y. Sapr. ) 626 (16 N. Y. Suppl. 281), 1193 Vance v. Vance, 17 Me. 203, 306 Vandenheuvel v. United Insur- ance Co., 2 Caine's Cases 217, 1047 Van Deusen v. Sweet, 51 N. Y. 378, 1039 Van Dyke v. Van Dvke, 135 Pa. St. 459 (19 Atl. R. 1061), 962 Van Epps v. Harrison, 40 Am. D. 314, 420 Van Horn v. Van Horn, (N. J. L.) 21 Atl. R. 1069, 1310 Van lloozier v. Hannibal & St. Joseph R. R. Co., 70 Mo. 145, 394 Van Keuren v. Miller, 28 N. Y. Suppl. 971, 251 Vann v. Bubb, 11 New South Wales S. C. R. 268, 506 Van Rensselear v. Akin, 22 Wend. 549, 912 Vannxp'n v. Enrr, 151 Mass. 386 (24 IN. E. R. 773), 371 Van Valkenburgh v. City of Mil- waukee, 43 Wis. 574, 539 Van Vechten v. Terry, 2 Johns. Ch. 197, 1194 Van Vleit v. Olin, 1 Nev. 495, 130 Varanakot Narayanan v. Varana- kot Narayanan, I. L. R, 2 Mad- ras 328, ■ 1012 Vasudevan v. Narayanan, I. L. R. 6 Madras 121, " 1012 Vaughan v. Com., 2 Va. Cas. 273, 1234 Vauahan v. Morrison, 55 N. H. 580, 53 Vaughan v. O'Brien, 57 Barb. 627, 84 Vaughan v. O'Brien, 57 Barb. 491, 191 Vaughan y. Phebe, 1 Mar. & Yer. 1 (17 Am. D. 770), 925, 1024 Vaughan v. Welden, L. R. 10 C. P. 47, 227 Vaughn y. Drewry, 79 Ga. 761 (4 S. E. R. 879), " 746 Vaughn v. Morrison, 55 N. H. 580, 1017 Vaux's Case, 4 Coke 44, 1260 Veatch v. State, 60 Ind. 291, 1216 Veazie v. Penobscot R. R. Co., 49 Me. 119, 1176 Vedder's Estate, In re, 17 N. Y. S. 93, 552 Vedder's Will, In re, 2 Connolly 548 (15 N. Y. S. 798, 40 N. Y. S. R. 119), 652 Veghte V. Hoagland, 29 N. J, L. 125, 205 TABLE OF CASES. CXVH IBefereiices are to pages. To/. I, pp Venkatachalam v. Mahalaksh- ' mamma, I. L. R. 10 Madras 272, 190 , Venkatardi v. Narayva, 9 Madras | J. 291, ■ 901 Venkatesh v. Maruti, I. L. R. 12 ' Bombay 220, 1102 Venkavva v. Xarasamma, I. L. R. i 11 :\radras 207, _ 547, 576 Venkavva v. Suramma, Indian L. R. 12 Madras 235. 1126 Yenkoba v. Subbanna, I. L. R. 11 Madras 151, 276 Venktesh v. Ganpava, 1876 Bom- bay P. J. 110, ' 578 Venku v. Mahalinga, I. L. R. 11 Madras 393, 26 Venters v. State, 18 Tex. App. 198, 1297 Verhein v. Sehultz, 57 Mo. 326, 130 Verneuil v. Harper, 28 La. Ann. 893 721 Vernon v. Valk, 2 Hill Ch. 257, 930 Verret v. Belang^r, 6 La. Ann. 109, 1139 Vetterlein v. Barnes, 124 U.S. 169 (8 Sup. Ct. Rep. 441), 1194 Vigeant v. Scullv, 35 111. App. 44, 1158 Village of Hvde Park v. Corwith, 122 111. 441 112 X. E. R. 2381, 738 Village of Seneca Falls v. Za- linski, 8 Hun (15 N. Y. Supr.) 571, 1178 Villars v. Faivre, 36 La. Ann. 398, 359 Vinsant v. Yinsant, 49 Iowa 630, 307 Vincent, Ex parte, 43 Ala. 402, 1286 Vincent V. Rogers. 33 Ala. 224, 703 Viraragava v. Krishnasami, I. L. R. 6 Madras 344, 223 Virgo V. Virgo, 69 Law Times Rep. 460, 962 Vito Viti V. Dixon, 12 Mo. 479, 1082 Voge V. Breed, 14 111. App. 538, 563 Von Glahn v. Sommer, 11 Minn. 203, 120 Von Hoffman v. Kendall, 63 Hun (70 N. Y. Supr.) 628 (17 X. Y. Suppl. 713), 964 Vooght V. Winch, 2 B. Aid. 662, 607 Vought V. Sober, 73 Pa. St. 49, 192 Vvankatrav v. Mahader, 1882 Bombay P. J. 226, 1011 w Wabash, etc.. R. Co. v. Peterson, 115 111. 597 (7 X. E. R. 485) (6 N. E. R. 412;, 1302 . 1-624, Vol. II, pp. 625-1335.'] Wabash. St. Louis & P. R. Co. v. Central Trust Co., 33 Fed. R. 238, 1157 Waddle v. Ishe, 12 Ala. 308, 171 Wade v. Howard, 8 Pick. 353, 130 Wade V. Lindsey, 6 Mete. 407, 812 Wadsworth v. Sharpsteen, 8 N.Y. 388, 1023 Wager v. Insurance Co., 150 U. S. 99 ;14S. Ct. R. 55), 629 Wagner v. Smith, 13 Lea (81 Tenn.) 560, 1087 Wagner v. Waener, 36 Minn. 239 (30y. W. R."'766), 304 Wagoner v. Wagoner, 76 Md. 311 (25 Atl. R. 338), 306 Wahle v.Wahle. 71 111. 510, 79,605,719 Waite v. Teeters, 36 Kan. 604 (14 Pac. R. 146). 476 Wake V. Congers, 2 Cox 360, &42 Wakelev v. Delaplaine, 15 Wis. 554, " 148 Wakeman v. Grover. 4 Paige 23, 1194 AValcott V. Brander, 10 Tex. 419, 913 Walden v. Bodlev, 14 Pet. 156, 158 Waldron v. :Mitchell, 13 New South Wales Law 163, 1073 Wales v. Lvon, 2 Mich. 276, 484 Walker v. Ames. 2 Cowen 428, 490 Walker v. Bvers, 19 Ark. 323, 86 Walker v. Chase, 53 Me. 258, 725 Walker v. Davis, 1 Grav 506, 878 Walker v. Dav. 8 Baxter 77, 880 Walker v. Doane, 108 111. 236, 1320 Walker v. Fordes, 31 Ala. 9, 1317 Walker v. Fuller, 29 Ark. 448, 957 Walker v. Goldsmith. 14 Oregon 125 1 12 Pac. R. 537), 1102 Walker v. Hampton. 8 Ala. 412, 272 Walker v. Heller, 104 Ind. 327 (3 N. E. R. 114), 99 Walker v. Hill, 17 Mass. 380, 132 Walker v. Houlton, 5 Blackf . 348, 1334 Walker V. Leshe, 90 Kv. 642 (14 S.W. R. 682), 814 Walker v. Mav, 2 Hill's Ch. (S. C.)22, " 1001 Walker V. Mitchell. 18 B. Mon. (57 Kv.) 541, 390 Walker v. Perrvman, 23 Ga. 309, 1025 Walker v. Vv'vse, 77 Ga. 234 (2 S. E. R. 749i.' 745 Wallace v. Berrv, 51 ^';. 602, 484 Wallace v. Marquette, 88 Ky. 130 flOS. W. R. 374), 1114 Wallen v. Huff, 3 Sneed (35 Tenn.) 82 (65 Am. D. 49), 1086 Waller v. State, 40 Ala. 325, 1292 Walsh V. Chesapeake, etc., Co., 59 :Md. 423, 872 CXVlll TABLE OF CASES. [JBe/erences are to pages, Vol. I, pp Walsh V, Mclntire, 68 Md. 402 (13 Atl. R. 348), 657 Walton V. Bethune, 2 Brevard 453 (4 Am. D. 597), 1047 Walton V. Cox, 67 Ind. 164, 1177, 1187 Walton V. State, 3 Sneed 686, 1267 Wann v. McNulty, 7 111. (2 Gil- man) 355 (43 Am. D. 58), 1062 Wanzer v. DeBaun, 1 E. D. Smith 261, 383, 384, 386 Wanzer v. Self, 30 O. St. 378, 168 Ward V. Durham, 134 111. 195 (25 N. E. R. 745), 1002 Ward V. Fellers, 3 Mich. 281, 426 Ward V. Johnson, 13 Mass. 148, 1062 Ward V. Price, 1 Pinney 101, 842 Ward V. Ward, 22 N. J. L. 699, 608 AVarfield v. Walter, 11 Gill & J. 81, 802 Waring v. Lewis, 53 Ala. 615, 86, 407 Warner v. Bacon, 8 Gray 397, 265 Warner v. Comstock, 55 Mich. 615 (22 N. E. R. 64), 1165 AVarner v. George, 58 Fed. R. 435, 437 Warren v. Comings, 6 Cash. (60 Mass.) 103, 315 Warren v. Raymond, 17 S. C. 163, 1302 Warwick v. Underwood, 3 Head 238 (75 Am. D. 767), 812 AVashburn, etc., Co. v. Chicago, etc., Co., 119 111. 30 (6N. E. R. 191), 1320 Washburn v. Great Western Ins. Co., 114 Mass. 175, 874 Washburne v. Van Steenwyk, 35 Minn. 336, 1096 Washington, etc., R. Co. v. Caze- nove, 83 Va. 744 (3 S. E. R. 433), 658 Washington Packet Co. v. Sickles, 5 Wall. 592, 187 Washington, etc., Co. v. Sickles, 24 How. 333, 833, 836 AVaterbury v. Graham, 4 Sandford 215, 303 AVaterman v. Chicago, etc., R.Co., 139 111. 658 (29 N. E. R. 689, 32 Am. S. R. 228), 751 AA^aters v. Perkins, 65 Ga. 32, 400 AA' atkins v. Lawton, 69 Ga. 671, 249, 1308 AA^atsonv. Carman, (Ky.) 6 S. W. R. 450, 342 AVatson v. Cowdrev, 23 Hun 169, 199 AVatson v. Jackson, 24 Kan. 442, 100 AVatson v. Railway Co., (Tex. Civ. App.),27S. AV.924, 308 1-624, Vol. II, pp. 625-1335.1 Watson V. The Collector of Raj- Shahye, 13 Madras I. A. 160, 187 Watson V. Wilson, 2 Dana (Ky.^ 406 (26 Am. D. 459), 1083, 1113 AVatts' Estates,In re, 158 Pa.St. 1 (27 Atl. R. 861), 1179 AVatts V. Gayle, 20 Ala. 817, 11.36 AVatts V. Rice, 75 Ala. 289, 758 AVatts V. AVatts, 160 Mass. 464 (36 N. E. R. 479), 530 Wattson V. Dowling, 26 Cal. 124, 1191 AVay V. Lewis, 115 Mass. 26, 1135 AVeathered v. Mays, 4 Tex. 387, 130 AVeaver v. Thornton, 63 Ga. 655, 1140 AVebb V. Buckelew, 82 N. Y. 555, 119 551 AVebb V. Mallard, 27 Tex. 80, ' 480 AVebb V. Town of Rocky-Hill, 21 Conn. 468, 94 Webb V. AVebb, 6 T. B. Mon. 163, 886 Weber v. Morris, etc., R. Co., 36 N. J. L. 213, ' 210 Webbs V. State, 4 Coldwell (44 Tenn.) 199, 959, 966 AVebster v. Kings County Trust Co., (N. Y.) 39 N. E. R. 964, 918 Weed V. Burt, 78 N. Y. 191, 370 AVeeks v. Harriman, 65 N. H. 91 (23 Am. St. R. 21, 18 Atl. R. 87), 114 Weeks v. Tomes, 16 Hun (23 N. Y. Supreme) 349, 1106 AVeeks v. Weeks, 16 Abb. New Cases 143, 1071 AVehrly v. Morfoot, 103 111. 183, 330 Weiglev v. Coffman, 144 Pa. St. 489 (22 Atl. R. 919), 171 AA^eiler v. Henarie, 15 Oregon 28 (13 Pac. R. 614), 359 AVeill V. Fontanel, 31 111. App. 615, 368 AA'einberger v. Merchants' Ins. Co., 41 La. Ann. 31 (5 S. R. 728), 191 AVeir v. Marley, 99 Mo. 484 (12 S. AV. R. 798), 93 Welch V. Jugenheimer, 56 Iowa 11 (8N. AV. R. 673), 1305 Welch V. McKane, 55 Conn. 25 (10 Atl. R. 169), 1144 Wells V. Com., (Ky.) 6 S. W. R. 150, 1262 Wells V. Coyle, 20 La. Ann. 396, 937 Wells V. Edmison, 4 Dak. 46 (22 N. AV. R. 497), 414 AVells V. Moore, 49 Mo. 229, 661 Welsh V. Harman, 8 Yerger (16 Tenn.) 103, 251 Wemvss v. Hopkins, L. R. 10 Q. B. 378, 1210 TABLE OF CASES. CXIX iSefei'ences are to pages, Vol. I, pp Wendell v. North, 24 Wis.^223, 1179 AVenman v. Mackenzie, 5 El. & Bl. 447, 925 West V. Douglas, 145 111. 164 (34 N. E. R. ill), 1312 West V. His Creditors, 3 La. Ann, 529, • 949 West V. Moser, 49 Mo. App. 201, 861 West N. Y. Silk Mill Co. v. Laubseli (N. J. Eq.), 30 Atl. R. 814, 98 AVestbrook v. Mize, 35 Kan. 299 (lOPac. R. 881), 1067 Westcott V. Bock, 2 Colo. 335, 193 Westcott V. Edmunds, 68 Pa. St. 34, 86, 88 AVestern and Atlantic R. Co. v. City of Atlanta, 74 Ga. 774, 1178 Western, etc., Co. v. Virginia, etc., Co., 10 AY. \-A. 250, 782 Western Telegraph Co. v. Balti- more and Ohio R. Co., 69 Md. 211 (14 Atl. R. 531), 1076 V\'eston V. Turner, 22 N. Y'. Suppl. 141, 429 Wetherald v. A'an Stavoren, 125 Pa. St. 535 (17 Atl. R. 450), 484 Wetmore v. San Francisco, 44 Cal. 294, 335 AA^halev v. Houser. 18 S. C. 602, 1198 AYhaleV v. Stevens, 24 S. C. 479, 892 AYharton v. King, 69 Ala. 365, 508 AYhatelv v. Alenheim, 2 Esp. 608, 924 AYheatley v. Thorn, 23 Aliss. 62, 958 AA'heeler v. Bancroft, 18 X. H. 537, 52 AA'heeler v. Hotchkiss, 10 Conn. 225 4.59 AYheeler v. Ruckman, 51 N. Y^. 391, 169 AVheelock v. AA^arschauer, 34 Cal. 265, 1073 Whetstone v. Coffev, 48 Tex. 269, 461 Whilden v. State, 25 Ga. 396 (71 Am. D. 181), 1215 Whitaker v. Hawlev, 30 Kan. 317 (1 Pac. R. 508, 516), 240 Whitaker v. Johnson County, 12 la. 595, 732 Whitaker v. Wheeler, 44 111. 440, 114 White V. Campbell, 25 Mich. 463, 1317 AVhite V. Chase, 128 Mass. 158, gi9 010 AATiite V. Clav, 7 Leigh 68, "' 611 AYhite v. Coatsworth, 6 N. Y'". 137, 782 AA'hite v. Fresno Nat. Bk., 98 Cal. 166 (32 Pac. R. 979), 740 AATiite V. Green, 5 Jones' L. 47, 117 AATiite V. Martin, 1 Porter 215, 261 AA^hite v. Moseley,.8 Pick. 356, 206 White V. Philbrick, 5 Greenleaf (5 Me.) 147 (17 Am. D. 214), 1067 803 621 195 489 119 121 510 1-G24, Vol. II, pp. 625-1335.1 AVhite V. Purnell, 14 La. Ann. 232, AVhite V. Simonds, 33 A't. 178 (78 Am. D. 620), 618, White V. Smith, 33 Pa. St. 186 (75 Am. D. 589), 288, 372 AVhite V. State, 9 Tex. App. 390, 1217 AVhite V. State, 1 Blackford 557, 1138 AVhite V. AVatts, 18 Iowa 74, 103 AA^hitehead v. Woolfolk, 3 La. Ann. 1141, AVhitehurst v. Rogers, 38 Md. 503, 865 AVhiteside v. Hasselton, 110 TJ. S. 296, 1086 Whiting V. Burger, 78 Me. 287 (4 Atl. R. 694), 88 AVhitlock V. Appleby, 49 Mo. App. 295 Whitlow V. Echols, 78 Ala. 206, AVhitman Mining Co. v. Baker, 3 Nev. 386, AVhitmore v. State, 43 Ark. 271, 1257, 1284 AA'hitnev v. Bayer, (Mich.) 59 N. AV. R: 414, AVhitnev v. Butts, 91 Ga. 124 (16 S. E. R649), AVhitnev v. Hirsch, 39 Hun (46 N. Y'.'Supr.i 324, 1021 AVhitnev v. Pinnev, 51 Minn. 146 (53N'W. R. 198"), 949 AA'hitnev v. Town of Clarendon, 18 AT." 252 (46 Am. D. 150), 265 AVhitnev v. Walsh, 1 Cush. (55 Alass.") 29, 1023 AVhitsell v. Alills, 6 Ind. 229, 459 AVhittaker v. Jackson, 2 H. & C. 926, 812 AVhittemore v. Shaw, 8 N. H. 393, 701 AVhittemore v. Whittemore, 2 N. H. 26. 30, 236 Whitten v. State, 61 Miss. 717, 1286 AVhittier v. CoUins, 15 R. I. 90 (23 Atl. R. 47), 38.5,386 AVhitworth v. Sour, 57 Ind. 107, 169 Wichern v. Davidson, 11 N. S. W. S. Ct. R. 129 812 Wichita & AV. R. Co. v.Beebe, 39 Kan. 465 ( 18 Pac. R. 502), 394 Wickersham v.AA'hedon,33Mo.561, 335 AAlckliffe v. Breckinridge, 1 Bush (64Ky.)427, 1106 Wiese v. San Francisco, etc.,Soc., 82Cal. 645 (23Pac. R. 212), 727 Wiggins, etc., Co. v. Ohio, etc., R. Co., 142 r. S. 396, 660, 667 Wilavati Begam v. Nurkhan, I. L. R. "5 Allahabad 514, 64 AVilbur v. Gilmore, 21 Pick. 250, 661 AAllch V. Phelps, 16 Neb, 515 (20 N. W. R. 840), 613 cxx TABLE OF CASES. [Beferences are to pages, Vol. I, pp Wilcox V. Bates, 45 Wis. 138, 1320 Wilcox V. Gilchrist, 32 N. Y. S. 608, 795 Wilcox V. Lee, 26 How. Pr. 418, 854 Wilcox V. State, 6 Lea (74 Tenn.) 571 (40 Am. R. 53), 1219 Wilde V. Wilde, 36 Iowa 319, 458 Wiley V. Holmes, 28 Mo. 286 (75 Am. D. 126), 1063 Wilkes V. Davies, 8 Wash. 112 (35 Pac. R. 611), 1307 Wilkes V. Hunt, 4 Wash. St. 100 (29 Pac. R. 830), 1306 Wilkes V. Jackson, 2 Hen. & M. (12 Va.) 355, 1069 Wilkie V. Howe, 27 Kan. 518, 1050 Wilkins v. Judge, 14 Ala. 135, 688 AVilkins v. Western Union Tel. Co., 68 Miss. 6 (8 S. R. 678), 348 Wilkinson v. Elliott, 43 Kan. 590 (23 Pac. R. 614), 1104, 1112 Wilkinson v. Kirby, 15 C. B. 430, 803 Wilkinson v. State, 59 Ind. 416, 1299 Will of Barr, Ohio Probate R. 134, 828 Willard v. Calhoun, 70 Iowa 650 (28N. W. R. 422), 492 Willard v. Sperry, 16 Johns. 121, 326 Willett V. Malli, 65 Iowa 675 (22 N. W. R.922), 923,930 Willey V. Laraway, 64 Vt. 559 (25 Atl. R. 436), 1192 Willey V. Paulk, 6 Conn. 74, 1136 Williams v. Batchelor, 90 N. C. 364, 411 Williams v. Breedon, 1 B. & P. 329, 835 Williams v. Burg, 9 Lea (77 Tenn. ) 455. 1180 Williams V Clouse,91 N. C.322, 671 Wilhamsv. Conger, 125U.S. 397, 1308 Wilhams V. Dent'Iron Co., 30 Mo. App. 662, 833 Williams v. Fitzhugh, 44 Barb. 321, 820 Williams v. Gibbes, 17 How. (58 TJ. S.) 239, 1000 Williams v. Hacker, 16 Colo. 113 f26 Pac. R. 143), 810 Williams v. Hays, 64 Hun (71 N. Y. Supr.) 202 (19 N. Y. Suppl. 61, 46 N. Y. St. R. 100), 1192 Williams v. Jones, 10 Sm. & M. (18 Miss.) 108, 472 Williams v. Kitchen, 40 Mo. App. 604, 326 Williams v. Lewis, 124 Ind. 344 r24N. E. R. 733) 196 Williams v. Row, 62 Pa. St. 118, 86 Williams v. State, 13 Tex. App. 285, 1201 1-624, Vol. II, pp. 625-1335.'] Williams v. State, 42 Ark. 35, 1251 Williams v. Sutton, 43 Cal. 65, 1191 Williams v. Robinson, 63 Tex. 576, 88, 507 AVilliams v. Terrell, 54 Ga. 462, 1080 Williams v. Williams, 63 Wis. 58 (23 N. W. R. 110), 82, 1027 Williams v. Williams, 53 Mo. ■ App. 617, 88 AVilliamsburgh Savings Bank v. Town of Solon, 136 N. Y. 465 r32 N. E. R. 1058), 682 Williamson v. Howell, 4 Ala. 693, 1136 AVilliamson v. AVilliams, 11 Lea (79 Tenn.) 355, 1103 Williamson v. Tunno, 2 Bay 388, 1047 Williford v. State, 23 Ga. 1, 1288 WilHs V. Smith, 72 Tex. 565 (10 S. W. R. 683), 1302 Willis V. State, 24 Tex. App. 586 (6 S. W. R. 857), 1234 Willoughby v. Chicago Junction Railway (N. J. Eq.) (25 Atl. R. 277), 998 Wilmes v. Railway Co., 29 Minn. 242 (13N. W. R. 39), 253 Wilson V. Brookshire, 126 Ind. 497 (25 N. E. R. 131), 1073 Wilson V. Buell, 117 Ind. 315 (20 N. E. R. 231) 238, 1122 Wilson V. Cameron, 1 Kerr (N. B.) 542, 490 Wilson V. Campbell, 33 Ala. 249, 1000 Wilson V. Com., 3 Bush 105, 1257 AVilson V. Craige, 113 N. C. 463 (18S. E. R. 715), 99 Wilsonv.Curtis, 13La. Ann. 601, 887 Wilson V. Dean, 121 U. S. 525, 733 Wilson V. Fatout, 42 Ind. 52, 377 Wilson V. Fridenberg, 22 Fla. 114, 1331 Wilson V. Fridenberg, 21 Fla. 386, 1302 Wilson V. Hefflin, 81 Ind. 35, 1116 Wilson V. Hoffman, 93 Mich. 72 (52 N. W. R. 1037), 390 AVilson V. Kelly, 19 S. C. 160, 930 Wilson V. Kiesel, (Utah) (35 Pac. R. 488 ^ 998 Wilson V. Lineberger, 82 N. C. 412, 97 Wilson V. Manhattan Ry. Co., 20 N. Y. Suppl. 852 (49 N. Y. St. Rep. 116, 2 N. Y. Misc. R. 127), 962 Wilson V. M'Elwee, 1 Strobh. Law 65, 1179 Wilson V. Peelle, 78 Ind. 384, 932 Wilson V. Pittsburgh & Y. Coal Co., 43 Pa. St. 424, 996 Wilson V. Ray, 24 Ind. 156, 657 TABLE OF CASKS. CXXl [Beferences are to pages, Vol. I, pp Wilson V. State, 45 Tex. 76 (23 Am. R. 202), 1234 Wilson V. State, 24 Conn. 57, 1212 Wilson V. Stripe, 4 G. Greene 551 (61 Am. D. 138), 474 Wilson, Succession of, 12 La. Ann. 591, 926 Wilson V. Trowbridgre, 71 Iowa 345 (32N. W. R. 373), 171 Wilson V. Vance, 55 Ind. 584, 1329 Wilton V. Middlesex R. R. Co., 125 Mass. 130, 331 Wimberly v. Collier, 32 Ga. 13, 1179 Winegard v. Fanning, 27 N. Y. Suppl. 566 (57 N. Y. St. Reporter 330), 941 Wininger v. State, 13 Ind. 540, 1218 Winn V. State, 82 Wis. 571 (52 N. W. R. 777), 1237 Winninsrham v. State, Gapen 56 Ind. 243, 330 Winona, etc., R. Co. v. Barney, 113 U. S. 618, 1314 Winpenny v. Winpenny, 92 Pa. St. 440, 464 Winslow V. Grindal, 2 Me. 64, 1078 Winslow V. Railroad Co., 4 ]\Iinn. 313, 1194 Winslow V. Stokes, 3 Jones' Law 385 (67 Am. D. 242), 136 Winsor v. Queen, L. R. 1 Q. B. 289 (6 Best & S. 123, 7 B. & S. 490), 1280 Winston v. Starke, 12 Gratt. (53 Va.) 317, 999 Winston v. Westfeldt, 22 Ala. 760 (58 Am. D. 278), 1118 Wintermute v. Cooke, 7 Hun 476, 633 Wise V. Hilton, 4 Me. 435, 1016 Wise V. Walker, 81 Cal. 11 (20 Pac. R. 81 and Pac. R. 293), 478 Wistar v. McManes, 54 Pa. St. 318 (93 Am. D. 700), 98 Witcher v. Oldham. 4 Sneed 220, 196 Withers v. Sims, 80 Va. 651, 567 Witkowski v. Stubbs, 91 Ga. 440 (17S. E. R. 609), 107 Witte V. Lockwood, 39 O. St. 141, 406 Witter V. Fisher, 27 Iowa 9, 1128 Wittick V. Traun, 25 Ala. 317, 335, 1330 Wittick V. Traun, 27 Ala. 562 (62 Am. D. 778), 273 Wixson V. Devine, 80 Cal. 385 (22 Pac. R. 224), 823, 1316 Wixson V. Devine, 67 Cal. 341 (26 Pac. R. 523), 823 Wohlford V. Compton, 79 Va.333, 146 Wolcott V. Hodge, 15 Gray (81 Mass.) 547 (77 Am. D. 381), 414 I 1-624, Vol. II, pp. 625-1385.'\ Wolf River Lumber Co. v. Brown, 88 Wis. 638 (60 N. W. R. 996), 808 Wolfe's Estate, In re, 137 N. Y. 205 (33N. E. R. 156), 796 Wolfinger v. Betz, 66 Iowa 594 (24 N. W. R. 228), 481 AYolverton v.. Baker, 86 Cal. 591 (25 Pac. R. 54), 139 Wood V. Corl, 4 Mete. 203, 198 Wood V. Davis, 7 Cranch (11 U. S.) 271, 938 Wood V. Ensel, 63 Mo. 193, 1051 Wood V. Faut, 55 Mich. 185 (20 N. W. R. 897), 845 Wood V. Jackson, 8 Wend. 9 (22 Am. D. 603), 832 Wood V. Jackson. 18 Wend. 107, 607 Wood V. Ward, 2 Flippin 336, 1187 Woodbridge v. Banning, 14 O. St. 328, 379 AVoodburv v. Perkins, 5 Cush. (59 Mass.) 86 (51 Am. D. 51), 414 Woodcock v. Carlson, 49 Minn. 536 (52 N. W. R. 142), 801 Woodford v. Prople, 62 N. Y. 117 (20 Am. R. 464), 1234 Woodgate v. Fleet, 44 N. Y. 1, 652 Woodin V. Clemons, 32 Iowa 280, 334 AYoodhouse v. Duncan, 106 N. Y. 527 (13 N. E. R. 334), 1004 Woods v. Kessler, 93 Ind. 356, 800 AVoods v. AVaddle, 44 O. St. 449 (8 N. E. R. 297), 458 AVoodward v. [Jackson, 85 Iowa 432 (52 N. AV. R. 358), 1078 AA^oodworth v. Seymour, 22 Hun 245, 801 AVoodworth v. Zimmerman, 92 Ind. 349, 477 AA^oolridge v. Page, 1 Lea 135, 930 AVoolverton v. Baker, 98 Cal. 628 (33 Pac. R. 731), 354 AVooldridge v. Boyd, 13 Lea (81 Tenn.) 151, 1096 AVoolley V. Louisville, etc., Co., 81 Ky. 527, 062 Woomatara Debia v. TJnopoorna Dasi, 11 Bombay L. R. 158 P. C. 900 AA'^oomattra Debia v. Unnopoorna Dasi, 11 Bengal L. R. 109, 402 Wooters v. Smith, 56 Tex. 198, 1062 AVorflev v. Scarborough, 3 Atkyns 392 (A. D. 1746), 1097 Worlev V. Hineman, 6 Ind. App. 240 (33 N. E. R. 260), 1050, 1179 AVorrell v. Smith, 6 Colo. 141, 782 AVortham v. Boyd, 66 Tex. 401 (1 S. AV. R. 109), 1117 AA^'ragg v. Penn Township, 94 111. 11, 956 CXXll TABLE OF CASES. IBeferences are to pages, Vol. I, pp AVright V. Anderson, 117 Ind. 349, 355 (20 N. E. R. 247), 243 Wright V. Butler, 6 Wend. 284 (21 Am. D. 323), 656 Wright V. Dunning, 46 111. 271 (92 Am. D. 257), 473 AVright V. Griffey, 147 111. 496 (35 N. E. R. 732), 451 Wright V. Lathrop, 2 O. 33 (15 Am. D. 529), 1068 Wright V. Miller, 67 Hun (74 N. Y. Supreme) 649 (22 N. Y. S. 24, 61 N. Y. S. A. 373), 342 Wright V. Salisbury, 46 Mo. 26, 200 Wright V. Sperrv, 25 AVis. 617, 1323 Wright V. State, 17 Tex. App. 152, 1202, 1234, 1236 Wright V. State, 5 Ind. 527, 1292 Wright V. State, 5 Ind. 290, 1272 Wright V, Wooters, 46 Tex. 380, 1080 Wrightman v. Karsner, 20 Ala. 446, 1272 Wynne v. Spiers, 7 Hump. 393, 721 Yale V. Baum, 70 Miss. 225 (11 S. R. 879), 312 Yandell v. Pugh, 53 Miss. 295, 930 Yankey v. Sweeney, 85 Ivy. 55 (2 S. W. R. 559), 196 Yates V. Fassett, 5 Denio 21, 361 Yates V. Lyon, 61 Barb. 205, 485 Yates V. Wilson, 86 Va. 625 (10 S. E. R. 976), 126 Yates V. Yates, 81 N. C. 397, 838 Yauger v. Skinner, 14 N. J. Eq. (McCarter) 389, 1039 Yazoo & M. V. R. Co. v. Fulton, — Miss. — (14 S. R. 271), 1016 1-624, Vol. II, pp. 625-1335.'] Yohov. McGovern, 42 Ohio St. 11, 1063 Yongers, etc., Ins. Co. v. Bishop, 1 Daly 449, 621 Yorks V. Steele, 50 Barb. 397, 1128 Young, Ex parte, L. R. 17 Ch. Div. 668, 1183 Young V. Brehe, 19 Nev. 379 (12 Pac. R. 564), 127, 764 Young V. Byrd (Mo.), 28 S. W.R. 83, 629 Young V. Frost, 1 Md. 377, 1302 Young V. Harper, New Zealand Law 7 S. C. & C. A. 419, 156 Young V. Hill, New Zealand Law 2 C. A. 62, 879 Young V. Kenyon, 2 Day 252, 861 Young V. Rummell, 5 Hill 60, 7 Hill 503, 121 Young V. Rummell, 2 Hill 478 (38 Am. D. 594), 607 Young V. Stoiitz, 74 Ala. 574, 1078 z Zaccaro v. The Brothers Apap, 34 Fed. R. 352, 1131 Zadek v. Dixon (Tex.) 3 S. W. R. 247, 98 Zamindar of Pittapuram v. Kol- anka, Indian L. R. 2 Madras 9Q gyg Zaner v. State, 90 Ala. 651 (8 S. R. 698), 1292 Zanesville v. Zanesville, etc., Co., 1 O. C. C. 123, 644 Zeiter v. Bowman, 6 Barb. 133, 1119 Zimmerman v. Zimmerman, 15 111. 84, 858, 936 Zoeller v. Riley, 100 N. Y. 102 (2 N. E. R. 388), 606 FORMER ADJUDICATION TITLE I. PRINCIPLES, ANALOGIES, COMPARISONS, DEFINITIONS AND FINAL JUDGMENTS. Chaptek I. — Genekal matters § § 1- 6 Chapter II. — Special matters , 7-26 Chapter III. — Final judgments 27-29 CHAPTER I. general matters. § 1. Res Judicata defined — Principle involved — The Duchess of Kingston's Case : (Cases cited in that case — Comments on those cases) . 2. "Collaterally in question" — ' ' Concurrent jurisdiction ' ' — "Directly upon the point" — "Exclusive jurisdiction "— "Incidentally cognizable" — " Inferred by argument." 3. Collaterally in question or di- rectly upon the point — the cases specially considered: (Administrator removed — Ad- ministrator's indebtedness to the estate — Cause of action split — Consideration of note — §3. Deed, execution of — Deed, forgery of — Deed or mortgage — Distributee, alive or dead — Duress, admissions obtained by — Fraudulent judgment — Lunacy inquisition — Mortgage fraudulent — Pauper settled — Plat of land — Replevin, ac- count investigated in — Specific performance — Tenancy, in suit for reconveyance — Title to goods in trespass to land — Title to goods in trover for other goods — Title to trust es- tate in suit for an accounting — Trust under a will — Widow or no widow — Will, forged or not) . 2 PRINCIPLES, ANALOGIES, ETC. § 4. Section 3 continued — Cases in § 5. ' court — Reformation of deed — New Hampshire, South Caro- Street repairs — Title to land in lina, West Virginia and India criminal case before a magis- specially considered. trate — Title to land in case for 5. Concurrent jurisdiction, or inci- violation of city ordinance — dentally cognizable — the cases Wills of real and personal es- specially considered: (Forci- tate). ble entry — Fraud in release — §6. Inferred by argument: (Deti- Heirship or kinship in probate nue, title in — Divorce — Malice court — Installment of interest —Marriage or no marriage — Of- recovered in inferior court, flee, contest for — Record, uncer- suit on principal in superior , tain — Special finding of facts) . . §1. Res Judicata defined. — A cause of action is Res Judi- cata, or set at rest, as to adverse parties and their respective privies, if a judicial tribunal having jurisdiction has finally- adjudicated upon the merits of the whole or of any part of the cause, either upon a default or after a contest. In such a case, another proceeding can not be maintained upon the cause, nor upon any part of it ; nor can it be used as a counter-claim or set-off. A matter or question, either of law or fact, is res judicata, or set at rest, as to adverse parties and their respective privies, if it was a material issue in the proceeding, directly involved, and not merely incidentally cognizable nor collaterally in question, and was adjudicated, after a contest, by a final judgment on the merits. In such a case, it can not be again contested by the same parties or their respective privies, in any other judicial proceeding. In other words, as be- tween adverse parties and their respective privies, a final judg- ment on the merits, upon any cause of action or defense, rendered either after or without a contest, merges the cause in or destroys or satisfies it by the relief granted, or determines that it has no existence by the relief refused. So far as that cause is concerned, nothing remains upon which to base any litigation. So, also, a final judgment on the merits determin- ing any issue of law or fact, after a contest over it, forever sets it at rest, and fixes it as a fact or as the law in any other litigation between the parties or their respective privies. Principles. — The principles and rules which govern the doctrine of res judicata were first formulated in the Duchess GENERAL MATTERS. 6 OF Kingston's Case.^ She was arraigned before the House of Lords on Monday, April 15, 1776, on a charge that, being lawfully married to one Hervey, she married the Duke of Kingston, to which she pleaded not guilty. Before any evi- dence was offered on behalf of the prosecution, she offered in evidence, as a bar, a record showing that she had brought a suit in the ecclesiastical court against Hervey for boasting and claiming that they were married, to which he appeared and answered affirming his claim, and a trial on the merits with a finding and judgment that his claim was unfounded. After a long argument, the lords put these questions to the judges, namely : 1. "Whether or not a sentence of the spiritual court against a marriage in a suit for jactitation of marriage is con- clusive evidence so as to stop the counsel for the crown from proving the marriage in an indictment for polygamy? " 2. "Whether or not, admitting the sentence to be conclu- sive upon the indictment, the counsel for the crown may be admitted to avoid its effect by proving it to have been obtained by fraud or collusion?"^ The judges, in an opinion by De Grey, Lord Chief-Justice of the court of common pleas, answered the first question in the negative, and the second in the affirmative. The opinion says: "What has been said at the bar is certainly true, as a general principle, that a trans- action between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defense, nor to examine witnesses, nor to appeal from a judgment he might think erroneous. * * * From the variety of cases relative to judgments being given in evidence in civil suits, these two de- ductions seem to follow as generally true. First, that the judg- ment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court. Secondly, that the judgment of a court of 1. Duchess of Kingston's Case, 20 2. Duchess of Kingston's Case, 20 Howell's State Trials 355-652. Howell's State Trials 537. 4 PRINCIPLES, ANALOGIES, ETC. exclusive jurisdiction, directly upon the point, is, in like man- ner, conclusive upon the same matter, between the same part- ies, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." It will be seen that the whole case was covered by the point that the king was not bound because not a party, and that the two ''deductions" made were merely dicta. It appears from the report that the judges heard the arguments and citations of counsel in this case, and that the questions were submitted to them on April 19th, and decided on the next day. This was a very short time in which to make such extensive generalizations, and it would not be surprising if they were somewhat faulty. Still, for one hundred and nineteen years they have stood the test, and been copied with approval by every supreme court in the English speaking world, and by every author who has treated upon the subject. But under what circumstances a judgment is "directly upon the point," or a matter comes ''collaterally in question," or is "incidentally cognizable," or is "to be inferred by argument from the judgment," the cases differ widely. Fortunately, the report of the case in Howell's State Trials is very full. He gives the arguments of all the lawyers and their comments on all the cases, which comprise all those decided up to that time. From these cases, the Lord Chief- Justice illustrates what he means by these phrases, or rather shows how he derived them. But giving his illustrations, and in order to understand them better, I will give an abstract of all the Cases Cited in the Duchess of Kingston's Case. Kenn's Case.' — In this case the ecclesiastical court had granted a divorce between Kenn and his wife because they were under the age of consent when married. Kenn married again, had issue and died. A daughter of the first mar- riage brought a suit in the court of wards, claiming the in- 1. Kenn's Case, 7 Coke 138. GENERAL MATTERS. O heritance, and offered to prove that her father and mother were above the age of consent, and that they did, in fact, consent, and that the marriage was lawful, but her right to do so was denied, because the ecclesiastical court was competent to decide those questions, and also because an erroneous decision was not void. Clews V, Bathurst^ was an action for maliciously procuring the plaintiff's wife to exhibit articles of the peace against him, and for living with her in adultery. On the trial the plaintiff proved a marriage between himself and the woman, and the defendant produced a sentence of the consistory court in a cause of jactitation of marriage by the woman against the plaintiff, rendered after issue joined in the case then on trial, declaring her free from all contract and imposing silence on the plaintiff, and this was held to bar the action. Dacosta v. Villa ReaF was an action by a man against a woman for refusing to marry according to contract, and after the plaintiff had opened his case, the defendant produced "a sentence of the spiritual court in a cause of contract, in which the judge had pronounced against the suit for a solemnization in the face of the church, and declared Mrs. Villa Real free from all contract." This was decided to be a bar, because ** contract or no contract is the point in issue in both." In Hatfield v. Hatfield,^ a widow brought a suit to recover a provision made for her by the will of her late husband, and the defense was that she was not his widow because she had form- erly been married to one Porter, who was her lawful husband, and as such had released the provision. "While this suit was pending, she brought a suit of jactitation against Porter, who, in collusion with her, employed counsel to represent him, who let the matter go without counter-proofs, and a sentence was rendered declaring her free from all contract with him, which was decided by the House of Lords to bar the defense. A person was sued to recover for necessaries furnished his 1. Clews V. Bathurst, 2 Strange 960. 3. Hatfieldv. Hatfield, abstract given 2. Dacosta v. Villa Real, 2 Strange in 20 How. St. Tr. 395. 961. 6 PRINCIPLES, ANALOGIES, ETC. wife, and he denied any marriage, but was defeated before a jury, and a judgment was rendered against him. He then brought a suit of jactitation against the woman, and in that suit he was declared to be free from all contract with her. Another person then sued him for necessaries furnished her as his wife, and the sentence in the jactitation suit was decided to be a bar.^ It will be noticed that the civil court in which the first case was tried was compelled to pass upon and did pass upon the question of marriage or no marriage in order to determine the question of debt or no debt which was before it. Still, this de- termination was of no force in the ecclesiastical court, because the jurisdiction of the two courts was not concurrent. In other words, while the civil court could pass upon the question of marriage or no marriage if it arose * ' incidentally " in a civil cause, yet it had no power to determine that question if it was the cause of action. But after the ecclesiastical court had de- termined that there was no marriage, that question was con- cluded in all other courts. In Morris v. Webber,^ a divorce was granted in the spiritual court because of permanent impotency, after which each spouse got married, and each had children. Afterward it became a question whether or not the children of the husband by the second marriage were legitimate, and the court held that, while the fact of their birth demonstrated that the cause of divorce was false in fact, yet the sentence was conclusive. In Mellisent v. Mellisent,^ it was decided that a sentence of jactitation, declaring a man free from all contract of marriage with a woman, barred her from taking out letters of administra- tion on his estate as widow. In Bunting v. Lepingwel,* a man and woman contracted mat- rimony between them per verba de prsesenti tempore, and after- ward she married another man. The first promisee then sued her alone upon their contract in the court of audience, and it was adjudged that they should marry, which they did, and had 1. XJnreportedCase, cited in 2OH0W. 3. Mellisent v. Mellisent, unreported St. Tr. 397. case cited 20 How. St. Tr. 424. 2. Morris U.Webber, Moo.(K.B.)225. 4. Bunting v. Lepingwel, 4 Coke 29. GENERAL MATTERS. / issue. This husband dying, the legitimacy of the issue came up in the common-law court on a question of inheritance, and it was held that the decree was binding on all persons, includ- ing the first husband, although he was not a party, and that the issue was legitimate. This case was decided in A. D. 1556, and I do not think it is sound. It is opposed to the next case, which was decided in A. D. 1760. Robins v. Crutchley ^ was a suit for dower as the widow of Robins, to which his heirs answered that she was never law- fully married to him, and she replied that six years before one Wolseley had libeled her in the court christian, alleging that she was his wife and living in adulter}^ with Robins, and that the cause was removed to the court of arches, where it was ad- judged that she was the lawful wife of Robins. This reply was held bad because Robins was not a party, and was not therefore bound, and his heirs stood in his shoes. In Mayo v. Brown, ^ the right of a man to administer on the estate of a woman as his deceased wife was contested on the ground that he had a former wife living, and his answer was, that in a suit of jactitation in the consistory court, he had been declared free from all contract with her, and the reply was, that the jactitation sentence was the result of collusion. The prerogative court in which the proceedings were pending held, that as long as the sentence was allowed to stand in the con- sistory court it was conclusive. This case decided in A. D. 1771 is an authority that collusion does not make the sentence in such a case void collaterally. Noell V. Wells^ was a suit by an executrix, and the defense was that the will was forged, but the probate of the will was held to preclude that defense. So, in Bransby v. Kerrick,* the House of Lords decided, in 1718, that the probate of a will barred a suit in chancery to set it aside for fraud and imposition. The French and Dutch were at war, which gave French 1. Robins v. Crutchley, 2 Wilson 3. Noell v. Wells, 1 Levinz 235. 118. 4. Bransby v. Kerrick, unreported 2. Mayo v. Brown, unreported case case cited 20 How. St. Tr. 398. cited 20 How. St. Tr. 425. 8 PRINCIPLES, ANALOGIES, ETC. prize courts the power to condemn Dutch ships; and a French prize court having condemned and sold a ship as Dutch, and the purchaser having taken her to England, where the former owner sued him in trover on the ground that she was an Eng- lish ship over which the French court had no jurisdiction, it was held to be incompetent for him to contradict the French record on that question of fact/ Biddulph V. Ather^ was trover for a sloop cast upon the shore by the sea, founded upon a prescriptive right. The plaintiff to show such right proved its exercise for ninety-two years, and the defendant, in order to show that the right had a beginning within the time of memory, namely since the reign of Richard the First, produced three old records of judgments rendered since that reign in which it was adjudged that other persons had that right. These judgments, although no privity was shown nor claimed, were allowed to go to the jury for what they were worth, but were decided not to be conclusive. This case was decided in A. D. 1755. Blackham's Case^ was trover for goods. The plaintiff showed that he was in their possession, and that they formerly belonged to his deceased wife. The defendant showed that he was her administrator, and claimed that because the right to administer was in the husband if she had one, the appoint- ment was conclusive that she was not married ; but the court held otherwise, because it was not the point " directly tried," and that it was ' ' a collateral matter to be collected or inferred from the sentence." In Rex V. Vincent,* the whole case is : ** Indictment for forging a will relating to personal estate ; and on the trial a forgery was proved, but the defendant pro- ducing a probate, that was held to be conclusive evidence in support of the will." So in Rex v. Gardell,^ a sentence of expulsion by a college 1. Hughes V. Cornelius, 2 Shower 4. Rex v. Vincent, 1 Strange 481. 232. 5. Rex v, Gardell, unreported case 2. Biddulph v. Ather, 2 Wilson 23. cited 20 How. St. Tr. 402. 3. Blackham's Case, 1 Salkeld 290. GENERAL MATTERS. \} was held to bar a prosecution for assault and battery against the officer who removed the person expelled, and he was not allowed to show errors and irregularities in the proceedings. Rex V. Sterling^ was a prosecution for forging a will which had been probated. The alleged testatrix was alive and testi- fied on the trial, and there was a conviction. So, also, in Rex V. Richardson,^ the defendant was convicted of forging a will, although it had been admitted to probate. Comments on cases cited in the Duchess op Kingston's Case. — In seven of the cases before the court, namely, Kenn's Case, Morris v. Webber, Bunting v. Lepingwel, Mayo v. Brown, Noell v. Wells, Bransby v. Kerrick and Hughes v. Cornelius, one of the parties deraigned his rights through the judgment, and the attempt was to defeat them by showing that the judgment was wrong on a question of fact, which involved the doctrine of collateral attack ; while in five others, namely, Clews V. Bathurst, Hatfield v. Hatfield, an unreported case, Mellisent v. Mellisent and Dacosta v. Villa Real, the parties had contested the question of marriage or no marriage, and the court had determined that it did not exist, which fixed the status of the parties and made it res judicata as to all the world. In another case, Robins v. Crutchley, the alleged husband was not bound, because not a party to the suit that adjudged the woman to be his wife. In still another, Biddulph v. Ather, a judgment was admitted as evidence between strangers on the question of prescriptive right . Two cases , Rex v . Vincent and Rex V. Gardell,held that a question of fact determined in a civil suit was res judicata in a criminal one, while two others. Rex v. Ster- ling and ^exv. Richardson, ruled the contrar}^ In Blackham's Case the defendant had been appointed administrator of a woman . As the husband might have contested and defeated his appoint- ment, but did not, he sought to draw the inference that the man could not have done so, and that therefore he was not her husband . But Lord Holt said that that point was not * * directly tried," and was "a collateral matter to be collected or inferred 1. Rex V. Sterling, unreported case 2. Rex v. Richardson, unreported cited 20 How. St. Tr. 473. case cited 20 How. St. Tr. 473. 10 PRINCIPLES, ANALOGIES, ETC. from the sentence. ' ' I am unable to see the force of these remarks. As the administrator was appointed on an ex parte application, I do not see how the question of husband or no husband was even indirectly tried, or how any inference in respect to that question could be drawn from the sentence. Rule in California. — The California code provides: ''That only is deemed to have been adjudged in a former judgment which appears on its face to have been adjudged, or which was actually and necessarily included therein, or necessary thereto."^ It seems quite evident that the codifier did not have all the cases in view when he wrote that definition. It will need to be construed quite as much as the opinion in the Duchess of Kingston's Case. Rule in Louisiana. — The supreme court of Louisiana form- ulates the rule thus: ''Matters once determined by a court of competent jurisdiction, if the judgment has become final, can never be called in question by the parties or their privies. It matters not under what form the question be presented; when- ever the same question recurs between the same parties, the plea of res judicata estops."^ Numerous other cases give simi- lar formulas, but their special circumstances are considered elsewhere. Rule in India. ^ — Section 13 of the civil procedure code of India, of 1877, enacted : ' ' No court shall try any suit or issue in which the matter, directly and substantially in issue, has been heard and finally decided by a court of competent jurisdiction, in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title. "Explanation 1. — The matter above referred to must, in the former suit, have been alleged by one party, and either denied or admitted, expressly or impliedly, by the other. "Explanation 2. — Any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 1. Lord ?;. Thomas, 36 Pac. Rep. 372. 3. The remainder of this section is 2. McNeely v. Hyde, 46 La. Ann.— taken from Chand on Res Judicata, (15 S. R. 167) . sections 10-22. GENERAL MATTERS. 11 ^^Explanation 3. — Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused. " Explanation 4-- — A decision is final within the meaning of this section, when it is such as the court making it could not alter (except on review) on the application of either party or reconsider of its own motion. A decision liable to appeal may be final within the meaning of this section until the appeal is made. ''Explanation 5. — If persons litigate 6o/ia f,de in respect of a private right claimed in common for themselves and oth- ers, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so liti- gating. ''Explanation 6. — If a foreign judgment is relied on, the pro- duction of the judgment duly authenticated is presumptive evidence that the court which made it had competent jurisdic- tion, unless the contrary appear on the record ; but such pre- sumption may be removed by proving the want of jurisdic- tion." Genesis of the rule. — Sir Whitley Stokes, who, for a long time as secretary in the legislative department to the govern- ment of India, and later as the legal member of the govern- ment, took an important part in drafting the section, in speaking of its genesis, has said: "The principal clause and first explanation are founded on the definition in Livingtone's Code of Evidence for the State of Louisiana, section 192. Res judicata is whatever has been finally decided by a court of com- petent jurisdiction — proceeding according to the forms of law — by a valid sentence on a matter alleged, and either denied or expressly or impliedly confessed by the other ; and it is con- clusive evidence of that which it decides, between the same parties or those that represent them, litigating for the same thing, under the same title and in the same quality. The sec- ond, third, fourth and fifth explanations rest on decisions of English or Indian courts. The sixth is taken from Living- stone's Code just mentioned, section 198, and should be trans- ferred to the evidence act." 12 PRINCIPLES, ANALOGIES, ETC. Estoppel against defendant. — The chief alteration made by section 13 is the statutory recognition of the principle of bar by verdict. The select committee, in their report, presented with bill 5 of the civil procedure code of 1877, said that they had "amended the section by extending it so as to provide for estoppels against defendants, and that was done apparently by introducing the word ' issue. ' Other alterations in the language, necessitated by that addition, were not made, but the rule, even as it stands, is quite clear and unambiguous; and Latham, J., observed in Rung Rav v. Sidhi Mahomed,^ that "under the words of section 13, * suit or issue,' the answer is admissible to estop a defendant from defense as well as a plaintiff from at- tack." In Jamaitunnisa v. Lutfunnissa,^ Mr. Justice Mah- mood, speaking of the section, said: "It deals with two mat- ters; first, the trial of suits, and, secondly, the trial of issues. It is founded on a long course of judicial decisions, and espe- cially on the dicta of the privy counsel, and has formulated in express terms the rule, which previously was only expressed in part by legislative enactment, that the principle of res judicata applies both to the trial of suits and to the trial of issues. The distinction between the two things appears to me to be clear. A suit ends in a dismissal or a decree, in whole or in part. An issue ends in a finding, and the rule contained in section 13 goes the length of saying that not only is a suit which has once been tried and determined not again maintainable, but an issue which has once been directly and substantially raised and de- cided shall not be litigated a second time. The reason of the maxim. Nemo debet bis vexari pro eadem causa, seems to me to apply as much to the trial of issues as to the trial of suits, for in either case the harassment to litigants would be similar if matters could be reagitated after having been once duly adjudi- cated upon." Amendment as to matter in issue. — In the rule of res judicata as enacted in 1877, only two alterations have since been made, and they are to a great extent of a verbal character. The select committee in their report presented with the bill, 1. Indian L. E. 6 Bombay 484. 2. Indian L. R. 7 Allahabad 615. GENERAL MATTERS. 13 finally enacted as the civil procedure code of 1877, observed, that they had provided " that in the former suit the matter in issue must have been not only substantially but directly in issue." Grammatically, however, the words "directly" and " substantially " could not be read with the '* matter in issue " in the former suit. The legislature, following up their own in- tention, inserted the word ''directly" in explanation 2 to qualify that expression in regard to the former suit. By act 12 of 1879, both the words were introduced into the body of the section itself so as to refer to the former suit, the select committee observing in their report that they had amended the section " so as to make it clear that the court may not try an}^ suit in which the matter directly and substantially in issue, having been directly and substantially in issue in a former suit, was heard and finally decided therein ; but that a decision on a matter collaterally in question or incidentally cognizable is not binding on any court other than that which pronounced it. " Amendment as to jurisdiction op court trying the FORMER SUIT OVER SUBSEQUENT SUIT. — The Other alteration was made with a view to render it clear that the competency of jurisdiction required for the rule of res judicata in regard to the court trying the former suit was as to the subsequent suit also. This was held to be the law under the codes of 1859 and 1877. The leading case in favor of that view is Edun v. Bechun,^ in which case Sir Barnes Peacock, C. J., treated the concurrence of jurisdiction as an essential part of the rule of res judicata, as an essential condition of the application of that rule. That de- cision was approved of and followed in some cases, and has, since the enactment of the code of 1882, been expressly ap- proved of by their lordships of the privy council in Raghobar Dial V. Sheobaksh Singh, ^ and in Run Bahadur Singh v. Luchoo Koer.* In the former case it was held that a decision by an assistant commissioner as to the existence of the consideration for a bond, in a previous suit for some interest due on a bond, did not constitute res judicata in a subsequent suit for the 1. 8 W. R. 175. 3. L. R. 12 Indian Appeals 23. 2. L. R. 9 Indian Appeals 197. 14 PRINCIPLES, ANALOGIES, ETC. amount of the bond, which was beyond the assistant commis- sioner's jurisdiction. Sir Richard Couch, in delivering their lordships' decision, said: "If the decision of the assistant commissioner is conclusive, he will, although he could not have tried the question in a suit on the bond, have bound the plaintiff as effectually as if he had jurisdiction to try that suit. Their lordships think this was not intended, and that, by a court of competent jurisdiction, act 10 of 1877 means a court which has jurisdiction over the matter in the subsequent suit in which the decision is used as conclusive, or in other words, a court of concurrent jurisdiction." In the latter case, Sir R. P. Collier, in delivering their lordships' decision, said: "If this construction of the law were not adopted, the lowest court in India might determine finally, and without appeal to the high court, the title to the greatest estate in the Indian Em- pire." Yet, on account of the language employed in the sec- tion, the contrary had been held in some cases, among which mention may be made of the case of Toponidhee Dhirj Gir v. Sreeputty Sahaneeputty,^ in which White, J., concurred in the decision, with the observation that he personally shared in the views of Sir Barnes Peacock, and if unfettered by authority would have held that the competency required was in respect of the subsequent suit also. On account of this construction, difficulty was first experienced chiefly in rent suits, and the courts tried to avoid it by holding that the question of title to the property in respect of which rent was claimed would not be directly in issue in the suit. This was of course not correct, and in 1879 a select committee of the Indian legislative coun- cil, to remove the difficulty, proposed to add an " explanation declaring in effect that a decision in a suit for arrears of rent under any local law relating to landlord and tenant, shall not be deemed to be res judicata in case of suits relating to the title to the property in respect of which the rent is claimed." But on account of the alteration in the section referred to in the preceding paragraph the explanation was struck off the final amending bill, the select committee observing that " it would 1. Indian L. R. 5 Calcutta 832. GENERAL MATTERS. 15 not apparently have suited any part of British India but the Lower Provinces," and that "there the local legislature will be able, if it thinks fit, to declare that a court trying a suit under a rent law shall not be deemed by any court trying a suit under any other law, as regards the title to the immovable property in respect to which the suit is brought, a court of com- petent jurisdiction within the meaning of this section." Even in 1882, it was proposed to provide in the Presidency Small Cause Courts Act, that " nothwithstanding anything contained in section 13, no decisions passed under the provisions of that act shall, in any court other than the Small Cause Court, be conclusive as to anything except the right at the time of such decision to the relief granted thereby, or the absence of a right at such time to any relief claimed by the plaintiff and withheld by such decision." The proposal was dropped, however, on account of the addition in section 13 of the words " competent to try such subsequent suit or the suit in which such issue has been subsequently raised." Present Indian rule op res judicata. — As thus amended, the section w;as re-enacted in the civil procedure code of 1882 in the following form, which it has since retained, and in which it now stands on the Indian Statute Book : — ' ' No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and sub- stantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court of jurisdiction com- petent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. '^Explanation 1. — The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. '^ Explanation £. — Any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substanti- ally in issue in such suit. 16 PRINCIPLES, ANALOGIES, ETC. '^Explanation 3. — Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused. ^'Explanation 4-- — A decision is final within the meaning of this section if it is such as the court making it could not alter ( except on review ) on the application of either party or reconsider of its own motion. A decision liable to appeal may be final within the meaning of this section until the appeal is made. ** Explanation 5. — If persons litigate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating. '^ Explanation 6. — If a foreign judgment is relied on, the pro- duction of the judgment duly authenticated is presumptive evidence that the court which made it had competent jurisdic- tion, unless the contrary appear on the record ; but such pre- sumption may be removed by proving the want of jurisdic- tion." As thus enacted, the rule did not introduce any new law, but only put * * into the form of a code that which was the state of the law at the time.^ In Mahomed Salim v. Nabian Bibi,'' Mr. Justice Mahmood, after referring to the rule as enunciated in the Duchess of Kingston's Case, said " it has never been ma- terially altered, and I look upon section 13 of our own civil procedure code as a reproduction of the old rule of law." Incompleteness of present rule. — The section, even in its present form, is not complete or exhaustive of the effect of res judicata.^ "It does not deal with the case of judgments m rem, nor with that of parties represented by, though not claiming under, the parties to the former suit."* In Sitaram v. Amir Begam,* Mr. Justice Mahmood, after observing that the section had been 1. KameshwarPershadv.Eajkumari Vithilinga, Indian L. E. 15 Madras Euttun Koer, L. E. 19 Indian Appeals 119. 234. 4. Ahmedboy V. Vulleebhoy, Indian 2. Indian L. E. 8 Allahabad 285. L. E. 6 Bombay 715. 3. Eamlal v. Chhabnath, Indian L. 5. Indian L. E. 8 Allahabad 334. E. 12 Allahabad 578; Padayachi v. GENERAL MATTERS. 17 " carefully framed, and has given legislative expression to one of those rules of law which are most difficult to formulate for purposes of codification," said that "in interpreting the lan- guage of that section, we can not ignore the fundamental prin- ciples of the rule to which that section gives expression, un- less, indeed, the express words of the statute clearly contradict those principles." Mr. Justice West said, in Bholabhai v. Adesang,^ that section 13 could not be applied quite literally; as, if it could, the court trying a second suit would be bound by the decision of a point in a first suit treated by the court in ap- peal as irrelevant for that case, though not formally set aside. ^ In Balkishan v. Kishanlal,^ Mr. Justice Mahmood observed that " Section 13 aims at enunciating the whole rule, and the aim has been substantially achieved, though my judgment in the case of Sitaram v. Amir Begam, and the judgment of West, J., in Bholabhai v. Adesang, and the judgment of Melvill, J., in Nilvaru v. Nilvaru,* indicate illustrations of the difficulties which the wording of the section still leaves open to doubt." Bar absolute. — The bar to a fresh trial or decision on ac- count of the principle of res judicata is absolute, and as against all the parties to the suit in which that decision was passed. In Gan Savant v. Narayan Dhond,^ West, J., said, " It follows from the leading principle of res judicata that the same matter shall not be agitated again on the original ground so as to im- peril the stability of the decision formerly given. 'If there is res judicata, the original cause of action is gone, and can only be restored by getting rid of the res judicata.'^ The existence of a decree in plaintiff's favor may seem not to be a good rea- son for depriving him of a right to sue, and under the Roman law the plea of res judicata could be met by a replication of res secundum se judicata.'' Under the English law also, a judg- ment, it is said, is a bar only when it has negatived the right* 1. Indian L. R. 9 Bombay 81. 6. Lockyer v. Ferryman, L. R. 2 2. Nilvaru v. Nilvaru, Indian L. R. Ap. Ca. 528; per Lord Shelborne. 6 Bombay 110. 7. Dig. Lib. 44, Tit. 2, Fr. 9, S. I. 3. Indian L. R. 11 Allahabad 153. 8. Poyser v. Minors, 7 Q. B. D. 336; 4. Indian L. R. 6 Bombay 110. per Bramwell, L. J. 5. Indian L. R. 7 Bombay 469. 2 18 PRINCIPLES, ANALOGIES, ETC. — but this holds generally only when the cause of action in the second suit has arisen on the same original right at a different time from the first, or the first action went off on a mere tech- nical defect. Under the Anglo-Indian law it has long been recognized that a decree-holder must obtain satisfaction of his decree by execution, not by another suit.* A new suit can not be brought, either on the original cause of action, or, save in special cases, on the decree in which that cause has be- come merged. The object of the legislature has been to pre- vent continued litigation on the same grounds, and this would obviously be defeated by allowing a decree-holder to abstain from putting his decree in force, and proceed again on the same cause as before." As a general rule, the operation of the doctrine and the bar by the judgment must be mutual also. In Surrendernath v. Brojonath,^ Sir William Comer Petheram, C. J., observed that the test of res judicata was mutuality. In Gnanambal v. Parvathi,* Mr. Justice Muttusami Ayyar observed, that there could be no estoppel without mutuality. What is meant by an estoppel being mutual is, that the particular judgment is binding upon both, if obligatory upon either.* Both the par- ties must be alike estopped by it, or it can not be set up as con- clusive against either. A party will not be concluded against his contention by a former judgment unless he could have used it as a protection, had the judgment been the other way; and conversely, no person can claim the benefit of a judgment as an estoppel upon his adversary, unless he would have been prejudiced by a contrary decision of the case.® In Jamaitun- nisa V. Lutfunnisa,® Mr. Justice Mahmood said, " a finding which conclusively binds one party must necessarily bind the opposite party also," and that, but for this reciprocity, the rule of res judicata, far from . attaining its object of putting an end to litigation, would only achieve the contrary result of increas- ing litigation. 1. Kisan v. Anandram, 10 B. H. C. 3. Indian L. R. 15 Madras 477. R. 433; Fakirappa V. Pandurangappa, 4. Herm. Comm. 242. Indian L. R. 6 Bombay 7. 5. Bl. Jud. 652. 2. Indian L. R. 13 Calcutta 356. 6. Indian L. R. 7 Allahabad 619. general matters. 19 Appellate court, how affected by subsequent decision OF INFERIOR COURT. — There is a conflict, however, as to whether the doctrine of res judicata applies only to a trial by a court of original jurisdiction, or even to a disposal by an ap- pellate court. A trial has, in a general way, been defined to be the formal method of examining and adjudicating on the matter in dispute between a plaintiff and a defendant in a court of law, but section 13 does not throw any light as to the exact sense in which the trial is barred by that section. The Cal- cutta high court has held in Abdul Majid v. Jew Narain^ that a trial by an original court only is contemplated, and that the section has no application to the disposal of an appeal ; and that if there is no res judicata at the time of the trial of the original suit, the appellate court is bound to decide the appeal on the merits. In that case, A. sued J. for an account in re- gard to his share in a certain ticca transaction in which he claimed to be a partner, and J. sued A. for rent on the ground that A. was liable for it as a tenant of a portion of the ticca property. Both the suits were heard at the same time, the evi- dence taken in one suit being considered as evidence taken in the other. Both were decided against A. who did not appeal against the decree for rent, but appealed against the decree dis- missing the suit for account, and it was held that the decision that was not appealed against could not operate as res judicata so as to bar the disposal of the appeal that was presented. The contrary was held, however, by a full bench of Allahabad high court in Balkishan v. Kishanlal,^ in which a decision of the high court in a suit for rent for 1292 F. was held to be res ju- dicata in a second appeal, presented prior to that decision, in a suit for rent for 1293 F. Mr. Justice Mahmood (with whom Sir John Edge, C. J., and Straight J., concurred) said that, ' * the doctrine, so far as it relates to prohibiting the retrial of an issue, must refer not to the date of the commencement of the litigation, but to the time when the judge is called upon to decide the issue. The rule contained in section 13 is not lim- ited to the courts of the first instance. It applies equally to the 1. Indian L. R. 16 Calcutta 233. 2. Indian L. R. 11 Allahabad 148. 20 PRINCIPLES, ANALOGIES, ETC. procedure of the first and second appellate courts by reason of sections 582 and 587 (civil procedure code), respectively, and, indeed, even to miscellaneous proceedings by reason of section 647." The Punjab chief court also held the same in Nur Mu- hammad V. Jamun,^ in which case the plaintiffs had first sued for a declaration as to the invalidity of a gift of certain prop- erty, and while an inquiry was being held into it on remand, the donor died, and the plaintiffs brought another suit for pos session of the same property, and the appeals in both the suiti^ were disposed of by the lower appellate court on the same day The decision in the declaration suit had not been appealed from, and was therefor held to have become final and to con- stitute res judicata in the suit for possession in which an ap- peal was presented to the chief court. Character of suit that will be barred. — There is no doubt that the word ' ' suit ' ' in the rule of res judicata is to be taken in rather an extensive sense. Thus a decision as to two bonds in a suit was held by a full bench of Allahabad high court in Sheoraj v. Kashinath^ to be res judicata as regards those two bonds in a subsequent suit in respect of those and other bonds. Mahmood, J., said, in his decision in the case, — *'If the word 'suit' was taken literally, it might with some plausibility be contended that there is no res judicata in respect of any of the bonds. The word * suit,' as it occurs in section 13, must be understood to mean such a matter as might have formed the subject of a separate suit independently of the spe- cial provisions of the civil procedure code, such as section 45. Adopting this interpretation, it is clear that the two bonds which were the subject of the former suit can not be allowed to form the subject of litigation again ; and the circumstance that the plaintiff has joined them in the present litigation will not enable him to obviate the plea of res judicata." Proceedings in execution of a decree are a part of the ' suit ' in which the decree is passed. This was the view taken by their Lordships of the privy council in Abidunnissa v. Amirunnisa,* though 1. 1890 Punjab R. No. 153. 3. L. R. 4 Indian Appeals 66. 2. Indian L. R. 7 Allahabad 252. GENERAL MATTERS. 2l the decision in that case turned on another point. In Rup- kuari v. Ramkirpal/ Pearson, J. (with whom Straight, J., concurred ), incidently observed, that " proceedings in execu- tion of decrees are included in the category of ' miscellaneous ' which are expressly distinguished from suits and appeals in section 647 (civil procedure code). * * » It was suggested that under the provisions of that section, the law of res judi- cata contained in section 13 would apply to proceedings in exe- cution of decree ; but I can not hold the law of res judicata to be procedure." The final decision in the case was reversed on appeal; and as against it, Melville, J., in delivering the judg- ment of the Bombay high court in Manju Nath v. Venkatesh Govind^ said : "We are not sure that we should feel constrained to put upon the word ' suit ' in section 13 the narrow construc- tion adopted by the Allahabad high court. Section 2 of the act, as amended b}^ act 12 of 1879, declares that an order under section 244 is a decree ; and the term ' decree ' is defined to mean ' the formal adjudication upon any right claimed or de- fense set up in a civil court, if that adjudication, so far as regards the court expressing it, decides the suit or appeal.' From this it might very fairly be argued that every proceeding which terminates in a decree (and a proceeding in execution is such a proceeding) is a suit within the meaning and intention of the code. In the case of Bhikam Bhat v. Joseph Fernandez,' we have pointed out that there ma}" be a distinction between the term 'suit' as used in the civil procedure code, and the term ' regular suit ' as used in the limitation and other acts ; and we referred to the decision of the Calcutta high court in Emam Momtazuddin ]\Iahomed v. Raj Koomar Das,* in which it will be observed that the full bench of that court in dealing with the question of res judicata refused to adopt the narrow con- struction which one learned judge wished to attach to the word 'suit' in section 2 of act 8 of 1859." The decision in Dinkar Ballal V. Hari Shridhar* is really not against that view. Mr. 1. Indian L. R. 3 Allahabad 143. 4. 14 Bombay L. R. 408. 2. Indian L. R. 6 Bombay 61. 5. Indian L. R. 14 Bombay 206. 3. Indian L. R. 5 Bombav 673. 22 PRINCIPLES, ANALOGIES, ETC. Justice Scott's opinion in that case was based on altogether a different ground ; and Mr. Justice Jardine, after pointing out that "the subject-matter then in litigation was a different piece of land which the present deed of sale purported to convey to plaintiff along with the piece of land now in litigation," said: "If that decision had been the final one in a suit, as distin- guished from this execution proceeding, it would have created es- toppel by res judicata. * * * The powers of the court in execution are, under section 244, concerned with questions re- lating to the execution, discharge or satisfaction of the decree ; that to Application No. 48 of 1885 no provision for appeal ex- isted ; that the only property about which the order is passed is the property attached in execution. Thus the determination of the validity of the deed was only important with regard to that property ; and any inference to be drawn from the finding as to the ownership of other property not then in suit, and per- haps not in dispute, was merely incidental.^ I do not think the provisions about claims to attached property were intended to apply to dealing with the titles to other lands not in suit. If the effect of res judicata were to be given to the orders inci- dentally affecting such titles, the confusion so arising might do more harm than good, and defeat both the reasons for the rule * * * * . It would be absurd to allow by express words fresh litigation about the property formerly adjudicated in the execution matter, and by a jural rule to prohibit any di- rect trial of the right to the other property about which there has been no formal litigation, perhaps no dispute. This con- sideration is still more important, as in many cases, before formal suit is brought and the other property valued, it is im- possible to know whether the court executing the decree is competent to adjudicate on the other property." Proceedings under the insolvency sections of the Punjab laws act were held not to be a suit in Chiranji Mal,^ in which Powell, J., in delivering the judgment of a division bench, said : ' ' The term suit is not defined by law ; at the same time 1. Rajah RunBahadoor Singh v.Mus- 2. 1884 Punjab R. No. 145. sumut Lachoo Koer, L. R. 12 Indian Appeals 23, 38. GENERAL MATTERS. 23 it is clear, from section 647 of the code, that the law does not necessarily consider every proceeding in which there are parties, evidence, argument and decision, to be a suit. There are clearly proceedings in a court of civil jurisdiction other than suits and appeals. A suit is understood to be a 'remedial instrument of justice,' whereby the plaintiff seeks to recover a right or to en- force a claim ; and a proceeding by which a debtor escapes pursuit for debts which he can not meet, or a creditor puts the debtor under the action of the court for the administration of his assets, is more naturally described as a proceeding in a court of civil jurisdiction than as a suit. * * * * That section merely desires that the same procedure as is by law provided for suits shall, as far as possible, be followed in other civil pro- ceedings ; it does not authorize us to adopt the wording of sec- tions on the mutatis mutandis principle. " Criminal proceedings can not be considered a suit, and a decision therein can not bar the trial of any suit or issue by any civil court. ^ Nor would an order under act 27 of 1860 bar a suit by the unsuccessful party for contesting the validity of a will on the basis whereof that order was passed,^ the prayer in the plaint to set aside the certificate being treated as immaterial. Miscellaneous civil proceedings will be a suit, however, wherein they are treated as a suit by the legislature . An applica- tion under section 63 of act 2 of 1874 will thus be barred by a pre- vious application by the same person in the same matter under the same section or the corresponding section of a prior act, on the ground that, though the proceedings are of a miscellaneous character, yet being referred to as a suit in that section, must be treated as such for the purposes of the rule of res judicata.^ A decision under section 8 of act 19 of 1863 by a collector in certain partition proceedings is a decision in a suit.* Character op the issue that will be barred. — As to the exact signification of the word issue, of which the trial will 1. Gholam Husain v. Mahomed 3. Eliza Smith v. Secretary of State Kahn, 1877 Punjab R. No. 56; Ram for India, Indian L. R. 3 Calcutta 340; Lai V. Tula Ram, Indian L. R. 4 Al- Garth, C. J., and Markley, J., affirm- lahabad 97. ing the decision of Kennedy, J. 2. Anund Mohan v. Indro Monee, 4. Harsahai v. Maharaj Singh, In- 16 W. R. 214. dian L. R. 2 Allahabad 294. 24 PRINCIPLES, ANALOGIES, ETC. be barred by the application of the rule of res judicata, it is provided by the civil procedure code ^ that ' ' an issue arises if a proposition of law or fact which a plaintiff must allege in order to show a right to sue is affirmed by the one party and denied by the other." The issue may therefore be one of law exclusively, or in regard to any fact, with regard to the status of an individual, or to the right to any property, or to the ques- tion of a descent or pedigree. Thus, in Muhammad Rustam AliKhan v. Muhammad Aza- mat Ali Khan,^ a decision on a pure question of law, relating to the court's jurisdiction in the former suit, was held by the Punjab chief court to have that effect in a subsequent suit for the same property. Barkley, J., in delivering the judgment of the court, said : "It is not denied that in the previous suit the chief court was competent to decide whether it had juris- diction to entertain the present claim or not; and, as a decree had been passed in favor of the plaintiffs, which the defendant attacked on the ground of want of jurisdiction in the court, the question, whether the court then had jurisdiction or not, clearly became a matter directly and substantially in issue between the parties, and the decision of that question has become final. This court is therefore debarred by the express terms of section 13 from trying the same question between the same parties in the present suit." Similarly, a division bench of the Allaha- bad high court held, in Phundo v. Jangi Nath,^ that a finding as to the validity of an adoption in a former suit would forbid the re-opening of the same question in a subsequent suit be- tween the same parties, Tyrrell and Blair, JJ., observing "that the former decretal finding on the legal point, though ever so erroneous, would be binding on parties who did not get rid of it by appeal." It has even been held that a decision on a point of law will be res judicata though it may have been founded on an erron- eous view of the law, or a view of the law which a full bench of the high court has subsequently disapproved. Thus, in 1. Vide section 146. 3. Indian L. R. 15 Allahabad 327. 2. 1882, Punjab Record No. 64. GENERAL MATTERS. 25 Gowri Koer v. Audh Koer/ the decision in the former suit was based on the circumstance that a certain deed of sale, as a mat- ter of law, conveyed nothing. In another case, a full bench de- cided against the principle on which that decision was based, and Sir Richard Garth, C. J., and Beverley, J., held, in a sub- sequent suit between the parties relating to the same property, that the decision in the former suit was res judicata; Sir Rich- ard Garth, C. J., observing that "it is no less a res judicata because it may have been founded on an erroneous view of the law, or a view of the law which this court has subseciuently disapproved." A somewhat different view appears to have been taken in Parthasaradi v. Chinna Krishna,^ in which Sir Charles Turner, C. J., and Muttusami Ayyar, J., said: "The respondents rely on what is known as estoppel hj verdict and not on estoppel by judgment. It is contended on their behalf that the matter in issue and determined in the former suit was this — that the re- spondents are not entitled to erect a temple or to assemble for public worship within the customary ambit of the Tenkalai processions. It must be admitted that this issue was raised and decided in the former suit, but it was raised not as a question of fact but as a question of law. * * * The contention of the appellants then substantially is this — that, because a ques- tion of law was directly or substantially in issue and was erron- eously decided by a competent tribunal, that decision is con- clusive as between the parties to the proceedings in which it was pronounced, and its propriety can not be questioned in any subsequent proceedings between the same parties in which the question may again arise. Courts are bound to ascertain and apply the law and not to make law, and it is a suggestion re- pugnant to reason and to justice that, because a court has erred in ascertaining the law, it is bound to repeat its error whenever the same question of law may arise between the same parties. Although considerations of convenience have established the rule that the final decree of a competent court is decisive of the rights it declares or refuses notwithstanding it may have pro- 1. Indian L. R. 10 Calcutta 1087. 2. Indian L. R. 5 Madras 309, 26 PRINCIPLES, ANALOGIES, ETC. ceeded on an erroneous view of the law; and although the same considerations have established the rule that the determination by a competent court of questions of fact directly and substan- tially in issue are binding on the parties, these considerations do not suggest the expediency of compelling the courts to refuse to give effect to what they have ascertained to be the law. The term "estoppel by verdict" indicates that such estoppels are con- fined to questions of fact, and no authority has been cited to warrant the application of the rule to the determination of an issue of law." This decision was followed in Venku v. Ma- halinga,^ in which Muttusami Ayyar, J. (with whom Parker, J., concurred), said : " As to the contention that if it is the source of a right to insist on partition, it ,must likewise be a valid ground of succession to a collateral relation, I may ob- serve that it was held in Parthasaradi v. Chinna Krishna, that the doctrine of res judicata does not necessitate a repetition of an error of law, if any, and preclude an inquiry into the sound- ness of the rule of decision which was adopted in a previous suit, save as to the precise object-matter or immediate purpose of that suit." Dr. Bigelow also says :^ "The facts decided in the first suit can not be disputed, and for the purpose of the conclusiveness of those facts, but no further, the law applied must be accepted."* Thus if a decree in a suit to declare a mortgage invalid proceed upon the constitutionality of a stat- ute, the parties can not afterward deny the validity of the statute in question, when the mortgagee attempts to foreclose.* It could hardly be true that they could not raise the question again in a suit upon a different subject-matter.^ This, how- ever, falls far short of what the Madras high court has decided as correct, and which is not supported by the decisions of any other high court in India or by the practice of the courts in England or America. Comments. — The last 16 pages are taken bodily from pages 13 to 32 of Chand on Res Judicata, and they show the trouble 1. Indian L. R. 11 Madras 393. 4. McDonald v. Mobile Ins. Co., 65 2. Big. Estop. 100. Ala. 358. 3. Bernard v. Hoboken, 3 Dutch. 5. Boyd v. Alabama, 94 U. S. 645. 412. GENERAL MATTERS, 27 which an attempt to codify the rules of res judicata has made in India, and they may be useful to those who desire to codify the American law on that subject. It seems that the lawyers and judges in India have about as much difficulty with this complicated subject as their brethren in England and America. § 2. " Collaterally in question " — " Concurrent Jurisdic- tion " — " Directly upon the point " — " Exclusive jurisdiction" — " Incidentally cognizable " — " Inferred by argument." — According to the opinion in the Duchess of Kingston's Case, which no one has ventured to dispute for more than one hundred and nineteen years, the six matters indicated by the above headings must be considered in order to deter- mine whether or not a question is settled by a former adjudi- cation. And the judge or lawyer who does not possess a clear conception of the principles involved in and the dis- tinctions between them must necessarily work in the dark. From the numerous and conflicting decisions, I have deduced what seems to me to be the correct principles, and give them for, what they are worth. But, as it could hardly be expected that a single lawyer could completely digest such a mass and always draw correct conclusions, I have given the substance of each case with considerable minuteness, so that the reader may draw his own inferences. Collaterally in question, or directly upon the point. — Among other things, it was said in the Duchess of Kingston's Case that the judgment of a court of concurrent jurisdiction, " directly upon the point," was conclusive upon the same mat- ter directly in question in another court ; but that the judg- ment of no court was evidence of any matter which came " col- laterally in question." The principle involved in these two rules seems quite plain, nevertheless the cases differ in their application. Much of the difficulty arises, as it seems to me, from confusing the words, "point," "matter" and " ques- tion," with the word, "issue." A suit may involve but a single issue, and yet the points, matters and questions of law and fact, which tend to sustain its affirmative or negative, may be numerous. It is the affirmative or negative of 28 PRINCIPLES, ANALOGIES, ETC. this issue which the respective parties bend all their energies to sustain, and which is the matter " directly " under consideration ; while the evidence introduced, and the subsidiary questions of law and fact which they seek to establish in order to determine the issue in controversy, are matters "collaterally in question," which do not become things adjudicated. For instance, in a contest over a will, in which the sole issue is soundness or unsoundness of mind, there may be a hundred matters of controversy, and the jury may be required to determine that many questions by answers to special interrogatories ; nevertheless, all these questions are merely collateral and can not be used as evidence between the same parties in another cause. A single cause of action or de- fense may, and frequently does, involve several issues. The cause itself, as a whole, is merged in, or destroyed by, the ad- judication, and can never be used again, because it no longer exists. But the issues decided in order to adjudicate the cause may arise in other causes between the same contestants, and in such cases the former adjudication is conclusive evidence in respect to them. If the pleadings and finding or verdict are special, the record will always show what these issues are. If the law allows general pleading, and a general finding or ver- dict, the issues are precisely the same as if these matters were special, but in such cases a resort to parol evidence may be necessary in order to show what the issues really were, and what matters were collateral and not adjudicated. CONCURIIENT JURISDICTION OR INCIDENTALLY COGNIZABLE. It was said in the Duchess of Kingston's Case that " the judg- ment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter directly in question in another court." The correct principle involved, in my opinion, in the phrase "court of concurrent jurisdiction" was first form- ulated by a British court sitting in India, as follows: "In order to make the decision of one court final and conclusive in another, it must be a decision of a court which would have had jurisdiction over the matter in the subsequent suit in which the GENERAL MATTERS. 29 first decision is given in evidence as conclusive."' This for- mula has been approved twice by the court of Indian appeals.^ It was also said in the opinion in the Duchess of Kingston's Case, by way of illustrating the rule that a decision upon an incidental point by a court which had no jurisdiction to pass upon it directly was no evidence in a court which did have such jurisdiction, that if that were not true, then the determi- nation of two justices of the peace upon the fact or validity of a marriage, in adjudging a place of settlement of a pauper, might be offered in evidence and give the law to the highest court of criminal jurisdiction. The justices, in such cases, are compelled to determine the validity of an alleged marriage, and that determination is conclusive in any collateral attack ; but it would be absurd to use it as res judicata in a divorce court. If a deed or a will purports to pass the title to both real and per- sonal property, and its validity is determined in a contest over the personalty in a court which has no jurisdiction over realty, the decision will not be evidence in a contest over the real estate upon the same instrument ; but if the court in which the first contest is made has jurisdiction over both real and personal estate, the decision will be conclusive in regard to both in all other courts. Thus, if the same instrument purports to convey a horse and a tract of land, and the purchaser, relying upon it as his sole evidence of title, replevies the horse before a justice of the peace, that officer must determine its validity. But iiis determination can not be used as evidence in a contest over the real estate over which he has no jurisdiction. If a woman sues a man before a magistrate for services as a domestic servant, and his defense is that she is his wife, and performed them in that capacity, the magistrate must determine whether or not they are husband and wife. But because he has no jurisdic- tion over a cause of marriage or no marriage, or divorce or real estate, his decision can not be used as evidence in a suit between them concerning their alleged marriage, or for a divorce, or in 1. Mussumat v. Mussumat, 8 Suth. Cases 197, 203; Eajah Run Bahadoor W. R. 175. Singh v. Mussumut Lachoo Koer, L. 2. Misir Raghobardial v. Rajah Sheo R. 12 Indian Appeal Cases 23, 37. Baksh Singh, L. R. 9 Indian Appeal 30 PRINCIPLES, ANALOGIES, ETC. a proceeding by her, after his death, for dower. These identi- cal questions are decided by the cases cited from the Duchess of Kingston's Case, in section 1, supra. So, in a suit on a note in a state court, if the defense is that it was given for a patent right which was void for want of novelty, the validity of the patent will be the sole question to be determined ; but the ad- judication can not be used as evidence in a suit between the parties in the federal court for an infringement of the patent, if the defense is want of novelty. In respect to that issue, the jurisdiction of the federal court is exclusive. Of course, if the suit in the federal court should be decided first, it would be a complete bar to the reconsideration of that question in the state court, because it would be a matter "directly decided in a court of exclusive jurisdiction," and would be conclusive every- where. Exclusive jurisdiction — Incidentally in question in ANOTHER COURT. — It was laid down in the opinion in the Duchess of Kingston's Case that " the judgment of a court of exclusive jurisdiction, directly upon the point, is conclusive upon the same matter between the same parties, coming inci- dentally in question in another coutt for a different purpose." To illustrate this proposition, it was said that "a sentence of nullity, and a sentence in affirmance of a marriage, have been received as conclusive evidence on a question of legitimacy arising incidentally upon a claim to real estate ; " and that " a sentence in a cause of jactitation has been received upon a title in ejectment, as evidence against a marriage, and, in like man- ner in personal actions, immediately founded upon a supposed marriage." It is evident that the learned justice referred to Kenn's Case^ and Bunting v. Lepingwel,Mn which the chil- dren of the respective parties sought to show that the sentences, annulling the marriage in the one case and declaring it to be in force in the other, were wrong in fact, in order that they might recover real estate as heirs. He said that the question concerning their legitimacy arose ** incidentally " in the eject- 1. Kenn's Case, 7 Coke 138. See 2. Bunting v. Lepingwel,4 Coke 29. page 4, supra, for an abstract. See page 6, supra, for an abstract. GENERAL MATTERS, 31 ment suits. The fact that these suits were by heirs was of no consequence, as they were privies with tlieir ancestors. Those cases are authorities that a judgment determining the status of a man and woman, in respect to their marriage, settles that question between them and their privies in any other judicial proceeding. It so happened that the courts which determined those cases had an exclusive jurisdiction to do so, but I do not think the exclusiveness was of any moment. It seems to me that it was the completeness of the jurisdiction which gave the conclusive force to the adjudication in other courts. In other words, if the jurisdiction had been concurrent in several courts, as frequently happens in America, the adjudications would have been none the less conclusive. If an issue is directly made in any court which has complete jurisdiction to determine it, the adjudication is conclusive in all other judicial proceed- ings. Thus a decree in equity reforming a deed so as to include or exclude a tract of land, is conclusive that the deed includes or excludes that land in an action at law to recover it ; and, if the title depends upon that deed, then the decree in equity furnishes conclusive evidence of title or want of title to the land in the court of law, although equity has no jurisdiction to determine that question. The jurisdiction of the court of equity to reform the deed is complete. Its use in the law court is merely an incident. It is simply one of the links in the chain of title ; and if it completes the chain, then it is con- clusive. So in the matrimonial causes referred to. A decree annulling a marriage or declaring its existence, made by a competent judicial tribunal in which that question is directly involved, is conclusive upon that issue in cases in which it may be only in- cidentally cognizable, as, for instance, in a suit by the woman against the man for wages before a magistrate who has no power to determine that issue directly. Inferable by argument. — It was said in the Duchess of Kingston's Case that " neither the judgment of a concurrent nor exclusive jurisdiction is evidence of any matter to be in- ferred by argument from the judgment." It is a rule of logic 32 PRINCIPLES, ANALOGIES, ETC. that if a conclusion is correct, the premises are necessarily- true. And, of course, the learned justice did not intend to de- cide that the rules of law and logic are different. But in logic, if a conclusion can be reached from two or more dif- ferent premises, it is impossible to determine from the former alone which premises were used. So, in law, if a judgment shows that it is based upon an installment of interest due on a note, it is impossible to determine from that alone what the legal premises — the issues — were. The issue may have been simply payment of that installment. If it be granted that that was the sole issue, then it can be inferred from the judgment that it was not paid. But the issue contested may have been that the note itself was a forgery, or given without considera- tion, or by an infant, or on Sunday, and so ad infinitum; and, of course, it is impossible to infer from the judgment what the contest was. So the pleadings may be so general as not to show the issues — the logical premises — and in that case, no infer- ence can be drawn from the entire record. In Belden v. State, ^ a person being sued by the state to recover money alleged to have been overpaid to him by reason of a mistake of fact, he insisted upon a former judg- ment in his favor in an action to recover the same money upon the ground that he had obtained it by fraud. The court said: "It is entirely consistent with the record in that action that money paid under a mistake of fact may be recovered back, although the state there failed in its asser- tion that the money was obtained from its officers by fraud and false pretenses. That question was settled, but not the right of the defendant to retain it. Nor does that judgment establish the sum due to the defendant under the contract. That question was not in issue. It may have come collaterally in question, and, as incident to the general charge of fraud, been the subject of evidence and controversy ; but it was not in issue within the meaning of the rule which gives effect to the adjudication. That applies to that matter only upon which the plaintiff proceeded by its action, and which the defendant an- 1. Belden v. State, 103 N. Y. 1 (8 N. E. R. 363). GENERAL MATTERS. 33 swered by his pleading. Facts offered in evidence to establish the issue so presented are not themselves in issue, and the judgment is no evidence in regard to them." In Smith v. Town of Ontario/ it is said that the issue is that ultimate fact or state of facts in dispute upon which the ver- dict, or finding, is predicated, and that mere matters of evidence are not adjudicated, §3. Collaterally in qnestion or directly upon the point — The cases specially considered. — I find it impossible to draw any very accurate line between the cases in this section and those in the next succeeding two sections. Hence, those who desire to learn what has been decided on any one of these questions will have to read the three sections. Administratoe removed. — In a proceeding in a probate court under the statute of Minnesota, to remove an adminis- tratrix because she had become * ' unsuitable or incapable of discharging her trust, ' ' the question of fact contested and de- cided was that she had wrongfully recognized the claim of one George to hold assets of the estate as a surviving partner of the decedent, by reason of which the court adjudged her to be un- suitable, and removed her from the trust. She afterwards filed a final report, showing that George had taken the same assets as surviving partner, to which exceptions were filed, and the persons excepting contended that the question in respect to the partnership of George with the decedent was decided adversely to her in the removal proceedings, and was res judicata. The court said: '*It is irresistible that the judgment of a court of com- petent jurisdiction is conclusive as evidence upon parties and privies in respect to every question directly involved in the issue, and determined by the judgment. Within the meaning of this rule, the issue must be one within the jurisdiction of the court authoritatively to try and determine in a direct pro- ceeding for that purpose, and in such a case. Every essential fact necessary to uphold the judgment will be deemed to have been directly embraced within the issue. Facts, however, not 1. Smith V. Town of Ontario, 4 Fed. R. 386, 390. 3 34 PRINCIPLES, ANALOGIES, ETC. thus essential and necessary, but which are only indirectly in- volved as matter of evidence bearing upon the precise point in controversy for adjudication, do not fall within the rule, and as to them the doctrine of res judicata has no application. Matter of this kind thus incidentally arising and considered, though actually contested and passed upon, still remains open to future litigation whenever any rights dependent upon it come directly in issue for adjudication. The proceeding, when- ever the judgment was rendered, the record of which was sought to be used as conclusive evidence against the respond- ent upon the trial of the question of partnership in this case, was instituted under the statute which authorizes a probate court to remove an administrator whenever found to have be- come unsuitable or incapable of discharging his trust. The precise point which was there presented for adjudication, and the only one which the court had any jurisdiction to try and determine, was that of the personal fitness or unfitness of the respondent to continue longer to act as the administratrix of the estate of her deceased husband. By the judgment therein, this matter became res judicata, and could not again be ques- tioned by the respondent, except in the way of review on ap- peal. She was not, however, concluded by it from litigating anew any collateral question or disputed fact considered or passed upon in that proceeding incidentally only, because of its bearing as evidence upon the vital jDoint in controversy; and such was clearly the character of the question which was there raised and contested as to the existence of the partnership be- tween George and the decedent. A finding upon that fact or question was only pertinent to characterize the conduct of the respondent in recognizing the validity of George's claim to the hotel property as a surviving partner of the decedent, for the pur- pose of aiding in the determination of the main question whether or not, under the circumstances, she was a suitable person to per- form the duties and discharge the trust of an administratrix faithfully and advantageously to the estate. In this incidental way, and to this end, the probate court rightfully took cogni- zance of the question and passed upon it; and in this indirect way alone was it proper for the court to consider it, for pro- GENERAL MATTERS. 35 bate courts have no jurisdiction to try and determine partner- ship rights in any action or proceeding brought for that direct purpose.'" It seems that the sole issue of fact in the removal proceedings was whether or not George and the decedent were partners. It having been determined that they were not, the court concluded, as a matter of law, that she was unsuitable to act further and removed her. While the conclusion reached in this case was correct, there is some confusion, in my opinion, in the use of the words, " collateral " and "incidental." The issue in the first proceeding was concerning her suitableness to hold the trust, and the question of the partnership was a col- lateral matter of evidence bearing on that issue. If there was a partnership, she had done nothing wrong and was suitable, and vice versa. But in the second proceeding, the question of partnership or no partnershij) was the direct and vital issue ; for, if George was a partner of the decedent, he was the proper distributee of the assets. The power to make distribution gave the power to determine who were the distributees. Administrator's indebtedness to the estate. — An admin- istrator filed a petition to sell land to pay debts, and the heirs, in order to show a sufficiency of personal assets, sought to charge him with the rents of lands prior to the death of the decedent, against which he set up an account in his own favor. After a trial, the court found that the personal assets were sufficient to pay the debts, and that the estate was indebted to him in the sum of $9.40, but refused to investigate the trans- actions between the decedent and the administrator, her son, " as the presumption is the disposition of them was in accord- ance with her wishes." This was held to be no bar to a mo- tion to charge the administrator with these same rents in opposition to his final report.^ The decision was put upon the ground that the question in respect to the rents was merely in- cidental or collateral to the case. This decision, as it seems to me, was put upon the wrong ground. As the court declined to investigate the set-off pleaded by the heirs, it was no more ad- judicated than if it had not been pleaded. 1. Marvin r. Butcher, 26 Minn. 391 2. Ford v. Ford, 68 Ala. 141. (4N. "\V. R. 685, 690). 36 PRINCIPLES, ANALOGIES, ETC. Cause op action split. — The supreme court of Minnesota, in speaking of a case in which the plaintiff had split his cause of action and recovered on a part, and in answer to his conten- tion that no issue had been made in respect to the matter now sued upon, said: "It must be understood, however, that a judgment shall be held to decide directly every matter which pertains to the cause of action or defense set up in the action, or which is involved in the measure of relief to which the cause of action or defense entitles the party, even though that matter may not be set forth in the pleadings, so as to admit proof and call for an actual decision upon it."^ This case confuses the doctrine under consideration with that relating to the splitting of causes of action, between which there is but little similarity. See sections 59-158, infra. Consideration of note. — In a suit against A, B and C as partners on a notetsigned in their firm name, A made default, and B and C pleaded that they did not promise with him. On the trial it was proved that A had executed to the plaintiff seven other firm notes for his individual debt, which were not yet due, and that he had afterwards executed the note in suit as a substitute for the other seven, and the plaintiff was defeated. He then sued them on the seven original notes, and they pleaded specially the foregoing facts as a former adjudication, but the plea was held bad, (1) because, although the validity of these notes, as an existing consideration for the note sued upon, was drawn in question and in effect tried, yet it was a question collateral to the one in issue, and (2) that the ques- tion of want of consideration was one to be inferred by argu- ment from the verdict.^ This case seems to me to be unsound. If the answer had been special, it would have alleged that he executed seven notes to evidence an individual debt, and afterwards executed the one in suit as a substitute for them. It was necessary for the defendants to prove both these issues in order to succeed, which shows that they were not collateral. See section 2, supra. Deed, execution of. — A sold two lots to B by different 1. Thompson v. Myrick, 24 Minn. 4, 2 Eastman v. Cooper, 15 Pick. (32 11. Mass.) 276 (26 Am. D. 600). GENERAL MATTERS. 37 articles of agreement, in each of which B agreed to make cer- tain payments. A having brought suit on one of the articles, B, in order to prove payment, introduced, with other evidence, a deed from A for both lots, the delivery of which he contested, but the issue of payment was found for B. In a suit by A on the other article, B insisted that the former adjudication estab- lished the delivery of the deed, but this was denied because it was a matter merely incidentally in issue. ^ This decision seems to me to be correct. The court said: "The C[uestion of the delivery of the deed was not in issue in that case within the meaning of the rule, although the fact was controverted at the trial. The deed was offered merely as evidence to establish the particular matter which was in issue. The delivery of the deed was incidental only to the real issue. In applying the princi- ple of res judicata, the inquiry is not always, perhaps, as to the identity of the cause of action, but as to the identity of the matter in issue ; and the matter in issue is not what comes col- laterally or incidentally in controversy under the evidence, bu^. what is essentially and directly in issue in the cause. The de- livery of the deed was prima facie evidence of the payment of the purchase-money, and it was for this purpose the delivery was sought to be established. But mere evidential facts are not usually held conclusive ; they must be such as are within the substance of the issue ; all others are merely collateral." Deed, forgery of. — In ejectment the parties both claimed under the same grantor, and the defendant's grant was the older. The plaintiff was then allowed to prove that the defend- ant's grant was a forgery, and he recovered. In a subsequent suit in chancery between the parties, this recovery was decided not to be conclusive in regard to the forgery, because the issue directly presented was the right to the possession, and the ques- tion of forgery was collateral to it.^ I think this case wrong. Deed or mortgage ? — A and her husband executed a deed for land to B, and shortly afterwards B drew up and signed a deed for the same land to A. A then sued him to recover 1. Cavanaughu. Buehler, 120Pa. St. 2. Singery v. Attorney-General, 2 441 (14 Atl. E. 391). Harris & Johnson 487, 497'( A. D. 1809). 38 PRINCIPLES, ANALOGIES, ETC. this last deed, alleging that it had been delivered to her, and that she had entrusted it to him for safe-keeping upon his promise to return it upon request, which he refused to do. He answered that the deed from A and her husband to him, while absolute in form, was intended to be a mortgage to secure a debt, and he asked that she be ordered to pay him the amount due within a time to be fixed, or that her rights be barred. He also denied all the allegations of her complaint except the demand. There was a trial and finding that the last deed had never been delivered to A, and that she did not leave it with him for safe-keeping, and that the first deed was executed as a mortgage to secure a debt, and that he.prepared the second deed to be delivered to her when the debt was paid, which was not yet done. Upon this finding, there was simply a decree dismissing the complaint. In that action the defendant could not, under the New York code, have a foreclosure of his deed as a mortgage. He then sued to accomplish that object, and contended that the prior adjudication barred her from claiming that his deed was not a mortgage ; but his contention was de- nied upon the ground that that question was only incidentally in issue. The court said that, in the prior action, ''it may have been competent for him to give evidence as to the char- acter and purpose of the first deed as bearing upon the second ; but it has never been held that a judgment is an estoppel as to all the litigated facts and all the evidence which the one party or the other may choose to introduce upon the trial of the action, however important such evidence may have been." It also said that it was wholly unnecessary for him to make any allegation in the first suit in reference to the first deed, as he could have defeated her on his denial, and that the finding in respect to it was immaterial.^ Distributee, alive or dead ? — The petition for distribu- tion in a decedent's estate in Arkansas gave the name. of one of the distributees as ' ' the heirs and legal representatives of Le- ona Trammell. ' ' The entry called her ' ' Leona Trammell ' ' and showed her personal presence, and that certain property was dis- 1. House V. Lockwood, 137 N. Y. 259 (33 N. E. R. 595). GENERAL MATTERS. o9 tributed to her. In a subsequent litigation in Texas concerning this property it was shown that, at the time the petition was filed in Arkansas, Leona Trammell was dead. That fact would give the property to the plaintiffs in the Texas suit, while if she were alive it would go to the defendants. The supreme court held that the questions of her life, death or personal ap- pearance were matters incidentally in issue, and that the record was not conclusive that she was alive and present in court/ The court applied a rule of res judicata to a case of collateral attack. There was no issue at all in respect to her ajipearance. The court allowed the Arkansas record to be contradicted on a question of fact. See Van Fleet, Collateral Attack, § 483. Duress, admissions obtained by. — A woman, in a suit for breach of marriage contract, proved admissions made b}^ the defendant, and he, in order to destro}' their force, attempted to show that they were extorted from him by threats of violence, while he was locked up in a room. In a subsequent case by him against her for false imprisonment, it was ruled that these matters were only incidentally in issue in the first suit, and therefore not settled.^ The court said that those matters " did not constitute a defense, nor could they have been made available by any mode of pleading. If the plaintiff in that proceeding, in support of her cause of action, relied upon the admission thus alleged to have been obtained, the circum- stances under which it was made were admissible in evidence for the purpose of destrojdng its force. This was the only pur- pose for which the appellee could employ them, and as he could not recover damages in that action for the alleged wrong, nor recoup therefrom any damages to which the plaintiff may have been entitled for breach of the alleged agreement, the mere ad- mission of them in evidence did not amount to an adjudication of the alleged wrong." Fraudulent judgment. — A, having a prior and B a subse- quent judgment against the same person, whose land was sold and the proceeds brought into court for distribution, on motion 1. Sawyer v. Boyle, 21 Tex. 28, 38. 2. Hildebrand v. McCrum, 101 Ind. 61. 63. 40 PRINCIPLES, ANALOGIES, ETC. of A, and after notice to B, the court awarded the proceeds to A. Afterwards B sued A, to set aside his judgment as collusive and fraudulent, and he pleaded the former action of the court, i;i awarding him the money upon it, as a bar. But the court ruled against him on the ground that the validity of his judg- ment was only incidentally in issue in that proceeding. The court said : " His right to the money might have been liti- gated, but the honesty of his judgment could have been brought into the contest only indirectly."^ The second case was a col- lateral attack on the first. B had an opportunity in the first proceeding to show any cause why A should not have the funds in court, and if he failed to tender the proper issues, it was his own fault. He was given two days in court. Lunacy inquisition. — In an inquisition of lunacy, a finding that the defendant had been of unsound mind for five or six years is incidental merely, and not conclusive as to the validity of a deed executed within that time, as against a person bound by the decree.^ The issuable fact was present lunacy. To show that fact, evidence that his mind had been deranged for some time was admissible, but this evidentiary fact did not constitute an issue. The court said : "The secondary character of the inquiry as to the duration of the lunacy is evident from the fact that, if the jury find the alleged lunatic to be sound of mind, they have no power to pass upon any other question, even if they are of the opinion that he has been insane." Mortgage fraudulent. — A complaint to foreclose a me- chanic's lien alleged that the defendants held a mortgage on the premises described ' ' to secure the payment of eight thou- sand dollars, which mortgage appears of record unsatisfied," and prayed for " a judgment for two thousand dollars, and for the enforcement of the said lien for the payment thereof, and such other relief as may be just and proper." The mortgagees appeared and answered, admitting that they held a mortgage as alleged in the complaint, and alleging that it was due and 1. Martin v. Gernandt, 19 Pa. St. 2. Hughes v. Jones, 116 N.Y. 67 (22 124,127. N. E. R. 446). GENERAL MATTERS. 41 unpaid (setting forth a copy), and that it was a lien prior to that of plaintiff's " and entitled to the precedence of any judg- ment that may be rendered for the plaintiff herein," and they prayed that the judgment for the plaintiff might be made sub- ject to their lien, and for a decree " that their claim shall be first paid and satisfied out of the proceeds of the said premises, and for other proper relief." Upon these issues there was a trial, and finding for the plaintiff, but that his lien was subject to the lien of defendant's mortgage, and a decree for a sale to satisfy plaintiff's lien subject to the mortgage. It will be seen that the mortgagees filed simply an answer and no cross-complaint seeking a foreclosure, and that no such decree was entered. Afterwards they filed a complaint to foreclose their mortgage, making the plaintiff in the former suit a defendant, and he an- swered that the mortgage was fraudulent and without consider- ation. His contention was, that, as there was no issue in the former suit concerning the validity of the mortgage, and no de- cree fixing the amount due, those matters were not ''directly in issue," and that the decree, so far as it assumed to decide any of them, was not conclusive ; but this contention was de- nied, without giving any reasons, and the writer of the opinion dissented, without assigning an}^ reasons.^ The opinion cites a large number of cases, some involving the doctrine of collateral attack and others that of res judicata, and it is quite evident that the dissenting judge confounded the two. If there was any reason vrhj the plaintiff in the first suit should have had a decree that his lien was superior to the mortgage he ought to have brought it forward. The defend- ants could not do it for him. I think the case well decided. Pauper settled. — An order fixing the place of settlement of an unemancipated pauper child, having been made by determining that its father and mother were lawfully mar- ried, and that the father's settlement was in a certain town- ship, it was said that those matters, namely, the mar- riage of the parents and the settlement of the father, were 1. Greenup v. Crooks, 50 Ind. 410, 419 — Buskirk, J., dissenting. 42 PRINCIPLES, ANALOGIES, ETC. necessary steps in the decision, and were not collateral, and were conclusive in any future case. It was also said : "Un- less they are necessary steps, the rule fails and they are collat- eral facts only."' Plat of land. — In an action concerning real estate, the lines, as laid down on a plat used in evidence are not res judi- cata, when neither the pleadings nor the judgment refer to it.^ Replevin, account investigated in. — A agreed with B to manufacture lumber from the land of the latter and to deliver it to him at a specified price ; and that, when a sufficient quan- tity should be delivered to pay the cost of the land, machinery and expenses, B should convey to him one-third of the land. After they had proceeded under the contract for some time, A refused to deliver any more lumber upon the ground that he had fulfilled the contract, and was entitled to a conveyance. B then replevied the lumber, for which A gave a bond and retained it, and the cause proceeded for its value. There was a trial and verdict for B for seventeen thousand dollars, upon which a judgment was rendered, which A paid. He then filed a bill to compel B to convey the one-third of the land according to con- tract, and the question arose whether or not the accounting had in the replevin suit concluded that matter. The court said that the direct issue in that suit was the right to the possession of the lumber, which involved the question whether or not enough had been delivered to pay for the land, mills and expenses ; that it was necessary to go into the accounts between the parties so far, and so far only, as to settle that question ; that the direct object was not an accounting, and that the judgment therefore could not settle that matter, and that it was subject to a rein- vestigation in the equity suit ; that the state of the accounts was only a matter incidentally in issue. ^ But a matter neces- sarily determined is never collateral. See section 2, supra. Specific performance. — The plaintiff, in a suit for specific performance, having made four material allegations, namely: 1. Regina v. Hartington, Middle 2. Hobbs w. Parker, 31 Me. 143,150, Quarter, 4 El. & Bl. (82 E. C. L.) 780, 3. Lewis and Nelson's Appeal, 67 796. Pa. St. 153, 165. GENERAL MATTERS. 43 ( 1 ) The agreement for a sale ; ( 2 ) payment of the purchase money; (3) delivery of possession to himself, and (4) ex- penditure of money on the land, and there being a decree against him, it was held, in a subsequent action of trespass against him, that those allegations were not merely " incident- ally" involved in his suit. The court said that "incidental" means that which is unnecessary to the decision.^ Tenancy, in suit for reconveyance. — A complaint alleged that the defendants held a deed for certain land as a mortgage to secure a sum named, which the plaintiff offered to pay, and demanded a reconveyance. .The answer specifically denied each allegation so made, and set forth the negotiations between the parties, and also alleged that the plaintiff was a tenant in possession of the premises for a limited period. Under these issues, a finding and decree for the defendants that the deed was not a mortgage, and also that the plaintiff was a tenant, was held to be no proof of the fact of tenancy in a new action to oust him as a tenant holding over, because the question of ten- ancy was merely incidental or collateral to the main issue. ^ The reason assigned in this case, at least, seems to be wrong. If the allegations in the answer concerning the tenancy were mere surplusage, and only proper to be made in a counter- claim, then the adjudication in respect to the tenancy was im- material as being outside of any material issue. But the suit was an equitable one, and equity delights in settling the entire controversy in one suit ; and if the answer could also be re- garded as a counter-claim or cross-complaint, then the allega- tions concerning the tenancy were proper, and the adjudica- tion strictly within the issues. Title to goods, in trespass to land. — In trespass quare clausum fregit, in which the taking and carrying away of a piano is alleged by way of aggravation of damages, the title to the piano is only incidentally in issue ; and although the jury act- ually pass upon it, and decide that it belongs to the defendant, that question will not be concluded in a subsequent action of 1. Marks v. Aspinall, 8 Victorian 2. People v. Johnson, 38 N. Y. 63 Law R. (Law) 116, 121. • (97 Am. D. 770). 44 PRINCIPLES, ANALOGIES, ETC. replevin.* As it was necessary to determine the title to the piano, I think the case is erroneous. Title to goods, in trover for other goods. — A sold thirty- five cords of wood at auction to various persons, of which B purchased three cords. C sued B for the conversion of these three cords, and A defended him and defeated the action. C then sued A for converting the other thirty-two cords, and the question arose as to whether or not the former adjudication could be used as a bar. A's claim was that he owned the wood in controversy in the two actions by virtue of the same title, and that, as his title had been adjudicated to be valid in the former action, it was concluded in the present one. But the court said : "If the title to the remaining wood was the same as that to the three cords, yet the former judgment would not, in any event, conclusively determine, as between these parties, that the title to this remaining wood was at any time in A, because the title to it was never tried in the former ac- tion. If it were absolutely true that the title to the three cords was in the defendant at a particular time, and it was admitted that the title to the remainder was the same as that to the three cords, the inference would be inevitable that at that time the title to the remainder was also in the defendant. But a judg- ment does not determine absolute truth, and an estoppel by a former judgment does not extend beyond what was adjudged ; and as the title to the remainder has never been determined by a former judgment, the plaintiff is not estopped from alleging and proving in this action his title to it, by any competent evi- dence, although at the same time he may admit that in fact the title to it was the same as that to the three cords which were adjudged in the former action to be not his property, by a judgment, of which, if erroneous, he is estopped to show the error. There has been no judgment against him directly involving the title to this wood, which estops him from show- ing what the truth is in regard to that title. "^ I confess that I do not understand what the court means by 1. Gilbert v. Thompson, 9Cush. (63 2. Foye v. Patch, 132 Mass. 105, 112. Mass.) 348. GENERAL MATTERS. 45 saying that, " a judgment does not determine absolute truth, and an estoppel by a former judgment does not extend beyond what was adjudged." If I understand the case, the whole thirty-five cords of wood had belonged to A's intestate, from whom B claimed the title by virtue of some contract made with him in his lifetime. It was the validity of this contract or ar- rangement which was contested in the suit for the value of the three cords, and as that issue, which was the source of B's title, was decided against him, I am at a loss to know why he should be permitted to retry it. As B had but one claim for all the wood, it would seem to follow in law, as well as logic, that a demonstration of its invalidity in reference to one por- tion of the wood would be conclusive as to the remainder. Title to trust estate, in suit for an accounting. — A person by will directed his executor to take charge of a lease for a coal mine, to collect the rents and to use enough to supj)ort his wife during life and to divide the remainder among his children. The widow and children, after the death of the testator, conveyed all their interests in the lease and rents to B. The executor afterwards filed a bill against B to compel an ac- counting, and there was a finding and decree that the trust was a continuing one, and that the deeds of the widow and children to B were void, and the executor was ordered to collect the rents and to use enough to support the widow, and to hold the balance subject to the order of the court. After the death of the widow, a contest arose over this balance between B and the children of the testator. The decree declared the deeds void, which would give this fund to the children, but it was held that the issue made in respect to the children's deeds was im- material and incidental, and not binding, and the funds on hand were awarded to B.^ The decree in this case in respect to the children's deeds certainly was not collateral nor inci- dental to the issue concerning the widow's deed, as there was no legal connection between them. But the executor had an active duty to perform towards the widow and children, and 1 Forcey's Appeal, 106 Pa. St. 508. 46 PKINCIPLES, ANALOGIES, ETC. their deeds cast a cloud upon his title, which, it seems to me, it was entirely proper to clear off by one suit. Trust under a will. — A person by his will directed that a portion of his estate should be held in trust by his executor for his son A during his life, the income during his minority, over and above the amount needed for his support, to be accumu- lated and added to the principal. After his majority, the in- come of the whole fund, being the principal and accumulations, was to be paid to him during life, with remainder to persons designated. After A arrived at his majority, he brought an ac- tion against the executor to recover the principal and accumu- lations on the ground that the will was invalid and void in respect to the clause directing the trust and accumulations, but he was defeated, and it was adjudged that the will was valid in whole and in detail, and that it was the duty of the executor to hold the fund upon the trust declared. Afterwards one of A's creditors brought a suit against him and the executor to reach the accumulations upon the ground that the clause in the will directing them to be made was void. The record in the former action was pleaded in bar. The counsel for the creditor contended that the former action was for the recovery of spe- cific personal property, capable of identification, and of assign- ment and manual delivery, while the present one was to enforce an equitable lien on that property, and that the causes of action were different and inconsistent ; that, because the pres- ent cause of action was not adjudged in the former action, and because no matter of fact nor of law upon which this action de- pended was there expressly determined adversely to the plaintiff, nor impliedly so determined by reason of its entering as a necessary element into something expressly determined, the former judgment furnished no defense. In answer to this con- tention, the court said : " The general rule is well settled that the estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and de- termined, and also to those matters which, although not ex- pressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were GENERAL MATTERS, 47 not actually litigated or considered. It is not necessary to the conclusiveness of a former judgment that issue should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former de- cision, is, for the purpose of the estoppel, deemed to have been actually decided. This is the principle upon which the mal- practice cases, involving the right of a physician to recover for services, after a former judgment against him for negligence or want of skill in the employment for which compensation is claimed, and conversely the right of the patient after judg- ment against him for services, to maintain a subsequent action for malpractice, were decided. Conclusions of law or fact which necessarily flow from a judgment, although not expressly found, are not incidental nor collateral so as to remove them from the scope of the estoppel within the qualification of the general rule stated by the judges in their opinion in the Duchess of Kingston's Case. * * * The first action was in general terms to re- cover the whole trust estate on the ground that the entire trust was void. The present action is to recover the accumulations, on the ground that the trust, though otherwise valid, was as to the accumulations void." * The issue litigated in the first action was whether or not any part of the trust was void, and the decision was that it was all valid ; or, in other words, that the legal title was in the trustee on a valid trust over which A had no control. Hence, it necessarily followed that his creditors, who stood in his shoes, could not reach it. Widow or no widow. — A woman contested the right of an- other to receive letters of administration upon the ground that she was the widow, and was successful in the probate court, but on appeal to the superior court and a trial before a jury, the verdict was, "AVe, the jury, find that John Johnson, applicant, is entitled to administration on the estate of Thaddeus W. Bradley, deceased," and a judgment was entered in exact ac- cordance with the terms of the verdict. Then she, as widow, brought a bill against him for an accounting, and he pleaded 1. Pray v. Hegeman, 98 N. Y. 351, 354, 358. 48 PRINCIPLES, ANALOGIES, ETC.' the former adjudication to show that she was not the widow. But, although that was the sole question contested in the first proceeding, the supreme court held that the judgment was not "directly upon the point" within the rule laid down in the Duchess of Kingston's Case, and that she was not barred. The idea of the court was, that it did not matter that the question of widow or no widow was the sole question contested, the fact that the judgment simply was that letters should issue to Johnson, instead of that she was not the widow, showed that it was not directly on the point. ^ An administrator in Texas, by virtue of an order of the county court, leased the land, stock and implements of the decedent for a term of years, and the tenants took possession. The alleged widow, as such, then made an application to the court to have the same property set off to her as a home- stead for herself and children, which was granted. The ten- ant, to prevent being ousted, filed a petition for an injunc- tion in the district court, making her and the children and the administrator parties, upon the ground that she was not the widow. To this petition she filed a cross-bill setting up the proceedings in the county court as an adjudication that she was the widow. This cause was submitted to the district court on bill and cross-bill, and a decree was rendered in her favor solely upon the strength of the decree of the county court. At the time this decree was rendered, the administrator had caused a writ of certiorari to issue to remove the county court case to the district court, which operated as a supersedeas, but by some error or oversight, this was disregarded in the district court. When the county court case was entered in the district court, she pleaded the judgment of the district court in her favor as a bar. The administrator claimed the right to show that she was not the widow and not entitled to the homestead. Matters stood thus : she had obtained a decree in the county court awarding her the homestead because she was the widow ; after that decree had been superseded by a removal to the district court, a new suit was brought in the latter court, in which, by 1. Bradley v. Johnson, 49 Ga. 412. GENERAL MATTERS. 49 virtue of the decree of the county court, she was again adjudged to be the widow and entitled to the homestead, and she then set that up as res judicata to bar the administrator from proving that she was not the widow on the trial of the county court case on the certiorari. But the supreme court held that her plea was bad, because the matter directly in question in the district court was not whether she was the widow, but whether or not the order of the county court was in force ; and that the matter directly in question on the appeal was whether or not the order of the county court should remain in force. ^ But it seems quite clear to me that the court erred. The district court ad- judged that she was the widow on improper evidence, but that did not affect the force of its adjudication ; and as long as it stood, it necessarily barred all further controversy on the point. Will, forged or not. — In an action in the probate divis- ion, A propounded an earlier and B a later will. The " action was compromised, and, by consent, a judgment was entered establishing the earlier one. Subsequently, B having discov- ered that the earlier will was a forgery, he brought a suit against A in equity to set aside the compromise on that ground, and obtained a decree. He then brought a new action in the probate division to revoke the probate of the earlier will upon the ground that it was *forged, and contended that the decree in equity was conclusive in his favor. The counsel for A con- tended that the purpose of the equity suit was to set aside the compromise and not to declare the will invalid, and that the fact of the forgery was only found as a collateral matter which had only an indirect effect on the decree. That in the one action B sought to rescind a compromise and in the other to revoke a will. But the court did not agree with him. It said : " The conclusive effect of the judgment is not confined to the bare issue whether the compromise was obtained by fraud, but extends to that which it was necessary in that action to decide, and which was in fact decided as the basis of the decision."^ 1. Oldham v. Mclver, 49 Tex. 556, Probate Diy. 70, 75. Affirmed, Priest- 572. man v. Thomas, L. R. 9 Probate Div. 2. Priestman v. Thomas, L. R. 9 210, 213. 4 50 PRINCIPLES, ANALOGIES, ETC. § 4. Section 3 continued — Cases in New Hampshire, South Carolina, West Virginia and India specially considered. — In New Hampshire, South Carolina and West Virginia, the courts have applied the rules under consideration so as to narrow down the doctrine of res judicata to the issues shown by the plead- ings. It seems to me that they are wrong, both upon princi- ple and authority. But as those courts are everywhere held in high esteem, a careful abstract of their decisions is given in this section. A sued B upon a special contract of the latter to labor for him one year and alleged that after laboring one month he refused to complete the service. B pleaded in bar that he brought an action against A for that month's labor, and that he setup as a defense the contract now sued upon to labor for a year, and that he, B, recovered a judgment. The court, while admitting that the jury must have determined in the former suit either that the special contract was never made or had been rescinded, nevertheless held that the question was not concluded because not directly in issue by the pleadings ; that the real issue in that case was whether or not the month's labor was done under an implied contract for pay, and that that question was the only one conclusively settled ; that the invalidity or non-exist- ence of the special contract was a mere inference from the ver- dict.' A sheriff, by virtue of a writ of attachment, seized some hay and a stranger sued him in trespass. On the trial the plaintiff introduced in evidence a mortgage from the attachment de- fendant covering some oats and the hay in controversy. The sheriff claimed that the mortgage was fraudulent, and pro- duced in evidence a record in a former action of trover, brought against him for seizing the oats covered by it, in which there was a verdict and judgment for him, and he also proved by one of the jurors in that action that the validity of the mortgage was the only question submitted to them, and that they found it fraudulent. The question was whether or not the validity of the mortgage was a matter " directly in question," so as to 1. Towns V. Nims, 5 N. H. 259 (20 Am. D. 578). • GENERAL MATTERS. 51 be concluded, or only "collaterally in question," or "inci- dentally cognizable," so as not to be concluded, within the meaning of those phrases as used in the Duchess of King- ston's Case. The court said that the matter in issue, so as to be concluded, was that " upon which the plaintiff proceeded by his action, and which the defendant controverts by his pleadings. The declaration and pleadings may show specifi- cally what this is, or they may not. If they do not, the party may adduce other evidence to show what was in issue, and thereby make the pleadings as if they luere special." * * * "It appears that the title set up in the former case was by a mort- gage. In finding that the plaintiff had no title, the jury must have been of the opinion that the mortgage was fraudulent. It is contended that this was in issue, and the only matter in issue. But this was only a controversy about a particular mat- ter of evidence upon which the plaintiff then relied to show title. If that was the only matter in issue, the plaintiff might bring another suit for those oats against the same defendant, and, relying upon some other title than that mortgage, try it over again. Can he do so? Clearly not ; and the reason is, that it is his title which has been tried and he is concluded. The title, however, which has been tried, was only his title to the oats. The question whether or not the mortgage was fraudulent came up only incidentally by reason of his relying on that as his title. But the mortgage was not the matter in issue. And while the finding is conclusive on the question of his title to the oats, it is neither conclusive, nor evidence upon anything else, because nothing else was in issue. "^ The court admits that if the pleadings are general, " the party may adduce other evidence to show what was in issue, and thereby make the pleadings as if they were special." But why he would want to do that if he could not use it after it was proven, the court did not say. It seems quite clear to me that the court confused the doctrine of splitting causes with the rule under consideration. Of course, all his titles to the oats would be barred by the first suit, whether brought forward or not ; but 1. King V. Chase, 15 N. H. 9, 16, 17 (41 Am. D. 675, 678, 679). 52 PRINCIPLES, ANALOGIES, ETC. when he introduced his mortgage to show title, its validity be- came the real issue, and that issue could no more be split than the one in regard to title. He then had his day in court to show the validity of his mortgage, and failed. The court after- wards gave him another day upon it before a new jury. To a suit on an account for sawing logs, the defendant of- fered to prove that the plaintiff had sued him on an account for sawing another part of the same logs depending upon the same contract of hiring, and that the jury decided that no such contract was ever made ; but it was held that he could not do so, because the matter in issue in that suit was the price of the sawing, and the question of the hiring was only incidental.^ A note being payable in installments, and a suit upon one installment being referred to arbitrators, who found for the de- fendant because the note was not binding on him, this was held to be no bar to a suit on future installments, as those mat- ters were not in issue. ^ In trespass for taking and carrying away shocks of rye, if the plea is not guilty, and the only question litigated and de- cided is the title to the land, the judgment in favor of the defendant is no bar to an action by the plaintiff to recover the land.'' A bill in equity set up the seizin of the defendant to a tract of land, its conveyance to the plaintiff and his loss of the deed, and its unauthorized possession by the defendant, and prayed for a decree ordering it to be redelivered and for an injunction to restrain the defendant from asserting title. The answer ad- mitted the conveyance, but alleged an agreement to restore the title to the defendant by giving up the deed to be canceled, and its delivery pursuant thereto. The decree dismissing the bill on the merits was held to be a bar to an action at law by the plaintiff to recover the land, the plea being the general is- sue, and the same matters being put in evidence as in the first suit.* In this case the matters in issue were determined from 1. Moulton V. Libbey, 15 N. H. 480, 3. Potter v. Baker, 19 N. H. 166. 482. 4. Hall v. Dodge, 38 N. H. 346, 350. 2. Wheelerv. Bancroft, 18 N. H.537, 543. GENERAL MATTERS. 53 the evidence, although the court professed to follow King v. Chase, supra. A and B having owned adjoining lots, and A having sued B for trespass, to which there was a plea of not guilty, and the sole question tried having been whether or not a certain marked line was the boundary between their lots, a verdict and judgment for A, which necessarily determined that it was, is no evidence of that fact in a subsequent action, because that was a merd fact in controversy and not an issue. ^ So, if creditors proceed to reach goods by trustee (garnishee) process, and the issue is whether the trustee is chargeable or not, a judgment in his favor is no bar to a new action of trover for the conversion of the same goods, in which the issue is not guilty, although the question litigated and decided on the first trial was the title of the trustee, which is the question in issue in the last suit, because the issue made by the pleadings is dif- ferent.^ A had wrongfully loaned B's money at fifteen per cent, inter- est. This gave B the option to ratify the loan at fifteen per cent, or to hold A as his debtor at six per cent. A collected and remitted to B thirty-eight dollars more than the principal and six per cent, interest, and then sued B to recover the ex- cess over six per cent., on the ground that it was paid by mis- take. Under the pleading filed by B, he was entitled to prove any matters of recoupment sufficient to defeat A's demand, but was precluded from recovering a judgment against him. The material question litigated was whether or not B had elected to treat A as his debtor, for if he had not, it was conceded that A could not recover, and there was a verdict and judgment in favor of A. B then sued A to recover the balance received by him upon the loan, on the theory that he had ratified it and had not elected to hold him as his debtor. The court, while conceding that this identical question had been litigated and decided adversely to B in the first suit, held that it was merely a matter of evidence 1. Palmer v. Russell, 43 N. H. 625. 2. Vaughan v. Morrison, 55 N. H. 580, 589. 54 PRINCIPLES, ANALOGIES, ETC. incidentally involved, and would not bar him from recovering any sums received by A which had not been brought forward by B and given in evidence in the first suit. The court said : "That part only of B's cMm which he presented and asked to have allowed him was adjudicated. It is not material that the remainder depends upon the same evidence which he intro- duced in that suit. Although a ratification of the loan, or the want of it, was the evidence upon which the parties respectively relied to maintain the issue whether A did or did not owe the money set up in the recoupment by B, and the validity of the remainder of his claim depends upon the same evidence, it was not the matter in issue within the meaning of the rule as estab- lished in this state. The judgment, therefore, does not conclude the parties upon the question of ratification. King v. Chase, 15 N. H. 9. The distinction is between facts, which, being alleged in pleading, constitute a good cause of action or a good defense, and facts which are merely evidence — between facts which upon the face of the pleadings are essential to be estab- lished by one party or the other, and facts which upon the face of the pleadings are immaterial, and become material only by the course of the evidence. A judgment is conclusive, upon the parties and privies, of such of the former class of facts as are actually tried, but never of any of the latter class, although they may be the only questions litigated. In an action of tro- ver, under a plea of not guilty, the plaintiff 's title to the prop- erty and its conversion by the defendant are the only facts material upon the face of the pleadings to be established by the plaintiff or to be refuted by the defendant, and of " one or both of these facts alone will a judgment in the cause be conclusive upon the parties in a subsequent suit between them upon a dif- ferent cause of action. If, for example, the action is for the conversion of a horse, nothing could be more immaterial upon the face of the record than whether or not the defendant was, upon the day of the alleged conversion, in the village of B, but upon the introduction of evidence by the plaintiff that the defendant hired the horse to drive to A, it becomes apparent that whether or not he drove the horse to B is a question of vital impor- GENERAL MATTERS. 55 tance, which may turn upon the further question whether or not the defendant was, upon that day, in the village of B. To establish the fact that he was, the plaintiff may produce as evi- dence a promissory note, payable to a stranger and endorsed to him, bearing date upon the day in question, and purporting to be signed by the defendant, together with testimony that it was signed by him in that village on the day of its date. To this the defendant may answer that the note is a forgery. And so it may happen, much to the surprise of both parties, that at the end of a long trial, the only controverted question is whether or not the note is genuine or a forgery, insomuch that instructions to the jury to return a verdict for the plaintiff or for the defend- ant, according as they may find that the note is or is not gen- uine, would be entirely correct, and all that the case called for. Should the defendant prevail, and the plaintiff subsequently bring a suit against him upon the note, the judgment, in the former suit would not be a bar. nor conclusive that the note was a forgery."^ South Carolina. — In trover against the purchaser of a chat- tel, if the vendor, wdth warranty of title, makes defense, the recovery by the plaintiff is evidence, in a suit by the pur- chaser against his vendor to recover the price paid, of the loss of the chattel, but not that the recovery w,as by title paramount to that of the vendor, because the pleadings in trover do not show the title relied upon.^ West Virginia. — B had bored an oil well on the land of A and was taking the oil, and A sued him in assumpsit for its value, to which B pleaded non-assumpsit. On the trial B's sole defense was that they w^ere partners in the oil, but the ver- dict and judgment was for A. This was decided to be no bar to a bill by B alleging a partnership in the oil, and praying to have it wound up and settled. The court said that the question concerning the ownership of the oil was directly in issue and 1. Metcalf V. Gilmore, 63N. H. 174, 2. Allen v. Roundtree, 1 Spears' 186. Law 80. 56 PRINCIPLES, ANALOGIES, ETC. was settled, but that the question of partnership was only inci- dentally in issue, and not barred.^ India — Directly, incidentally and collaterally in is- sue. — In sections 34 and 35 of Chand on Res Judicata it is said : "There is a conflict of opinion as to Avhen a matter is directly in issue. There is no general agreement as to the exact sense which ought to be given in the construction of the rule to the word directly, or to the words incidentally and collaterally , which are often used in opposition to it. "The Calcutta high court in Mahima Chandra v. Raj Kumar* even held that in a suit for damages for the taking away of fruits, the title to the land from which they were taken would be in issue only collaterally, and a finding therein as to the land being the joint property of the parties would not bar a suit by one of them to have a summary thakbast award in re- gard to that land set aside as wrong. Jackson and Tottenham, JJ., also expressed a similar opinion in Doorga Ram v. Kally Kristo,^ though their decision was rested on the ground that the second suit was brought for the express purpose of de- termining the plaintiff's title, and was on an entirely different cause of action. In Manappa Mudali v. McCarthy,* Innes and Kernan, JJ., incidentally, but more correctly, expressed it as their opinion that if, in a suit for damages for wrongfully cutting and carrying away bamboos from certain land, the question of title to that land should be raised, it jvould be directly and substantially in issue, if the question was one which it was ma- terial to the plaintiff or defendant to raise ; and the title could not be said * to be only incidentally in question, if it was the title to the land that was the foundation of the title to the trees.' "Relying on the alteration effected by act 12 of 1879, the ap- pellant in Toponidhee Dhirj Gir v. Sreeputty Sahani® con- tended, that the question of his heirship was not directly in issue in the prior suit in the moonsiff's court. * That suit, he 1. Coville V. Gilman, 13 W. Va. 314, 3. 3 Calcutta L. R. 549. 333. 4. Indian L. R. 3 Madras 192. 2. Indian Bombay L. E,., A. C. 1. 5. Indian L. R. 5 Calcutta 832. GENERAL MATTERS. 67 contends,' said White, J., 'was only to establish his title to the rent of a small portion of the deceased's estate, while the present suit relates to the entire estate, and seeks for a confirm- ation of his possession of a portion of that estate and for khas possession of the remainder, and that in the former suit the question of heirship came only indirectly and collaterally be- fore the court. The prayer of the appellant's plaint in the moonsiff's court appears to claim, under his alleged title as heir, possession of the land. But reading the prayer by the light of the statements in the body of the plaint, and of the issues settled by the moonsiff, I think that what the appellant really sought was to establish his legal title to the rent. * * * Whether that suit, however, was brought to establish his title to the land or the rent, appears to me to make no difference. His title to either rested on the same basis, and the same issue would have to be tried, viz., whether the appellant was chela and heir of the mohunt. In the present suit also, the right to any relief depends entirely upon his having this issue determined in his favor. The ground-work of the decision in the suit in the moonsiff's court, is the same as what, if the present suit suc- ceeds, must be the ground-work of the decision in the subordi- nate judge's court; and the same evidence to establish the appellant's heirship as was given in the moonsiff's court must be given again before the subordinate judge. I am unable, therefore, to see that the matter directly in issue in this suit was not also directly in issue in the suit in the moonsiff's court.' So also in Chet Ram v. Bahal Singh, ^ the suit was to recover a certain share in the estate of one H deceased, on the ground of the plaintiff being related to him equally with the defendants, and it was contended that the question of title as dependent on heirship was res judicata, as in a former suit by some of the same plaintiffs to recover the same property from H's widow on the ground of her having forfeited her life-inter- est in it by her re-marriage, it was contended, though for the first time in the chief court, that the plaintiffs not being the nearest heirs of H were not entitled to bring that suit ; and on 1. 15 Punjab Record 261. 58 PRINCIPLES, ANALOGIES, ETC. remand the proprietors of D were made parties to the suit, and the plaintiffs held >.not to be entitled to bring the suit, as not being the nearest heirs of H. 'It was,' said Rattigan, J., ' raised by the pleadings in the chief court, and it was the very basis of the plaintiffs' action, for as they claimed to suc- ceed as heirs, and their title to be recognized as such was dis- puted, the court was bound to decide that question as prelimi- nary to any other that arose in the case, the result of which would necessarily depend upon the plaintiffs establishing their position, upon which in fact their claim proceeded, of being the nearest heirs of H. It was only in that capacity the plain- tiffs could sue at all, and failing to prove that they were entitled to claim it, their suit would necessarily fail. And fail it ac- cordingly did, when it was found that they were not the nearest heirs. This finding also by necessary implication, though not in express terms, must be held to have established that, as against the then plaintiffs, the defendants had a superior title, for it was only on that basis that the judgment against the plaintiffs proceeded or could be supported, and it must there- fore be held to have been so decided in effect by that judg- ment." Barkley, J., also said, "an attempt has been made to argue that the question was not directly in issue in the previous suit, but as the present defendants were made parties expressly in order that it might be determined whether or not the plaintiffs could maintain their suit, and the result of the de- cision in the negative was that the suit was dismissed, this contention can not be supported.' So also when, in a suit for restitution of conjugal rights by a Mohammedan husband, the wife pleaded non-payment of dower, and the fact of payment was put in issue between the parties and decided, it was held 'that the decision would bar the trial and decision of the same issue in a suit instituted by the wife for the dower, in a differ- ent court, only three days after the institution of the suit for conjugal rights.^ "Sir Richard Garth, C. J., in delivering the judgment of the 1. Gregory v. Molesworth, 3 Atk. 2. Gaitjara Begam ■». Mosita Reg, 15 626. Punjab Record 299. GENERAL MATTERS. 59 full bench of the Calcutta high court in Gobind Chunder v. Taruck Chunder/ said : ' The plaintiff in the former suit is the same person as the defendant No. 1 in this ; and he sued to recover from the occupying tenant the rent of the property now in dispute. In that suit one of the plaintiffs (represent- ing and claiming the same right under the same title which is now claimed by all the plaintiffs) intervened as a defendant, and he resisted the then plaintiff's claim to the rent, upon the ground that he (representing the present plaintiff's interest) was entitled to it as the owner of the property. An issue was, accordingly, framed in that suit, as to whether or not the then plaintiff (the present defendant No. 1) was entitled to the rent as owner of the property in question as against the then defend- ant who represented the present plaintiffs. This question was contested between them in that suit upon the same title and materials which are now brought forward in the present suit. * * * * It is argued that the claim in the former suit was for rent against the tenant ; that the only issue in that case was whether or not the plaintiff was entitled to that rent, and that the question of title raised by the intervening defendant was only incidental to the main issue. But as between the plaintiff and the intervening defendant, the question, and the only ques- tion, was that of title; and as the defendant in that suit chose to intervene and to raise that question between himself and the plaintiff, he and those whom he represented must take the con- sequences of their intervention.' And this decision was fol- 1. Indian L. R. 3 Calcutta 146. In main question. This was a mere Gobind Chunder v. Afzul Rabbani obiter dicttim, however, and Mr. Jus- (Indian L. R. 9 Calcutta 426), the tice Field correctly pointed out that facts of which were rather similar, "if the court had tried the issue of Sir Richard Garth, C. J., expressed title, the finding upon that issue must a contrary opinion, observing that have had the effect of res judicata as the question of title to the land as between the parties, but inasmuch as between L. (represented in the sub- that issue was not tried, the question sequent suit by plaintiff) and A. (who raised thereby was not heard and de- had intervened as the owner of the cided, and therefore the matter is not land of which L. claimed the rent res judicata, having regard to the ex- and been made a defendant) was press language of section 13." merely raised incidentally to the 60 PRINCIPLES, ANALOGIES, ETC. lowed in Bemola Soondury v. Punchanun' and afterwards in Llewhellyn v. Ram Sunder Sahoy.^ "In Inayat Khan v. Rahmat Bibi,^ Turner and Spankie, JJ., observed that ' in a suit for rent instituted in a small cause court the question of title would only be determined incident- ally,' but that 'it would be inequitable to rule that no special appeal lies in a suit of such a nature, and never- theless to hold that the decision of the issue of title in the trial of such a suit should finally estop the parties from raising the same issue in a suit brought to try the title. ' On that same ground a similar construction was often placed on the words 'incidentally' and 'collaterally,' but such an argument has no weight any longer, as it is now enacted that to constitute a decision res judicata, it is necessary that the court should have had jurisdiction over the subsequent suit also. "35. A FACT OP WHICH THE EXISTENCE IS NOT NECESSARY TO A JUDGMENT CAN NOT BE IN ISSUE DIRECTLY. It appears tO be generally agreed upon, that a fact can not be in issue directly, when the judgment can be correct, whether that fact exists or not.* Thus, in a suit for rent fixed by a lease if the de- fendant pleads for abatement on the ground that the land was actually less than that entered in the lease (the terms of the lease admitting of abatement or enhancement with reference to the actual area), and it is found that the land is really more than that entered in the lease, and a decree is given for the claim, the amount fixed by the lease, the decision as to the ex- cess can not constitute res judicata,^ because the only issue 1. Indian L. R. 3 Calcutta 705. was a question immaterial to the suit, 2. 2 L. E,. 50. and one which, from the very nature 3. Indian L. R. 2 Allahabad 97. of the issue, the judge could not, and 4. Stannard v. Hubbell, 123 N. Y. did not, decide. Perhaps the best 520 ; Kidd v. Laird, 76 Am. Dec, 472 ; test of this is that if the defendant Cavanaugh v. Buehler, 120 Pa. St. 441 ; had desired to call evidence at the Lorance v. Piatt, 67 Miss. 183 ; Doonan trial to disprove the excess, or to ap- V. Glynn, 28 W. Va. 715. peal from the judgment, upon the 5. "Whether," said Sir Richard ground that in fact the land did not Garth, C. J., in his judgment in the exceed the estimated quantity, he case of Ekram Mundul v. Holodhur, could not have done so, that point Indian L. R. 3 Calcutta 271, "it was being immaterial to the purposes of more than the estimated quantity, the suit." GENERAL MATTERS. 61 between the parties in the former suit was whether the land demised was or was not less than or equal to the estimated quantity. Nor is the decision in Bussun Lall v. Chundee Dass' in conflict with that view. That was a suit for a decla- ration that certain lands held by the plaintiff as a tenant to the defendant at a certain rent comprised an area of eight drones. The suit was held by Sir Richard Garth, C. J., and Jackson and Pontifex, JJ., to be barred by a decision in a previous suit in which the defendant had sued the plaintiff for that same amount of rent as payable for a smaller area. The defendant alleged that the amount was due in respect of the larger area, and it was found, after taking evidence on that point, that rent was payable for the smaller area. Sir Richard Garth, in delivering his leading judgment in the case, said : ' Both the learned judges of the division bench appear to have considered that the issue thus raised was immaterial for the purposes of that suit, because whichever way it was de- cided, the plaintiff would have been entitled to the rent which he claimed. But I confess I am unable to adopt that view. It seems to me that it was a very material question in that case, and certainly it was one to which the parties themselves attached great importance, whether the rent which the then defendant admitted to be due was payable in respect of the larger or the smaller area. * * * That issue was in fact the only question in the cause, and I can not doubt that if the defendant had so pleased, he might have made the decision upon that issue the subject of appeal. But he did not choose to take that course. He accepted the adverse judgment of the court without appealing from it ; and now the question arises in the present case, whether that judgment is not con- clusive ? I am of opinion that it is.' "On the same principle, it was often held under the code of 1877,^ as well as of 1859, that a suit for the redemption of a usufructuary or even of a simple mortgage, would not bar a 1. Indian L. R. 4 Calcutta 686. v. Puran Sabh, 2 Agra Report 256; 2. Nathu Singh v. Rura, 16 Punjab Shibbu IMul v. Paira Singh, 12 Pun- Record 23; Dinkur Doyal v. Sheo jab Record 224. Golam Singh, 22 W. R. 171 ; Charta 62 PRINCIPLES, ANALOGIES, ETC, subsequent suit for redemption, if the former suit had been dismissed on tlie ground of non-payment of the mortgage- amount, or decreed conditionally on the payment of the amount found to be due and payable in respect of the mortgage : though if that amount was a point in issue in the former suit, the court would be barred from inquiring into the correctness of that finding, and the only point which the court would be able to try in the subsequent suit as to repayment would be that of the amount repaid after the date up to which the amount re- paid was the point in issue in the former suit." A MATTER IN ISSUE DISTINGUISHED PROM A MATTER OF EVI- DENCE. — In sections 25, 26 and 27, Mr. Chand says: "The word ' matter ' includes in its signification * the whole of the matter or matters,' as under the general clauses act, 1868, the words in the singular number include the plural. It may, generally speaking, be said to be equivalent to a ' fact in is- sue,' which, as defined in the Indian evidence act, denotes matter from which, either by itself or in connection with other matter, the existence, non-existence, nature or extent of any right, liability or disability asserted or, denied in any suit nec- essarily follows. The rule of res judicata as enacted in the civil procedure code has, however, not used the expression, ' fact in issue,' but 'matter in issue,' and the difference can not have been otherwise than intentional. The important ques- tion, however, is, what is the matter in issue within the meaning of the rule, — and unfortunately there is a considerable conflict of authority on that point. Mr. Justice Rattigan, in deliver- ing the judgment of the Punjab chief court in Chetram v. Bahal Singh, ^ said: ' In a certain sense, every fact alleged by one party and controverted by the adverse party may be said to be in issue. But what is meant by the words, "matter in issue," within the meaning of the rule we are now considering, is something much more precise and definite. *' It is that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings." In other words, it must be a matter the determination of which has become vital to the case, or the pivot as it were upon which the case turns, 1. 1880 Punjab Record No. 108. GENERAL MATTERS. 63 and which the judge is bound to decide in order to render his judgment final and complete.' "The Madras high court, held in Rami Sami v. Vira Sami/ that the force of res judicata would attach to all the objective grounds distinctly found by the court as the basis of its decision, though no merely subjective grounds could constitute res judi- cata. And 'the identity of the question' said Hollo way, J., in Chinniya Mudali i'. Venkat Chella Pillai,^ ' will not be de- stroyed by the right, which in one case is the principal object of the litigation,coming in question in the other as a mere condi- tion of the right of which the establishment is specifically sought.' The advocates of this broader conception of a matter in issue generally admit that such grounds are in issue only in- cidentally or collaterally, and the point will be further dis- cussed in speaking of the matter directly in issue. "A MATTER IN ISSUE DISTINGUISHED FROM AN ISSUE RECORDED AS SUCH. — The expression 'matter in issue' should further be taken in section 13 with the qualification introduced by expla- nation 1, under which a matter alleged by one party may be in issue even if admitted by the other party. In Boileau v. Rut- lin,^ Parke, B., observes that the estoppel of a judgment ex- tended to 'the material facts alleged hj one party which are directly admitted by the opposite party, or indirectly admitted by taking a traverse on some other facts, but only if the tra- verse is found against the party making it. ' But he added 'that 'the statements of a party in a declaration or plea, though, for the purpose of the cause, he is bound by those that are material, and the evidence must be confined to them upon an issue, ought not, it should seem, to be treated as confessions of the truth of the facts stated.' To put a matter in issue, it is essential, however, that it should have been alleged by one party and ex- pressly or impliedly denied or admitted by the other.* 1. 1880 Madras H. C. R. 277. A shall recover three bighas. The 2. 1880 Madras H. C. R. 329. defendant then sues A for the two 3. 2 Ex. 665. additional bighas. The former decree 4. An illustration was proWded in is no bar, because it was not in a mat- Bill III to make this clear. "A sues ter alleged by one party and denied B," said the illustration, "for one by the other in the suit in which it bigha of land; the court decrees that was made." 64 PRINCIPLES, ANALOGIES, ETC. "Mr. Justice Tottenham, delivering the judgment of the court in Shama Churn v. Prosunno Comar,^ laid stress on that rule, and said : ' In order to constitute the bar of res judicata, it is not sufficient merely that an issue shall have been laid down in the previous suit on the same point, but explanation 1 says that the matter above referred to must, in the former suit, have been alleged by one party, and either denied or admitted ex- pressly or impliedly, by the other.' Thus it would not be sufficient to constitute res judicata that the matter should have been recorded as 'in issue;' and the fact, that the matter re- lied on in the subsequent suit was determined in a former suit, was held,^ even under the code of 1859, not to bar the subse- quent suit, unless that matter should have really been in issue in the former suit. "27. A MATTER MAY BE IN ISSUE EVEN IF NEITHER PARTY BOUND TO PLEAD IT. — ^To put a matter really in issue, it is not necessary that either party should have been bound to plead it in the suit. It is sufficient for the rule of res judicata that it was pleaded by one party and affirmed or denied by the other. Thus in Wilayati Begam v. Nurkhan,^ N, as a half brother and heir of M, sued M's daughter W, inter alia, for half of a certain kiln, alleging that its other half was his own. W alleged that the whole of the kiln was M's, and the lower court found that the kiln was the joint property of N and M, but the high court set aside that finding. The proceedings ended with a compromise, but the finding was held to be res judicata in a subsequent suit by W for the value of bricks alleged to have been wrongfully taken from the kiln by N, who contended that he had half a share in it, even though the former suit was not for that half, and the mention therein of his share was quite irrel- evant. Thus every demand for money claimed as a set-off by the defendant will be considered to be directly in issue between the parties, even though the defendant is not bound to claim it as such ; and such a claim, if made, will be a matter directly in issue in the suit, and a decision in regard to it will bar a sub- 1. Calcutta L. R. 251. W. R. 393; Salah Munisa v. Mohesh 2. MoniRoy v. Raj Runsi Koer, 25 Chander, 16 W. R. 85. 3. Indian L. R. 5 Allahabad 514. GENERAL MATTERS. 65 sequent trial of that same claim. In Ram Krishna v. Vithal/ a finding on an issue raised b}'' the court was held to constitute res judicata, even though it was not raised clearly by the plead- ings ; Mr. Justice Farren observing that if the plaintiff ' was not prepared to negative the issue, he ought not to have allowed it to be raised, and it must be taken to have been properly raised.' " § 5. Concurrent jurisdiction, or incidentally cognizable — The cases specially considered. — As to w^hether or not my views, as expressed in section 2 supra, in regard to the mat- ters now under consideration, are correct, the reader can draw his own conclusion from the cases abstracted in this and the four preceding sections. Forcible entry. — A first sued B for forcible entry and de- tainer before a court specially constituted by law of the county judge and a justice of the peace to try such cases. He alleged that he was lawfully in the possession of the premises, and that B dispossessed him by force, and he recovered a judgment. He then sued B for the assault and battery committed in turning him out of possession, and in reply to B's claim that he was in possession and simply defended himself, he, A, introduced in evidence the former record. B's counsel insisted that the court was one organized for a particular purpose only, and that it had no other jurisdiction, and no power to settle the ques- tion of possession except for the purpose of that case. But the supreme court ruled that it was a court of exclusive jurisdiction and that its judgment settled the question of possession con- clusively when it came incidentally in issue in the assault and battery case, within the exact terms of the Duchess of King- ston's Case.^ This case looks to me like a remarkable misap- prehension of the question under consideration. The forcible entry and detainer court had no jurisdiction over assault and battery. That was a matter which was merely incidental to the issue before it, which it did have power to try. Ca^v-;— -^ ^u«£^ '^-A 1. Indkn L. R. 15 Bbmbay 89. 2. Bell v. Raymond, 18 Conn. 1, 95. 66 PRINCIPLES, ANALOGIES, ETC. Fraud in release. — A legatee having sued the executor for his legacy, a release by the plaintiff was pleaded, to which he replied that it was obtained by fraud. The executor rejoined that the legatee had filed exceptions in the orphans' court to his accounts as executor, and that he had there pleaded the re- lease in bar of the exceptions. That that court adjudged the release to be fair and valid. But the supreme court ruled that the validity of the release was only drawn into contest inci- dentally. It said : "Now, did the question of fraud come be- fore the orphans' court directly or incidentally ? Not directly certainly ; for that court had jurisdiction of it incidentally, and not to entertain an action whose immediate object should be to ascertain the fact."^ Heirship or kinship in probate court. — A and B both made application to the prerogative court for letters of adminis- tration on the estate of C. A claimed to be the niece and only next of kin, and B claimed to be second cousin and only next of kin. There was no question about the relationship of B, but he claimed that A's father was illegitimate, and hence that she was not a niece. The court, after a trial, decided that A was no lawful kin, and tliat B was the lawful cousin and next of kin, and granted him letters of administration. In a subsequent suit by A against B, before Vice-Chancellor Knight Bruce, he held that the adjudication in the prerogative court was not res judicata in respect to kinship, and sustained A's claim to the property. After quoting from the Duchess of Kingston's Case, he said : "If the law as derived from these and other authentic sources is, as I apprehend it to be, that generally the judgment, neither of a concurrent nor of an ex- clusive jurisdiction, is conclusive evidence of any matter which came collaterally in question before it, though within the juris- tion, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment ; and that a judgment is final only for its proper purpose and object, it may be thought difficult to say why the sentence in the present 1. Hibshman v. Dulleban, 4 Watts Justice Gibson, a very eminent jurist. (Pa.) 183, 191— opinion by Mr. Chief- GENERAL MATTERS. 67 case ought, upon the present question, to be deemed conclu- sive. The object of that proceeding, and of the sentence, was not distribution, but merely the appointment of an administra- tor, whose duty, when appointed, it would be to distribute the estate according to law."^ A person applied to the surrogate for letters of administra- tion as a son of the decedent. Other relatives contested his right on the ground that he was illegitimate ; but the surrogate, after hearing the evidence, decided that he was legitimate and granted him letters. Subsequently, in a suit for distribution in a circuit court of the United States, the same relatives sought to prove that he was illegitimate and had no interest in the funds, and their contention was sustained on the ground that the question of his legitimacy was only ' ' incidentally cog- nizable " before the surrogate, and that his decision, therefore, did not bind the parties. But this was reversed by the supreme court, which said : ' ' They say the point was only cognizable incidentally ; but how can this be, when the surrogate could not have done the thing he did do, without deciding it ? It had to be decided in order to determine to whom the letters should issue, and the decision of it, of necessity, settled the distribution of the estate."^ It will be noticed that the original court had jurisdiction to decide the case presented to the fed- eral court, namely, the distribution of the personal assets, so that the case seems to be correct upon the principle laid down in the Indian appeal cases considered in section 2 and also in this section. See pages 28, 29, supra, and 68, 69, infra. A person died in California leaving his wife pregnant with child. Afterwards, she applied for letters of administration on its estate, claiming that it was born alive and died. The father of her deceased husband, who would inherit a share of his estate but for this child, appeared and contested her right to receive letters on the estate of the child upon the ground that it was not born alive, but the probate court held to the contrary and granted letters to her as prayed for. She had also 1. Barrs v. Jackson, 1 Younge & 2. Caujolle v. Ferrie, 13 Wall. (80 Collyer (20 Eng. Ch.) 585, 595— A. D. U. S.) -165, 469, 471. 1842. 68 PRINCIPLES, ANALOGIES, ETC. taken out letters on the estate of her deceased husband, and when she made a report in that estate, his fatlier again ap- peared and asked leave to file exceptions to the report upon the ground that the child was not born alive, and that, therefore, he had an interest in the estate, but his request was denied be- cause the question concerning the status of the child was res judicata. ' So, if there is a contest over the question of relationship in proceedings for the appointment of an administrator, the de- cision of that question binds the parties in all other courts,^ and in all other proceedings, such as suits for distribution^ and actions of ejectment.* But the fact, as shown by a surrogate's record from New York, that certain persons claiming to be the father and brothers of a decedent, filed a renunciation of their right to letters of administration on his estate, whereupon the surrogate appointed another person, is no evidence in Iowa that that person was his father.^ Installment of interest recovered in inferior court, SUIT ON principal IN SUPERIOR COURT. — A sucd B in India be- fore a court in which the jurisdiction was limited to 5,000 rupees, to recover the interest due on a bond of 12,000 rupees. B pleaded that he had only received 4,790 rupees and had paid all the interest due. After a trial on the merits, the court ad- judged that thie answer was true and dismissed the case. Afterwards, A brought suit on his bond in a court of competent jurisdiction, and the proceedings before the inferior court were set up as a bar to all except 4,790 rupees. The question finally came before the court of Indian appeals, which held the plea bad. The court quoted from and approved another 1. Garwood ■B.Garwood, 29 Cal. 514, Accord, Dryden v. Drydens, 2 Vict. 521. Approved, Howell v. Budd, Law R. (Equity) 74. 91 Cal. 342 (27 Pac. R. 747). 4. Blackburn v. Crawford, 3 Wall. 2. Spencer V. Williams, L. R. 2 Pro- (70 U. S.) 175, 190. Accord, Kaawihi bate and Divorce 230, 235. v. Noa, 5 Hawaiian 381 ; Kaawihi y. 3. Caujolle v. Ferrie, 13 Wall. (80 U. Rose, 5 Hawaiian 382 ; Kealii v. S.) 465, 472 — relying upon Thomas v. Bishop, 3 Hawaiian 546^Judd, J., Ketteriche, 1 Vesey 333, and Bouchier dissenting ; Rose v. Smith, 5 Hawaiian V. Taylor, 4 Brown's Pari. Cases 708 377. (old ed. vol. 7, 414), and Barrs v. Jack- 5. Anson v. Stein, 6 Iowa 150. son, 1 Phillips 582. GENERAL MATTERS. 69 case^ as follows: "In order to make the decision of one court final and conclusive in another, it must be a decision of a court which would have had jurisdiction over the matter in the sub- sequent suit in which the first decision is given in evidence as conclusive." ^ In a suit to recover a quarter year's interest on a bond be- fore a magistrate in New Zealand, the defense was that the corporation plaintiff had never accepted the bond, and it re- plied that it had. The answer and reply were oral. After a trial on the merits, the magistrate gave judgment for the plain- tiff. The plaintiff afterwards sued the defendant in the su- preme court to recover three-quarter year's interest on the same bond, and the question was whether or not the judgment of the magistrate precluded the defendant from showing that the bond had never been accepted. In the supreme court it was said: "That the judgment is an estoppel as to any future action for the same £75 is not disputed, and is of course be- yond question. But the plaintiff now seeks to treat as an es- toppel every preliminary proposition incidentally decided upon by the magistrate, and which he had to take into considera- tion on his road toward his final decision, and especially the validity and continuing force of the original contract for the loan of £3000, and whether the plea was or was not established by the evidence. Virtually, no doubt, he decided these facts ; and this he was necessarily compelled to do before he could say that the plaintiff was entitled to recover one-quarter's interest from the defendant. In the course of the argument, I threw out a suggestion that the proposition insisted upon by the plaintiff's counsel involved a dilemma. If the magistrate de- cided finally and judicially upon the validity of the contract and the sufficiency or insufficiency of the defense set up, he exceeded his jurisdiction, and there is no estoppel ; whereas, if he only decided that one-quarter's interest was due, then there is no estoppel beyond the narrow limits of the judgment. 1. Mussumat r. Mussumat, 8 Suth. Appeal Cases 197, 203. Approved, W. E. 175. Eajah Run Bahadoor Singh v. Mus- 2. Misir Eaghobardial v. Rajah sumut Lachoo Koer, L. R. 12 Indian Sheo Baksh Singh, L. R. 9 Indian Appeal Cases, 23, 37. 70 PRINCIPLES, ANALOGIES, ETC. * * I think that the judgment of the magistrate is prevented from being pleaded as an estoppel on both grounds, either of which is sufficient. In the first place, the consideration of the contracts and defense set up was merely collateral and inciden- tal to his judgment on the cause of action before him. He dealt with that part of the case only as preliminary and ancil- lary to his final judgment. Even if such matters so inciden- tally decided had been wholly within his jurisdiction, they were merely incidental, and so came within the principle enun- ciated by V. C. Knight Bruce in Barrs v. Jackson.^ But, fur- ther, if it be assumed that he did decide them otherwise than collaterally and incidentally, then his decision went beyond his jurisdiction. All that he ' professed judicially to decide' — all that he did decide — was that the sum sued for was due." This opinion was sustained on both points by the court of appeal.^ Reformation of deed. — A conveyed land to B, which in- cluded premises previously conveyed to C, for which B sued A at law on the covenant of seizin. A pleaded that when the deed, which was prepared in advance, was read to him, he ob- jected because it included the land already conveyed to C, but was assured by the scrivener, in the presence of B, that that made no difference, as B would only take what was left, as both parties fully understood the matter ; and that, upon that ad- vice, he executed the deed, although the bargain was merely to convey what remained. He also pleaded that, by the fraud of B, he was induced to execute the deed as it was. On the trial, the court instructed the jury that, if these pleas were true, B was only entitled to nominal damages, but a verdict for substantial damages was returned. A then filed a bill in equity to reform the deed, alleging the same matters as set forth in his pleas at law, and it was held that the former judgment was not a bar, because that court had no jurisdiction to reform the deed.* Street repairs. — A board, having repaired and improved a street in front of A's premises, sued him before a magistrate to 1. Barrs v. Jackson, 1 Y. and C. 3. Bush v. Merriman, 87 Mich. 260 585. (49N. W. R. 567). 2. Otago and Southland Investment Co. V. Burns, 2 New Zealand Court of Appeals 551, 570, 582. GENERAL MATTERS. 71 recover the expense, but the cause was dismissed upon the ground that the street was repairable by the inhabitants at large. Some years afterward, the board, having made new re- pairs and improvements in the same place, again sued A before a magistrate to recover the expense. He contended that the first proceeding was a bar. But the magistrate decided other- wise, and, upon the evidence and law, made an order for pay- raent. He took an appeal to the court of quarter-sessions, where the order was affirmed, and then to the Queen's bench division, before Justices Lush and Field, who reversed the order, holding that the first decision was a bar.^ But on further ap- peal to the court of ajDpeal, before Lords Selborne, Brett and Baggally, the decision of the queen's bench was reversed. The court said that the magistrates "had no jurisdiction to adjudi- cate directly or immediately between these parties on the ques- tion whether the street was or was not repairable by the inhab- itants at large. That was, at the most, a matter 'incidentally cognizable ' by them. No conclusion which they might form upon it could establish nor disprove any such liability, as against or in favor of the inhabitants. Their only jurisdiction was to make or refuse the order for payment of a certain sum of money, then claimed as the defendant's statutable quota of certain ex- penses, at that time incurred by the urban authority." The court also said that to hold the first order to be an estoppel would be unjust to the other adjoining landowners, who were neither parties nor privies.^ Title to land in attachment suit. — B, a married woman, and her husband, mortgaged a lot of her's to A to secure a debt of the husband's, and afterwards the lot was "turned over" to A in payment of the debt. A having failed, owing B, she and many others issued writs of attachment against him, and the husband was summoned as garnishee in respect to the mortgage executed to him by A. All the attachments were consolidated and a commissioner appointed to determine priori- ties, and the mortgage mentioned was awarded to B "upon 1. Regina v. Hutchins, L. R. 5 Q. 2. Regina v. Hutchings, L. R. 6 Q. B. Div. 353. B. D. 300, 305— Baggally, J., doubting. 72 PRINCIPLES, ANALOGIES, ETC. which her attachment should and could be levied." Other creditors of A levied on the lot. A decree was made ordering the lot to be sold, which was done, and C purchased it and conveyed it to D. B now brought ejectment to recover the lot, and it was decided that she could recover because her title " was only incidentally involved " in the attachment suits. ^ I am not sure that I understand this case — I take it from the Southern Reporter — but it seems to me that here was a cred- itors' suit in which B was one of the parties, and that if she had any claim on this lot she ought to have brought it forward as a defense to prevent the order to sell it as the property of A. See sections 159-200, pages 398-449, infra. Title to land in criminal case before a magistrate. — An ordinance of the Island of Trinidad made it a crime punishable before a justice of the peace for any person to dig asphalt on crown lands without a license. As it was found that under this ordinance the jurisdiction of the justice was ousted as soon as a question of title to the land was raised, another ordinance was passed to avoid that difficulty, which declared that the justice should have jurisdiction to hear such cases "notwith- standing that any question shall or may arise or be set up in any such case as to the title to any lands alleged to be crown lands or any interest therein or accruing therefrom." A per- son having been arrested for such an offense, set up title to the land as his defense, but the justice convicted him. On his ap- peal to the supreme court, this conviction was quashed. As the defendant continued to dig asphalt on the same tract of land, the attorney-general filed an information of intrusion against him, but the supreme court of the island, being of the opinion that his title to the land had been settled in his favor by the result of the criminal proceeding, refused to hear the case on the merits, and the attorney-general took an appeal to the privy council sitting in England. That court held that the ordinance did not empower the justice to pass upon the title to land. It said : " The later ordinance provides that setting up a question of title shall not, as so often happens, limit the 1. Lorance v. Piatt, 67 Miss. 183 (6 S. R. 772). GENERAL MATTERS. 73 jurisdiction of the magistrate. He is to go on and hear and determine the case, nothwithstanding the question of title. That question may or may not enter into his determination. He may undoubtedly examine it so far as necessary for his judg- ment, but the case he is to hear and determine is the criminal charge, not the title to tlie property." ^ The court said that the question of title was only * ' incident- ally cognizable," which seems to me correct. Title to land in case for violation of city ordinance. — A city ordinance prohibited all persons, under penalty, from keep- ing a wharf-boat at any wharf in the city without license . A person was prosecuted for a violation of this ordinance, and, under his plea of not guilty, and the evidence introduced, the court found and adjudged that the land in front of the wharf to the center of the river belonged to the defendant, and that the city had no right to it as a wharf, and the defendant was acquitted. In a new suit by him to enjoin the city from molesting those who came to his wharf by demanding a license, the court held that the former adjudication was not conclusive in his favor, be- cause the question of title was not in issue in the pleadings. It said: ** The court held that defendant had the right of soil, and then inferred or held that in law he had the right to keep the boat, and therefore rendered judgment for him. Now, all this, except the judgment, is incidental. It comes up in the evidence. There is nothing put in issue concerning the title ; and to make it conclusive, the matter should, in some manner, have been put in issue. The right of soil, of property, was not the matter in issue, although it was made incidental to it by the evidence."^ Wills of real and personal estate. — Lord Chancellor Hardwicke, in 1742, said: "I have often thought it a very great absurdity, that a will which consists both of real and personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated upon paper depositions only, in the ecclesiastical court, because they 1. Attorney -General v. Erich^, 1 2. Haight v. City of Keokuk, 4 "The Reports" 440—1893. Iowa 199, 207. 74 PRINCIPLES, ANALOGIES, ETC. have a jurisdiction on account of the personal estate disposed of by it. But, as the law stands at present, it is not in the power of this court to interpose, so as to stop the proceedings in the ecclesiastical court. "^ So, if the surrogate has admitted a will to probate, and the chancellor, on appeal, has reversed his decision and held it void on account of the insanity of the testator, this decision, although conclusive in the surrogate's court, in respect to the personal property, does not bind the devisee of the land in a suit for partition in chancery, and he is entitled to have the same issue of will or no will sent to a court of law, and tried before a jury. This was the decision of Vice-Chancellor Mc- Coun,^ and upon an appeal to Chancellor Walworth, his de- cision was sustained. The chancellor said that the jurisdic- tions of the two courts were not concurrent; but that each was exclusive in its own sphere ; that the probate courts had ex- clusive jurisdiction as to the validity of a will, so far as the personal estate was concerned, but no power to decide any question touching the devise of real estate.^ In a contest in a Hawaiian probate court over the distribu- tion of the personal estate of a decedent, one Kapepa claimed it all as his half brother and next of kin. The other relatives denied his relationship. But, after a trial on the merits, it was decided that he was the lawful half brother and entitled to the personal estate. Kapepa then sold the real estate of the decedent, as his heir at law, and the other relatives, the con- testants in the probate court, brought an action of ejectment against the purchaser upon the ground that they were the heirs at law of the decedent. The question now arose as to whether or not the proceeding in the probate court barred the action. The court held that it did, saying: "But it is said that the probate court has no jurisdiction to decide the title to real estate or to partition it. No such jurisdiction has been 1. Montgomery v. Clark, 2'Atkyns 2. Bogardus v. Clarke, 1 Edw. Ch. 378. In Baker v. Hart, 3 Atkyns 542, 266. 546, he expressed the same views. 3. Bogardus v. Clark, 4 Paige 623, Accord, Clark v. Dew, 1 Russ. and 626. Mylne 103, 109. GENERAL MATTERS. 75 assumed. No title to real estate has been determined. There has not been any partition of real estate. The court has merely determined that Kapepa is half brother, without refer- ence to the title to real estate, and if, by reason of this deci- sion, he is entitled by law to any real estate, he is entitled to use that decision for the purpose of getting possession of it or in defending himself in its possession." The court, professing to quote from the Duchess of Kings- ton's Case, said: "The adjudication of a qiiestion of descent or pedigree will be binding not only in the proceedings in which they take place, but in every other in which the same question is agitated, and the mode in which the question was brought before the court is immaterial." Mr. Justice Judd dissented, basing his opinion also on the Duchess of Kings- ton's Case. He said: "The question of the greatest difficulty is as to the identity of the causes of action in both suits. In the first action the petition was for distribution; the present action is ejectment. It is not necessary that the form of action should be the same in each, if the merits of the whole claim have been substantially tried in the first action. But the judgment must be in respect of the same fact or title. * * * The question in the first case was, who is entitled to the personal estate? In this case the question is, who is entitled to the land? It may be that, in the case at bar, the narrower question, *Is Kapepa half brother to Nakuapa?' may be decisive, but the subject-matter, the different property, is so entirely distinct in each case that the former judgment ought not to be held conclusive. * * * To say that the question of the 'heirship' of Kapepa was within the jurisdic- tion of the probate court, and to admit that such a court has no jurisdiction over the title to real estate, are inconsistent positions. * * It does not seem to me to be just nor equita- ble nor according to the principles of law, to take part of a decree of an inferior court of limited jurisdiction, and say that it sweeps away the claim of the alleged heirs of an intestate to the real property; the property of which the probate court could know nothing and over which it had no jurisdiction."* 1. Keahi v. Bishop, 3 Hawaiian 546, 552, 554, 555, 658, 559. 76 PRINCIPLES, ANALOGIES, ETC. I agree with this dissenting opinion. So, upon the principle here under consideration, a decree construing a will can not be used as evidence in an action concerning the title to land in another state. ^ Equitable jurisdiction. — While the chancellors never as- sumed jurisdiction directly over the title to land, they did so in an indirect manner by fixing boundaries, by canceling and re- forming deeds, by declaring trusts and the like ; and, as the common-law courts had no such powers, the jurisdiction of the chancellors was exclusive. Hence, although they do not possess even a concurrent jurisdiction over the titles to land, their decrees are allowed a conclusive force in the common-law courts in respect to the evidence which goes to prove those titles. Thus, if a lost boundary — in this case the location of an old stone wall — is restored by proceedings in equity, the re- port of the committee, confirmed by the court, is conclusive. This does not touch the title, but merely fixes the old bound- ary which may be conclusive evidence of it. ^ And a decree setting aside a deed for insanity, after a trial on the merits, is conclusive in respect to that question in a suit in another state to set aside another deed to the same person made at the same time.^ So, a decree declaring a will valid in the state of the testator's domicile bars the parties from making the same contest in another state. * It was decided by the su- preme court of New York that a judgment of the probate court, denying the right to establish the contents of a lost or destroyed will, precluded the parties from relying upon the same instrument in a suit for partition.* One judge dissent- ed upon the ground that, as the probate of the will could not affect the title to land, the rejection of the alleged will had no greater effect. Although the surrogate had power in New York to allow a 1. McCartney v. Osburn, 118 111. 403 3. Hanna v. Read, 102 111. 596, 601 (9 N. E. R. 210) ; Pittsburgh and S. (40 Am. R. 608). L. R. Co.'s Appeal (Pa.), 4 Atl. R. 4. Dalrymple v. Gamble, 68 Md. 385; Cooper v. Hayes, 96 Ind. 386. 523 (13 Atl. R. 156). 2. Mosman v. Sanford, 52 Conn. 5. Harris v. Harris, 36 Barb. 88, 93 23, 31. See § 292, page 641, infra. —Gould, J., dissenting. GENERAL MATTERS. 77 claim, and thus incidentally to determine its validity, yet his refusal to allow it because it was not valid, was no bar to an action at law against the administrator to recover it.^ § 6. Inferred by argument. — In Van Fleet's Collateral At- tack on Judicial Proceedings, section 17, page 20, it is said: ** It was also laid down in the Duchess of Kingston's Case that matters to be inferred by argument were not concluded. This dictum has caused considerable confusion, because it is only correct when applied to questions of res judicata. The supreme court of Maryland, in speaking of the effect of granting letters of administration wherein there was a will which was not pre- sented for probate, said^: 'Judgments, however, prove only the matter decided, and are not evidence of other matters which may be inferred by argument from them, even though the in- ferences are necessary and inevitable.' It then quoted from Taylor on Evidence, and said: 'The same author, in section 1520, states that it is an unquestionable rule of law that neither a judgment in rem nor a judgment inter parties is evidence of any matter which can be inferred only by argument from the judgment.' The inference drawn by the court was, that, as the question of will or no will was not directl}^ presented to nor passed upon by the probate court, the granting of letters of ad- ministration could not, even collaterally, show that there was no will, because it would be only a matter of inference from the fact of inconsistency. But the supreme court of Massachu- setts, in speaking of a question of res judicata in a divorce case, said : ' The estoppel is not confined to the judgment, but ex- tends to all facts involved in it as necessary steps or the ground- work upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that if a conclusion is indis- putable, and could have been drawn only from certain prem- ises, the premises are equally indisputable with the conclu- sion. But such an inference must be inevitable, or it can not be drawn. '^ So, the supreme court of Indiana, in speaking of 1. Fitzpatrick v. Brady, 6 Hill 581. 3. Burlen v. Shannon, 99 Mass. 200 2. Emmert v. Stoufier, 64 Md. 543 (96 Am. D. 733). (3 Atl. R. 293, and 6 Atl. R. 177). 78 PRINCIPLES, ANALOGIES, ETC. a question of collateral attack on a bankrupt's discharge, said that the judgment was conclusive, not simply as to the fact of the discharge, but of the fact that he was entitled to the dis- charge.^ The Maryland case just cited erroneously applied the doctrine of res judicata to a case of collateral attack, while the Massachusetts case applied the doctrine of collateral attack to a case of res judicata, and the Indiana case applied the rule correctly, but did not notice any distinction. In the Maryland case, the order granting letters of administration, when as- sailed collaterally, was conclusive that no cause existed why it ought not to have been made. As the existence of a will was a cause of defense, it necessarily adjudged that it did not exist. In this sense — that is, in considering the effect of a judgment collaterally — the reasoning of the Massachusetts court is appli- cable. The judgment, in such cases, being conclusively right- ful, it is permissible to reason back to the basis on which it stands, and as a necessary inference, all matters which would have barred its rendition are conclusively shown to have no existence, and the allegations which show that its rendition was lawful, are conclusively shown to be true. But in the Massachusetts case, the question was not one concerning any right or title derived through the first divorce proceeding, in which case it would have been permissible to reason back, but was one in respect to what issues were con- tested and settled in the first divorce suit by the wife, wherein she was defeated, in order that they could be used as evidence in the second divorce suit between the parties. As only the issues actually contested could be thus used, and as the judgment might have been the same whether there was any contest or not, it was, of course, impossible to determine what they were by 'reasoning back' from the judgment." The cases cited by the court and counsel in the Duchess of Kingston's Case, abstracted in section 1, supra, include all those of importance up to that time, and it is clear that the rule under consideration was drawn from Blackham's Case,^ in 1. Boyd V. Olvey, 82 Ind. 294, 306. 2. Blackham's Case, 1 Salkeld 290. Approved Begein v. Brehm, 123 Ind. See page 8, supra. 160, 163 (23 N. E. R. 496). GENERAL MATTERS. 79 which one person, because he was appointed administrator of a woman,' sought to have the court infer from that appointment that another person was not her husband. But Lord Holt said that the question of who was her husband was not the point " directly tried," and that it was "a collateral matter to be collected or inferred from the sentence. ' ' The rule is one of logic as well as law, and simply means that if a conclusion may result from a number of premises, the correct one can not be de- duced from the conclusion. Detinue, title in. — In detinue, a judgment may be rendered for the defendant, either because he did not detain or because the plaintiff had no title ; and as the latter point can only be inferred by argument, the record does not settle it.* Divorce. — A dismissal of a bill for a divorce, brought by a husband against the wife on the ground of abandonment, does not necessarily show, in a cross-bill by her for maintenance, that her abandonment was justifiable. The court said that a judg- ment was no evidence of a matter to be inferred from it only by argument.^ Malice. — A late case in Illinois holds that if a declaration contains three counts, the first of which only charges ''malice," and there is a general recovery, the record fails to show that the cause was founded on malice because that is a matter to be " in- ferred by argument."^ The court said : ' ' The precise question here presented is whether the judg- ment, when offered in evidence, was conclusive, under the doctrine of res judicata, so that the petitioner was estopped from showing that, when he purchased the goods mentioned in the declaration in that case, he bought them in good faith, intend- ing to pay for them, and not with any fraudulent intent, and that, therefore, malice was not the gist of the plaintiff's right of recovery against him in that action. The 'gist of an action' is defined to be the cause for which an action will lie; the ground or foundation of a suit, and without which it would not be 1. Longv. Baugas, 2 Ired. Law290 3. Kitson v. Farwell, 132 111.327 (38 Am. D. 694). (Kitson v. People, 23 N. E. R. 1024). 2. Wahle v. Wahle, 71 111. 510, 514. 80 PRINCIPLES, ANALOGIES, ETC. maintainable ; the essential ground or object of a suit, without which it is not a cause of action. The term 'malice,' as used in the statute under consideration, is not to be considered in the sense of hatred or ill-will, but of malus animus, and as denoting that the party is actuated by improper or dishonest motives.^ It implies a wrong inflicted on another with an evil intent, design or purpose. In Bank v. Burkett,nhe court, in speaking of malice as used in this statute, said : * It requires intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to de- prive the party of the right to a discharge from arrest or im- prisonment.' The former judgment, when introduced in evi- dence, was conclusive as to every matter directly and properly at issue in that suit ; and, if the question of whether the pe- titioner, by false and fraudulent representations, or by fraud practiced and perpetrated upon the plaintiffs in that suit, ob- tained the goods, etc., was necessarily in issue, the doctrine of res judicata might be held to apply. The cases are substantially agreed as to the rule, but the difficulty arises in its application, in determining what is to be understood by the ' matters in is- sue,' upon the former trial, and what is meant by a judgment directly upon the same matter. It may be stated, generally, that by * matter in issue ' is to be understood that matter upon which the plaintiff proceeds by his action, and which the de- fendant denies or controverts by his pleadings ; and, if the declaration on its face shows the special matter set up and re- lied upon by the plaintiffs, and the same is denied by the de- fendant's plea, it will show the matter in issue. The judg- ment necessarily follows the nature of the right claimed in the declaration, or the injury complained of, and, generally speak- ing, can conclude nothing beyond such right, or injury. As we have seen, the judgment is not evidence of any matter which is only to be inferred therefroTn by argument, and which probably did, but might or might not, constitute the true ground of recovery. If the rule were otherwise, it would op- erate harshly and unjustly ; for to admit a presumption that a 1. Mitchell V. Jenkins, 5 Barn. & 2. Bankw. Burkett, 101 111. 391. Adol. 594. GENERAL MATTERS. 81 fact is established by the judgment, and not allow that as- sumption to be rebutted by proof that it is without foundation, would be to reverse the rule applicable to all presumptions of fact. The authorities are, therefore, that a judgment is con- clusive only of what it necessarily and directly decides. It is manifest that it by no means follows that, by the judgment in this case, the defendant therein was found guilty of having made any false representations, or of having practiced any de- ceit, or resorted to any artifice, to obtain possession of the goods in the declaration mentioned, for which an action on the case, as for deceit, would lie. Nor does it militate against this con- clusion that the judgment, if rendered under the second and third counts, would be upon an immaterial issue. For some pur. poses, the judgment would be referable to the good count in the declaration, as upon motion in arrest or upon error ; but wherein the doctrine of res judicata is sought to be applied, it must conclusively appear that the matter was so in issue that it was necessarily determined by the court rendering the judg- ment interposed as a bar. It may also be that the matters set up in the second and third counts of the declaration, by means of which it is alleged the petitioner obtained the credit, were, in a sense, immoral ; but, as we have already seen, they formed no proper basis for a recovery in the action in which the judg- ment was obtained. It may also be true that, if the first count had not been in the declaration, the judgment might, on mo- tion, have been arrested ; that it may have been the duty of the defendant to have demurred, as suggested by counsel, and of the court to have sustained the same, to the second and third counts. But that consideration can not affect the ques- tion being considered. It is apparent that the jury may just as well have found for the plaintiffs in that action upon evi- dence tending to support the second and third counts only, which would form no basis nor right of recovery for fraud or injury committed by the petitioner in that action, as upon the first count. The finding of the jury, we may argue, was predicated upon the allegation of the first count of the declara- 6 82 PRINCIPLES, ANALOGIES, ETC. tion. But it is manifest, under the rule, that that will not suf- fice. If predicated upon the second and third counts of the declaration alone, it was by no means such as would have au- thorized a recovery in the suit wherein malice was the gist of the action. It follows that we are of opinion that this judgment, under the pleadings, was not necessarily conclusive of the questi(5n as to whether or not malice was the gist of the action." Marriage or no marriage. — A woman married one Williams in Wisconsin, and afterwards sued one Jones for a divorce, alleg- ing in her petition that they were *' duly and lawfully married" in Wales, and that he had unlawfully deserted her. There was due personal service on Jones, and a default, and finding that all the allegations of her petition were true, and a decree of divorce. After her marriage with Williams, and before her divorce from Jones, Williams conveyed a parcel of land in which she did not join, and after his death she claimed dower in that land. The purchaser denied that she was the widow of Williams, and contended that the decree in the Jones divorce case conclusively showed that, at the time of the marriage with Williams, she was the law^ful wife of Jones. She contended that she never was the wife of Jones because he had another wife living. The court held that the decree did not conclude her because * * the legality of the marriage was at most a ' matter incidentally cognizable ' in the divorce suit, and merely ' in- ferable by argument ' from the judgment ' ' according to the rules laid down in the Duchess of Kingston's Case.^ Office, contest for. — On February 7, 1884, the mayor of a city appointed a city chamberlain, and on January 15, 1885, another was appointed. The new appointee brought suit against the old to recover the office, and, on June 6, 1885, a final judgment was rendered in favor of the defendant. In that suit each denied the title of the other. The defendant claimed that his appointment was for three years, and the plaintiff claimed that it was merely temporary. But the plain- tiff was defeated because he had not given a proper bond, and it was expressly declared that the tenure of the defendant's 1. Williams v. Williams, 63 Wis. 58 (23 N. W. R. 110, 117). GENERAL MATTERS. 83 title, whether temporary or for three years, was not decided. In a new suit to recover the office, the defendant contended that the judgment in his favor that he was entitled to the office on June 6, 1885, necessarily determined that his appointment was for three years, while the plaintiff contended that the judgment defeating him for want of a bond necessarily implied that the adjudication would have been in his favor if he had had a good bond. But the court said that the most that could be claimed was * ' that the judgment contains contradictory and inconsist- ent implications," and that, therefore, it came within the rule that "any matter to be inferred by argument" was not con- cluded.^ Record, uncertain. — An executor of an estate in Georgia hired out a slave to A, and he sold her to B, who took her to Alabama, where the executor brought detinue for her. A claimed title to her under a parol gift from the testator, and the executor, in order to show that she was a part of the assets of the estate, offered a transcript of a suit instituted by him for a final settlement of the estate. But this evidence was rejected. The court said : ' ' If the transcript had been offered in con- nection with other evidence, it would probably be admissible, as showing that the slave sued for had been charged to the plaintiff as the property of the testator. But if this fact can be collected from the transcript alone, it is only by inference from the character and objects of the suit." It then quoted from the Duchess of Kingston's Case that a judgment is no proof of any matter to be inferred from it by argument, and said : "Taking this to be the law, the transcript was properly ex- cluded by the court below." ^ The idea of the court seems to have been that the phrase " in- ferred by argument" prohibited inferences from an uncertain record, which might be aided by parol ; but that, if it were made certain by extrinsic evidence, the rule would not apply. So, in Georgia, as it could not be determined from the record whether or not certain accounts were taken into consideration 1. People V. Hall, 104 N. Y. 170 (10 2. McCravey v. Remson, 19 Ala. 430 N. E. R. 135). (54 Am. D. 194). 84 PRINCIPLES, ANALOGIES, ETC. in forming the verdict, the court ruled that it could not be in- ferred that they were.^ So also in New York, a judgment of a justice of the peace, for some reason not disclosed, having been reversed by the county court, and ordered to be held for naught, and the issues having been such that the decision might have been placed either on the merits or on tech- nical grounds not touching them, the court said that "the judg- ment was no evidence of a matter to be inferred from it by argument," and that the burden rested upon the party who would use it as an estoppel to show that the merits were con- sidered.^ Special finding of facts. — The court, in trying a case, hav- ing made a special finding of facts, one of which was that a specified transaction was usurious, this is res judicata in a new suit, although the judgment rendered does not mention the usury, and the fact that it was adjudicated in it can be drawn only as an inference from its amount.' 1. Evans v. Birge, 11 Ga. 265, 274. 3. Bissell v. Kellogg, 60 Barb. 617, 2. Vaughan v. O'Brien, 57 Barb. 627. 491, 495. CHAPTER II SPECIAL MATTERS. §7. Coarts — Different grades and §17 kinds of. 8. Appeal not allowed by law — Al- lowance by assignee — Drain- age statute of Indiana — Eject- ment. 9. First judgment rendered in sev- eral pending suits is a bar — Indian cases — Last judgment controls. 10. Forcible entry and detainer — Form of action. 11. Habeas corpus — Highway pro- ceedings — Intervener. 12. Jurisdiction. 13. Merger in domestic judgment: (Foreign country or state). 14. Motions: (Principle involved). 15. Motions: (Affidavit in claim case — Appeal in supreme court — Attachment — Attorneys' fees — Award) . 16. Motions: (Change of venue — Criminal cases — Executions — Exemption) . 18. 26. Motions: (Injunction dissolved or refused). Motions : (New trials — Reforma- tion of deed — Set-off of judg- ments — Setting aside assess- ments). Motions: (Setting aside judg- ments) . Motions : (Setting aside sales) . Motions: (Sheriff proceeded against, by — Summons restor- ed) — Indian cases : (Execu- tion proceedings — Appellate proceedings). Mutuality : (Exceptions) . Object or purpose, different — Opposite rulings in same case — Reversed judgment. Right of property, trial of. Set-off — Set-off of claim against a judgment— Summary pro- ceedings by landlord. Witnesses, competent in one suit and incompetent in the other. § 7. Courts — Different grades and kinds of. — A final judg- ment upon the merits, rendered by any judicial tribunal hav- ing jurisdiction sufficient to shield its proceedings collaterally, will bar a new suit upon the cause of action sued on or pre- vent its use as a counter-claim or set-off in any other judicial tribunal. But in order to reach such a conclusion, it may determine other matters. If these matters are simply collateral questions which do not rise to the dignity of an issue, or if they constitute an immaterial issue, or an "incidental" one as (85) 86 PRIXCIi'LES, ANALOGIES, ETC. explained in section 2 supra, their determination can not be used as evidence in another cause. The first branch of these matters is under consideration in this section. Thus, the determination of a cause of action by arbitrators,' or by a board of aldermen,^ or commissioners act- ing judicially,^ or by an inferior court/ bars its use in another proceeding in any judicial tribunal as a cause of action or defense. In like manner, a decree made by a court of equity is conclusive in a court of law® and vice versa .^ Of course, a judgment in a federal court is conclusive in a state court.'' And a common-law judgment in a state court, determining that a city is not bound by law to remove a wreck from its harbor, is conclusive in admiralty to recover damages against the city for the same neglect.* I.Rogers v. Holden, 13 111. 293; Carey v. Wilcox, 6 N. H. 177, 179; Canada v. Barksdale, 84 Va. 742 (6 S. E. R. 10) — Gueret v. Audouy, 62 Law J. Q. B. 633, holds that if the con- struction of a contract is referred to an arbitrator, his award is conclusive as to the proper construction in a new action brought for subsequent breaches. 2. People, ex rel. Hatzel, v. Hall, 80 N. Y. 117, 127, following State v. Deliesseline, 1 McCord 52. 3. State, ex »'e7.Clark,tJ, Buffalo Coun- ty, 6 Neb. 454. 4. Blum V. Hartman, 3 Daly 47; Smith V. Hemstreet, 54 N. Y. 644. 5. Waring v. Lewis, 53 Ala. 615, 623 ; Hempstead v. Watkins, 6 Ark. (1 Eng.) 317 (42 Am. D. 696, 713) ; Walker v. Byers, 19 Ark. 323, 327; Alley V. Chase, 83 Me. 537 (22 Atl. R. 393) ; Hall v. Dodge, 38 N. H. 346, 350; Putnam v. Clark, 34 N. J. Eq. 532; dictum in Ruckelschaus v. Oehme, 48 N. J. Eq. 436 (22 Atl. R. 184); Williams v. Row, 62 Pa. St. 118 ; Westcott v. Edmunds, 68 Pa. vSt. 34; Pierson v. Catlin, 18 Vt. 77; Hop- kins V. Lee, 6 Wheaton (19 U. S.) 109; Bank of United States v. Bev- erly, 1 Howard (42 U. S.) 134, 148. 6. McCampbell v. McCampbell, 5 Littell (15 Ky.) 92; Triplett v. Gill, 7 J. J. Marsh. (30 Ky.) 432; Cowan v. Wheeler, 25 Me. 267 (43 Am. D. 283) ; Lane v. Lane, 80 Me. 570 (16 Atl. R. 323) ; Spoon v. Baxter, 31 Mich. 279; Gregory v. Burrall, 2 Edw. Ch. 417 ; Tate and Hunter, 3 Strobh. Eq. 136; Redheimer v. Pyron, Speers' Eq. 134, 141 ; Overton v. Searcy, Cooke (3 Tenn.) 36 (5 ' Am. D. 665); Conti- nental Life Ins. Co. v. Currier, 58 Vt. 229 (4 Atl. R. 866). 7. Cincinnati, Union and Fort Wayne R. R. Co. v. Wynne, 14 Ind. 385. 8. Goodrich v. The City, 5 Wall. (7^ U. S.) 566. The cases upon each of the points in this section, except the last, are quite numerous, and those not cited here are cited in other sec- tions upon other points. See Van Fleet's Coll. Att., §§800-804, as to what officers act judicially. The cases there cited are applicable here. SPECIAL MATTERS. 87 § 8. Appeal not allowed by law. — If an issue is decided in a circuit court in a case in which from the smallness of the amount no appeal lies, it concludes the same question in another case in which an appeal does lie.^ So, if a question is decided by the trial court, its conclusiveness is not affected because the case is affirmed on appeal without adverting to it.^ Allowance by assignee. — An allowance by an assignee for the benefit of creditors, in Missouri, has the force of a judg- ment.^ Drainage statute of Indiana. — To a petition for the estab- lishment of a drain, the Indiana Statute provided for the filing of specific grounds of remonstrance, among which former ad- judication was not included. For this reason it was decided that an answer of former adjudication was no bar. But this seems to me to be unsound. Such a proceeding involves a con- test between the landowners to be affected concerning the public utility of the drain and whether or not the expenses will exceed the benefits. If either of those questions is decided in favor of the remonstrants, and the proceeding thereby defeated, I am un- able to see why that should not bar the same contest between the same parties, or any renewal of the contest so long as the facts remain the same. According to this decision, the peti- tioners, if they have means sufficient, may wear out the remon- strants, and thus accomplish by money what they can not do by right.* See Highway proceedings, page 94, infra. Ejectment. — At common law, an adjudication in ejectment was no bar to a new action. This rule still prevails in Mis- souri and Pennsylvania.* See § 183, page 464, infra. § 9. First judofment rendered in several pending suits is a bar. — If two or more suits are pending upon the same cause of 1. Johnson Company r. Wharton, 152 5. Slevin v. Bro\\-n, 32 Mo. 176 IT. S. 252, 256. Kimmel v. Benna, 70 Mo. 52; Ekey v 2. Ford V. Ford, 88 Wis. 122 (59 ^^ Inge, 87 Mo. 493; Avery v. Fitzgerald W. R. 464). 94 Mo. 207 (7 S. W. R. 6) ; City of St 3. Eppright v. Kauffman, 90 Mo. 25 Louis v. Schulenburg and Boeckler (1 S. W\ R. 736). Lumber Co., 98 Mo. 613 (12 S. W^ R 4. Heick v.Voight, 110 Ind. 279, 282 248) ; Bailey v. Winn, 101 Mo. 649 (12 (UN. E. R. 306). S. W^R. 1045). 88 PRINCIPLES, ANALOGIES, ETC. action, either in the same state* or in different states,^ the judg- ment first recovered will bar further proceedings in the other case, if brought to the attention of the court by supplemental pleadings, even though the case first tried was the last com- menced. A few of these cases deserve special notice. Thus, if one files a claim in the probate court of Alabama after the estate has been decreed insolvent, and if, after a trial on the merits, it is disallowed, that bars further action on it in a suit then pending in the circuit court.' So, in Texas, if an admin- istrator sues for the conversion of goods in the district court, the subsequent allowance by the probate court of the account of the defendants wherein credit is given for the same goods, is a defense to the action in the district court.* Likewise, if A sues B to cancel a mortgage, and afterwards B sues A in another court to foreclose it, a decree pro con- fesso in favor of B in the latter suit may be set up, by way of supplemental plea, in bar of the first suit.^ So also, after an action for the value of chattels is brought at law, if the defend- ant sues the plaintiff in equity to confirm and quiet his right to them, a decree dismissing his bill on the merits bars further 1. McDougald v. Rutherford, 30 Ala. 2. Bank of North American. Wheel- 253, 257; Davis v. Bedsole, 69 Ala. er, 28 Conn. 433 (73 Am. D. 683); 362; Maher 1). State, 53 Ga. 448; Eck- Jones t?. Murphy, 18 La. Ann. 634; ert V. Binkley, 134 Ind. 614 (33 N. E. North Bank v. Brown, 50 Me. 214; R. 619) ; Bangor v. Brunswick, 33 Me. Whiting v. Burger, 78 Me. 287 (4 Atl. 352; Allisv. Davidson, 23 Minn. 442; R, 694); Williams v. Williams, 53 Gregory v. Kenyon, 34 Neb. 640 (52 Mo. App.617; Baxley •». Linah, 16 Pa. N. W. R. 685); Mansfield v. New St. 241 (55 Am. D. 494); Cook v. York Central and H. R. R. Co., 102 Burnley, 45 Tex. 97, 111— second suit N. Y. 205 (6 N. E. R. 386) ; Duffy v. brought in federal court and first Lytle, 5 Watts 120, 132; Finley v. tried; McGilvray v. Avery, 30 Vt. 538; Hanbest, 30 Pa. St. 190; Casebeer v. Insurance Co. v. Harris, 97 U. S. 331. Mowry, 55 Pa. St. 419 (93 Am. D. 3. McDougald u. Rutherford, 30 Ala. 766) ; Westcott v. Edmunds, 68 Pa. St. 253, 257. 34,36; Brenner v. Moyer, 98 Pa. St. 4. WilUams v. Robinson, 63 Tex. 274 ; Starke v. Woodward, 1 Nott and 576, 580. McCord 329; Williams v. Robinson, 5, AlUs v. Davidson, 23 Minn. 442. 63 Tex. 576, 580; David Bradley Mfg. Co. V. Eagle Mfg. Co., 57 Fed. R. 980 (6C. C. A. 661). SPECIAL MATTERS. 89 defense by him at law.' And if there is a decree that a real estate mortgage is a lien on machinery superior to a chattel mortgage, from which an appeal is taken and the decree re- versed with an order to grant a new trial, an answer that, dur- ing the pendency of the appeal, another court has decided that the real mortgage was the superior one, is a bar.^ Suits were brought on a note at the same time in Kentucky and Louisiana, and a judgment was recovered in Kentucky and an execution issued and returned unsatisfied. The plaintiff was then al- lowed to plead this judgment by way of supj)lemental petition in the Louisiana case to preclude further defense.^ In a suit in equity in a federal court in respect to whether or not certain real estate was partnership assets, the master reported that it was not. Pending exceptions to his report, a final judgment was rendered in a state court that it was. It was held that this was conclusive and necessitated the sustaining of the exceptions.* A brought suit upon a demand in a state court of New York, and subsequently a receiver was appointed for the debtor in the federal court in Indiana. The latter court issued a notice to all persons to file their claims within a time prescribed, and A presented his claim to the master, saying nothing about his suit in New York. Afterwards, having obtained judgment in the latter state, he set up that fact by way of an amended statement, and contended that it was conclusive. The master did not agree with him, and decided against him on the merits. But, upon exceptions, the court held that his judg- ment was conclusive.* So, a conviction before a justice of the peace will bar a prior prosecution in the superior court which is not yet tried. ^ Indian cases. — Chand on Res Judicata, sections 23 and 24, says: 1. Starke v. Woodward, 1 Nott and 4. Duden v. Maloy, 43 Fed. R. 407. McCord 329. 5. Pine Lake Iron Co. v. Lafayette 2. Eckert v. Binkley, 134 Ind. 614 Car Works, 53 Fed. R. 853. (33 N. E. R. 619). ' 6. State v. Roberts, 98 N. C. 756 (3 3. Jones v. Murphy, 18 La. Ann. S. E. R. 682). 634. 90 principles, analogies, etc. "23. First judgment bars, although suit instituted LAST. — The first essential of the rule of res judicata is the ident- ity of the matter in issue, or as enacted by section 13 of the civil procedure code, the matter directly or substantially in issue in the subsequent suit or issue should have been similarly in issue in a former suit. Under act 8 of 1859, the word former was held to refer to the priority in the institution of the suits. ' The question whether the matter has been already heard and determined,' said the Madras high court in Venkatadri v. Na- rayya,' ' is to be decided with reference to the state of things existing at the time when the court has the matter submitted for its cognizance.' The shifting of the bar, under the code of 1877, from the cognizance to the trial, and the omis- sion from section 13 of the word ' instituted ' used in section 12, show that the question as to whether the suit in issue has been already heard and decided shall now have to be deter- mined with reference to the state of things existing at the time of the trial. The word 'former ' would thus by no means sig- nify more than 'another,' and a decision in even a subsequent suit would bar the trial of a previously instituted one. This has actually been held by a bench of three judges of Allaha- bad high court in Balkishan v. Kishanlal,^ in which Mah- mood, J., said — ' The doctrine, so far as it relates to prohibit- ing the retrial of an issue, must refer not to the date of the com- mencement of the litigation, but to the time when the judge is called upon to decide the issue. For even in cases wherein the judge has commenced the trial of an issue which is also an issue in a pending litigation, a final judgment pronounced meanwhile in the previous litigation should operate as res ju- dicata, preventing the judge dealing with the latter litigation from adjudicating differently. If this is not done, the evil against which res judicata aims will not be removed and the doctrine itself will be defeated.' " "24. Prior ruling in same case. — It is necessary, how- ever, that the decision must have been in another suit, as 1. 9 Madras J. 291. 2. Indian L. R. 11 Allahabad, 148. SPECIAL MATTERS. 91 the doctrine of res judicata has no application to decisions in a former stage of the same suit, though an analogous princi- ple being applicable in such cases, and having a similar effect, is sometimes spoken of as that of res judicata.^ In Kishan Sahai v. Aladad Khan,^ Sir John Edge, C. J., and Tyrrell, J., in speaking of the binding effect against a person in execution proceedings of a decision in a suit to which he was a party, but in which he had not made a proper defense, said that it was a case which fell ' within the principle of explana- tion 2, section 13.' So also in Ramlal v. Chhabnath,^ Sir John Edge, C. J., and Brodhurst, J., held that a finding on an ap- peal by a defendant would be res judicata in the disposal of a subsequent appeal against the same decision by the plaintiff, and expressly observed that the principles of res judicata ap- plied to such a case, but admitted that section 13 had no ap- plication to it. The distinction was clearly pointed out in Ram Kirpal v. Rup Kuari,* in which Sir Barnes Peacock, in delivering the decision of their lordships of the privy council, observed that * the binding force in subsequent execution pro- ceedings of a judgment as to a certain decree not having awarded mesne profits did not depend on section 13, but upon general principles of law,' because 'if it were not binding, there would be no end to litigation.' " Last judgment controls. — The last judgment rendered in regard to a matter is res judicata.^ The former judgment must be used to prevent it. It calls upon the adverse party to show all his reasons why it should not be rendered; and one of his reasons is that another court has determined the matter. But if he does not bring that fact to the attention of the court, or if he does do so and it is disregarded, in either case the 1. FtdeHathappanv.Rydel, Indian R. Co., 96 Mich. 441 (56 N. W. R. L. R. 15 Madras 403. 28). The case of Shaw v. Broadbent, 2. Indian L. R. 14 Allahabad 64. 129 N. Y. 114 (29 N. E. R. 238, 241), 3. Indian L. R. 12 Allahabad 578. is opposed, and holds that the two 4. L. R. 11 Indian Appeals 37. opposing adjudications set the matter 5. Cooley v. Brayton, 16 Iowa 10, at large. But I think this case is 18; Bateman v. Grand Rapids and I. wrong. See § 211, p. 505, infra. 92 PRINCIPLES, ANALOGIES, ETC. former judgment, the same as all other defenses, is con- cluded. §10. Forcible entry and detainer — (See p. 115, infra). — If A has peaceable though wrongful possession of the land of B, it is contrary to public policy to permit B to dispossess him by force. And therefore if he does so, statutes provide a remedy, called "forcible entry and detainer," by means of which A may regain the possession. In such a contest the sole ques- tions which the law suffers to be tried are the peaceable posses- sion of A and his forcible ouster by B. The merits of their respective claims to the possession and the title can not be investigated, and therefore are not affected.* But the adjudica- tion settles the issues that are tried, not only in reference to that particular tract of land, but also in respect to any other tract. ^ Thus, if A's possession of adjoining tracts of land depends upon the same matters, a recovery of the possession from him of one of the tracts by B, in an action of forcible entry and detainer, concludes his right to show adverse posses- sion of the other tract in an action of ejectment by B.^ But in Kansas, the statute provides that judgments in forcible entry and detainer ''shall not be a bar to any after-action brought by either party."* Form op action. — The question of res judicata or no never depends upon the form of the action. Thus, it was said in the time of Lord Coke that " if one is barred in any action, real or personal, by judgment upon demurrer, confession, verdict, etc., he is barred as to that or the like action of the like nature for 1. Bishop V. Perrin, (Arizona) 35 2. Harvie v. Turner, 46 Mo. 444. Pac. R. 1059; Fish v. Benson, 71 This would not be true if the first Cal. 428 (12 Pac. R. 454) ; Riverside court had no jurisdiction of an action Company v. Townsend, 120 111. 9 (9 N. of ejectment, as the jurisdiction of the E. R. 65) ; Mattox v. Helm, 5 Littell two courts would not be concurrent. (15 Ky.) 185; Dale v. Doddridge, 9 See §§ 2 and 5, pp. 28 and 65, swjjra. Neb. 138 (1 N. W. R. 999) ; Casey v. 3. Bradley v. West, 68 Mo. 69. McFalls, 3 Sneed (35 Tenn.) 114. "See 4. Redden v. Tefft, 48 Kan. 302 (29 §§ 86, 189, 331, infra. Pac R. 157). SPECIAL MATTERS. 93 thesame thing forever."^ The supreme court of Louisiana said: "No matter in what form of action or proceeding, whether by petition, or exception, or intervention, the question may have been presented, if the same question, once judicially decided between the parties, be again agitated, it is sufficient to create the presumption of the thing adjudged, and forms a complete bar."^ The facts found to be true upon a demurrer, as well as the facts found to be true by a jury, are res judicata.^ So, a judg- ment for the defendant in case, for cutting and carrying away wheat, bars an action of trespass for the same cause.* Guardian's final account. — A judgment homologating (confirming) the final account of a natural tutrix is res judi- cata.^ § 11. Habeas corpus. — Under the common law as adminis- tered in England, if one judge refused to discharge a prisoner on his petition for a writ of habeas corpus, he could apply to another, and so on, until he had taken the opinions of all the judges accessible.® The reason given, namely, that such pro- cedure was favorable to liberty, was a strange one. If that were sound, then he ought to have been granted a new trial after a conviction before one judge, and so on, until they had all passed upon his guilt. A still more favbrable thing to lib- erty would be no arrest nor trial at all. This ancient doctrine is still maintained in Minnesota,' Missouri,* New York,^ Wis- consin," and in a federal circuit ; " while the contrary is held in 1. Ferrer's Case, 6 Coke 7. 7. In re Snell, 31 Minn. 110 (16N.W. 2. Plicque v. Perret, 10 La. 198, 204 E. 692). (19 O. S. 318). Accord, on the gen- 8. Weir r. Marley, 99 Mo. 484, 488 eral principle, is Harryman v. Eob- (12 S. W. R. 798). erts, 52 Md. 64, 77. 9. People, ex rel. Lawrence,r. Brady, 3. Thomas v. Bland, 91 Ky. 1 (14 56 N. Y. 182. 192; People, ex rel. Mc- S. TV. E. 955). Intyre, v. Hurlburt, 67 How. Pr. 362. 4. Johnson v. Smith, 8 Johns. 383. The contrary- cases of People v. Burt- 5. Smith V. Lewis, 45 La. Ann. 1457 nett, 13 Abb. Pr. 8, (5 Park. 113) and (14 S. R. 221). - Matter of Price, 12 Hun 508, must be 6. The King v. Suddis, 1 East 306; considered as overruled. Ex parte Partington, 13 M. and W. 10. /« re Blair, 4 Wis. 522,532. 679. 11. Ex parte Kaine, 3 Blatchford 1. 94 PRINCIPLES, ANALOGIES, ETC. Georgia/ Indiana and Mississippi.^ An adjudication in such a proceeding, however, in respect to the custody of a child, as long as the facts remain the same, is res judicata.^ Under a statute in Texas, a denial of a writ of habeas corpus does not bar a second application based upon new and important evi- dence which it was not in the power of the prisoner to pro- duce on the first application, although he then knew of it.* The Mississippi statute made the judgment in habeas corpus a bar to another writ ' ' to bring the same matter again in ques- tion," but if one preliminarily charged with murder is allowed by the supreme court on habeas corpus to give bail, an indict- ment for the offense raises a new question upon which the former decision is not conclusive.® So, if bail is refused after an indictment, a mistrial or serious danger to the prisoner's health raises new questions.® A discharge on habeas corpus of a person committed for murder is no bar to a new prosecution.' Highway proceedings. — In Connecticut, an adjudication denying a petition to lay out a new highway is in the nature of a proceeding in rem, and bars a new petition by the same or any other persons, except there be a material and substantial change in the facts upon which the new petition depends.* So, the determination of justices of the peace and surveyors ot highways in New Jersey in relation to encroachments upon a highway is judicial in its nature, and bars a change.^ And a certificate of a jury, impaneled under the New York statute, that an inclosure encroaches a specified distance upon a highway, is conclusive upon that question in all courts." 1. Perry v. McLendon, 62 Ga. 598. 5. Ex parte Bridewell, 67 Miss. 177, 2. Dictum in Brooke v. Logan, 112 182. Ind. 183 (13 N. E. R. 669) ; Ex parte 6. Ex parte Pattison, 56 Miss. 161. Hamilton, 65 Miss. 98 (3 S. R. 68)— 7. /nreClyne, 52Kan.441(35Pac.R. by virtue of a statute. 23) ; State v. Fley, 2 Brevard (30) 338. 3. Mercein v. People, 25 Wend. 64. 8. Terry v. Town of Waterbury, 35 Approved, State, ex rel. Lembke, v. Conn. 526, 533, approving Webb v. Bechdel, 37 Minn. 360 (34 N. W. R. Town of Rocky-Hill, 21 Conn. 468. 334). 9. Amerman v. Briggs, 50 N. J. Law 4. Ex parte Rosson, 24 Tex. App. 114 (State v. Briggs, 11 Atl. R. 423). 226 (5 S. W. R. 666) 10. Hyatt v. Bates, 35 Barb. 308, 317. SPECIAL MATTERS. 95 But it was decided in Vermont, that a judgment denying a petition to discontinue a highway was no bar to a new petition for the same purpose, although the causes for the discontinu- ance remained the same. The decision was put upon the ground that the proceeding was statutory, and largely a matter of discre- tion with the court.' The Connecticut cases seem preferable. Intervener. — If a person's rights are adjudicated in a suit in which he intervenes, they are res judicata.^ So, if one claiming a fund garnished is made a party on his own motion, under a statute, the judgment binds him.^ § 12. Jurisdiction. — Although a judgment concludes all matters actually determined that were within the jurisdiction of the court, it does not conclude matters over which no juris- diction existed.* And an adjudication by the circuit court that a justice of the peace had no jurisdiction to render a judg- ment bars a party from enforcing it.* So, if a judgment has been canceled by another court for want of jurisdiction, it can not be used as res judicata.^ Likewise, if a person is arrested and taken before a justice of the peace in an action to recover a penalty for violating the fish law, and the justice, instead of trying him as he has power to do, binds him over to a higher court, which he has no power to do, this is no bar to a new action.' Mandamus. — A judgment on the merits in a mandamus proceeding precludes a new suit.* § 13. Merger in domestic Judgment. — A recovery upon a 1. Ferguson v. Town of Sheffield, 6. Colby v. Parker, 34 Neb. 510 (52 52 Yt. 77, 81. N. W. R. 693). 2. Shelton v. Brown, 22 La. Ann. 7, Thompson v. Smith, 79 Me. 160 (8 162. Atl. R. 687) . The cases which sustain 3. Providence Institute v. Barr, 17 the points in this section are very R. I. 131 (20 Atl. R. 245). numerous, and those cited are merely 4. Embury v. Conner, 3 N. Y. (3 selected as examples. Comstock) 511 (53 Am. D. 325, 8. Santa Cruz Co. v. Board of Super- 333). See Van Fleet's Coll. Att., visors, 62 Cal. 40. §§58-67. 5. Sweezey v. Stetson, 67 Iowa 481 (25N. W. R. 741). 96 PRINCIPLES, ANALOGIES, ETC. cause of action bars a new suit upon it for the same reason that the execution of a note in settlement of an account is a defense to a suit upon it, namely, the cause is merged into one of a higher nature.^ A decree foreclosing a mortgage does not merge its lien, but simply enforces it.^ It being the law of Indiana that the lien of a mortgage continues for twenty years and the lien of a judgment for ten years, a decree of foreclosure, while it merges the mortgage as a cause of action, does not merge its lien so as to reduce it below twenty years ; and, therefore, the judgment can be revived, so far as the lien is concerned, sixteen years after it is entered — the lien of the mortgage then being eighteen years old/ Foreign country or state. — A judgment obtained in a for- eign country,* or in another state of the Union, ^ even though it be that of a justice of the peace,® bars a new suit upon the same cause of action. So, if an Indiana judgment is sued upon as a cause of action in Ohio, a new judgment there recovered merges the one in the former state and destroys its lien upon land.' But in North Carolina, the recovery of one judgment upon another does not operate as a merger, and they both re- main as securities for the debt.^ Although a foreign judgment does not merge the cause of action, still it is conclusive proof in a suit on the original cause in this country.' § 14. Motions — Principle involved. — If a ruling on a motion is a final decision on the merits, no reason occurs to me why it 1. The cases upon this point are very 5. Henderson v. Staniford, 105 Mass. numerous, and are all in accord, 504; Barnes v. Gibbs, 31 N. J. Law hence none are cited. (2 Vroom) 317. There are many other 2. Priest v. Wheelock, 58 111. 114; cases on the last two points, but they Hendershott v. Ping, 24 Iowa 134; are all in accord. Stahl V. Roost, 34 Iowa 475 ; Riley v. 6. Ault v. Zehering, 38 Ind. 429, 434. McCord, 21 Mo. 285; Helmbold v. 7. Gould??. Hayden, 63Ind.443, 448. Man, 4 Wharton (Pa.) 409. Contra, It is merged as a cause of action in People V. Beebe, 1 Barb. 379, and Gage South Carolina. Lawton v. Perry, 40 V. Brewster, 31 N. Y. 218. These New S. C. 255 (18 S. E. R. 861). York cases seem to me to be unsound. S.Carter v. Colman, 12 Ired. 274; 3. Evansville Gas-light Co. v. State, McLean v. McLean, 90 N. C. 530. ex rel. Reitz, 73 Ind. 219. 9. New York, L. E. and W. R. Co. v. 4. Jones v. Jamison, 15 La. Ann. 35. McHenry, 17 Fed. R. 414. SPECIAL MATTERS. 97 is not res judicata. Still, some courts hold that that doctrine does not apply, in its strictness, to such rulings,^ and that mat- ters which might have been but were not litigated are not con- cluded.^ Others make the question of conclusiveness turn on the right of appeal, holding that if there is no such right they are not conclusive.^ But others denj'- that distinction,* and with better reason, as it seems to me, because if the ab- sence of that right does not affect the conclusiveness of a final judgment,^ I am unable to see why it should do so in respect to a ruling on a motion. Thus, the two cases just cited from Pennsylvania hold, that if a defendant, after judgment, obtains a rule to show cause why execution should not be stayed, a dis- charge of the rule on the merits bars a suit for the same pur- pose, although no appeal lay from the first ruling. The cases all agree, that if an appeal can be taken from such a ruling, it is conclusive and bars a new motion or suit.® Two cases, which seem to me to be sound, hold that a decision upon the merits of any matter on a motion is a bar.' A vice-chancellor of New Jersey decides, in a late case, that if a person applies to a com- mon-law court for leave to set off one judgment against another, 1. Ford V. Doyle, 44 Cal. 635, 637; Easton v. Pickersgill, 75 N. Y. 599; Steuben County Bank v. Alberger, 83 N. Y. 274, 278. 2. Riggs V. Pursell, 74 N. Y. 370. 3. Eockwell v. District Court, 17 Colo, lis (29 Pac. R. 454; 31 Am. St. R. 265, 273) ; Kanne v. Minneapolis and St. Louis Ry. Co., 33 Minn. 419, 421 (23 N. W. R. 854) ; Bennett v. Denny, 33 Minn. 530, 533 (24 N.W. R. 193) ; Selz v. Presburger, 49 N. J. Law 396 (8 Atl. R. 118) ; Simson v. Hart, 14 Johns. 63. 4. Gordinier's Appeal, 89 Pa. St. 528 ; Frauenthal's Appeal, 100 Pa. St. 290, 295. 5. It is so held in Johnson Company V. Wharton, 152 U. S. 252, 256. 6. Kaufman v. Schneider, 35 111. App. 256, 262 ; Commissioners v. Mc- intosh, 30 Kan. 234 (1 Pac. R. 572) Demarest v. Daig, 11 Abb. Pr. 9 Wilson V. Lineberger, 82 N. C. 412 Roulhac V. Brown, 87 N. C. 1, 3; Bur- ner V. Hevener, 34 W. Va. 774 (12 S. E. R. 861 ; 26 Am. St. R. 948) . Other cases decide the same point, but they are cited to other points elsewhere. 7. Trescott v. Lewis, 12 La. Ann. 197 ; Jay V. De Groot, 2 Hun 205. 98 PRINCIPLES, ANALOGIES, ETC. a denial of the motion upon the merits is res judicata, although no writ of error can be liad.^ Discretion of court. — Of course, the denial of a motion which is addressed to the discretion of the court concludes nothing. Thus a defendant, after a judgment against him by- default in a C0U2. of law, having made an application to the discretion of the court for an opportunity to make an equitable defense, a denial of his motion is no bar to a bill in equity to obtain relief upon the same equities.^ The supreme court of North Carolina says : ' * The principle of res judicata does not extend to ordinary motions incidental to the progress of a cause, for what may one day be refused may the next day be granted ; but it does apply to decisions affecting a substantial right subject to review in an appellate court. "^ Of course, a mere ex parte order is not res judicata.'^ § 15. Motions — Affidavit in claim case. — If an affidavit to try the right of property levied on is quashed on motion for want of merits, it is res judicata} Appeal in supreme court. — If an appeal to the supreme court is perfected according to a decision of that court, 1. West New York Silk-mill Co. v. the first place. Having chosen that Laubsch), — N. J. Eq. — (30 Atl. R. forum, I think it is as much estopped 814), by Pitney,V. C. The court, after in case no writ of error will lie to the saying that it was probable that a writ judgment of that court as if it will. I of error could have been had, said: am unable to see on what ground the " But, if I am wrong in supposing fact that a writ of error will not lie, if that a writ of error will lie to the judg- such be the fact, can affect the ques- ment of the circuit court in the case tion of estoppel." here in hand, I am still of the opinion 2. Wistar v. McManes, 54 Pa. St. 318 that the proceedings there are a bar (93 Am. D. 700, 703). to proceedings here. The complain- 3. Mabry v. Henry, 83 N. C. 298. ant deliberately chose its forum, in Approved, Allison v. Whittier, 101 N. which it had, at least, the benefit of C. 490 (8 S. E. R. 338,340). the judgment of four judges of the 4. Humphreys v. Browne, 19 La. supreme court, who dealt with the Ann. 158. case on the merits, upon equitable 5. Zadek v. Dixon (Tex.), 3 S. W. principles, precisely as this court R. 247. would have done had it come here in SPECIAL MATTERS. 99 and a motion to dismiss it is overruled, that bars a new motion to dismiss founded upon a later decision of the same court. ^ Attachment. — A denial of a motion for an attachment for contempt in violating an injunction, bars a new proceeding for the same act.^ Attorneys' fees. — An Iowa statute having provided, that "judgments or final orders may be obtained on motion by clients against their attorneys for the receiving of money col- lected by them," and that such "motion shall be heard and de- termined without written pleadings, and judgment given ac- cording to law and the rules of equity," a judgment denying such a motion on the merits bars an action to recover the money so collected.^ Award. — A judgment overruling exceptions to an award for errors and irregularities appearing on its face, bars a motion to strike out the judgment for the same cause.* § 16. Motions — Change of venue. — An order denying the plaintiff's motion for a change of venue, is no bar to a new mo- tion for the same purpose.^ Criminal case. — The denial of a motion for a discharge in a criminal case after a mistrial, bars a renewal of the motion at the next term.® Executions. — If the debtor places property in the hands of his creditor to be sold and the proceeds applied on the latter 's judgment, and the latter, after the property is disposed of, cites the former to appear and show cause why an execution shall not issue, to which he appears and claims that the judg- ment is satisfied, an adjudication against him bars him from maintaining an action against the creditor for property sold and not applied on the judgment.' 1. Walker v. Heller, 104 Ind. 327 (3 4. Taylor v. Sindall, 34 Md. 38, 40. N. E. R. 114). 5. Schattschneider v. Johnson, 39 2. Wilson V. Craige, 113 N.C. 463 (18 Wis. 387. S. E. R. 715). 6. State v. Evans, 74 N. C. 324. 3. Hawk V. Evans, 76 Iowa 593 (41 7. Moore v. Garner, 109 N. C. 157 N. W. R. 368). (13S. E. R. 768). 100 PRINCIPLES, ANALOGIES, ETC. The denial of a motion for leave to issue execution on a dormant judgment bars a renewal of the motion.^ So, the de- nial of a motion to quash a writ because levied on the home- stead is res judicata in regard to the homestead.^ And an order overruling a motion to quash an execution bars another motion upon new grounds which, with diligence, might have been discovered and used on the first. ^ So, a ruling sus- taining a motion to quash an execution bars the consideration of the same question on a motion to quash a new one.* If a writ of attachment is issued upon the ground that the defendant has transferred his property with intent to defraud his creditors, an order vacating the writ upon motion of the defendant is no bar to a suit to set aside the conveyance upon the same ground.® If an execution is issued against a person as " replevin bail," and he files a motion to set aside and quash it upon the ground that he never became replevin bail, the denial of his motion will bar a new one for the same purpose.® Exemption. — The overruling of a motion to discharge prop- erty seized on a writ of attachment on the ground of exemp- tion, is no bar to an action of replevin to recover it from the purchaser,' or to an action against the sheriff for its conver- sion.® A county having supported a lunatic, and having pro- cured a rule to issue against a township to show cause why it should not pay the expense, a discharge of the rule, after a hearing, bars a new rule for the same purpose. ^ 1. Sanderson v. Daily, 83 N. C. 67. 7. Watson v. Jackson, 24 Kan. 442 2. Phillips V. Queen, (Ky.) 3 S. W. — ruling on the motion made by a R. 146. justice of the peace. 3. National Bank?;. Hansee, 15 Abb. 8. State, use of Snider, v. Bierwirth, New Cases 488, 492. 47 Mo. App. 551, 553. 4. Johnson v. Latta, 84 Mo. 139. 9. Armstrong County v. Plum Creek 5. Miami County National Bank v. Township, 158 Pa. St. 92 (27 Atl. R. Barkalow, 53 Kan. 68 (35 Pac. R. 842). 796). 6. Parker v. Obenchain, — Ind. — (39 N. E. R. 869). SPECIAL MATTERS. 101 § 17. Motions — Injunctions dissolved or refused. — If a suit is brought to enjoin tlie issuing of city bonds and a temporary- restraining order is granted, an order dissolving this restrain- ing order, on the merits, without a final dismissal of the bill, bars a new suit to restrain the levy of taxes to 'paj the bonds, if all the grounds for issuing the injunction in the second suit were equally available against dissolving it in the first.' So, if an application for an injunction is refused, and this refusal affirmed on appeal, that is a bar to a new application upon the same facts, although supported by further and fuller evidence.^ And if a suit is brought to enforce a specific per- formance of a clause in a contract, and the answer is that the clause is not binding, and the plaintiff asks for an injunction in aid of the suit, which, after a hearing, is denied because the clause is not binding, from which ruling the law allows an ap- peal, the issue so decided is res judicata in any other suit be- tween the parties.^ § 18. Motions — New trials. — The denial of a motion for a new trial at law bars the granting of that relief for the same causes, either in equity* or in the same court. ^ Reformation of deed. — A sold land to B, but by a mistake one tract was omitted from the conveyance. Afterward, A be- coming bankrupt, his assignee sold this tract to C, and B ap- peared and moved to set aside the sale, which was denied, and a deed was ordered and made. B having brought a suit to re- form his deed and to enjoin C from claiming title, the order de- nying his motion to set aside the sale was held to be no defense, because the questions were different, and also because the pro- ceeding in the bankrupt court was not an appropriate one to reform a deed and to settle title.® Set-off of judgments. — The denial of a motion to set off one 1. Gallaher v. City of Moundsville, Telegraph Co., 31 N. Y. Supplement 34 W. Va. 730 (26 Am. St. R. 942; 12 213 (81 Hun 453). S. E. R. 859). 4. Davis v. Bass, 4 Ind. 313. 2. Jones v. Thome, 80 N. C. 72, 74. 5. Rogers v. Hoenig, 46 Wis. 361. 3. New York and N. J. Telephone 6. Davis v. Kennedy, 105 111. 300, Co. ■». Metropolitan Telephone and 306. 102 PRINCIPLES, ANALOGIES, ETC. judgment against another, although proper practice, is no de- fense to an action to compel that to be done/ Setting aside assessment. — A denial of one motion to va- cate an assessment precludes a new one, even upon different grounds.^ § 19. Motions — Setting aside Judgments. — An order denying a motion to set aside a judgment bars a new motion for the same purpose.^ So, the denial of a motion to set aside a judgment because obtained by irregular practice is a bar to a new one to set it aside because of a fraudulent advantage taken in entering it up, because the law does not tolerate successive proceedings to accomplish the same result upon newly assigned reasons.* An order overruling a motion by defendant to set aside a judgment by default, on account of excusable neglect in failing to appear, was decided to be no bar to a suit to set it aside be- cause the plantiff fraudulently induced him to remain absent by promising to dismiss the case, although these matters were known to him when his motion was filed, because the material issues were different. What he wanted to do was to set aside the default. Why he should be allowed to bring forth his causes by piecemeal, I can not understand, and think the case is unsound. * On a motion to vacate a satisfaction of a judg- ment, an order denying it upon the ground that the judgment belongs to the plaintiff's attorney is conclusive.® To a com- plaint seeking to have it adjudged that a judgment had been satisfied, an answer that the matters alleged in the complaint were pleaded in answer to a motion for leave to issue execution on the judgment, and determined in favor of the present defend- ant, is good.' If the defendant presents a petition to open a judgment entered on a note upon the ground that it was given for an engine sold with a warranty of which there had been a 1. Pignolet V. Geer, 19 Abb. Pr. 264. 5. Overton v. Rogers, 99 Ind. 595, 2. Matter of Bernheimer, 47 Hun (54 598. N. Y. Supreme) 567. 6. Kaufman v. Keenan, 2 N. Y. 3. Kabe v. The Vessel " Eagle," 25 Supplement 395. Wis. 108. 7. Eeeves v. Plough, 46 Ind. 350. 4. Mabry v. Henry, 83 N. C. 298, 300. SPECIAL MATTERS. 103 breach, and a rule to show cause is entered and proceedings on the judgment stayed, the discharge of the rule bars a suit by the defendants for the same breach of warranty.^ A person purchased an engine, and, to secure the price, he and his wife executed a mortgage on her land, and also a bond containing a power of attorney authorizing a confession of judgment. A judgment having been entered upon this bond, the husband presented a petition to the court to strike it off or open it, upon the ground of want of consideration and fraud. The court struck it off as to the wife, but refused to do so as to the husband. In a suit to foreclose the mortgage, it was held that this action of the court on the petition to strike off barred the husband from showing a want of consideration or fraud, because the questions were adjudicated as to him, and that it also barred the wife because her name on the bond was unnecessary, and if it was good the mortgage was necessarily valid. ^ An order overruling a motion to set aside a default precludes a suit for the same purpose.^ A judgment being rendered upon default in one state, the denial of a motion to vacate it bars the use of the same mat- ters as a defense to a suit on the judgment in another state.* § 20. Motions — Setting aside sales. — An order denying a motion to set aside the confirmation of a sale, affirmed on appeal,^ or an order granting a motion to set aside a sale, reversed on appeal,® bars another motion on new evidence known at the time of the first hearing. So, a denial of a motion made by the owner of land to vacate a sale upon execu- tion for irregularities, estops him from raising the same or similar objections in an action against him by the purchaser to recover possession.^ A person purchased land at a master's sale, but did not pay for it. The plaintiff having procured a confirmation of the 1. Himes v. Kiehl, 154 Pa. St. 190 4. Poorman v. Mitchell, 48 Mo. 45. (25 Atl. R. 632). 5. Hill v. Hoover, 9 Wis. 15. 2. Heilman v. Kroh, 155 Pa. St. 1 (25 6. Pierce v. Kneeland, 9 Wis. 23. Atl. R. 751). 7. Austin v.Walker, 61 Iowa 158 (16 3. White V. Watts, 18 Iowa 74, 78. N. W. R. 65). 104 PRINCIPLES, ANALOGIES, ETC. sale in his absence, he appeared and moved to set it aside, which was denied. The bid having been assigned to the plain- tiff, who brought suit upon it, the order denying the motion to set aside the confirmation concluded any defense.* As an order denying a motion to set aside a sheriff 's sale of property alleged to be exempt as a homestead affects a sub- stantial right in Nebraska, and is appealable, it is res judicata.' § 21. Motions — SheriS proceeded against, by. — If the judg- ment plaintiff makes a motion to have money in the hands of the sheriff applied on his judgment, a denial on the merits bars an action against the, sheriff to recover it/ So, if the proceeds of goods sold on attachment are in the hands of the sheriff, an order, made on the motion of a third person, to pay them to him as a lienor, is a bar to a suit against the sheriff by the plaintiff for them.* But if a sheriff collects money of a tenant, which the landlord, a stranger to the case, claims, and proceeds against the sheriff on a summary application to re- cover it, the denial of the motion on the merits is no defense to an action against the sheriff.' Summons restored. — A judgment was rendered, land was sold, and a sheriff's deed executed, in a case in which the summons was lost. The defendant filed a motion to restore that paper, and gave a copy of the one he claimed was served, and the plaintiff opposed, but the court granted the defendant's request. As this restored summons appeared void on its face, it was held to be conclusive in defendant's favor, in a suit in equity by him to cancel the sheriff's deed as a cloud on his title.' Indian cases — Execution proceedings. — Chand on Res Judicata, sections 296 and 297, says : ''296. Reference has been 1. Mayer v. Wick, 15 O. St. 548. 4. Governors. Bancroft, 16 Ala. 605, 2. Spitley v. Frost, 15 Fed. R. 299, 609. 305. 5. Acker v. Ledyard, 8 Barb. 514, 3. Langdon v. Eaiford, 20 Ala. 532, 518^a dictum. 639. Accord, State, ex rel. Kansas 6. Culver v. Phelps, 130 111. 217 (22 City National Bank, v. Boothe, 68 N. E. R. 809). Mo. 546, 552. SPECIAL MATTERS. 105 made in Chapter 11^ to a principle analogous to that of res judi- cata, under which a decision in a prior stage of a civil suit or other proceeding in regard to any point is held to be a bar to a fresh decision on that point in all the subsequent stages of that suit or proceeding. The principle has most often come into application in execution proceedings. The leading de- cision on the subject is that of Mungul Pershad Dichit v. Grija Kant Lahiri/ in which an order of the attachment of the judg- ment-debtor's property, on an application for the execution of a decree, was held to bar the contention in a subsequent stage of the execution proceedings that the application was barred by limitation law, and on that account could not revive the period of limitation for a subsequent application. Sir Barnes Peacock, in delivering the decision of their lordships of the privy council, said : * The subordinate judge had jurisdic- tion upon the petition of the 8th October, 1874, to determine whether the decree was barred on the 8th October, 1871, and he made an order that an attachment should issue. He, whether right or wrong, must be considered to have determined that it was not barred. A judge, in a suit upon a cause of ac- tion, is bound to dismiss the suit, or to decree for the defendant, if it appears that the cause of action is barred by limitation. But if, instead of dismissing the suit, he decrees for the plaintiff, his decree is valid, unless reversed upon appeal ; and the de- fendant can not, upon an application to execute the decree, set up as an answer that the cause of action was barred by limitation.' ' ' This decision has been followed repeatedly at their lord- ships' board, as well as by the high courts in India. Thus, in Ram Kirpal v. Rup Kuari,' a district judge decided that a certain decree he was executing had awarded future mesne profits, and the decision was not appealed against ; and their lordships of the privy council held that no court could after that decide that the decree had not awarded future mesne profits. Sir Barnes Peacock, in delivering their lordships' 1. See supra, page 90. 3. L. R. 11 Indian Appeals 37. 2. L. R. 8 Indian Appeals, 123. 106 PRINCIPLES, ANALOGIES, ETC. judgment, said : ' It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution.' On the same principle their lordships, in Beni Ram v. Nanhu Mal,^ held that an order to the effect that the amount of a decree was, under the terms of the decree, payable with interest, would bar the raising of the same question as to the interest in subsequent execution proceedings. " In India, the case of Bandey Karim v. Romesh Chunder^ was the exact converse of the leading decision, and Field, J., in delivering the judgment of the Calcutta high court, after referring to it, said : ' By the same course of reasoning, inas- much as the subordinate judge decided on the 5th of March, 1881, that the decree was then barred by limitation, and as that order has become final, the decree-holder can not now, upon the application of the 7th of April, 1881, be heard to say that it is not thus barred.' The facts of the case of Manjunath V. Venkatesh^ were similar to those of the above case, and the Bombay high court held that a decision, as to a cer- tain application for execution being barred by limitation, would preclude a plea in the subsequent stages of the execution proceedings as to that application not having been so barred. Mr. Justice Melville, in delivering the judgment of the high court, after observing that the leading decision would alter the contrary practice that had prevailed before,* said : ' This (privy council) judgment goes no further than to ascribe the effect of res judicata to a decision, whether express or implied, that an application is not time-barred. But it seems to be a necessary conclusion that the same effect must be given to a decision that an application is time-barred. If a decision be valid and binding, although it may be erroneous, in case it is given in favor of one party, it can not be less so if it is 1. L. R. 11 Indian Appeals 181. i- Vide Gopal v. Ganeshdas, 8 Bom- 2. Indian L. R. 9 Calcutta 65. bay H. C. R. A. C. J. 97. 3. Indian L. R. 6 Bombay 54. SPECIAL MATTERS. 107 in favor of the other party. * * * * n appears to us that it would be anomalous, and, we may add, inconvenient and unjust, if a judgment-creditor, whose decree had been declared by a subordinate, but competent, court to be time-barred, and who had acquiesced in that decision, or had failed to get it reversed on appeal, were to be allowed to go again to the subordinate court with another application for execution, and ask that court to determine that the previous decision, though perhaps confirmed by the high court or privy council, was erroneous and of no effect.' In Chathappan v. Pydel,^ the Madras high court held that a decision in prior execution pro- ceedings as to certain property of the judgment-debtor's family being liable to attachment and sale in execution of a decree against the judgment-debtor, was res judicata in regard also to the attachment of the other property of that same family in execution of that same decree. So also, in Sher Singh v. Daya Ram,^ in which an application for execution, though barred by section 573 of the civil procedure code, had been proceeded with, the high court held that the principle of their lordships' decision prohibited the court ' from going behind a formal ap- plication admitted by a court executing a decree in which a notice had been issued to the judgment-debtor, and proceedings from time to time have been taken thereunder in execution of that decree.' Similarly in Kishan Sahai v. Aladad Khan^, a decision against a person who had been impleaded in the ap- peal, and therefore remained a party to the suit on remand, was held binding on him in execution proceedings, even though he had not made his defense properly. The Punjab chief court also, in Fakir Baksh v. Mayadliari,* held that an order releasing certain property from attachment in execution of a decree, on the ground of its not having been liable to attachment, would bar a fresh attachment of the same property in execution of the same decree. " The decision of their lordships of the privy council in Delhi and London Bank v. Orchard,* is really not against that view, 1. Indian L. E. 15 Madras 403. 4. 1888 Punjab R. No. 4. 2. Indian L. R. 13 Allahabad 564. 5. L. R. 4 Indian Appeals 127. 3. Indian L. R. 14 Allahabad 64. 108 PRINCIPLES, ANALOGIES, ETC. as it was simply to the effect, that an order sending an applica- tion for execution of a decree to the record room on the ground of non-receipt of the commissioner's sanction, which was re- quired under a local law, was not an adjudication with- in the rule of res judicata, or within section 2 of act 8 of 1859. And this was the view taken of their lordships' decision by the Bombay high court in Manjunath v. Venkatesh Govind,^ in which Melville, J., in delivering the judgment of the court, said that, * the order was not in the nature of an adjudication at all, and that the description of it in the head-note to the re- port in the Indian appeals, and still more the description in the head-note to the Calcutta report, is incorrect, and gives an erroneous idea of the meaning of the judicial committee's ob- servation. The deputy commissioner did not, in fact, decide that the application was time-barred, nor did he decide any- thing. ***** "We do not think that the question, whether a decision that an application is time-barred is res judicata, is in any way concluded by the observation of the privy council in the Delhi and London Bank v. Orchard.' To some extent, the Calcutta high court also held the same in Hurrosoondary v. .Jugobundhoo;^ in which case White, J., in deliveringthe judg- ment of the court, after referring to their lordships' decision, said : ' The precise ground upon which their lordships' decision proceeded is not stated. Possibly, it may have been that the re- fusal of the application was not to be considered as an adjudication on the point. But whatever their reasons may be, the case is a clear authority, that the application which the appellants made ( for recovering property of which possession had been transferred under a decree since reversed) on the 23d of May, 1879, is not barred by the refusal of their previous applications, which refusal was not based on the merits of the order. This de- cision, however, is not an authority for the general proposition that the law of res judicata does not apply to proceedings in execution of decree ; because the learned judge distinguished a previous case on appeal from appellate order No. 169, of 1888, in which he and Mitter, J., had held "that a question decided 1. Indian L. E. 6 Bombay 54. 2. Indian L. R. 6 Calcutta 203 SPECIAL MATTERS. 109 in the course of prior execution proceedings was deemed res judicata, and could not be raised again in subsequent proceed- ings." But that was a very different case from the present. There the question was as to the construction of a decree ; it was raised by the judgment-debtor a second time after it had, on a previous application for execution, been decided in favor of the judgment-creditor, and after the judgment-debtor had pre- ferred an appeal against the decision, but had not thought fit to prosecute it.' Nor is the decision in Sheik Budan v. Ram- chandra^ against that proposition, as it turned on the point decided not having been controverted in the former proceedings. West, J., thus said in that case that, ' after execution had been had against the mortgaged property, the judgment-debtor was called on to show cause why, though more than one year had elapsed since the last preceding step in the execution, the execution should not be further proceeded with. The applica- tion had, in fact, been made for execution against the person of the judgment-debtor, but the notice gave him no intimation of this. He had no reason to suppose that the application went beyond the terms of the decree. He did not appear, and, in his absence, an order was made for execution against his per- son, but it was not executed, because the judgment-creditor failed to pay the requisite fee. Such an order, prima facie only of an executive character, could not possibly have the effect of res judicata, unless the judgment-debtor being called on to dis- pute, if he wished or if he could, a certain proposition of right and consequential demand of relief or action by the judgment- creditor, had then either failed in his contention to the con- trary, or, at any rate, allowed the judgment to go by default. The order made by the subordinate judge was res judicata as to the legal possibility of further execution in terms of the de- cree, but not as to the special construction which the judgment- creditor sought to impose on it.' "297. Appellate PROCEEDINGS. — The same principle is appli- cable to proceedings in appeal. Thus, Mr. Herman observes, 'If a suit is remanded on appeal for a fresh decision, a 1. Indian L. R. 11 Bombay 537. 110 PRINCIPLES, ANALOGIES, ETC. second appeal brings up for consideration nothing but the proceedings subsequent to the reversal. None of the questions decided on the first appeal can be reheard or reexamined upon the second appeal.'^ If an appellate court has ever so errone- ously decided that it has jurisdiction of a cause, the parties to the cause are bound as res judicata by the decision as to the jurisdiction f and thus even when the court decides on merits only, because the appellate court in so deciding must have held that it had jurisdiction not only of the cause, but also of the parties.^ Mr. Hawes, in his work on jurisdiction, says : 'After appeal whatever was before the appellate court and disposed of is finally settled, the inferior court is bound by the decree as the law of the case, and must carry it into execution according to its mandate. * * * On a subsequent appeal nothing is brought up but the proceedings subsequent to the mandate.'* It has often been held by the American courts that the law as decided upon any appeal must be applied in all the subsequent steps of the suit.* " The Indian courts have also taken the same view. Thus in Ram Lai v. Chliab Nath,^ Sir John Edge and Brodhurst, JJ., held that a finding on an appeal by a defendant as to the plain- tiff 's title would be res judicata in the disposal of an appeal from the decision by the plaintiff which came to be heard later. Their lordships of the privy council also, speaking of the ef- fect of a prior order of remand passed ex parte by them, said in Juggodumba Dossee v. Tarakant' that ' it must stand as if all the arguments which the respondents, if present, could have raised upon the case, had been addressed to them.' " § 22. Mutuality. — It is a general rule, with some exceptions however, that a judgment must bind persons having adverse 1. Herm. Comm, 117. 5. Chouteau v. Gibson, 76 Mo. 38; 2. Herm. Comm. 119. Lucas?;. San Francisco, 28 Cal. 591; 3. Renick v. Ludington, 20 W. Va. Sturgis v. Rogers, 26 Ind. 1. 511. 6. Indian L. R. 12 Allahabad 578. 4. Haw. Jur. 35. 7. 6 Calcutta L. R. 127. SPECIAL MATTERS. Ill interests mutually and equally or not at all.' The reason is a plain one, as it would not be just to allow one to come in and take the benefits of a litigation, the burdens of which he was in no danger of having cast upon him. Thus, in a suit to enjoin a railway company from using an easement, a judg- ment was rendered determining its value and providing that, upon payment, it should be conveyed to the company. This being optional with the company, and it having brought an action to condemn, it was held that the value of the easement as fixed in the former suit was not res judicata.^ Exceptions. — If two persons are liable upon the same cause of action, one primarily and the other secondarily, or if one is responsible over to the other, and the owner of the cause has an option to sue either one first, and sues the one primarily liable or responsible over, the other who is secondarily liable or indemnified may use the judgment in favor of the defendant in that suit to bar one against himself, although he is not bound by a judgment in favor of the plaintiff. The reason of this is also plain. The person indemnified, or secondarily liable, is not bound by the judgment in the case first supposed, because he is not a party. But if he could not use the judg- ment as a shield, he could compel the person responsible over to him to defend him, hence that person would be twice vexed upon one cause, which is contrary to fundamental principles. In Alabama, if the damages assessed in condemnation pro-' ceedings are not paid within six months, they cease to be binding on the owner of the land. Hence, he can not interpose them as a defense to new proceedings.* § 23. Object or purpose, diSerent. — If a wife begins two 1. Myers v. County of Johnson, 14 numerous, and are all in accord, but Iowa 47; McDonald v. Gregory, 41 they are cited to other points else- Iowa 513; Godnow r. Litchfield, 63 where. Iowa 275, 281 (19 N. W. R. 226); 2. In re Metropolitan Ey. Co., 58 Henry r. Woods, 77 Mo. 277; Chand- Hun (65 N. Y. Supr.) 563(12 N. Y. ler's Appeal, 100 Pa. St. 262; Stock- Suppl. 859). ton I'. Copeland, 30 TV. Va. 674 (5 S. 3. Alabama Midland Ry. Co. v. New- E. R. 143). The cases announcing ton, 94 Ala. 443 (10 S. R. 89). this abstract proposition are verj- 112 PRINCIPLES, ANALOGIES, ETC. suits against her husband, one to recover damages for an as- sault and battery, and the other to obtain a divorce on the ground of cruel treatment consisting of the same assault and battery, although the same transaction, proved by the same evi- dence, will be investigated in each case, yet as the object, pur- pose or relief sought is different, an adjudication in one can not be used in the other. In other words, the issues are different. And, though the evidence may clearly require a recovery for the assault and battery, it may fall short of proving that the act was so enormous or so violent as to amount to cruel treat- ment within the meaning of the divorce statute. An English chancery case declares that the defense of res judicata can not be sustained if the grounds of relief alleged in the two bills are different.^ But what the difference between the bills was, the case fails to show. Article 2265, Louisiana civil code, reads: "The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same ; the demand must be founded on the same cause of action ; the demand must be between the same parties, and formed by them against each other in the same quality." With this section in force, an executor sued another for the wrongful possession and unlawful administration of the prop- erty of the succession, and prayed that it might be returned. In that suit there was an adjudication that the defendant and the decedent were not commercial partners.^ Nevertheless, that was decided to be no bar to a new suit against the defendant, based on the theory that they were commercial partners. This decision was placed upon the ground that the object of the two suits was different within the meaning of the statute.^ It seems to me that the trouble with the first adjudication was, that it de- termined an immaterial issue, and that the court, in the sec- ond case, misapplied the statute. A and B, each having a judgment against C, entered into a 1. Hunter v. Stewart, 4 De Gex, F. 3. Slocum v. De Lizardi, 21 La. Ann. and J., 168. 355. Accord, that if the object is dif- 2. Canal Bank v. De Lizardi, 20 La. ferent there is no bar, is Edwards v. Ann. 285. Ballard, 14 La. Ann. 362. SPECIAL MATTERS. 113 contract concerning the application of his property upon their respective judgments. A difference having arisen between them in regard to the distribution of the proceeds of a tract of land sold on A's judgment, which was the prior lien, a feigned issue was made up to determine the question, and tried at law, in which it was adjudged that, by virtue of the contract, the proceeds should go to B. He afterward sued A for damages for breach of the contract, and the trial court held, as a matter of law, that the record in the former case was a bar ; but the su- preme court decided that, as the former action involved but one issue, namely, whether or not B was entitled to a particular fund by virtue of the contract, the general question of A's lia- bility was not necessarily involved in that suit, although the same witnesses were called, and the same evidence, oral and written, was given in both suits ; and that, therefore, the iden- tity of the issues was a question of fact for the jury.* Opposite rulings in same case. — If a court has two judges, and judge A overrules a demurrer to the complaint, and gives leave to answer which is done, and the case is tried before judge B who refuses to allow the plaintiff to introduce any evidence because the complaint states no cause of action, this is error because one judge must respect the ruling of the other until set aside for cause shown. ^ Reversed judgment. — A judgment which has been in all things reversed is no longer a former adjudication.* § 24. Right of property, trial of. — A judgment of con- demnation, in a proceeding to try the right of property levied upon in Alabama, bars a new suit in respect to the right to make the levy.* So, if an attachment is levied on property in that state, and a stranger brings such a proceeding for it and is successful, the judgment bars the plaintiff in attachment 1. Howe u. First National Bank (Pa. 435; Atkison v. Dixon, 96 Mo. 582 St.) 1 Atl. R. 787. (10 S. W. R. 163). 2. Marvin r. Weider, 31 Neb. 774 4. Hardy v. Gascoignes,6 Porter 447, (48N. W. R. 825). 453. 3. Clodfelter v. Hulett, 92 Ind. 426, 8 114 PRINCIPLES, ANALOGUES, ETC. from showing, in a new suit by the claimant for damages, that the attachment defendant had an interest in the property.^ But in Illinois, a trial of the right of property levied upon by an officer concludes nothing.^ And in Kansas, it is held that, as the object of such proceedings before a justice of the peace is to protect the constable and not to adjudicate the rights of the parties, they are not concluded by the judgment.* But in Nebraska, one having brought an action to try the right to property seized by an officer, a judgment against him on the merits bars an action of replevin by him against the officer.* § 25. Set-ofi. — A judgment rendered upon an account,* or a note,® bars its use as a set-off. In a suit to cancel a mortgage upon a slave on the ground that his use had paid the debt, it is a defense that, in an action at law upon the note, the use of the slave had been filed as a set-off and allowed, and a judg- ment rendered upon the note.'' If a claim is defeated, it can not be used as a set-off.* So, using a claim as a set-off;^ or an adverse adjudication upon it in case it is so used;" or a ver- dict and judgment against one over his plea of set-off;" or a judgment refusing to allow a set-off because of the operation of the statute of limitations,^^ bars an action upon it. Of course, the correct rejection of a set-off for want of mutuality, is no defense to an action upon it." Set-off of claim against a judgment. — A company insured a building against loss by fire and took premium notes. The building was burned and the insured recovered a judgment 1. Roberts v. Heim, 27 Ala. 678. Mass.) 247, 252; Stevens v. Miller, 13 2. Whitaker v. Wheeler, 44 111. 440. Gray (79 Mass.) 283. 3. Dilley v. McGregor, 24 Kan. 361 ; 9. Sargent v. Fitzpatrick, 4 Gray (70 Graves v. Butcher, 24 Kan. 291. Mass.) 511. 4. Bray v. Saaman, 13 Neb. 518 (14 10. Rogers v. Rogers, 1 Daly 194. N. W. R. 474). 11. Eastmure v. Laws, 5 Bing. New 5. Nave v. Wilson, 33 Ind. 294. See Cases 444 (35 E. C. L. 241). §§ 214 and 300, infra. 12. Weeks v. Harriman, 65 N. H. 91 6. Standifer v. Bush, 8 Sm. and M. (23 Am. St. R. 21; 18 Atl. R. 87) — (16 Miss.) 383. the action on the set-off was brouglit 7. Houston V. Royston, 1 Sm. and in another state. M. (9 Miss.) 238. 13. Beebev. Bull, 12 Wend. 504 (27 8. Jones v. Richardson, 5 Mete. (46 Am. D. 150) — a rejection by referees. SPECIAL MATTEKS. 115 on the policy. The company afterwards filed a petition to set off certain assessments on the notes against the judgment, but this was denied. It subsequently brought a suit upon the as- sessments, and it was decided that the refusal of relief on the petition for a set-off was no bar, because a " set-off against a judg- ment is not of right, but of grace, and is only granted in case a special equity is shown to justify it.'" Summary proceedings by landlord. — A sued B in Penn- sylvania before a justice of the peace to recover the possession of land upon an alleged demise, but after a trial the justice found " that no demise was made, the relation of landlord and tenant not established," and rendered judgment for B. After- wards A sued B again upon the same alleged demise before an- other justice, and the case having been carried to the court of common pleas, it decided that the first judgment was no bar. The supreme court said :^ "If the ruling complained of be correct, there is nothing to prevent an unsuccessful landlord from instituting as many successive proceedings, for the same cause, against his alleged tenant, as he can find justices of the peace in the county. Such a thing would certainly be an anomaly in our system of juris- prudence, the underlying principle of which is that no one shall be twice vexed for the same cause. The well-nigh universal rule is, that the judgment of a court of competent jurisdic- tion, whether it be a court of record or not, upon a point liti- gated between the parties, is conclusive in all subsequent con- troversies directly involving the same question. The only excep- tion to this rule that is now recalled is the action of ejectment, on a legal title, in which successive suits may be brought and prosecuted until two concurring verdicts and judgments are obtained. In this case the justice before whom the first pro- ceeding was commenced heard the testimony, and found as a fact that there was no demise ; that the relation of landlord and tenant did not exist; and he therefore entered judgment for the 1. Thropp V. Susquehanna Mutual 2. Marsteller v. Marsteller, 132 Pa. Fire Ins. Co., 125 Pa. St. 427 (17 Atl. St. 517 (19 Atl. R. 344). See §10, R. 473) . page 92, svpra. 116 PRINCIPLES, ANALOGIES, ETC. defendant, and dismissed the complaint at the plaintiff 's cost. That judgment, predicated, as it was, on the facts found by the justice, went to the very root of the controversy, and is final and conclusive on both parties until legally set aside or re- versed. On general principles, there is no reason why it should not be so. It makes no difference whether that adjudi- cation was in a proceeding according to the course of the com- mon law, or summary in its character. It is quite enough, that the question in controversy was submitted to a judicial officer, to be determined in a judicial way; that parties and their proofs were heard, and their rights settled by a judicial determination. If, in any such determination, error inter- venes, it must be corrected in an orderly way, if any is pro- vided ; if not, the judgment must be accepted as a finality. The only authorities we have been referred to, as sustaining the ruling of the court below, are Ayres v. Novinger,^ 8 Pa. St. 414, and Jack. & G. Landl. & Ten. 299. What was said by the learned judge in the first of these appears to be mere obiter dictum, in relation to a matter that was not involved in the case then before the court, and no authority is cited in support of the doctrine there asserted. The principle stated by the text-writers is evidently traceable to the dictum found in Ayres V. Novinger, and can add no weight thereto." § 26. Witnesses, competent in one suit, and incompetent in the other. — As to whether or not the fact that a witness is com- petent to testify in one case, and not in another, destroys the right to use the judgment in one as res judicata in the other, the cases differ. Thus, it is held in New Jersey, that a decree in equity is a defense to an action at law, although the party defeated in equity was not a competent witness there, but is in the action at law.^ So, in Massachusetts, A having sued B for the board of his wife, upon the ground that she was justified in leaving him on account of his cruelty, a verdict and judgment that she was " living separate from her husband without his consent and without any justifiable cause," is conclusive on 1. Ayres v. Novinger, 8 Pa. St. 414. 2. Putnam v. Clark, 34 N. J. Eq. 632. See §592, page 1198, wfra. SPECIAL MATTERS. 117 . that question in a subsequent suit between A and B, although the wife was not a competent witness on the first trial, but is on the second.* But in Georgia a different view is maintained. Thus, a woman having brought an action for the conversion of her property, it was decided that a former judgment against her father, who was acting as her trustee on account of her mi- nority, was no bar, because, in that case, her mother's testi- mony was not admissible, " whereas, in the present suit, the testimony of the mother is competent, and, if credible, is con- clusive. If there were nothing else wanting, then, the same evidence will not support both of those actions, and therefore the former recovery is no bar."^ It seems to me that both jus- tice and good sense are with the Georgia case. That one with a just cause is defeated, because an inflexible rule of law shuts out his evidence, is a misfortune which he must bear for the general good. But if his adversary attempts to use this ad- judication to bar out his evidence in another cause in which the law permits him to introduce it, a question for judicial con- struction is raised. It is a well settled rule, that if the same evidence will not support two causes, a judgment upon one will not bar a suit upon the other; and in the case under consider- ation the supreme court of Georgia construed this rule so as to include a case in which the law would not permit the party to use the same evidence in both cases, and thus worked out jus- tice ; while on the contrary, the supreme courts of Massachu- setts and New Jersey construed the rule differently and thus worked out injustice. It seems to me that sound public policy requires the courts to inake all their constructions in favor of justice, and hence I think the Georgia case sound and the others unsound. A case in a New York superior court was this : A, having a claim against B for moneys paid, assigned it to C, who sued B upon it. B, having a note executed by A before the assignment, pleaded it by way of set-off. C's answer to the set-off was, that the note was executed without consideration. Upon the trial, 1. Burlen v. Shannon, 115 Mass. 438, 2. Lynch v. Jackson, 31 Ga. 668, 670. 446. / 118 PRINCIPLES, ANALOGIES, ETC. by virtue of A's testimony, the set-off was defeated and C re- covered. B then sued A on the note, and it was held that the former adjudication was no bar because it was procured on the testimony of A.^ And in North Carolina, if the purchaser of a note from the payee sues the administrator of the maker, and upon the testi- mony of the payee recovers a judgment, this is no bar to a suit against the payee to recoyer the consideration paid upon the ground that the note was a forgery.^ 1. Brown v. Brown, 2 E. D. Smith 2. White v. Green, 5 Jones' Law 47. 153. CHAPTER III. FINAL JUDGMENTS. § 27. Final judgment only is 7-es judicata: (Verdicts and find- ings). Indian cases: {Ex parte decision may become final — Final though appealable) . 28. Final judgment — What is or is not : (Accounting — Accounts current — Appeals) . § 29. Final judgment— What is or is not, continued: (Costs — Cred- itors' suit — Motion for new trial— Order for decree— Party substituted — Plaintiff given leave to amend — Review, de- cree on, and exceptions filed — Trespass to try titles) . § 27. Final judo^meiit only is res Judicata. — " It is onlj^ a f,nal judgment upon the merits, whicli prevents further contest upon the same issue and becomes evidence in another action between the same parties or their privies."^ Hence, no inter- locutory decree,^ nor decree which is interlocutory in its nature though final in form,^ is a bar to further litigation. So, an in- terlocutory decree ascertaining the amount due a ward from his guardian, is no evidence against the ward in a new suit, if the first suit was dismissed before final decree.* Nor is the re- •port of a master in chancery evidence as an adjudication between the parties until judgment has been rendered upon it ;* and a judgment awarding to the mother the custody of a child, "tem- porarily," *'or for the present," is no bar to a change in the future.' Verdicts and findings. — No finding' nor verdict* will bar 1. Webb V. Buckelew, 82 N. Y. 555, 560. Accord, Brinkley v. Brinkley, 50 N. Y. 184, 202. In accord that it must be final, is Board of Education V. Fowler, 19 Cal. 11, and Aurora City V. West, 7 Wall. (74 U. S.) 82, 93. 2. Baugh V. Baugh, 4 Bibb (7 Ky.) 656; Thompson v. Mylne, 4 La. Ann. 206; Levy v. Wise, 15 La. Ann. 38; Whitman Mining Co. v. Baker, 3 Ne- vada 386, 393. (119) 3. McLane v. Spence, 11 Ala. 172, 183. 4. Capell V. Landano, 34 Ala. 135. 5. Nash V. Hunt, 116 Mass. 237, 249; Hunter v. Carroll, N. H. (29 Atl. R. 639) — a report of a referee. 6. Lemunier v. McCearly, 37 La. Ann. 133. 7. Estate of Holbert, 67 Cal. 267. 8. Gurnea v. Seeley, 66 111.500; Ru- dolph V. German Mutual Fire Ins. 120 FINAL JUDGMENTS. another suit until judgment is rendered upon it. The same is true in respect to a finding of facts with an order to enter a judgment/ or a verdict directed by a court of equity/ as long Co., 71 111. 190 — a verdict before a justice of the peace; Schurmeier v. Johnson, 10 Minn. 319, 322 ; Butler v. Stephens, Walker (1 Miss.) 219; Mc- Ready v. Rogers, 1 Neb. 124; In re Estate of Nakuapa, 3 Hawaiian 400; Gordon v. Robinson, 14 U. C. C. P. 566 ; Twohy v. Armstrong, 15 U. C. C. P. 269. ^ 1. Child V. Morgan, 51 Minn. 116 (52 N. W. R. 1127). The court said: " The evidence on the part of the de- fendants was insufficient to establish the liens asserted by them. This evi- dence consisted only of the pleadings in a former action, and the find- ings of the court on the trial, em- bracing the order for the entry of judgment in accordance with the conclusions of law expressed. That was an action prosecuted by this de- fendant Morgan against some or all of these defendants, with others, to foreclose mechanics' liens on this property. The findings of the court, thus introduced in evidence in this action, set forth the facts showing the existence of such liens, and as legal conclusions therefrom it was declared that the several lienors named were entitled to a judgment as therein specified, and it ordered that a judg- ment be entered accordingly. No judgment appears, however, to have been in fact entered. The findings of the court and order for judgment did not constitute a judgment, and were not intended as such. They did not finally determine, as a judgment does, the matters in issue. The entry of a formal judgment, which should constitute a final adjudication, was contemplated and directed; but no 6uch judgment was entered. These findings were as inconclusive as a verdict of a jury, which, without a judgment, has not the effect of an adjudication (Schurmeier v. John- son, 10 Minn. 319) (Gil. 250), and is not admissible in evidence (Pitton v. V. Walter, 1 Strange 162) ; and so of a report of a master in chancery (Nash V. Hunt, 116 Mass. 237). Judg- ment would not necessarily be en- tered on the findings and order, any more than on a verdict of a jury. A new trial might be awarded, and no judgment ever be entered. Under our statute appeals will lie from judg- ments and from orders involving the merits of the action, but, as has been often held, such findings of a court and orders for judgment are not ap- pealable, either as judgments or as orders involving or determining the merits of the action. (Von Glahn v. Sommer, 11 Minn. 203 (Gill. 132); Ryan v. Kranz, 25 Minn. 362, and cases cited; Shepard v. Pettit, 30 Minn. 119 ; 14 N. W. Rep. 511.) Since the findings and order did not consti- tute an adjudication in favor of the lien claimants, they were not compe- tent as evidence in this action to prove the liens asserted by them. (Auld V. Smith, 23 Kan. 65.) This was not, of course, primary evidence of the furnishing of materials or labor — of the facts from which liens arise — and, if not an adjudication of those facts between the parties hereto (or privies), we know of no rule of evi- dence which would permit proof of them to be made by presenting the inconclusive findings of the court in another cause." 2. Saylor v. Hicks, 36 Pa. St. 392, 394. FINAL JUDGMENTS. 121 as no judgment is actually entered. So, special findings of the jury, not confirmed by judgment nor involved in the gen- eral verdict,* and matters specially found by them upon the evidence, not within the issues and upon which no judgment was rendered,^ are not exempt from future litigation. Like- wise, a thing contained in the finding or verdict but not included in nor confirmed by the judgment, is not res judi- cata.^ So, if the jury, in answer to special questions, find cer- tain material issues for the plaintiff, and the court renders a judgment for the defendant for costs notwithstanding the ver- dict, those findings are not res judicata, because they have never been sanctioned by the court.* If a cause is submitted to a justice of the peace on the merits, his failure to render a judgment works a discontinu- ance and is no bar to a new suit.® Indian cases — Ex parte decision may become final. — In Chand on Res Judicata, sections 63 and 64, it is said: " 63. ExjDlanation 4 enacts that a decision is final, when the court making it can not alter or reconsider it, except on review. An exparte decision will, therefore, not be final, at least so long as an application may be made to set it aside.* That an ex parte decision can be altered on the application of the defendant, otherwise than on review, can not be doubted, as the word 'review' must, in this explanation, be understood to have the same sense in which it is used in part 8 of the civil procedure code ; and this will be, apparently, sufficient against its finality for the purposes of the rule of res judicata before the expiry of the period prescribed for an application for its alteration. In the case cited, Cunningham, J., said: * As the alleged execu- tion was held to be fraudulent, and no proceedings had been had which gave finality to the decree, we think that the lower appellate court was right in holding that, in the absence of any 1. Hawks V, Truesdell, 99 Mass. 557. 5. Young u. Rummell, 5 Hill 60, 2. Lorillard v. Clyde, 99 N. Y. 196 and 7 Hill 603. (1 N. E. R. 614). 6. Nil Money Singh v. Heera Lall 3. Auld V. Smith, 23 Kan. 65, 69. Dass, Indian L. R. 7 Calcutta 23. See 4. Whitney v. Bayer, — Mich. — page 11, sitp7-a. (59 N. W. R. 414). 122 FINAL JUDGMENTS. proof of execution, the defendant was not precluded by the ex- istence of the decree from contesting a question with which it dealt." In Bhugirath v. Ram Lochun,^ an ex parte decree was held not to be binding, the court expressly observing that it had not been stated that the ex parte decree had ever been executed so as to become final. In Modhusudun Shaha v. Brae,' a full bench of the high court expressly declined to ex- press an opinion as to ' whether an ex parte decree operates so as to render any question decided by the decree res judicata in the absence of proof that the decree was executed.' The full bench said, however, that ' neither a recital in the decree of the rate alleged by the plaintiff, nor a declaration in it as to the rate of rent which the court considers to have been proved, would operate in such a case so as to make that matter res judi- cata ; assuming, of course, that no such declarations were asked for in the plaint as part of the substantive relief claimed, the defendant having a proper opportunity of meeting the case. ' It was not considered in any of these cases whether a decision to be final for the rule of res judicata must not be so ab initio and per se, and not merely such as may become so after the lapse of an indefinite period and by the aid of another enactment. The courts appear to have tacitly adopted the latter view, as an ex parte decree has been treated as res judicata in numerous cases, without any question being raised as to its finality, and it may be presumed that it had, or was deemed to have, be- come final. " 64 . Final though appealable . — There has been , on general principles, a greater conflict in regard to the effect as res judi- l.The learned judge pointed out ing, for all purposes, as a decree in a that this decision was not in conflict contested suit. If it were not so, a with that in Birchunder Manickya v. defendant in a rent suit might always, Hurrish Chunder (Indian L. R. 3 by not appearing and allowing judg- Calcutta 383), the question in which ment to pass against him without re- related only to the value as evidence sistance, prevent the plaintiff from of an ex parte decree. Sir Richard ever obtaining a definitive judgment Garth, C. J., said in the judgment of as to what is the proper amount of a division bench in that case, "a de- rent due from him to his landlord." cree obtained ex parte is, in the ab- 2. Indian L. R. 8 Calcutta 275. sence of fraud or irregularity, as bind- 3. Indian L. R. 17 Calcutta 300. FINAL JUDGMENTS. 123 cata of a decision liable to appeal. Mr. Justice Holloway pointed out in his judgment in Kakarlapudi Suriyanarayana- razu. V. Chellamkuri/ that according to the English law,^ a judgment did not cease to be conclusive because an appeal was pending from it/ though the contrary was held by some con- tinental jurists.* Some of the American courts also have held that a decision is final until reversed, set aside or vacated/ and that the defendant, if sued again on the original cause of action during the pendency of the appeal, may plead a former re- covery in bar.® This view is opposed, however, to a settled course in decisions in which it is held that the pendency of an appeal suspends the operation of the judgment in regard to all its usual effects ; and the judgment, not being final while the appeal remains undetermined, can not be pleaded in bar in the interval nor used in evidence as an estoppel.' It has even been expressly held that an appeal vacates and annuls the judgment, and thereafter there is no existing judgment which will conclude the parties as a matter of evidence or which can be relied upon as a matter of estoppel.* " In British India the legislature has expressly enacted in ex- 1. 5 Madras H. C. R. 176. 3. Doe v. Wright, 10 A. & E. 763. 2. In Doe u. Wright, 10 A.&E. 763, 4. Unger Ost. Priv. Recht 2, 603; a writ of error from the judgment Sav. Sys. 6, 247 seq. ; Waihter 2, 549. pleaded as an estoppel was pending in 5. Vide Herm. Comm. 39,40,42; the House of Lords ; and Mr. Cresswell Elhs v. Clarke, 70 Am. Dec. 603 ; Tad- contended at the bar that "until ac- lock v. Eccles, 73 Am. Dec. 213; Nill tual reversal, the judgment is in full v. Comparet, 79 Am. Dec. 411 ; Faber force. If it be reversed, the plea of v. Hovey, 19 Am. Rep. 398 ; Scheible course becomes false, and the estoppel v. Slagle, 89 Ind. 323; Day v. Hol- fails ; but in the meantime the pos- land, 15 Ore. 464. sibility of reversal can not affect the 6. Cloud v. Wiley, 29 Ark. 80 present validity of the judgment." Thompson v. Giffin, 6 S. W. R. 410 The court of king's bench accepted Sage v. Harpending, 49 Barb. 166 that contention, Lord Denman, C. J., Burton v. Burton, 28 Ind. 342. observing that the authority cited by 7. Haynes v. Ordway, 52 N. H. Mr. Cresswell from the Year Book, 284; Ketchum v. Thatcher, 12 Mo. 18th ed. 4, f. 6, B pi. 33, is very direct App. 185 ; Byrne v.Prather,14 La. Ann. and satisfactory, and to this, and 653; Souter ?j. Baymore, 47 Am. Dec. other cases cited at the bar, may be 518; State v. Mclntire, 59 Am. Dec. added those of Taswell v. Stone (4 566. See page 126, iufra. Burr. 2454) and Benwell v. Black (3 8. Small v. Haskins, 26 Vt. 209. T. R. 643). 124 FIXAL JUDGMENTS. planation 4 that a decision liable to appeal may be final until the appeal is made. A full bench of the Allahabad high court, however, has held in Balkishan v. Kishanlal,' that the expla- nation is consistent with the view of the continental jurists, and that an appealable judgment is not definitive, but only provis- ional ; and not being final, can not operate as res judicata. Mr. Justice Mahmood (with whom Sir John Edge, C. J., and Straight, J., concurred) said in his decision in the case, 'so far as my knowledge of English law is concerned, the point now under consideration is not settled by any long course of de- cision in England or India. Nor has the legislature, in fram- ing explanation 4 of section 13, removed the doubt. As Mr. Justice Holloway has pointed out, the view of continental jurists is that judgments still liable to appeal and those that have actu- ally been appealed from, the appeal being still pending, can not operate as furnishing a basis for the rule of res judicata.' "The view generally taken by the Indian high courts is, how- ever, in favor of giving to an appealable decision the effect of res judicata till it is appealed against, when it ceases to be res judicata, and does not operate as such again unless it is adopted by, and thus becomes the decision of, the appellate court. Thus in Nilvaru v. Nilvaru,^ Mellville, J., in delivering the judgment of the Bombay high court, said that it clearly appeared from the explanation that, v/hen a judgment 'upon a particular issue is appealed against, that judgment ceases to be res judicata, and becomes res sub-judice ; and if the appellate court declines to decide that issue and disposes of the case on other grounds, the judgment of the first court upon that issue is no more a bar to a future suit than it would be if that judgment had been re- versed by the court of appeal, ****** ^nd that explanation introduces no new law, but merely states the law as it previously existed.' The Calcutta high court has held the same. In Gungabishen v. Roghoonath,' Mitter, J., in delivering the judgment of a division bench of that court, said : ' Supposing that there was a decision by the courts 1. Indian L. R. 11 Allahabad 148. 3. Indian L. R. 7 Calcutta 381. 2. Indian L. R. 6 Bombay 110. FINAL JUDGMENTS. 125 below in the previous suit on the question of title, it was not a final decision, as it was brought up in appeal before the high court, and that court, in dismissing the j^laintiff' s suit, decided that it was not necessary to go into the question of title, and based its decision entirely on the ground that the plaintiff had failed to prove his possession. That being so, the question of title is still open between the parties.' In Chunder Coomar-?;. Sib Sundari,^ Sir Richard Garth, C. J., in delivering the judg- ment of the court, said : * If the decision of a lower court is appealed to a superior tribunal, and that tribunal for any rea- son does not think fit to decide the matter, it is left an open question. We have held so here over and over again f and it is not because, in point of form, the appeal in the first suit was dismissed, that the decision of the munsiff can be considered as confirmed.' " § 28. Final Judgment — What is or is not. — If no further ac- tion of the court is required to dispose of the cause, it is final. ^ Accounting. — A decree sustaining a patent and ordering an accounting is not final, and will not preclude the defendant, in another suit, from showing the patent to be void.* If the beneficiaries under a will bring a suit against the ex- ecutors to have the estate administered by the court and the 1. Indian L. R. 8 Calcutta 631. ceed on appeal to trj- whether the 2. Jackson, J., for instance, in judgment of the principal Sudder Ramnath Roy v. Chunder Sekhur Ameen on that issue was correct or (4 W. R. 50), said: "It is true that not; and though it confirmed the final the principal Sudder Ameen did, in order of the principal Sudder Ameen, the former case, tr\' the issue which is it, by its judgment, virtually set aside now raised between the plaintiS's the judgment of the principal Sudder and Chunder Sekhur Roy's brothers. Ameen on the issue in question, not But this court, by its decision on ap- on the merits, but on the ground that peal, if not directly, at least imjiliedly, it was not one which arose in the ruled that, looking to the relief which suit. The plaintiff is, therefore, in the plaintiff then claimed, that issue my opinion, fully entitled now to a was not one which arose in that suit, decision on the merits on the issue." and which was not material to it, in- S.Smith v. Sahler, 1 Neb. 310. asmuch as, even if the plaintiff was 4. Rumford Chemical Works r. entitled to a decree upon it, he could Hecker, 2 Ban. & A. Pat. Cases, 351 ; not obtain the relief he sought for. Harmon v. Struthers, 48 Fed. R. 260. This court, accordingly, did not pro- 126 FINAL JUDGMENTS. further sales of land checked and regulated, and the transac- tions of the executors are settled, so far as they have gone, and the balance appearing upon their accounts decreed to the parties entitled to receive it ; and if the cause is then left oui the docket in order to regulate the future sales of real estate,.' the decree is not final so far as it has gone, and is no bar to a new suit to charge the executors with an account collected and overlooked in the former suit/ Accounts current. — The orders approving the current or partial reports of administrators^ and guardians^ are merely prima facie correct, and can be overhauled on final settlement. Appeals. — An appeal in admiralty and maritime causes suspends the judgment and prevents its use as evidence in another cause.* The pendency of an appeal from a judgment or decree does not suspend its force as res judicata in Alabama,' Arkansas,® Illinois,'' Indiana,* lowa,^ Texas and Wisconsin;" but in California, because the statute defines an action as pending until decided on appeal, it is held that a judgment is not final until it is decided on appeal, or, if no appeal is taken, until the time for doing so has expired." The same result follows I.Yates V. Wilson, 86 Va. 625 (10 10. Thompson v. Griffin, 69 Tex. 139 S. E. R. 976) . (Thompson v. Giffin, 6 S. W. R. 410) ; 2. In re Heath's Estate, 58 Iowa 36 Smith v. Schreiner, Wis. (66 N. W. R. (11 N. W. R. 723) and many other 160). cases. 11. Harris v. Barnhart, 97 Cal. 546 3. State, use of Lancaster, v. Jones, (32 Pac. R. 589) ; Naftzger v.. Gregg, 89Mo. 470 (1 S.W.R.355), andnum- 99 Cal. 83 (33 Pac. R. 757); In re erous others. Blythe's Estate, 99 Cal. 472 (34 Pac. 4. Souter v. Baymore, 7 Pa. (7 R. 108) ; Story v. Story Commercial Barr) 415. See page 123, supra. Co., 100 Cal. 41 (34 Pac. R. 675) ; 5. Cole V. Conolly, 16 Ala. 271. Brown v. Campbell, 100 Cal. 635 (35 6. Burgess w. Poole, 45 Ark. 373— an Pac. R. 433) ; Fresno Milling Co. v. appeal from a justice of the peace. Fresno Canal and Irrigation Co., 101 7. Moore v. Wilhams, 132 111. 589 Cal. 582 (36 Pac. R. 412) ; S. C, Rich- (24 N. E. R. 619)— an appeal from a ter v. Same; Sharon v. Hill, 26 Fed. decree in equity. R. 337, 346. Cook v. Rice, 91 Cal. 8.Nill V. Comparet, 16 Ind. 107, 664 (27 Pac. R. 1081), which held 109; Burton V. Burton, 28 Ind. 342. that a judgment was final and res 9. Poole V. Seney, 70 Iowa 275 (24 judicata if not appealed from, though N. W. R. 520 and 30 N. W. R. 634) the time for taking an appeal had not — time for appealing not expired. expired, seems to be overruled. FINAL JUDGMENTS. 127 in Missouri* and Texas* if an appeal is taken and a supersedeas bond given. § 29. Final Judgment, what is or is not, continued — Costs. — If a cause is submitted to tlie court on the pleadings,' or after a verdict* or finding® for the defendant, a judgment for him for costs, without saying that the plaintiff shall ''take nothing by his writ, and that the defendant go hence without day," is not final, and leaves the cause still pending. The same is true if the decree is simply that the defendant pay the complainant his costs.* Creditor's suit. — In a creditor's suit to reach assets fraud- ulently conveyed, if the court finds the amount due to A, and sets aside the conveyance and orders a sale and distribution of the proceeds, all of which are distributed to prior creditors, and renders no personal judgment in favor of A, his claim is not merged, and can be sued upon as a cause of action.' Motion for new trial. — A judgment is a bar, though a motion for a new trial is pending.* Order for decree. — An order for a decree, which has not yet been entered, is still sub judice and subject to control, and can not be used as res judicata.^ Party substituted. — During the pendency of a cause be- tween A and B, if C is substituted as plaintiff instead of A, and then dismisses the suit, the order permitting the substitu- tion does not bar A from suing again upon the demand, be- cause it was not a final judgment." Plaintiff given leave to amend. — If the record shows that a demurrer was sustained to a complaint, " and that said action be and the same is hereby dismissed, with costs to be taxed, unless the plaintiff amends his complaint within twent}^ 1. Ketchum v. Thatcher, 12 Mo. 6. Higbee v. Bowers, 9 Mo. 354. App. 185. 7. Cackley v. Smith, 47 Kan. 642 2. Maxwell v. First National Bank, (27 Am. St. R. 311 ; 28 Pac. R. 617). Tex. Civil App. (24 S. W. R. 848). 8. Young v. Brehe, 19 Nev. 379 (12 3. Sprick v. Washington County, 3 Pac. R. 564). Neb. 253. 9. Bouldin v. Phelps, 30 Fed. R. 547, 4. Nichols V. Hail, 5 Neb. 194. 578. 5. Lisle V. Rhea, 9 Mo. 172. 10. Hall v. Vanier, 7 Neb. 397. 128 FINAL JUDGMENTS. days," and that the complaint was not amended, and that no other or further judgment was rendered, this is no bar to a new action, because there is no final judgment.* Review, decree on, and exceptions filed. — The plaintiff having recovered a judgment for malpractice, and the defend- ant having brought a review, in which case the plaintiff recov- ered a verdict for a smaller sum, with which he was dissatisfied and filed exceptions, it was held that there was no final judg- ment which could be used as evidence in another suit.^ Trespass to try titles. — In trespass to try titles in Texas, a judgment that the plaintiff recover the premises, but with- holding the right to the possession until he pays for improve- ments made, is final so that it can be used as res judicata in favor of the plaintiff against a purchaser from defendant.^ 1. Bode V. New England Invest- 2. Haynes v. Ordway, 52N. H. 284. ment Co., 1 N. Dak. 121 (45 N. W. R. 3. Henderson v. Moss, 82 Tex. 69 197). See § 36, page 155, infra. (18 S. W. R. 655). TITLE II. THE MERITS IN CIVIL CAUSES. Scope of, A^'D principle involved in, title ii. . . . §§ 30-31 Chapter IV. — Abatements, nonsuits, etc. . . . .. 32-58 Chapter V. — Cause entire or divisible, or THE doctrine OF SPLITTING CIVIL CAUSES 59-158 Chapter VI. — Defenses omitted — What is or IS not a defense 159-206 Chapter VII. — Estoppels 207-215 Chapter VIII. — The issue — Contested or not contested 216-228 Chapter IX. — The issue — Immaterial, effect OF adjudication upon 229-251 Chapter X. — The issue — Plaintiffs, issues AND ADJUDICATIONS BETWEEN EACH OTHER 252-255 Chapter XI. — The issue — Defendants, issues AND ADJUDICATIONS BETWEEN EACH OTHER 256-271 Chapter XII. — The same issue — Determined by THE RECORD PRINCIPLES AND GENERAL MATTERS 272-279 Chapter XIII. — The same issue — Determined BY THE RECORD SPECIAL MAT- TERS ALPHABETICALLY ARRANGED 280-412 Chapter XIV. — The same issue — Determined by EXTRINSIC OR PAROL EVIDENCE . . 413-435 Chapter XV. — Remedy, election of 436-443 Chapter XVI. — Remedy, wrong 414—158 §30. Scope of , and principle involved §31. court: (Account rejected — in, this matter. Attorney's fees rejected — 31. Section 30 continued — Errors Breach of entire contract — of law or fact made by the Consideration fails — Dis- 9 " (129) 130 THE MERITS. § 31 . missal — Dower — Ejectment upon an equity — Equities re- jected — Federal court and State court — Fraud — Jurisdic- tion of justice of the peace — Law and equity — Partnership creditor — Pleadings bad — , Prior damages rejected— Pros- §31. pective damages rejected — Replevin — Sale of land in equity— Sequestration bond, damages on — Statute miscon- strued — Support — Trial unfair — Wife's necessaries — E x - ception,issues of law — Party's errors) . § 30. Scope of, and principle involved in, this title. — The scope of this title includes all kinds of civil judgments, whether rendered upon the pleadings, the evidence, or matters of prac- tice, either before or after a final submission ; and it includes all questions concerning errors, estoppels, the issues, laches, partial recoveries, and the splitting of causes or the omission of defenses. Principle. — Assuming that a judgment is final, that it was rendered by a competent judicial tribunal, not upon a matter collaterally or incidentally involved, and that it is between the same parties, or their respective privies, one question still re- mains in order to determine whether or not it is res judicata , namely: Was it rendered upon the merits ? If it was, it is res judicata, and if it was not, it is not.^ § 31. Section 30 continued. — Errors of law or fact made by the court. — If a record is pleaded, or offered in evidence, as res judicata, an objection based upon an error of law contained in it is a collateral attack,^ and can not succeed unless the judgment is void collaterally." This matter is necessarily con- 1. Paine v. State, 7 Blackford (Ind.) 206; Wade v. Howard, 8 Pick. (25 Mass.) 353; Tucker v. Rohrback, 13 Mich. 73; Gerrish v. Pratt, 6 Minn. 53, 60 ; Spradling v. Conway, 51 Mo. 51; Verhein v. Schultz, 57 Mo. 326; Brigham v. McDowell, 19 Neb. 407, 413 (27 N. W. R. 384) ; Van Vliet v. Olin, 1 Nev. 495; Matter of Spelman V. Terry, 74 N. Y. 448; Fowlkes v. State, 14 Lea (82 Tenn.) 14; Fosters. Wells, 4 Tex. 101 ; Weathered i?. Mays, 4 Tex. 387 ; Hassell v. Nutt, 14 Tex. 260, 265; Horton v. Hamilton, 20 Tex. 606, 611 ; Morrison v. Clark, 55 Tex. 437, 444; Level v. Hall, Cro. Jac. 284. 2. Van Fleet Coll. Att., § 3. 3. Phillips V. Lewis, 109 Ind. 62 (9 N. E. R. 395.) The court said: "In his reply, appellant said that tlie cause referred to in the answer was not a final determination, and was not a bar to his prosecution and recovery in this cause, because he admitted that he so commenced a SCOPE OF, AND PRINCIPLE INVOLVED IN. 131 sidered more or less throughout the entire work, but a few special cases are here given to illustrate the principle. Account rejected. — In an action to recover for sixteen years' services rendered to a decedent, a recovery for the last six years only, caused by an erroneous ruling of the court that the statutes of limitations barred a recovery for all before that time, will not authorize a new suit for the services so ruled out.* If an executor voluntarily pays a legacy in full, and is al- lowed credit for it in his accounting with the surrogate, he can not maintain a suit to have a part of it refunded, because of a mistake of fact.^ suit, in the court below, against Noble, to recover the assessment and pay for so constructing the ditch, to which suit Noble appeared, and an- swered by general denial; that, the cause being at issue, appellant de- manded a trial by jury, which was duly impaneled and sworn to try the cause ; that, after appellant had 'sub- mitted his evidence. Noble filed his demurrer to the evidence, and failed to make it a part of his demurrer, and asked that the cause be withdrawn from the jury, and submitted to the court; that in the demurrer appel- lant failed to join, nor did he consent, in any way, to the withdrawal of the cause from the jury ; and because the only judgment rendered in the suit was that plaintiffs therein should pay the costs. "It is very clear, we think, that the court committed no error in sustain- ing appellees' demurrer to the fore- going reply, because appellant makes a collateral attack upon the val- idity of the former adjudication, pleaded by appellees in bar of his present action. He has stated in his reply certain defects, irregularities, and, perhaps, errors, in the former adjudication, but of these there is not one which he could not have been re- lieved from by an appeal to this court, and none, certainly, which would render the adjudication abso- lutely void, wherein, as here, it is at- tacked collaterally. "In such a case, unless the former adjudication be shown to be void, it will constitute a good and complete defense in bar of any other suit for the same cause of action." 1. Friar v. Wilmot, 23 New Bruns- wick 546, 565. 2. In re Hodgman's Estate, 140 N. Y. 421 (35 N. E. R. 660). The court said: "It is suggested, however, that the unpaid debt found due from the Hodgman estate to the Hitchcock estate may compel an abatement of the appellant's legacy. I can not see any such possible danger. The surro- gate had jurisdiction, and it was his duty to make the final distribution. If for that purpose an abatement of legacies was necessary, the account should have shown it, the executor should have claimed it, and the decree should have so provided. The law does not recognize an overpay- ment, and does not permit the execu- tor to credit himself with the excess, for the inquiry always is what the 132 THE MERITS. Attorneys' fees rejected. — In an action on a bond given to indemnify a constable for levying on property, if the court erroneously rejects liis claim for counsel fees because he has not paid them, he can not sue to recover them after payment.' Breach of entire contract. — A sold grooving timber to B, for which he paid twenty-five dollars in cash and agreed to ex- ecute four notes due in three, six, nine and twelve months. Without having executed the notes, he proceeded to cut and carry away the timber, for which, after three months, A sued him, declaring upon the contract, the common counts, and upon a special count, alleging that B had not paid the several sums of money nor given the notes, as he had promised. The court instructed the jury that the action was brought to recover the value of the timber taken before it was commenced, and a verdict was returned accordingly, and judgment rendered upon it. B proceeded and cut and carried away all the tim- ber, and, after the expiration of twelve months, A sued him on the contract. But the court held that the first suit was not for the amount due upon the three months' note, but for the breach of the entire contract ; that he then had the right to recover the entire contract price, notwithstanding the errone- estate owes, and the surrogate has jurisdiction to decide that question. [In re Underhill, 117 N. Y. 471, 22 N. E. R. 1120). His decree, therefore, is conclusive upon all the parties duly cited (Code, §§ 2742, 2743), and set- tles that the allowances made to the accounting party in payment of lega- cies and others are correct. Here the Hitchcock estate credited itself with the full legacy paid to the widow. That was an admission of a sufficiency of assets for the purpose, made when all the facts were known, and a pay- ment which the surrogate, by its al- lowance to the executor, has adjudged to be correct, and therefore a debt which the estate was liable to pay in full. The decree will, as a conse- quence, be conclusive upon the execu- tor in that respect. If it be granted, as probably it must be, that an execu- tor may, at least in equity, recover an overpayment to a legatee, under pecu- liar circumstances which excuse his mistake (Walker v. Hill, 17 Mass. 380; Lupton v. Lupton, 2 Johns. Ch. 614; Gallego v. Attorney General, 3 Leigh, 450, 485, 486) , yet that can never be in a case wherein the executor not only paid the full amount voluntarily, but on an accounting claimed credit for it as a just and proper charge against the estate, and has been cred- ited with it as such in the final decree." 1. Bancroft v. Winspear, 44 Barb. 209, 216. SCOPE OF, AND PRINCIPLE INVOLVED IN. 133 ous instruction given to the jury, and that the first recovery was a bar.* Consideration fails. — If a person gives a note for a boat, and is compelled to pay an execution lien upon it, and is after- wards sued upon the note and pleads a total failure of consid- eration, a judgment for the full amount of the note bars an action by him to recover the amount of the execution lien ; and he can not show by parol that he proved the amount so paid in defense to the action on the note, and that the court instructed the jury to disregard it, because it only showed a partial failure of consideration.^ Dismissal. — A decree dismissing a bill on the merits, although erroneous;^ or leave erroneously given to the plaintiff to dismiss after an adverse finding,* is not void ; and the fonder is, and the latter is not, a bar to a new action. Dower. — Dower allowed out of notes, although erroneous, is not void, and is res judicata in a suit by the widow on the administrator's bond.® Ejectment upon an equity. — If one has a complete equity to land in Georgia, he can maintain ejectment upon it. And if he brings such an action, the supreme court of that state holds that his failure to recover because the court rejected the evidence which he offered to prove that defendant purchased with notice of his rights ( which was affirmed on appeal ) , is no bar to a suit in equity to recover the land, because " in the suit at law the question of this notice to him was expressly ex- cluded from the consideration of the jury. This appears of record. Of course, therefore, the title that depended on that notice could not have been adjudicated in that suit."* What the rejected evidence was is not shown more specifically than is above stated, and the case seems to me to be wrong. Equities rejected. — The Minnesota statute requires the 1. Alcott V. Hugus, 105 Pa. St. 350, cago Ry. Co. v. Wylie, 1 Ind. App. 354. 136 (27N. E. R. 122). 2. Crockett v. Routon, Dudley (Ga.) 5. Crowley v. Mellon, 52 Ark. 1, 11 254. S. W. R. 876. 3. Hodge V. Mitchell, 27 Miss. 560. 6. Jordan v. Faircloth, 27 Ga. 372, 4. Louisville, New Albany and Chi- 376. 134 THE MERITS. defendant to bring forward all equities, claims and demands in his favor which exist at the time of the commencement of the action or intervene before a final decision, and his failure to do so because the court wdll not allow it, does not authorize him to maintain a new action on any such matter, and he can not do so.* Federal court and state court. — If a state court, after hearing evidence on several material issues, decides all of them, a party can not be heard, in a federal court, to say that any issue was incorrectly decided.^ Fraud. — To an action on a note, the defendant proved that it was given for beef, and that the plaintiff had made false and fraudulent representations in regard to its quality and con- dition, know^ing them to be false, but the court instructed the jury that if these things were true they showed no partial failure of consideration, and there was a verdict and judgment for the full amount of the note. This instruction, though wrong, did not prevent the judgment from being a bar to an action by the defendant for the fraud, ^ A, having assigned his certificate of stock in a railroad company to B, repre- sented to the company that he had lost it, and received a new certificate by giving the company an indemnifying bond. The company refused to transfer the stock to B on its books, and it thereby became worthless. B then sued the company and A jointly for the wrong, and recovered against the company, but the court, by a mistake of law, held A not liable, and rendered a judgment in his favor. The company being insolvent, B then sued the company and A in equity, praying that A might be compelled to pay upon his bond of in- demnity the amount of his, B's, judgment against the company, in satisfaction of it, but the judgment in favor of A was de- cided to be a bar.* Jurisdiction of justice of the peace. — In an action before 1. Fowler v. Atkinson, 6 Minn. 3. Beall v. Pearre, 12 Md. 550, 565. 603, 506. 4. Greenleaf v. Ludington, 15 Wis. 2. Consolidated Wyoming Gold 558. Mining Co. v. Champion Mining Co., 62 Fed. R. 945. SCOPE OF, AND PRINCIPLE INVOLVED IN. 135 a justice of the peace in New York, he dismissed the action because the amount in controversy exceeded his jurisdiction. The plaintiff then sued in the supreme court and recovered an amount within the exclusive jurisdiction of the justice. This showed that the decision of the justice was wrong, but the plaintiff was allowed costs because the decision of the justice on the question of jurisdiction was res judicata.^ Law and equity. — A judgment at law against a defendant is a bar in equity, even though the law court erroneously rejected a good defense.^ Partnership creditor. — Three persons having formed three separate partnerships under different names, the fact that each firm dealt with the other as a stranger, and that the books showed that two of the firms were largely indebted to the third, did not, in law, make any member of the creditor firm a credi- tor of the other firms, because on their books, and in fact, he was a debtor to the same amount. But, under such circum- stances, one of the partners having died, the other two, sep- arately, and in different states, filed their petitions in bank- ruptcy, and one of them, as a member of the creditor firm, turned over to his assignee his alleged claims against the debtor firms, which the assignee sold. The purchaser of one of these claims filed it against the estate of the other partner in the bankrupt court, and the question whether or not it luas a claim was made and litigated, and that court, presided over by Mr. Justice Daniel, of the Supreme Court of the United States,' decided that it was, and the holder was allowed a dividend. Afterwards the holder of the claim sued this partner, in a Mis- 5issippi court, to recover the balance, alleging that his dis- charge was procured by fraud. One of the questions raised jvas whether or not he ever had any valid claim, and if not, another was, whether or not the action of the bankruptcy court was conclusive in his favor. The highest court in Mississippi decided that he never had a valid claim, with which I agree, 1. Kirk V. Blashfield, 6 Thompson 3. See his opinion in a note to 28 & Cook 509 — an error of fact. Miss. 447. 2. Kenan v. Miller, 2 Kelly (2 Ga.) 325, 330. 136 THE MERITS. and that the adjudication in the bankruptcy court did not aid him, with which I am unable to agree. ^ All parties were before that court, and the facts were fully presented, and it held the claim to be valid by a mistake of law ; but that, no more than a mistake of fact, does not preclude a bar to a new contest over the same question. Pleadings bad. — The fact that the pleadings are insufficient does not affect the conclusiveness of the decree.^ Thus, in aij action on a note, if the court orders a judgment for defendant on a bad answer, the questions involved will be res judicata.^ Prior damages rejected. — A town having taken land for a public purpose, and the owner having filed a petition under the statute, by virtue of which he was entitled to all damages sustained from the time of the first taking, an erroneous ruling of the tribunal, made upon motion of the town, excluding the damages suffered prior to a specified time, does not give him the right to bring a new action for the excluded matters, as that would be splitting his cause.* Prospective damages rejected. — In an action for a breach of covenant in relation to the management of a mill, in which the plaintiff had the right to recover prospective damages, the fact that the court erroneously limited him to damages accru- ing to the time of the trial, does not enable him to recover them in a new action.^ So, if a person is wrongfully discharged from an employment, and sues for an installment of wages then due, and for damages for the wrongful discharge, and the 1. Buckner v. Calcote, 28 Miss, but this rule does not apply if there 432, 590. is but one count in the answer, and 2. Eussell V. Lamb, 49 Fed. R. 770. all the allegations in it are bad. If it (See 82 Iowa 558.) sufficiently appears on what points 3. Mitchells. Chisholm, Minn, the defendant prevailed, and he pre- — (58 N. W. R. 873.) The court said: vailed on the merits, whether rightly "Again, it has often been held that, or wrongly, the judgment in his favor if some of the allegations or is res judicata on these points." counts in an answer are good and 4. Spaulding v. Arlington, 126 others are bad, it will not be pre- Mass. 492. Bumed that the defendant prevailed 5. Winslow v. Stokes, 3 Jones' on the bad counts or allegations. Law 285 (67 Am. Dec. 242). SCOPE OF, AND PRINCIPLE INVOLVED IN. 137 court, by an error of law, decides that he can only recover for the installment then due, this bars a new action for another installment.^ In an action for the breach of a contract to become surety on a bond, the plaintiff sought to recover not only the actual dam- ages already suffered, but also one thousand dollars which he had agreed to pay a substituted surety unless he should furnish the latter with indemnity. He recovered his damages already sustained, but the court erroneously held that he could not re- cover the one thousand dollars, because he was able to give the indemnity. Afterwards he was compelled to pay that sum, but the first suit was held to be a bar to its recovery.^ Replevin. — In Minnesota, if an action of replevin fails be- cause the defendant parted with the property before the case was commenced, the plaintiff is entitled to recover its value as for a conversion ; and in such a case, if the court, after the plaintiff rests, on the motion of the defendant, directs a ver- dict for him, the judgment is a bar to an action for conversion, because those damages ought to have been recovered in the first action.^ Sale of land in equity. — A decree in equity for the sale of land, though abounding in errors and made by collusion, will bar an action of ejectment by a contingent remainderman who was not a party but was represented by the life tenant.* Sequestration bond, damages on. — A purchased at a trust sale a house and lot owned and occupied by B, and sued to dispossess him; and, by means of a sequestration bond, B was at once dispossessed and the premises delivered to A before the trial. B not only alleged that the sale was procured by fraud, but also pleaded by way of counter-claim or reconvention the damages which he had sustained by reason of the wrongful dispossession and sought to recover them. On the trial he gave evidence to support both pleas, but the court submitted special 1. Colburn r. Woodworth, 31 Barb. 3. Hardin r. Palmerlee, 28 Minn. 381. 450 (10 X. W. R. 773). 2. Samuel i'. Fidelity and Casualty 4. Baylor v. Dejarnette, 13 Gratt. Co., 76 Hun (83 N. Y. Supr.) 308 (27 (54 Va.) 152, 171. N. Y. Suppl. 741). 138 THE MERITS. issues to the jury, directing them to find whether or not th^ sale should be set aside, and, if so, the amount still due on the trust deed; but the issue concerning the damages sustained by B was not submitted to them. The findings were, that the sale should be set aside, and they also found the amount due on the trust deed. On these findings, there was a judgment canceling the sale and vesting the title in B, upon his payment to A, within a specified time, of the balance found to be due. B now sued A upon his sequestration bond for the same damages set forth in his plea in reconvention, but the former proceedings were decided to be a bar, upon the ground that the exclusion of this issue from the jury was a decision against its validity by the court. ^ Statute misconstrued. — An Iowa statute enacted that a railway running through a farm should provide a " causeway or other adequate means of crossing " its right of way. A per- son sued a company for failure to perform this statutory duty, and one of his claims was that the company was obliged to construct an open crossing with cattle-guards. But the court instructed the jury that " the statute does not require an open 1. Flippen v. Dixon, 83 Tex. 421 court and jury in the former cause to (29 Am. St. R. 653; 18 S. W. R. 803). sustain the plea. Special issues, it is The court said : true, were submitted in that cause to "If the effect of the former proceed- the jury, and it does not appear that ings was to show that the writ was this was included among them. But wrongfully issued, it was difficult to this would plainly indicate that this understand why the issue of damages issue was excluded by the court from for its wrongful levy, the issue raised the jury's consideration. This would by the plea in reconvention, was not be an adjudication of it by the court, adjudicated in some form. Gluck- which would be as conclusive upon man's title to the property was in- the appellee as if it had been decided valid, and was vacated by the court, by the jury and was expressed in and Dixon's recovery was upon the their verdict or the judgment. The theory that the property belonged to fact that it should not have been ex- him. Such being the case, no grounds eluded from the jury would not make existed authorizing the levy of the it the less binding or effective as an writ of sequestration. That the facts adjudication after it had been so ex- existed which sustained appellee's eluded. The court might have com- plea in reconvention is shown by the mitted an error injurious to appellee further fact that the same testimony in so doing. If so, the remedy was relied on in this case to support the manifest." judgment for damages was before tlie - SCOPE OF, AND TRINCIPLE INVOLVED IN. 139 crossing with cattle-guards at farm crossings," and the jury allowed damages solely because of the failure to provide ' ' a causeway or other adequate means of crossing de- fendant's road." In a new suit for failure to construct an open crossing with guards, it was held that that was one of the issues in the first suit, and that the instruction of the court that the statute did not require the company to maintain such a cross- ing, whether correct or not, made the question res judicata.^ Support. — A judgment that a conveyance of land from a mother to a son was free from any condition of support, although erroneous, bars a new action.^ 1. Bettys V. C. M. & St. P. R. Co., 43 Iowa 602. 2. Wolverton v. Baker, 86 Cal. 591 (25 Pac.R. 54). The court, after set- ting forth the issues and decree in the former suit, said: "This judgment was palpably erroneous upon the facts found, but nevertheless it prevents a relitigation of the matters determined. The complaint here is substantially the same as that in the former case. It alleges the plaintiff's confidence in her son, her age and infirmity, the want of consideration for the deed, and that it was made and accepted upon condition of support, etc., the fraud of the son, the failure to furnish support to the plaintiff, the declara- tion of homestead, the conveyance to other persons without consideration, and the other incumbrances. And the prayer is, in substance, for a recon- veyance of the property and the can- cellation of the incumbrances, etc., 'and for such other and further relief in the premises as to the court shall seem meet and equitable.' The coun- sel for the plaintiff says that the first suit was in equity and proceeded 'up- on the theorj' that the deed was void ab initio,' and that the present suit is at law and proceeds ' upon the theory that the deed was valid abinitio.' We think that the counsel is mistaken as to the character of the second suit. It is a suit in equity, but if it were other- wise the result would be the same. It is said that, strictly and technically, a decree in equity under the old chan- cerj' practice could not be pleaded as an estoppel or bar at law, but that re- sort must again be had to equity which would take measures by at- tachment, and fine to prevent the de- fendant from proceeding at law. See 2 Smith Lead. Cas. (8th ed.), p. 918, 919. But however this may have been, we think that, under the practice in this state, where both law and equity may be administered by the same court, and in the same case, and in which a party may have any relief called for by the case made by his complaint, whatever he may have de- nominated his suit, a decree in equity may, in a proper case, be pleaded as an estoppel or bar to a subsequent ac- tion at law. See Parnell v. Hahn, 61 Cal. 131. So far as this case is con- cerned, the result reached is to be re- gretted. It is a shameful thing that a son should refuse to support his aged mother after obtaining her property without consideration upon the con- dition mentioned. But the law must be declared. We therefore advise that the judgment be affirmed." 140 THE MERITS. Trial unfair. — A trial on the merits is no less conclusive because a party was forced into trial without an opportunity to present his defense.^ Wife's necessaries. — A person sued a husband and wife before an alderman for necessaries contracted for by her on the credit of her separate estate, and recovered judgment against both. On certiorari to the common pleas, the judgment was reversed as to the wife and affirmed as to the husband. The plaintiff then brought a new suit against the wife alone, and she contended that the former proceedings were a bar, but this contention was denied upon the ground that there was no judgment on the merits in her favor. ^ Exception — Issue of law. — A policeman having brought a suit for an installment of salary, and the defense being that the city, by a resolution, had disbanded the police force, a recovery by him upon the ground that, as a question of law, the city had no power to pass such a resolution, does not bar the city from raising the same question again if he sues for a subse- quent installment of salary.' I think this case is unsound. 1. Cook V. Carroll Land and Cattle sion of record that the goods were Co., 6 Tex. Civil App. 326 (25 S. W. sold on his credit, and not on hers. R. 1034). No such conclusion follows in the "2. Roll V. Davidson, Pa. St. (30 present case, because plaintiff brought Atl. R. 987) . The court said : his first action in proper form to "The husband is primarily liable charge both. The restriction of his for necessaries, although they were recovery to the husband alone was no contracted for by the wife on the fault of his, but the action of the credit of her own separate estate court in inviUim. He could not join (Berger v. Clark, 79 Pa. St. 340) ; and the husband in the second [suit, be- lt was proper, therefore, to join him cause as to the husband the judgment with her in the first action. The in the first suit was a bar. But as to reasons for the reversal as to the the wife it was not, and the present wife by the court of common pleas action was therefore, from the neces- do not appear, but, as it was upon sity of the case, brought against her depositions on a certiorari, it was alone. The jury have found that the clearly erroneous. But, even if regu- goods were sold to her on her sepa- lar, it would not prevent a second rate credit. It was error to enter judg- action. There was no judgment for ment in her favor against this finding, the wife on the merits of the case Judgment reversed, and judgment which would be conclusive. Suit directed to be entered for plaintiff on against the husband alone for neces- the verdict." saries has usually been held conclu- 3. Bernard v. City of Hoboken, 27 sive against the liability of the wife, N. J. Law (3 Butcher) 412. because it is an averment or admis- SCOPE OF, AND PRINCIPLE INVOLVED IN. 141 Party's errors. — No error committed by a party, if the merits are decided, will relieve him from the force of a plea ot res judicata, in case he sues again upon the same cause. Thus, because he chose the wrong form of action,^ or drew his bill unskillfully,^ is no excuse for a new suit. So, if an officer, supposing a statute reducing his fees to be valid, sues for and recovers them accordingly, he can not, afterwards, upon dis- covering the invalidity of the statute, recover the balance, as he has split his cause of action.^ And in an action on a treas- urer's bond to recover for defalcation, if certain sums are omitted under a mistake of law, the judgment will bar further proceedings to recover them.* Ross V. Pritchard, 15 La. Ann. Pettis, 71 Ala. 1. 53t. 2. Tankersly t?. 179, 186. 3. Board of Commissioners v. Bin- ford, 70Ind. 208, 211. 4. Archer v. State, 74 Md. 410 (22 Atl. R. 737). The court said : "The plaintiff having deliberately sued on the bond for certain specified defalcations, and having successfully maintained its legal positions with respect to the liability of the bond to the extent alleged, and ha\'ing taken the verdict of the jury on the evidence offered to prove the matters of fact in controversy, and the judgment of the trial court in his favor having been affirmed by the court of last resort, it now moves for a new trial for the purpose of comprehending in this suit additional averments with respect to facts which were as well known to it when the suit was brought as they are at present. We must pause and consider carefully the grounds of this motion, before we give our assent to it. We may well inquire into the rights of the defendants in this be- half, and we may well ask whether the just limit of litigation has not been reached. Expedit reiimblicce nt < finis litium. The plaintiff's counsel proceeded on the theorj' that defalca- tions after the 18th day of November, 1889, were not recoverable in this suit, and they brought suit for them on Archer's second bond. This court held that the second bond was void, and that the bond on which the pres- ent suit was brought was responsible for Archer's malfeasance until his third appointment and qualification, in January, 1890. The theories of the opposing counsel in this cause were in conflict on almost every ques- tion involved in the case. There was contestation and strife at every step of its progress. The result of the liti- gation has been a disappointment to both sides. We have not sustained the views of the plaintiff's counsel in respect to the liability of the second bond ; but we can not regard this as a reason for awarding a new trial in a case which has been regularly con- ducted to a final judgment in this court. Counsel elect the grounds on which they will rest their case, pre- sent it in the mode approved by their own judgment, and adduce such testi- mony within their reach as they see fit to submit to the jury. They are frequently disappointed in the result of the suit. But we do not see that the consequences should be visited on defendants without some default on their part. It is a serious penalty to impose on them the burden, expense, and vexation of continued litigation." CHAPTER IV. ABATEMENTS, AGREEMENTS, CONFESSIONS, CONSENTS, DISCONTIN- UANCES, DISMISSALS, MISJOINDER OR NON-JOINDER OP PARTIES, NONSUITS, PREMATURE SUITS, WITHDRAWING CAUSES AND WITHHOLDING ALL EVIDENCE. §32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. Abatements — Appeal — Arbitra- § 47 tion ordered. Agreements, consents and stip- ulations : ( Compromises — "Merits"— Eent— Settled and adjusted — Exception) . Confessions. Court strikes out or withdraws a part. Discontinuances. Dismissal in equity, generally. Dismissal in equity after an- swer: (Failure to appear or prosecute — Chambers) . Dismissal in equity after ap- peal. Dismissal in equity on defend- ant's motion. Dismissal in equity — Findings nevertheless conclusive. Dismissal in equity — Language used in decree construed. Dismissal in equity — Non-mer- itorious matters. Dismissal in equity — Presump- tions. Dismissal in equity "without prejudice." Dismissal at law — Generally. Dismissal at law: (After an- swer in California — After ap- peal — Appearance wanting — 48. 49. 50. 51. 62. 53. 68. Bastardy — C o s t s — Evidence of plaintiff insufficient — In- tervener) . Dismissal at law — Jurisdiction wanting. Dismissal at law : (Language of judgment construed — New trial). Dismissal at law: (Retraxit — " Without prejudice " by jus- tice of the peace). Dismissal under codes of Cali- fornia, Minnesota, New York and India. Misjoinder or non-joinder of parties : (Set-off) . Nonsuit: (Detinue — Evidence, insufficient — Jurisdi c t i o n — Replevin — Reversal — Set-off — What makes) . Practice, irregular. Preliminary matters, omitted. Premature suits. Withdrawing cause or with- holding evidence: (Princi- ple involved — Cause of ac- tion, withdrawn). Withdrawing counter-claim or set-off, or withholding evi- dence : (What is not a with- drawal — Set-off) . (142) ABATEMENTS, NONSUITS, ETC. 143 § 32. Abatement. — The dismissal of a case on a plea in abatement is no bar to a new suit.^ So an adjudication of any matter on the trial of a plea in abatement in attachment does not make that matter res judicata in the trial of that action on the merits.^ Thus, in an action for rent, aided by an attach- ment issued upon the ground that the defendant has disposed of so much of the crops as to endanger its collection, upon the trial of a plea in abatement in respect to the attachment, the 1. Atkins V. Anderson, 63 Iowa 739 (19 N. W. R. 323). 2. Caruthers v. Williams, 53 Mo. App. 181 ; Garrett v. Green well, 92 Mo. 120, 124 (4 S. W. R. 441) . In this last case the court said: "Section 439 of the attachment act provides that, if the issue on the plea in abate- ment be found for the plaintiffs, ' judgment shall be rendered against the defendant sustaining the attach- ment, * * * and the cause shall pro- ceed ; but, if such issue be found for the defendant, the court shall render judgment that the attachment be abat- ed,' etc. The section also makes pro- vision for an appeal by the plaintiff in the latter contingency, and provides for the attachment remaining in full force until the appeal is determined. Further provision is made by the same section, that, in the event of the fail- ure of the plaintiff to appeal, or after the dismissal or affirmance of the appeal, ' the defendant may plead to the merits, and the suit shall pro- ceed to final judgment on the cause of action therein alleged as though com- menced originally by summons alone.' And the same section makes further provision that, if the issue on the plea in abatement goes against the plaintiff, ' the defendant shall not be required to plead to the merits of the action until after the time fixed for taking an appeal has expired, or until the determination of the appeal.' These statutory provisions set forth in the clearest light that a judgment on a verdict in a plea in abatement does not become, and was not intended by the legislature to become, a bar to a trial on the merits of the cause. Be- sides, if such a judgment should be a bar, the bar, like other estoppels, would of course have to possess the elements of mutuality ; so that, if the issue on the plea in abatement should happen to go in favor of the defendant, the mere judgment that ' the attach- ment be abated ' would have the force and effect of a final judgment, could be pleaded by him as such, and the cause could not proceed to final judgment, as though commenced by summons alone, nor could the defend- ant be required to plead to the merits of the action. I would not have no- ticed this point at such length, but for the fact that plaintiff's counsel has called attention to the case of Stewart V. Nelson, 79 Mo. 522, as authority in support of the position that matters put in issue on the trial of a plea in abatement in an attachment suit, be- come res judicata if the cause is afterwards tried on its merits. The case undoubtedly supports the claim of counsel, but I am persuaded that the conclusion therein reached is not a sound one ; indeed, it was unneces- sary to a proper decision of the case, and so may be regarded as resulting from a momentary inadvertence." 144 THE MERITS. parties must show the amount of the rent due in order that the jury may determine whether or not the attachment was wrong- fully issued, nevertheless that determination is not binding in the main action in respect to the amount of rent due.^ So, a dismissal of an action because the plaintiff has no legal capac- ity to sue is a judgment in abatement and not on the merits, and is no bar to a new action by the same person,^ Likewise, a judgment in abatement because the suit was brought in the wrong county,^ or town,* is no bar. Town A having sued town B before a justice of the latter to recover for the support of a pauper, the defendant filed a plea in abatement averring that the justice, by reason of interest, was disqualified from trying the suit. It having been finally determined that the plea was bad, under the law governing such pleas, a judgment was rendered for the amount of the plaintiff's claim without hearing evidence. In another suit 1. Dawson v. Quillen, 43 Mo. App. 118. 2. Rodgers v. Levy, 36 Neb. 601 (54 N. W. R. 1080.) The court said that a justice's docket read: "Oct. 19, 1889. Come now the parties in this action, plaintiff and defendant, in person, and by their attorneys defend- ants file their motion to dismiss said action for the reason that plaintiff has not legal capacity to sue. Motion sustained, with leave to plaintiff to amend by interlineation. To which defendant objects. Defense there- upon demand a jury to determine the right of property in acting com- menced was in the defendants, and we assess the value of said property in the sum of $160. We also assess the damages sustained by said de- fendants by reason of detention of the said property at the sum of $6.00. Daniel C. Brown, Foreman. It is thereupon considered by me that aforesaid defendants have a return of the property taken on said writ of re- plevin, and that they recover their damages for the withholding of the same, assessed at 16.00, or, in case a return of said property can not be had, that they recover of said plain- tiff, Moses H. Levy, the value thereof, assessed at $160, and costs of suit, taxed at $17 40-100." The court then said: "The sole question pre- sented to this court is, does the judgment of dismissal by the justice of the peace in the first action bar the recovery in this? It will be observed that the cause was dismissed for want of legal capacity of Levy to sue. This is not a judgment upon the merits, but merely in abatement of that action. The action being dismissed as to Levy because of his want of legal capacity to sue, left the right to the property undetermined, and the fact that a jury was called after the cause was dismissed as to Levy did not operate as a bar to a future action." 3. Adams v. State, 9 ArK. (4 Eng.) 33. 4. Dunklee v. Goodenough. 65 V^t. 257 (26 Atl. R. 988). ABATEMENTS, NONSUITS, ETC. 145 for subsequent support, the plaintiff town contended that the former proceedings precluded the defendant from showing that the pauper did not have his residence within its limits, but this contention was denied because the merits of that question were not determined in the first case.' Appeal. — But if a cause is decided upon the merits, the fact that, upon appeal, the judgment is affirmed upon grounds which do not touch the merits, does not remove the bar of res judicata.^ Arbitration ordered. — A judgment was rendered for the plaintiff by agreement, subject to the award of arbitrators on a set-off. They failed to make an award, and the plaintiff brought an action upon his judgment. The defendant an- swered alleging the agreement upon which the judgment was rendered, and that he was ready and willing to proceed with the arbitration, but that the plaintiff refused, to which the plaintiff replied that the defendant, upon request, had refused to proceed, and upon this issue there was a trial and verdict, and judgment for defendant. It was held that this judgment was upon the merits and a bar to a new action by the plaintiff on his judgment.^ § 33. Agreements, consents and stipulations. — A final judg- ment on the merits is just as conclusive if entered by consent 1. Town of Jericho v. Town of in one suit, is conclusive as to that Underhill, 67 Vt. — (30 Atl. R. 690). question in another suit between the The court said : "In the present case, same parties; but, to this operation of the main questions, whether or not the the judgment, it must appear, either pauper was chargeable upon Under- upon the face of the record, or be hill, and -^as transient in Jericho, shown by extrinsic evidence, that the were not adjudicated nor considered in precise question was raised and deter- the former suit; and yet it is con- mined in the former suit.' To the tended that the judgment in that suit same effect are other cases cited in IS conclusive of those facts. We think the defendant's brief. As the former it can not in justice be so held. The case was not tried on its merits, the true rule is that laid down in Russell adjudication therein is not a bar to a V. Place, 94 U. S. 606: 'That a judg- recovery in the present one." ment of a court of competent jurisdic- 2. Trescott v. Barnes, 51 Iowa 409. tion, upon a question directly involved 3. Dixon v. Sinclear, 4 Vt. 354, 360. 10 146 THE MERITS. as if rendered after a contest.' But as to what does or does not settle the merits is sometimes a difficult question. Thus, if the judgment is simply ''dismissed agreed," the supreme court of Kentucky holds it to be a bar to a new suit/ while, on the contrary, the Supreme Court of the United States decides that it is no bar.^ And it is said in Indiana, that the dismissal of an action by agreement precludes a new one unless the record shows that it was not to have that effect.* In Virginia, if a suit is dismissed as ''agreed," that is, at least, a prima facie bar to a new one f but if the suit is compromised and dismissed as " agreed," it is an absolute bar.® In Maryland, an entry in an ejectment case, "Agreed, 10th June, 1824," is no bar to a new action.' The court distinguished Bank v. Hopkins,* and said that the only deduction that could be drawn was that each party retired from the litigation, leaving their rights unaffected. In California, a judgment of dismissal entered upon the oral agreement of the parties in open court, with a stipulation that each party shall pay his own costs, is a defense to a new suit.^ But the contrary is maintained in New Hampshire in case of a dismissal by agreement of the parties of a suit for an equitable contribution before a hearing on the 1. McCreery v. Fuller, 63 Cal. 30; judgment of the court, is a bar to an^ Hewitt V. Stewart, 11 La. Ann. 100, other action for the same cause, un- 102; Girod v. Pargoud, 11 La. Ann. less the judgment is modified by some 329, 331 ; Greenwood v. New Orleans, statement in the judgment itself. It 12 La. Ann. 426, 431 ; Dunn v. Pipes, is virtually an acknowledgment by 20 La. Ann. 276 ; Gattman v. Gunn, the plaintiff, in open court, that he Miss. (7 S. R. 285) ; Donnelly v. Wil- has no further cause of action against cox, 113 N. C. 408 (18 S. E. R. 339). the defendant. In such cases it is 2. Bank of Commonwealth v. Hop- the judgment of the court that bars kins, 2 Dana (32 Ky.) 395 ; Jarboe v. the right, creating an estoppel by Smith, 10 B. Mon. (49 Ky.) 257 (52 record." Am. D, 541.) 5. Hoover v. Mitchell, 25 Gratt. (66 3. Haldeman v. United States, 91 Va.) 387, 390. U. S. 584, 586. 6. Wohlford v. Compton, 79 Va. 4. Dictum in Reddick v. Keesling, 333, 337. 129 Ind. 128, 134 (28 N. E. R. 316). 7. Alexander v. Walter, 8 Gill 239 The court said: "The weight of (50 Am. D. 688, 699). authority seems to support the posi- 8. Bank of Commonwealth v. Hop- tion, that the dismissal of an action kins, 2 Dana (32 Ky.) 395. pending, by agreement, followed by a 9. Merritt v. Campbell, 47 Cal. 542. ABATEMENTS, NONSUITS, ETC. 147 merits.^ Likewise in Massachusetts, a record which shows that a bill in equity was duly filed and entered ; that no plea, answer or replication was filed ; that the parties, after several continuances, filed an agreement that "the bill maybe dis- missed, with costs;" and that thereupon "it was ordered and decreed by the court that said bill be dismissed with costs," fails to establish an adjudication on the merits.^ And the same ruling is made in Wisconsin, if the parties stipulate and agree in writing that the cause shall be dis- continued without costs to 'either, and this is done.^ But in Illinois, if it appears by stipulation of the parties that an in- junction is dissolved and the bill dismissed, without stating on 1. Hudson V. Nashua, 62 N. H. 591, 594. 2. Butchers' Slaughtering and ^lelt- ing Association v. City of Boston, 137 Mass. 186. 3. Bishop V. McGillis, 82 Wis. 120 (51 N. W. R. 1075). The court said: "As to the effect of a judgment of dis- continuance or dismissal pursuant to a written stipulation or agreement : "We think the profession would be surprised to learn that a judgment of dismissal, entered upon a mere stipu- lation to dismiss, is even prima facie a bar to all future actions for the same cause. Certainly, if that be the law, it ought to be speedily announced. There are authorities, notably in Ken- tucky, which hold that if the en- try of judgment is, 'dismissed agreed,' the legal deduction therefrom is that the controversy has been settled, and that the judgment will operate as a bar to another action. (Bank of Com- monwealth V. Hopkins, 2 Dana, 395.) In California, under the practice act of that state, this decision was approved, and it was held that if, by 'agreement of parties,' the cause was dismissed, ^ach party pajnng his own costs, the lismissal amounted to a retraxit, and V^as a bar to subsequent actions. These decisions are based on the ground that the necessaiy legal infer- ence to be drawn from the language used is, that the parties have agreed upon a settlement of the subject- matter of the controversy. Even were the language which is so construed in those cases now before us, we think we should be slow to follow the con- clusions reached by those courts. That construction has been verj' forci- bly and tersely repudiated by the Supreme Court of the United States in Haldeman v. U. S., 91 U. S. 584. But in the case before us we are not left to find out what the parties agreed to by construction of indefinite or general language. The plea states that they agreed to one certain thing. They agreed that the suits should be dismissed. How can a court say that an agreement of settlement of the controversy must be inferred if the record states that they agreed to one definite thing, namely, to a dis- missal? There is no room for in- ference or construction if the lan- guage is definite and unmistakable. The reasoning of Mr. Justice Davis in Haldeman v. U. S., supra, on this point, is very satisfactory to our minds, and to the same effect is 148 THE MERITS. what grounds or for what cause, it is held to be on the merits/ Compromise. — In an action upon town bonds, if a judgment for one-half their amount is rendered as a compromise, that will bar a suit to compel the transfer to the plaintiff of stock held to secure the other one-half, because the judgment is con- clusive that no more was owing. ^ If a written agreement is filed that dower shall be decreed in specified lands, and it is '' further agreed that the said bill be dismissed as to all the property in the proceedings mentiotied, not specified and in- cluded in this agreement, and that the complainant pay costs," the dismissal does not bar a new suit.^ A person brought a suit to set aside certain deeds executed by himself, giving copies and alleging that, by disease, his mind had been greatly weak- ened, which disqualified and rendered him unfit for business and made him easily influenced and controlled by persons in whom he had confidence ; and that, while in that state of mind, the defendant induced him to execute the deeds of conveyance upon an inadequate consideration. The answer denied the al- leged weakness of mind and averred that the consideration was adequate. No testimony was taken, and the record showed this entry: " This case being submitted on bill, answer and ex- hibits, by agreement of counsel, it is, by the consent of all parties to the cause, adjudged, ordered and decreed that the bill be and the same is hereby dismissed, each side to pay their own costs; -and it is further adjudged, ordered and decreed that the receiver heretofore appointed be, and is hereby, discharged without sending any account, and that A. C. Leonard, admin- istrator of William Leonard, shall pay to the defendant all the accrued ground rent, and interest thereon." , Upon this decree Wakeley v. Delaplaine, 15 Wis. 554, 1. Garrick v. Chamberlain, 97 111. wherein Mr. Justice Cole says of such a 620, 639. stipulation: 'It simply* places the 2. Bank of Mobiles. Mobile & Ohio parties in the same position they oc- R. R. Co., 69 Ala. 305, 309. cupied before the litigation com- 3. Chase's Case, 1 Bland's Ch. 206 menced.' Such we hold to be the (17 Am. D. 277, 286). effect of the judgments of dismissal pleaded in this action." ABATEMENTS, XOXSUITS, ETC. 149 was indorsed: " We consent to the passage of the decree," which was signed by the respective counsel. This was decided to show a decision on the merits, and not merely a dismissal by consent, and to be a bar to another suit for the same purpose/ The dismissal of an action for the recovery of land, upon the stipulation of the counsel that each party shall pay his own costs, that the jDlaintiff shall be released from liability on his injunction bond, and that the defendant shall convey his inter- est in the land to the plaintiff, which he does, bars an action for raesne profits.^ Merits. — A person brought an action to recover land occu- pied by a railway company. The answer was that he had ex- ecuted to the company a deed, but that by a mutual mistake it did not include the land sued for, and it prayed for a reforma- tion. The reply admitted the execution of the deed, but denied the alleged mistake. While matters stood thus, the attorneys filed a stipulation that the action should be dismissed " on the merits," and that defendant's costs and disbursements might be taxed at a sum specified, and a judgment was entered ac- cordingly. It was decided, in a subsequent proceeding, that this judgment did not effect a reformation of the deed so as to vest the company with the legal title, but, at most, was an ad- judication that the company had such an interest in the land as to give it the right of possession for railway purposes.^ A 1. Royston v. Horner, 75 Md. 557 ified dismissal, such as is provided for (24 Atl. R. 25.) in Gen. St. 1878, c. 66, § 262, subd. 2, 2. Phillpotts V. Blasdell, 10 Nevada but that the consent was conditional. 19. It was mutually agreed that the dis- 3. Cameron v. Chicago, M. & St. P. missal should be on the merits of the Ry. Co., 51 Minn. 153 (53X."W. R. 199). action, and the agreement can not be The court said : " Plaintiff's counsel disregarded. If nothing but an ordi- insist that the judgment only operated nary dismissal, it left the plaintiff at as a dismissal of the action. If this liberty to renew his action, as an ac- he its sole effect, a very prominent tion of ejectment, or in some other feature of the stipulation recited in form, and his counsel virtually admit the judgment as entered, that the ac- in their brief that he retained no such tion be dismissed 'on its merits,' must right. If he did not, it was solely be- be totally ignored. It is obvious that cause of the judgment. Entered as it neither party consented to an unqual- was upon the significant stipulation 150 THE MERITS. decree of dismissal on the merits, entered by virtue of the writ- ten agreement of the counsel, is a bar to a new suit.^ A sued B for trespass upon a large tract of land described in the declaration. There was no answer, but a judgment was entered by consent for one dollar damages. A then sued B again in tort for the maintenance of a fence on the same land, and contended that the former judgment precluded B from showing that the fence was on the true line between them. He proved that the only subject in controversy in the former ac- tion was the making of this same fence by the defendant, and insisted that the consent judgment established the fact that it was on his land and not on the dividing line. But the court, while admitting that the title to land might be settled in an action of trespass, said : " It is only in case a fact is specially put in issue, traversed and tried, that a verdict and a judgment following it are evidence against a party. * * * Assuming that under certain circumstances parol evidence is admissible to show upon what issue a former case had been adjudicated, there is nothing to authorize the admission in this case. The plaintiff was entitled to introduce the former proceedings in evidence upon the trial of this case, and he did so ; and that judgment was competent evidence, but not conclusive of any other fact than that the jDlaintiff was at that time, under his declaration, entitled to recover one dollar damages." ^ A sued B to cancel a judgment, alleging that he had received certain personal property in satisfaction, but refused to release it of record, to which B answered that, in a former action be- tween them, it was adjudged that this property was his by virtue of a chattel mortgage, and the reply was that it was ex- pressly agreed that, in consideration of that judgment and the surrender of the mortgaged property, the judgment mentioned in the complaint should be satisfied. This was held to be a good reply.* before mentioned, the judgment must 1. Pelton v. Mott, 11 Vt. 148 (34 be held to have been upon the merits, Am. D. 678). and not an ordinary statutory dis- 2. Stapleton ■;;. Dee, 132 INIass. 279. missal by consent of parties." 3. Palmer v. Hayes, 112 Ind. 289 (13 N. E. R. 882). ABATEMENTS, NONSUITS, ETC. 151 A made a contract to purchase an undivided interest in a tract of land, for which he was to receive a deed when the pur- chase price was all paid, and paid a part of the price and died. The vendor sued the heirs and administrator to recover the balance, and to have a lien declared, and by consent of all par- ties a decree was entered, declaring a lien for the unpaid bal- ance and for a deed upon its payment. Upon this decree the land was sold and B became the purchaser, and the vendor also made him a deed. He then sued the heirs for a partition, and it was held that they were estopped by the consent decree from claiming that the interest of A descended to them, to be disposed of in the course of administration.^ In a suit for partition a decree by consent, compromising all differences, concludes the parties.^ Rent. — A having interpleaded several parties, alleging that he was indebted to some of them for rent at forty dollars per month, their consent to an order that he pay into court the rent due at that rate until they could determine to whom it belonged, and his payment, under that order, bars them from maintain- ing a new suit against him upon the theory that the rent was forty-eight dollars per month. ^ A person having brought a sequestration suit in Texas, and having obtained possession of the land in controversy^ by means of a bond, entered into a stipulation with the defendant whereby the cause was submitted to the court for trial, and the record read "wherefore, on motion of plaintiff's attorney, it was ordered by the court that the plaintiff's action be dismissed at his costs, without prejudice to his right to bring another suit, and that the defendant be and is hereby restored to the possession of said prop- erty." In a suit by the defendant to recover for the use of the land while in the plaintiff's possession, it was held that the con- sent judgment was conclusive that the right to the possession 1. Harper r. McCombs, 109 N. C. 3. Glasner v. Weisberg, 43 Mo. 714 (14 S. E. R. 41). App. 214. 2. Grossman r. Davis, 79 Cal. 603 (21Pac. R. 963). 152 THE MERITS. was in the defendant.* So a consent decree construing a will bars a new suit to declare the will void.^ Settled and adjusted. — If A sues B on an alleged agree- ment to pay certain costs and exj)enses and is defeated, and takes a writ of error, the filing of a stipulation in the supreme court, signed by counsel, that ''the above' cause and difference having been fully settled and adjusted, it is hereby stipulated and agreed by the above parties, by their respective attorneys, that the same be discontinued and dismissed," bars a new suit for the same cause. ^ The same ruling was made by the Supreme Court of the United States in a case in which an entry, made by consent of counsel for plaintiff, was as follows : "Upon motion of Ellis & King, attorneys for defendants, and it appearing to the court that the subject-matter in this suit has been adjusted and settled by the proper parties, it is there- fore ordered that this cause be, and the same is, hereby dis- missed."* A recital in a judgment in respect to a part of the matters in controversy, that the matter in regard to ungathered crops "has been settled by the parties," is res judicata.^ Exception. — If a town has issued void bonds to a railroad company, and the town officers bring a suit to enjoin their ne- gotiation, and then if the parties agree that the company shall have the bonds and that the town shall receive the stock, all of which is ultra vires, and the court simply registers their agree- 1. Cotton V. Jones, Tex. Civil App. enough to include the division of the (27 S. W. K. 191). crops, and the finding of the court 2. Corprew v. Corprew, 84 Va. 599 shows there was an agreement in re- (5 S. E. R. 798). lation thereto entered into between 3. Cummerford v. Paulus, 66 Mich, the parties in open court. We think 648 (33 N. W. R. 741). that should be final in this case. To 4. United States v. Parker, 120 U. be sure, there was some testimony S. 89, 91. offered in the court below to show 5. Townsdin v. Shrader, 39 Kan. that this finding was not within the 286 (18 Pac. R. 186). The court said : issues actually considered, and the "The defendant contends that this is court allowed a great deal of liberal- an adjudication of the matter con- ity in the introduction of such testi- cerning tlie crops. We believe he is mony. It is not sufficient to over- correct. The petition was broad throw the record." ABATEMENTS, NONSUITS, ETC. 153 ment in the form of a decree, the validity of the bonds is not thereby res judicata.^ § 34. Confessions. — If the plaintiff in an action on a bill of exchange to which a release is pleaded, confesses the plea and suffers judgment to be entered for defendant, he is barred from suing again on the same bill.^ So it was decided in Pennsyl- vania, that, if one is sued to recover an assessme.nt made by a mutual insurance company upon a policy which did not bind him because of a surrender, and suffers his counsel to confess judgment for him, he will be precluded from disputing the validity of the policy when sued for later assessment.* §35. Court strikes out or withdraws a part — (See §§57 and 58, infra). — As a general proposition, if the court strikes out or withdraws all the evidence in regard to a part of 1. Kelly V. Town of Milan, 21 Fed. E. 842, 862. 2. Newington v. Levy, L. R. 6 Com. Pleas 180. 3. Orr V. Mercer County Mutual Fire Ins. Co., 114 Pa. St. 387 (6 Atl. R. 696.) The court said : "There was a former action between these parties to recover an assessment on the same policy, in which the defendant con- fessed judgment for $99.32. That ac- tion was instituted before a justice of the peace, from whose judgment the defendant appealed. The transcript and the pleadings are not printed, and it is probable that they do not specifically show both claim and de- fense. What the claim was, or what was set up as a defense, may be shown by oral testimony, provided it does not contradict, and is consistent with, the record. The defendant himself testifies that, after his surrender of the policy to Hoagland, he was sued before the justice for an assessment made in 1878 ; that he set up for a de- fense his alleged settlement with Hoagland, and had no other defense to the suit ; and that after his appeal, when the cause was on the list for trial, he confessed judgment. That involved the very defense in this suit. The assignment was for a loss before the surrender of the policy, and the defense was an alleged settle- ment relieving him from liability for the assessment. The defendant, conceding that the judgment would be conclusive against him so far as that defense is concerned, had it been en- tered on a verdict after a trial on the merits, contends that, at most, the judgment by confession is only evi- dence to be considered with all the other e\'idence touching the question of settlement in its determination. We think that proposition can not be maintained. If the cause was at is- sue, and the only matter of defense was pleaded formally on the record, or so set up as to be known, and on the eve of the calling of the case for trial the defendant confessed judg- ment in open court, the judgment is as conclusive as if entered on a ver- dict." 154 THE MERITS. a divisible cause, or instructs the jury to disregard it, the effect will be the same as though no evidence had been offered upon it, and a new suit can be maintained. Thus, if a person holding a note in Missouri brings a suit upon an account stated, and on the trial offers his note in evidence, but fails to prove that it was presented to the maker, when due, for payment ; and if, for want of that proof, the court decides that he can not recover, a judgment against him is no bar to an action of assumpsit on the note.^ If the plaintiff sues to recover a tract of land, and the de- fenses are possession of all under color of title given by a deed, and actual possession of a part, and the court, in its instruc- tions, limits the jury to the consideration of the tract involved in the second defense, a verdict and judgment for the defend- ant is no bar to a new action by the plaintiff to recover the remainder of the tract. ^ If I understand this case, it hold& that the plaintiff had two causes of action ; and if the defendant had taken possession at different times, this would seem to be correct. So, if a part of the findings in a divorce suit, which would vest the title to a tract of land in one of the parties, is stricken out and a decree entered on the residue, that title will not be concluded.* And if the complaint, among other things, 1. Lindell v. Liggett, 1 Mo. 432 (14 right of possession to lot 19, in block Am. D. 298). 5, in Emery's subdivision to the town 2. Duren v. Kee, S. C. (19 S. E. E. of Highlands, and lot 6, in block 11, 492). in Union addition to Denver, all in 3. Johnson v. Johnson, Colo. (86 said county and state, be and they Pac. R. 898). The court said: "It are hereby forever quieted as against further appears from the bill of ex- any and all claims thereto made by ceptions that the findings of fact, the plaintiff, and he is hereby forever when presented to the court, included barred from making any claim to any this further finding : ' Sixth, that the right, title or interest therein growing defendant is the sole owner in her out of their former marital relations.' own right of lot 19, in block 5, Em- This finding and portion of the decree ery's subdivision to Highlands, and were stricken out by the court. It also of lot 6, in block 11, Union addi- therefore appears that, while the ques- tion to Denver, and that she is en- tion of the title to the property in con- titled to hold the same as her own troversy was raised in the pleadings separate property.' And the decree, of the divorce suit, it was not passed as prepared and submitted, contained upon nor decided in that action. While the following : * That the title and there is a conflict of decision as to the ABATEMENTS, NONSUITS, ETC. 155 describes a judgment held by defendant, and asks that it be canceled and discharged, and the court instructs the jury to disregard and not consider the evidence in relation to it, a re- covery by the plaintiff will not extinguish it/ Likewise, if the defendant pleads by way of set-off that the plaintiff is in- debted to him for cotton seed, and the court instructs the jury to disregard the set-off because the plaintiff has a lien upon it, its rejection will not bar an action upon it if the lien is includ- ed in the plaintiff's judgment and paid.^ § 36. Discontinuances. — The discontinuance of an action after a general demurrer has been sustained to a declaration and leave given to amend, is no bar to a new action.^ So^ if the court requires a plaintiff to elect whether he will proceed at law or in equity, and he elects to do the latter and discon- matters concluded by a judgment of a court of competent jurisdiction, it seems to be settled that it is conclusive as to all points directly involved and necessarily determined by it, and may be availed of either in bar or by estop- pel in anj'- subsequent controversy be- tween the parties ; and, by the current of authorities to-day, extrinsic testi- mony is admissible to identify the matter adjudicated, if there be any uncertainty as to what was determined on the face of the record. And if, therefore, it clearly appears upon the face of the record, that a matter, al- though put in issue by the pleadings, and one that might have been adjudi- cated in the action, was excluded from the consideration of the court, and not passed on, it follows that that matter is not concluded." 1. Boykin v. Rosenfield, Texas Civil App. (24 S.W. R. 323) . The court said : * * By the charge of the court in cause No . 3,444, the judgment in cause No. 3,391 was withdrawn from the consideration of the jury. By this action of the court that issue was eliminated from the proceedings, and was not adjudi- cated on its merits. The effect of the court's action was that the judgment should not be ' canceled and dis- charged.' It v/as the dutj' of the jury to obey the court's instructions, and the presumption will prevail that they did so, unless it appears to the con- trary. There is nothing in the record that we can gather that leads us to a different conclusion. We, therefore, conclude that the juiydid not pass upon that issue. In that suit appellants in- voked the aid of the court in the can- cellation of the judgment, and, if they conceived themselves injured by the charge of the court in that proceeding, they should have reserved a bill, and had it passed upon by the appellate court. Having failed to do so, they are in no condition to complain of the action of the court in rendering judg- ment against them in this case." 2. Haas v. Taylor, 80 Ala. 459 (2 S. R. 633). 3. McGatrick v. Wason, 4 O. St. 566, 570. See § 29, page 128, note 1. 156 THE MERITS. tinues his action at law, and the suit in equity is dismissed " without prejudice," he is not barred from proceeding at law/ A discontinuance entered by leave of court, after a foreclos- ure and judgment for any deficiency, but before a sale, removes the bar of the decree ; and in an action on the bond secured, the defendant may defend on the merits.^ § 37. Dismissal in equity, generally. — A final decree in equity dismissing a bill,^ or a cross-bill,* on the merits, bars 1. Reynolds v. Hennessy, 17 R. I. 169(23 Atl.R. 639). 2. Loeb V. Willis, 100 N. Y. 231 (3 N. E. R. 177). The court said: "It thus appears that the trial court held that the adjudication in the fore- closure action absolutely estopped Willis and precluded him from giving any evidence to defeat or diminish the plaintiff's recovery against him. In this we think there was error. The foreclosure action was discon- tinued, and all the proceedings therein thus annulled. There was no longer any record or adjudication in that action which bound any one. By the discontinuance of an action further proceedings are not only ar- rested, but what has , been done is also annulled, so that the action is as if it never had been. If a suit he discontinued at any stage, or the judgment rendered be set aside or vacated or reversed, then the adjudication concludes no one, and it is not an estoppel nor bar in any sense. Bigelow Estop. 21 ; Freem. Judgm. (3d ed.), §333; Leonard V. Barker, 5 Denio 220; Audubon V. Excelsior Fire Ins. Co., 27 N. Y. 216." 3. Cochran v. Couper, 2 Del. Ch. 27, 29; Gage v. Ewing, 107 111. 11 ; Camp- bell V. Ayres, 18 la. 252; Adams v. Cameron, 40 Mich. 506; Pugh v. Holt, 27 Miss. 461, 466; Forist v. Bellows, 59 N. H. 229, 231 ; Ferine v. Dunn, 4 Johns. Ch. 140, 142; Neafie v. Neafle, 7 Johns. Ch. 1 (11 Am. Dec. 380) ; Jenkins v. Johnston, 4 Jones' Eq, 149; Kelsey v. Murphy, 26 Pa. St. 78; Low V. Mussey, 41 Vt. 393 ; Giffard v. Hort, 1 Scho'ales & Lefroy 386, 407 (A. D. 1804) ; Young v. Harper, New Zealand Law, 7 S. C. & C. A. 419, 431. 4. Central Trust Co. v. Iowa Cen- tral Ry. Co., 40 Fed. R. 851; Knowl- ton V. Hanbury, 117 111. 471 (5 N. E. R. 581). The court said that if "a matter has once been litigated and decided by a court of competent juris^ diction, that matter can not again be. brought into litigation between the same parties, but the judgment or de^ cree first rendered will be held con., elusive between the parties. Here the plea interposed by Anna Han- bury clearly shows that the matters and things set up and relied upon by Knowlton in his cross-bill and his prayer for relief as against her are substantially the same matters and things set up and relied upon by Emily Hoyt in her cross-bill which was filed and passed upon in the Cir- cuit Court of the United States. The appellant, by his cross-bill, makes the same case, and relies upon sub- stantially the same grounds for relief in this action as Emily Hoyt made on behalf of Knowlton in the federal ABATEMENTS, NOXSUITS, ETC. 157 the use of the same matter in a new suit. An order making a rule absolute, if it has the effect to dispossess a person of property on the merits ;^ or a decree dismissing a bill to stay waste expressly based upon a want of title in the plaintiff ;^ or a decree of dismissal " with prejudice,"^ is also a bar. So, the dismissal of a bill in equity after a final hearing, in general terms/ without any reservation for the renewal of the action ;* or simply an entry of ''dismissal,"® has the same effect. The dismissal of a cause in ecjuity by the plaintiff while the chan- cellor is deliberating upon it after a final hearing \' or a judg- ment dismissing a bill in such a cause on a demurrer which involves the whole merits,® bars a new suit. And a dismissal of a bill by a divided court has the same effect.^ So, if one in the possession of land sues to quiet title, and also prays that, in case that relief can not be had, he may recover the taxes paid, a decree dismissing the bill on the merits is a defense to a new suit for the taxes. ^° In a suit for a specific performance of an agreement, if the defendant file a cross-bill seeking to enforce a forfeiture men- tioned in the agreement, and the court, after a hearing dis- misses the bill without prejudice to a new suit, and dis- court. The main object of the cross- 3. Carroll v. Patrick, 23 Neb. 834 bill in the federal court was to rescind (37 N. W. R. 671) . the trade, which had been made be- 4. Taylor v. Yarbrough, 13 Gratt. tween Knowlton and Anna Hanbur}', (54 Ya.) 183, 194. on the ground of fraud. As we under- o. Bledsoe v. Erwin, 33 La. Ann. stand the cross-bill in this case, its 615; Durant v. Essex Company, 7 object is the same and based upon the Wall. (74 U. S.) 107. same grounds. In the case in the 6. Brown v. Brown, 37 N. H. 536; federal court, Knowlton, Hoyt, and Bradley v. Bradley, 160 Mass. 258 (35 Hanbury were all properly before the N. E. E. 482) — "Libel dismissed." court, as they are here, and we per- 7. Phillips v. Wormley, 58 Miss. 398. ceive no tangible ground whatever 8. City Bank of Xew Orleans v. upon which it can be held that the Walden, 1 La. Ann. 46; Messinger r. former decree is not a bar to a recovery New England Mutual Life Ins. Co., in the case made or attempted by the 59 Fed. E, 416. cross-bill." 9. Durant v. Essex Co., 8 Allen (90 1. Foss r. Brentel, 14 La. Ann. 798. Mass.) 103. 2. Gainus r. Bowman, 10 Heisk. 10. Goodenow v. Litchfield, 59 Iowa (57 Tenn.j 600, 604. 226 (9 N. W. E. 107 j. 158 THE MERITS, misses the cross-bill on the merits, that will bar the defendant from insisting upon a forfeiture in a future suit.^ § 38. Dismissal in equity after answer .^There being a valid plea in bar on trial, a dismissal of the case at the costs of the plaintiff for a failure to reply, is on the merits, and bars the use of the same cause of action as a set-off.^ A person having brought a suit in Massachusetts to redeem, requiring the defendant to answer under oath, which he did, and after- wards, without the knowledge or consent of the defendant, having dismissed the bill, he thereby debarred himself from bringing a new suit. The court said: "The plaintiff had searched the conscience of the defendant by his bill, and had obtained the discovery which he sought, and to which he was entitled. The answer on oath was competent evidence in the cause. The time had passed within which, by the rules of court, the plaintiff had a right to file a replication and take tes- timony. As the suit stood, the defendant was entitled to have it heard upon bill and answer. It would have been highly inequitable to allow the plaintiff, without cause shown and without notice to the adverse party, to become nonsuit, and so be at liberty to sue again, when he might waive the oath and deprive the defendant of the benefit of his answer."* Under such circumstances in Illinois, the supreme court said it was a grave question whether or not a new suit could be maintained.* But the Supreme Court of the United States held that the dismissal of a bill by the complainant before hearing was no bar to a new suit ;® and the same ruling was made in Rhode Island in a case in which a bill was dismissed on motion of the plaintiff before replication filed and before a hearing, al- though the court refused to make it without prejudice.® In ac- cord with the last case is one on the federal circuit in which a 1. Central Trust Co. v. Iowa Cen- 4. Mey v. Gulliman, 105 111. 272, tral Ry. Co., 40 Fed. R. 851. 282. 2. Campbell v. Mayhugh, 15 B. 5, Walden v. Bodley, 14 Peters (39 Mon. f54 Ky.) 142, 145. U. S.) 156. 3. Borrowscale v. Tuttle, 5 Allen 6. Saylea v. Tlbbitts, 5 R. I. 79, 91. (87 Mass.) 377. ABATEMENTS, NONSUITS, ETC. 159 cause was set down for hearing, and then dismissed on plain- tiff 's motion before the testimony was published, although not done "without prejudice."* Failure to appear or prosecute. — A decree dismissing a bill in equity because of ^the failure of the complainant to ap- pear,^ or to prosecute,' is no bar to a new suit, although there is no reservation of that right.* So, if a receiver has obtained a rule on the firm to show cause why he should not have the firm books, the mere dismissal of the rule, without a hearing, is no bar to a new rule.^ But the court of appeals of New York holds that, after the filing of an answer and a replica- tion in equity, and an order closing the proofs was made (al- though no proofs were taken ) , and the cause was brought to a hearing, an order dismissing the bill upon failure of the com- plainant to appear bars a new bill.® A case in New Mexico was as follows : A bill in equity was under oath and required the answer to be under oath, which it was, and was responsive. The cause was then referred to a master to take testimony, and depositions were taken and filed on behalf of the defendants, but none on behalf of the plain- tiffs . After the time had expired for filing a reply- — none hav- ing been filed — and for taking proofs, the defendants moved to dismiss the cause "for want of prosecution," upon which the court made this entry : " On this day came the parties by their solicitors, and the said defendants, by their solicitor, move the court to dismiss this cause for want of prosecution ; and the same having been argued by counsel on both sides, and the court having been fully advised in the premises, it is consid- ered that the same be, and is hereby, sustained." And there was a judgment for defendants for costs. In a new suit this 1. Badger v. Badger, 1 Clifford 237, hews, Walker (1 Miss.) 377; Porter t-. 241. Vaughn, 26 Vt. 624. 2. Rosse V. Rust, 4 Johns. Ch. 300; 4. Baird v. Bardwell, 60 Miss. 164. State, ex reZ. Kane, r. Larrabee, 3 Pin- 5. Succession of Andrew, 16 La. ney 166 (3 Chandler 179). Ann. 197. 3. Chamberlain v. Sutherland, 4 111. 6. Ogsbury v. LaFarge, 2 N. Y. App. 494; Mills v. Pettigrew, 45 Kan. 113 — Bronson, J., dissenting. 573 (26 Pac. R. 33) ; Nevill v. Matt- 160 THE MERITS. record was held to disclose a dismissal upon the merits and ta be a bar. It was presumed that the court passed upon the bill, answer and depositions on file, notwithstanding the recital in the record that it was dismissed "for want of prosecution."' A dismissal of a bill in equity because the plaintiff fails ta reply to a plea or to set it down for argument;^ or a dismis- sal of a foreclosure suit because the plaintiff refuses to submit to an examination before the trial, is no bar to a new suit.' So a voluntary dismissal of a suit to quiet title in California is no bar to a new suit.* Chambers. — A dismissal of a bill in equity entered at cham- bers, where the merits could not be heard, is no bar to a new suit, although the words "without prejudice" are omitted.* 1. Farish v. New Mexico Min. Co., N. Mex. (21Pac. R. 654). 2. Keller v. Stolzenbach, 20 Fed. R. 47. 3. Cheney v. Stone, 29 Fed. R. 885. 4. Parks v. Dunlap, 86 Cal. 189 (25 Pac. R. 916). 5. Dunham v. Carson, 37 S. C. 269 (15 S. E. R. 960). The court said: "Soon after the case was thus re- moved to the circuit court of the United States, the plaintiffs gave notice to the defendants that they would move before his honor, Judge Bond, at chambers, for leave to enter an order of discontinuance, without prejudice, upon the payment of the costs incurred, to be taxed by the clerk of the court ; and in pursuance of this notice Judge Bond, on the 10th of July, 1886, granted an order, upon the motion of plaintiffs' attorneys, 'that upon the payment of the costs incurred to date this cause does stand dismissed, and that the clerk of this court is hereby directed to enter a discontinuance upon payment of the costs ; and it is further ordered that the clerk of this court do tax the costs in the same.' The order, as presented by the counsel for plaintiffs, contained the words 'without prejudice' between the word 'dismissed' and the word 'and,' but before signing the order - Judge Bond erased the words 'without prejudice' by drawing his pen through them, and thus the order as signed reads as in the above copy. The costs in the cause having been duly taxed and paid, the same was at an end. We must therefore confine our in- quiry to the sole question whether or not there was error in sustaining the plea in bar, which rests entirely upon the order, or decree as it is called, of Judge Bond, of the 10th of July, 1886. This, in our judgment, depends upon the inquiry whether or not that or- der can be regarded as a final de- termination, after hearing, of the merits of the controversy involved in the former case. We do not think it can be so regarded, first, be- cause it was granted at chambers, where, as we understand it, a case could not be heard upon the merits. But, waiving this, we think it clear from an inspection of the terms of the order and the record in the case, that it was an order granted before hear- ing, simply permitting the plaintiffs, on their own motion, to discontinue ABATEMENTS, NOXSUITS, ETC, 161 § 39. Dismissal in equity after appeal. — The contractors for a bridge sued for a balance alleged to be due, and the matter was referred to a master, who, upon the contract, reported that they had been over-paid. No exceptions were filed to this report, but the contractors claimed that it was erroneous, be- cause the loss occasioned by a freshet while the work was pro- gressing should be borne by the defendants, and that ques- tion was submitted to the chancellor, who held that the con- tractors must bear the loss, and they appealed to the supreme court, which affirmed the decree and remanded the cause for further proceedings on the report. The contractors then, with- out either consent of or objection from the defendants, dis- missed their case. This was held to preclude them from bring- ing a new bill for the same cause.' § 40. Dismissal in equity on defendant's motion. — A decree In equity which reads, "And now in this term, before the sjourt, have come the parties by their attorneys, and this action is dismissed on motion of defendants. Defendants ask costs, kvhich are granted," is on the merits, and bars another suit.^ Errors and irregularities in the proceedings.- — A dis- missal of a bill in equity on the merits, although clearly erro- neous,^ or a dismissal, for want of equity, of a bill seeking to jompel the conveyance of land, although it is defective in not naking the trustees who hold the legal title parties, will bar 1 new bill.* So if a decree is reversed in the supreme court :)ecause it appears to the court "that there is no equity in complainant's bill," which is ordered to be dismissed, this t)ars a new suit, even though there was a demurrer to the bill for want of jurisdiction.^ their action upon the payment of the 2. Foote v. Gibbs, 1 Gray (67 Mass.) costs incurred up to that time ; and tliat 412. it can not be regarded as a final deter- 3. Thompson v. Clay, 3 T. B. Mon. mination of the questions therein in- (18 Ky.) 359 (16 Am. Dec. 108). volved in such a sense as would bar 4. Curts v. Trustees of Bardstown, 6 mother action brought by the same J. J. Marsh. (29 Ky.) 536. parties or their privies for the same 5. Williams v. Hollingsworth, 5 Lea )urpose." (73 Tenn.) 358. 1. Croft V. Johnson, 8 Baxter (67 Cenn.) 390. 11 162 THE MERITS. Jurisdiction wanting. — If a decree on the merits is reversed on appeal, and the cause dismissed because the court had no jurisdiction/ tliere is no bar to an action at law. Likewise, a judgment against the plaintiff by a justice of the peace in an equitable action over which he had no jurisdiction, such as a suit to compel the defendant to execute a note, is no bar to a suit in a proper court. ^ A decree dismissing a bill in equity to cancel a note upon the allegation that it was given for a gambling debt, because the court had no jurisdiction over the defendants on account of their non-residence, is not res judi- cata.^ § 41. Dismissal in equity — Findings nevertheless conclusive. — If a bill in equity does not show that there is an adequate remedy at law, and there is an answer in denial and a plea set- ting up other defenses, and a trial on the merits and a finding of facts which shows that there is an adequate remedy at law, for which reason the cause is dismissed, the finding so made is as conclusive as if the bill had been sustained.* The result would have been the same if the bill had shown that there was an adequate remedy at law, and it had not been demurred to.^ A person sued a husband and wife in equity to foreclose a builder's lien on a house and lot in Connecticut, alleging that they were both liable for the debt, and that both had an inter- est in the land subject to his lien. The husband denied that he was so indebted, either alone or jointly with his wife, and issue being taken on this plea, the court found that he was in- debted in an amount specified, but also found that the wife was not indebted and that the husband had no interest in the land, for which reason the complaint was dismissed. The plaintiff then sued the husband at law to recover the debt, and it was 1. Keokuk & N. W. Ey. 'Co. V.Don- 4. Munson v. Munson, 30 Conn, nell, 77 la. 221 (42 N. W. R. 176). 425, 433,. 2. Oleson v. Merrihaw, 45 Wis. 397, 5, Munson v. Munson, 30 Conn. 402. 425, 433. 3. Champlin v. Smith, — Pa. St. — (30 Atl. R. 447). ABATEMENTS, NONSUITS, ETC. 163 decided that the findings in the former suit were admissible to prove the indebtedness.^ In a suit in equity in Illinois to con- strue a deed of trust, the court, among other things, found that a certain amount of interest was due from the defendant, but declined to enter a decree for its payment because it was a legal demand. In an action at law to recover this interest, it was held that the finding in equity was conclusive in respect to it.^ A bill in equity was filed in Rhode Island to enforce a con- tract for a private right of way over a strip of land, which it was alleged the parties held as tenants in common. The bill, also, it seems, set up a deed in relation to this strip, executed by the complainant to a third person from whom the defendant had purchased, and asked that it be so construed as to pass only a portion of complainant's interest in the strip, or if that could not be done, then it asked for a reformation on the ground of a mistake of the scrivener. The answer denied any ownership in common of the strip, and claimed that the deed mentioned carried all the complainant's rights. The record showed that the question concerning the construction of the deed was raised and argued, and that thereupon the court decided that the par- ties held the strip as tenants in common, but dismissed the bill on the ground that no contract was proved for a private right of way over it as alleged. In a new suit by the complainant for an accounting, it was held that the former suit, although the bill was dismissed, was a conclusive adjudication in respect to the construction of the deed, and that the defendant was barred from showing that they were not tenants in common.^ A and B verbally agreed to exchange farms, and B was put into possession of the one owned by A. B afterward brought a suit for a specific performance, and A answered that B had made fraudulent representations in regard to the location, qual- ity and value of his land, and prayed for a rescission of the contract, for the restoration of possession and for rents and 1. Huntley v. Holt, 59 Conn. 102, 3. Almy v. Daniels, 15 R. I. 312 (4 105 (22 Atl. R. 34). Atl. R. 753). 2. Knowlton v. Warner, 25 111. App. 221. 164 THE MERITS. profits. The cause having been referred, the referee reported that it would not be equitable to enforce the contract because of inequality and hardship, and of the misrepresentation of B in respect to the value of his land, and he also reported that A was not entitled to a rescission of the contract, and recom- mended that the petition and cross-bill be dismissed at B's costs, "and that the parties be remitted to their remedies at law. " A decree was entered approving this report, and dismissing this petition and cross-bill, and remitting both parties "to their remedies at law." A then brought an action at law to recover the possession of his farm, and B sought to use this verbal con- tract to defend his possession, but it was held that the decree in the former case barred him from doing so ; that it declared the verbal contract to be of no force, and left the legal title in A, which entitled him to recover.* An equitable defense was set up to an action at law in Mis- souri. The court tried the issue made by this defense first, and dismissed it for a failure of consideration. The plaintiff then took a nonsuit in his action at law. In a new action be- tween the parties, it was decided that the invalidity of the con- tract upon which the equitable defense in the first action was based, was res judicata.^ But in California, in a suit to enjoin the execution of a sheriff 's deed upon the ground that it would cast a cloud upon complainant's title, the court dismissed the bill for want of equity, but made a finding and decree that the sale under the judgment and execution was valid, and effectual to pass the title of the premises to the purchaser, and that he was entitled to a deed. It was held that these findings and the de- cree rendered upon them were of no force, and did not affect complainant's title, as the dismissal simply showed that he had no equitable cause of action.^ So, in Kansas, one tenant in common out of possession having sued those in possession for an account of the rents, to quiet title and to recover his possession, and the court having found that the defendants had 1. Painter u.Hogue, 48 Iowa 426. S.Fulton v. Hanlow, 20 Cal. 450, 2. McReynolds v. Kansas City, C. 482. & S. Ry. Co., 34 Mo. App. 581. ABATEMENTS, NONSUITS, ETC. 165 received four hundred dollars more in rents than they had ex- pended for taxes, but having rendered a judgment against the plaintiffs for costs because the form of his action was wrong, this finding is not res judicata in a new action by him against them.^ As the cases from California and Kansas stand on a bald technicality not affecting the merits, I prefer the other cases. § 42. Dismissal in equity — Language used in decree con- strued. — A finding in Louisiana that ' ' the law and the evi- dence " is in favor of the defendant, and a judgment "that the demand of the plaintiff against the defendant be and the same is hereby dismissed," is on the merits.^ A federal decree in equity in these words : ' ' This cause came on this day for hearing. Messrs. Gatch, Wright and Runnells withdrew their appearance as attorneys for complainant, and the defendant, appeared by D. Rorer, Esq., and thereupon the cause was sub- mitted to the court upon the pleadings and proofs, and the court, being fully advised, orders, adjudges and decrees that complainant's bill be dismissed with costs, that the defendant recover from complainant its costs herein to be taxed and that execution issue therefor, ' ' the answer being such as to require the complainant to prove the allegations of his bill before he could obtain the relief asked, is a dismissal on the merits and bars a new suit.^ So, an entry that "this cause having come on to be heard upon pleadings and proofs to be taken in open court, upon consent of complainant in open court, it is ordered, adjudged and decreed by the court now here, that the com- plainant's bill of complaint be, and the same is hereby dis- missed, with cost to complainant to be taxed, and that defend- ant have execution therefor," shows a dismissal on the merits which bars another suit.* But a final decree which reads, "Injunction dissolved and bill dismissed. Decree against 1. Auld V. Smith, 23 Kan. 65. 3. Scully v. C, B. & Q. R. Co., 46 2. Granger v. Singleton, 32 La. Ann. Iowa 528. 898. 4. Edgar v. Buck, 65 Mich. 356 (32 N. W. R. 644). 166 THE MERITS. complainant for costs," is no bar to a new suit.' So also, the title being in issue, if the court dismisses the bill absolutely, but files a written opinion, saying, " I do not think the com- plainant has such a title as will enable him to maintain this suit in his own name," there is no bar to a new suit.^ § 43. Dismissal in equity — Non-meritorious matters. — If a dismissal in equity is not on the merits it will not support the plea of res judicata.^ Thus, if a person brings a suit to fore- close a mortgage received from a public officer and is defeated because his assignment is void, that is no bar to a new suit upon a perfect assignment.* And the dismissal of so much of a bill as relates to an irrelevant issue is no bar to a new bill for a dif- ferent object depending upon the same issue which is now rel- evant.* Nor is a dismissal in equity, for want of proper par- ties, although the right to file a new bill is not given, a bar to a new one.^ 1. Loudenback v. Collins, 4 O. St. 251, 260. 2. Sessions v. Sherwood, 78 Mich. 234 (44N. W. R. 263). 3. Jackson v. Elliott, 49 Tex. 62, 69. See § 37, supra. 4. Mitchell v. Cook, 29 Barb. 243, 254. 5. Bainbrigge v. Baddeley, 2 Phil- lips (22 Eng. Ch.) 705. 6. Henninger v. Heald,51 N. J. Eq. (26 Atl. R. 449). The court said: "Among the various causes assigned for demurrer to the bill of complain- ant in this cause, one is that the for- mer bill, involving the same issues, had been filed, and had been dis- missed without adding the saving clause, ' without yjrejudice.' It is im- portant to determine the value of this assignment of demurrer in the outset, because the result must necessarily aid in determining the cause first as- signed, which will be considered next after the present inquiry is concluded. The present bill states that the former bill was dismissed for want of proper parties, and that the cause was not tried upon its merits. Counsel in- sists that the absence of the phrase, ' without prejudice,' is suflBcient warrant, under the authorities, and that such authorities make it the duty of the court to dismiss the pres- ent bill. I think there can be no doubt whatever that if a bill has been dismissed as the one referred to above was, and another bill is filed, between the same parties, based upon the same subject-matters, the court may, in its discretion, dismiss the latter bill without a hearing; but it seems to me that unless the court is satisfied that the proceedings on the part of the complainant are vexatious, and the allegations are to the effect that the complainant has been im- posed upon and defrauded by one or more of the defendants, it then be- comes the duty of the court to sustain the latter bill. The authorities are to this effect. 1 Greenl. Ev., §§ 529, 530. ABATEMENTS, NONSUITS, ETC. 167 § 44. Dismissal in equity — Presumptions. — If the ground of a dismissal of a bill is not stated, nor anything found in the record from which it may be inferred, there is no presumption that it was on the merits, and there is no bar to a new suit ; but this is not the case if the record shows that the dismissal was upon a hearing.^ So, if a suit in equity is submitted on several issues, some of which go to the merits and some not, a general dismissal of the bill will be presumed to be for non-meritorious matters and will be no bar to a new suit.^ § 45. Dismissal in equity "without prejudice." — A dismis- sal of a bill, "without jDrejudice,"^ or "without prejudice to another action," even though erroneous,* will not bar a new suit. So, a dismissal of a bill in equit}'', " without prejudice as to any right or title which the said plaintiff may hereafter assert, either in law or equity, to said six acres," left him at liberty to renew the litigation on his old rights and titles .® An answer that in a former suit, upon the same cause of action, the case was sent to a referee, "who, upon hearing the evidence, reported in favor of the defendants, and that the case should be dismissed ; that In the case of Hughes v. U. S., 4 Wall, of proceedings, or the want of juris- 232, it appeared that one Sewell had diction, or was disposed of on any commenced a suit respecting his rights ground which did not go to the merits ander a patent, which was carried on of the action, the judgment rendered through various stages, but that the will prove no bar to another suit.' " suit was dismissed before final hear- 1. Loudenback v. Collins, 4 Ohio St. 'ng upon the merits, for want of juris- 251, 261, 262. iiction and want of proper parties, 2. Chrisman v. Harman, 29 Gratt. and also because of defective state- 494 (26 Am. R. 387). ments as to cause of action. The 3. Long v. Waring, 25 Ala. 625 (60 court said : 'It requires no argument Am. Dec. 533) ; Atchison, Topeka and to show that judgments like these are Santa Fe R. R. Co. v. Commissioners, no bar to the present suit. In order 12 Kan. 127, 135; Brown v. Kirkbride, that a judgment may constitute a bar 19 Kan. 588, 592; Ballentine v. Bal- to another suit, it must be rendered lentine, — Pa. St. — (15 Atl. R. in a proceeding between the same 859) ; Bush v. Bush, 1 Strobhart's Eq. parties or their privies, and the point 377 ; County of Mobile v. Kimball, of controversy must be the same in 102 U. S. 691, 705. both cases and must be determined on 4. Gunn v. Peakes, 36 Minn. 177 its merits. If the first suit was dis- (30 N. W. R. 466). oiissed for defect of pleadings or par- 5. Ragsdale v. Vicksburg and Merid- ties, or a misconception of the form ian R. R. Co., 62 Miss. 480. 168 THE MERITS. the court approved the report and rendered judgment that the petition be dismissed without prejudice to a future action, at the costs of the plaintiff," is not a good defense of former adjudi- cation ; because, conceding that it shows that the decree ought to have been on the merits, it is not void, and purports to be without prejudice.' A decree foreclosing a mortgage, with a proviso ''saving any interests" which one of the defendants may have in the land described, does not bar his rights as a i mortgagee f and a general dismissal of a bill for a specific per- formance will not bar an action at law, even though the words " without prejudice to the action at law " be omitted.^ If a dis- missal of an action without prejudice is set aside on terms with which the plaintiff fails to comply, he may maintain a new one.* In a suit to recover lands, if there is a decree in favor of the complainant for a part of them, and a dismissal of the bill " without prejudice " to a new suit, a new one can be main- tained upon the same equitable right.® § 46. Dismissal at law — Generally . — The dismissal of an action at law, without a trial on the merits, is no bar to a new action.® The same is true in respect to a dismissal by the plaintiff, although caused by the announcement of the court that there could be no recovery unless further evidence should be introduced.' But a dismissal on the merits in Indiana of a claim against a decedent's estate bars a new action.* A dis- missal of a suit brought to condemn intoxicating liquors, and an order for their return to the defendant, concludes nothing 1. Wanzer v. Self, 30 O. St. 378, Ry. Co. v. Kelley, 4 Colo. App. 325 381. (35 Pac. R. 923)— damages for per- 2. Krutsinger w. Brown, 72 Ind. 466. sonal injury ; Crews v. Cleghorn, 13 3. M'Namara v. Arthur, 2 Ball & Ind. 438; Brothers tJ. Higgins, 5 J. J. Beatty 349, 353. Marsh. (28 Ky.) 658— a justice of the 4. Mattingly v. Louisville & N. R. peace judgment ; Cheney v. Cooper, Co., — Ky. — (25 S. W. R. 830). 14 Neb. 415 (16 N. W. R. 471) ; Phil- 5. Northern Pacific R. Co. v. St. pott v. Brown, 16 Neb. 387 (20 N. W. Paul, M. & M. Ry. Co., 47 Fed. R. R. 288). 636. 7. McWhorter v. Norris, — Ind. — 6. Jones v. Graham, 36 Ark. 383; (34 N. E. R. 854). Martin v. Hodge, 47 Ark. 378 (1 S. 8. Stults v. Forst, — Ind. — (34 N. W. R. 694)— replevin; Union Pacific E. R. 1125). ABATEMENTS, NONSUITS, ETC. 169 in a suit by the owner against the officer for trespass for the seizure.^ § 47. Dismissal at law — After answer in California. — A dis- missal by the plaintiff in California of an action to recover possession of land, after answer filed, is no bar to a new action.^ After appeal. — If the plaintiff, after an appeal from a justice of the peace, ^ or from the board of supervisors of the county,* to the circuit court, or from the county court to the superior court, dismisses his case, he may sue again. Appearance wanting. — Neither a dismissal of the plaintiff's complaint for failure to appear, nor the denial of his motion to set aside the dismissal made on affidavits, without investigating the merits, bars a new action.^ Bastardy. — A dismissal of bastardy proceedings because the relatrix has not lived in the county long enough to confer jurisdiction on the court, '^ or because she failed to appear;^ or his discharge after a hearing before a magistrate for the pur- pose of binding him over to the superior court for trial, ^ is no bar to a new proceeding. Costs. — A dismissal for a failure to give security for costs does not prevent a new suit." Evidence of plaintiff insufficient. — The cases nearly all agree that, after the evidence of the plaintiff is all given, if the court, on the defendant's motion, dismisses the case because nothing is proven ;" or if all the evidence of the plaintiff is 1. Lord V. Chadbourne, 42 Me. 429 8. State, ex re?. Sumpter, v. Barbour, (66 Am. Dec. 290). 17 Ind. 526. 2. Pierce v. Hilton, — Cal. — (36 9. Hyden v. State, 40 Ga. 476. Pac. R. 595). 10. Dean v. Ridgway, — Miss. — (6 3. Whitworth v. Sour, 57 Ind. 107. S. R. 236). 4. Clay County v. Chickasaw Coun- 11. Alabama G. S. Ry. Co. v. Blev- ty, 64 Miss. 534 (1 S. R. 753). ins, 92 Ga. 522 (17 S. E. R. 836) ; 5. Fagan v. McTier, 81 Ga. 73 (6 S. Wheeler v. Ruckman, 51 N. Y. 391— E. R. 177). equivalent to a nonsuit; McLaughlin 6. Miller r.McGuckin, 15Abb. New v. McGee, 79 Pa. St. 217; Hammer- Cases 204. gen v. Schurmeier, 3 Fed. R. 77. See 7. State V. Giles, 103 N. C. 391 (9 §53, note 10. S. E. R. 433). 170 THE MERITS. excluded because it is secondary and not the best;' or if he fails simply because unable to prove one material point/ he may sue again. A late case in Wisconsin seems to be opposed to all the others, and is wrong, as it seems to me. It was this: At the close of the evidence in a case wherein the com- plaint set forth three causes of action, the defendant moved the court to direct the jury to return a verdict for him upon each cause, whereupon the court charged the jury that there was not sufficient evidence in respect to the second cause to justify its submission to them, and directed them to confine their attention to the first and third causes. A general verdict for the plaintiff was returned, upon which judgment was ren- dered. This was decided to be a bar to a new action on the second cause. ^ Intervener. — If an intervener dismisses his petition,* or 1. Hendrick v. Clonts, 91 Ga. 196 (17 S. E. R. 119). 2. Lewis V. Davis, 8 Daly 185, 3. Morgan v. Chicago, M. & St. P. Ry. Co., 83 Wis. 348 (53 N. W. R. 741). In this case, the court, after setting out the instructions to the jury informing them that there was not sufficient evidence upon the second cause of action to warrant its submis- sion to them, said: "From these statements it is very clear that under the direction of the court the general verdict in favor of the plaintiffs and against the defendant for |4,000 in- cluded no damage by reason of the second cause of action; in other words, the court directed the jury to the effect that whatever damages they assessed against the defendant must be confined to the first and third causes of action alleged, as the evi- dence was insufficient to authorize any damage as to the second. This was nothing more, as to the second cause of action, than a direction to the jury to return a verdict in favor of the defendant as to tliat cause. This must be so, for, if there had been no other cause of action alleged, then the request to direct a verdict in favor of the defendant would necessarily have been granted. We must therefore treat the general verdict returned, so far as the second cause of action is concerned, as a verdict directed in favor of the defendant. That pre- sents the question whether or not a judgment on a verdict so directed in favor of the defendant is a bar to another action between the same parties for the same cause. It will be observed that the verdict was so directed in favor of the defend- ant because the evidence was in- sufficient to support a verdict in favor of the plaintiffs upon the second cause. Nevertheless the is- sue upon that cause was tried upon the merits, and the determination thereof resulted in a verdict in favor of the defendant; and hence the judgment is necessarily a bar to this action." 4. Dalhoff V. Coffman, 37 Iowa 283. ABATEMENTS, NONSUITS, ETC. 171 withdraws,^ before the final submission, the judgment does not affect his rights ; and the same effect is given to a judgment in Louisiana dismissing his petition, it being regarded as equiva- lent to a nonsuit.^ § 48. Dismissal at law — Jurisdiction wanting. — If a justice of the peace in Alabama, after hearing a cause on the merits, wrongfully dismisses it for want of jurisdiction, that is no bar to a new suit.' So, in Pennsylvania, a cause was erroneously dismissed in the court of common pleas because the jurisdic- tion was in the orphans' court. It was then brought in the latter court, which rightfully declined to proceed, because the jurisdiction was in the common pleas, and the plaintiff recommenced it in that court. It was decided that the dis- missal in the first case was no bar to the second, because it was 1. Wilson V. Trowbridge, 71 Iowa 345 (32 N. W. R. 373). The court said : "The plaintiff claimed the pos- session of the property by virtue of two chattel mortgages executed to him by one Bucher. The defendant is sheriff, and was in possession of the horses in controversy by virtue of a writ of attachment sued out by one Quinn. It was claimed by Quinn in his attachment proceeding, that the property was subject to a land- lord's lien for the rent of land leased by him to Bucher. After the attach- ment suit was brought, the plaintiff herein made an appearance in that suit by his attorneys, and took time to file a petition of intervention in the ai^tion. He filed no petition of inter- vention, and within a few days there- after his attorneys withdrew their ap- pearance for him. The plaintiff in that action took judgment against Bucher for the rent, and procured an order for the sale of the attached property. The action at bar was then pending, and the plaintiff's mortgages are upon the same property as that ordered sold in the attachment suit. The defendant herein pleaded these facts, and claimed that the rights of the plaintiff were adjudicated in the attachment suit. The plaintiff de- murred to this defense, and the de- murrer was sustained. Defendant complains of this ruling of the court. We think it was correct. Quinn did not make the plaintiff herein a part}'' to his attachment suit. He appeared voluntarily, and announced his inten- tion of making himself a party by in- tervention. But he reconsidered the matter, withdrew, filed no petition of intervention, and did not make him- self a party. There was no issue be- tween him and Quinn that could be adjudicated, and when the appear- ance was withdrawn the status of the case was the same as if he had made no appearance." 2. Fisk V. Parker, 14 La. Ann. 491. 3. Waddle v. Ishe, 12 Ala. 308. 172 THE MEKITS. not on the merits.^ But the disallowance of a claim against a de- cedent's estate by a county court in Wisconsin, upon the erro- neous view that it had no jurisdiction, prevents an action in the circuit court, as the remedy is by appeal.^ The sustaining of a demurrer to a declaration in a federal court because there was no jurisdiction of the cause of action stated, does not pre- clude a new declaration which states a cause within the juris- diction.' So also, if the jurisdiction of a court is limited to causes of fifty dollars and upwards, and a verdict is returned for forty-one dollars, for which cause the court dismisses the case, a new action can be maintained in the proper court.* § 49. Dismissal at law — Language of Judgment construed. —The following final entries, namely : " Dismissed at the de^ fendant's costs: "^ "That the said suit is not prosecuted, and be dismissed;"® and that ''In this case the plaintiff pay costs,'" were held to be no bars to new suits. So, an entry of ''ordered, that this cause be dismissed at defendant's cost, and leave is given the plaintiff to withdraw the note sued on by- leaving a coj)y in the papers," is not on the merits.' New trial. — A judgment against the plaintiff in ejectment, 1. Weigley v. Coffman, 144 Pa. St. quence became the law in that par- 489 (22 Atl. R. 919). The court said: ticular case; but as the decision was* "At the hearing of the bill in the not upon the merits, and did not common pleas, the appellees de- determine the plaintiff's title to relief murred, assigning want of jurisdiction under the bill, it was not, according in the court. They now contend, and to all the cases, a bar in another seek to dismiss the plaintiff's bill, suit." upon the plea of res judicata, upon the 2. Gale v. Best, 20 Wis. 44. alleged ground that the court had jur- 3. Smith v. McNeal, 109 U. S. 426, isdiction. This is an inconsistency 429. which can not be allowed. It is a 4. Offutt v. Offutt, 2 Harris & Gill matter of no consequence in this case 178. that the court of common pleas 5. Bond v. McNider, 3 Ired. Law in fact had jurisdiction. That court 440. See § 53 infra. decided otherwise, and refused to ex- 6. Haldeman v. United States, 91 ercise its jurisdiction. It is true that U. S. 584. an appeal might have been taken, but 7. Ferrell v. Underwood, 2 Dev. none was taken, and the decision Law 111. against the jurisdiction in conse- 8. Hibler v. Shipp, 78 Ky. 64, 66. ABATEMENTS, NONSUITS, ETC. 173 if he obtains a new trial and then dismisses his case, is no bar to a new one.^ § 50. Dismissal at law — Retraxit. — A technical common- law retraxit, which, according to Blackstone, *'is an open and voluntary renunciation of his suit in court," by the plaintiff in person, has the same effect as a dismissal of his case in equity on the merits, and bars a new suit on the same cause of action.^ This is one of those technical and senseless things which abounded in the old law, and which has nearly fallen into disuse. It has no element of an adjudication upon the merits, because no evidence is heard ; and no element of an es- toppel because the defendant is not thereby induced to change his position for the worse. Still, upon the rule of stare decisis, I suppose no court would now deny its force. It had to be done by the plaintiff in person, and not by his attorney,^ and could not be done until after a declaration was filed.* But in Indiana, a statute having given counsel the power "to bind his client in an action or special proceeding, by his agreement, filed with the clerk, or entered upon the minutes of the court," it was held that this gave him power to enter a retraxit.^ A plaintiff having addressed a let- ter to the clerk, saying : ' ' You are authorized and required to discontinue forever, and withdraw the above-stated suit for- ever, on the presentation of this paper," the dismissal does not bar a new suit, as it is not a technical retraxit.^ So, a plea that in a former suit on the same cause of action "the plaintiff in his own proper person came into court and confessed that he 1. Sheldon v. Van Vleck, 106 111. la-n, 8 Pa. St. 157 (49 Am. D. 501) 45; Preachers' Aid Society v. Eng- Wholford v. Compton, 79 Va. 333 land, 106 111. 125, 130. United States v. Parker, 120 U. S. 89 2. 3 Bl. Com. 296. Accord, Evans v. Beecher v. Shirley, Cro. Jac. 211 McMahan, 1 Ala. 45 ; Thomason v. Beecher's Case, 8 Coke 115. Odum, 31 Ala. 108 ; Harris v. Preston, 3. See cases in last note. 10 Ark. 201 ; Cunningham v. Schley, 4. Cox v. Mayor, 17 Ga. 249; Lowry 68 Ga. 105; Lambert v. Sandford, 2 v. McMillan, 8'Pa. St. 157 (49 Am. D. Blackford (Ind.) 137; Coffman v. 501) ; Beecher's Case, 8 Coke 115. Brown, 7 Sm. & M. 125 (45 Am. D. 5. Barnard v. Daggett, 68 Ind. 305. 299) ; Kellogg v. Gilbert, 10 Johnson 6. Lowry v. McMillan, 8 Pa. St. 157 220 (6 Am. D. 335) ; Lowry v. McMil- (49 Am. D. 501). 174 THE MERITS. would not further prosecute his said suit against the defendant, but from the same altogether withdrew himself, does not show a retraxit, and is no defense to a new action.^ Without prejudice. — A justice's judgment which reads : " This day having fully considered the proofs and allegations of both parties, I am of opinion that the execution of the writ- ten contract mentioned in the summons is not proved. It is therefore considered by me that this action be, and is dismissed without prejudice to a new suit, " is a bar to further proceed- ings because he has no power to dismiss after hearing the evi- dence.^ This case is opposed in princij)le to cases cited in sec tion 53 infra, and is unsound in my opinion. In other words, I do not think the action of the justice was void. § 51. Dismissal under codes of California, Minnesota, New York and India. — The California statute enumerates six differ- ent cases in which judgment of dismissal or nonsuit may be entered, and provides that, in all other cases, judgment must be rendered on the merits. A judgment dismissing the cause for failure to give security for costs, which is upon the merits because not among the six enumerated cases, is no bar to a new suit, inasmuch as another section of the statute pro- vides that a judgment shall be conclusive only upon the mat- ter directly adjudged.^ A Minnesota statute enacts that an * ' action may be dismissed without a final determination of its merits, by the court, when, upon the trial, and before the final submission of the case, the plaintiff fails to substantiate or es- tablish his claim or cause of action or right to recover," and that "in every other case * * * the judgment shall be rendered on the merits." Under this statute, after the plain- tiff closes his testimony, a dismissal by the court, upon the ground that no cause of action has been proven, is not on the merits and is no bar to another action.* So, under the New York code, a judgment dismissing the complaint after a trial, 1. Coffman v. Brown, 7 Sm. & M. 3. Rosenthal v. McMann, 93 Cal. 125 (45 Am. D. 299). 505 (29 Pac. R. 121). 2. Parsons v. Riley, 33 W. Va. 464 4. Graver v. Christian, 34 Minn. 397 (10 S. E. R. 806). (26 N. W. R. 8). ABATEMENTS, NONSUITS, ETC. 175 instead of a positive judgment for the defendant, does not bar a new action.^ Indian cases — Decision on preliminary point. — In Chand on Res Judicata, sections 50 to 56,^ it is said : "50. A matter in issue in a former suit has merely as such no legal operation. To constitute res judicata, it must have been heard and finally decided. In fact it is the decision that constitutes the bar in a subsequent suit. But the decision will not do that unless it is of a matter in issue, and even then it will be res judicata only in regard to that matter, or in regard to any suit in which that matter is directly in issue, and a de- cision of which suit therefore depends on the decision of that matter. A judgment of the dismissal of a suit can not there- fore be res judicata as to any matter not decided by it. Thus if a suit is dismissed under section 102 of the civil procedure code for the plaintiff's default in attendance, there is no matter decided ; and such a dismissal has therefore been held in Chand Kour V. Partap Singh^ not to constitute res judicata, though section 103 may preclude the plaintiff from bringing a fresh suit in respect of the same cause of action.* The same has been held in Radha Prasad Singh v. Lai Sahab Rai,^ in which Lord Watson, in delivering their lordships' judgment, said : ' None of the questions, either of fact or law, raised by the pleading of the parties, was heard or determined in 1881 ; and his de- cree dismissing the suit does not constitute res judicata. It must fall within one or other of the sections of chapter 7 of the code. Assuming that the respondents are barred from seeking relief against the attachment and sale of their interest in Mahal U., the decree of 1881 does not disable them from claiming re- lief against the attachment and sale of their interest in any 1. Coit V. Beard, 33 Barb. 357; Dex- 3. L. R. 15 Indian Appeals, 156. ter V. Clark, 35 Barb. 271. 4. T7(Ze Ramchandra Jivaji v. Khatal 2. Mr. Chand has placed matters in Mahomed, Indian L. R. 10 Bombay these sections which I would have 28; Thakur Shankar Baksh v. Dya placed elsewhere, but I can not sep- Shankar, L. R. 15 Indian Appeals 66. arate them without disarranging his 5. Indian L. R. 13 Allahabad 53. ideas, and thereby doing him an in- justice. 176 THE MERITS. other property not included in the judicial sale of U.' In Mu- hammad Salim V. Nabian Bibi/ Mr. Justice Mahmood observed that * it is not every decree or judgment which will operate as res judicata, and that every dismissal of a suit does not neces- sarily bar a fresh action ; ' and said : * We have in the civil procedure code itself the provisions in sections 43, 103, 244, 317, 371, 373, which, though barring an action in limine, must not be confounded with the rule of res judicata as enunciated in section 13 of the code. On the other hand, it is not every dismissal, though incorporated in a decree, that will operate in bar of a second action ; and illustrations of this are to be found in sections 99 and 99a of the code itself, which permit a fresh suit in express terms.' So also, Latham, J., observed in Run- grav V. Sidhi Mahomed,^ that ' the civil procedure code does not contemplate the dismissal of a suit by default under section 102 as preventing the plaintiff by section 13 from again litigating the same matter, as, if so, the first sentence of section 103 would be superfluous.' The principle, that a decision is res judicata only in regard to a matter decided by it, is of particular impor- tance in countries in which the doctrine of bar by judgment is still distinguished from that of the conclusiveness of judgment, and not treated merely as a branch of the latter. The broad doctrine, that a judgment in one suit can bar another suit on the same cause of action, has, on account of that principle, to be qualified with the condition, that the judgment to have that effect must have been on the merits. The Indian legislature, in enacting the rule of bar by judgment, in 1859, therefore, pro- vided that a suit on a cause of action would be barred only if the said cause was heard and determined in a former suit. ' It is not enough,' said Sir Richard Couch, C. J., in delivering the judgment of the Calcutta high court in Pursun Gopal v. Poor- nanund,^ * that the former suit has been heard and deter- mined. The cause of action must have been heard and de- termined.' In Shokhee Bewa v. Mehdee Mundul,* Seton-Karr and Dwarkanath Mitter, JJ., held that the former suit not 1. Indian L. R. 8 Allahabad 286. 3. 21 W. R. 272. 2. Indian L. R. 6 Bombay 482. 4. 9 W. R. 327. ABATEMENTS, NONSUITS, ETC. 177 having been tried on the merits, the subsequent suit can not be said to be on a cause of action heard and determined in a former suit. "In Ramnath Roy -v. Bhagbut,^ the former suit had been dismissed on appeal on the ground that the plaintiff's authority to bring the suit was not proved ; and Morgan, J,, said that the judgment was inconclusive and no bar to the subsequent suit, ' because it proceeded wholly on a technical defect or irregularity, and not upon the merits of the case.' Shumboo- nath, J., further observed that the evidence of the payment of rent was not looked at by the appellate court, but that * the plaint was dismissed for an irregularity, and notwithstanding this order of dismissal, the plaintiff is still authorized to bring another action for the same cause of action.' In Dullabh Jogi V. Narayan,^ the former suit was dismissed on the ground of improper valuation, and Sir Richard Couch, C. J., said that it having ' failed by reason only of an informality, it would be contrary to all principles of justice that the parties should be held to be conclusively barred thereby.' In Futteh Singh v. Luchmee Kooer,^ the dismissal of a suit for multifariousness was held not to bar a decision as to the real issues in the case ; and Mr. Justice Phear, in delivering the judgment of the court, said : ' We think, on referring to English authorities, that this dismissal of a suit for and on the cause of misjoinder or multi- fariousness is a disposing of the suit before hearing ; and that the suit can not, under those circumstances, be said to have been heard and determined. * * * j^ seems to be clear, therefore, that the objection to a suit on the ground of multifari- ousness or misjoinder of causes of action is an objection to the hearing of the suit ; and if it prevails at whatever time, it has the effect of preventing a determination as after hearing. Now, under the procedure act of 1859, the court would have done better, instead of dismissing the suit, to have simply rejected it. But the fact that the court has in form passed a decree dis- 1. 3 W. R. Act 10, Rule 140. 3. 13 Bengal L. R. Ap. 37. 2. 4 Bengal H. C. R. A. C. 110. 12 178 THE MERITS, missing the suit does not alter the character of the determina- tion.' In Pursun Gopal v. Poornanund/ the dismissal of a suit on the ground of the misjoinder of parties was held not te be a decision on the merits, and therefore not to bar a subse- quent suit on the same cause of action. The Calcutta high court has also held that the dismissal of a suit as barred by limitation law,^ or on the ground of its being premature.' oi badly framed/ or on account of non-payment of process fee for summoning the legal representative of a deceased defend ant/ is not a decision on the merits, and therefore does not operate as res judicata. In Putali v. Tulja,® a suit had been dismissed on the ground that the plaintiff had not obtained the certificate required by section 6 of the pensions act of 1871, and the dismissal was held not to bar a subsequent suit, Mr. Justice West saying : ' If a suit has failed through a formal defect, and the merits have not been so pronounced on as to constitute a legal relation resting on the act of tht court, another suit is not, by the English law, barred. Thi^ cule is consonant to justice, and agrees with the law as set lorth in the code of civil procedure.' In Rungrav v. Sidhi Mahomed," the former suit had been dismissed for plaintiff's default in giving security for costs, and Latham, J., said: * In Hall v. Hall,* Sir James Hannen says that it is well known that neither a nonsuit at common law before the rules made under the judicature act, nor the dismissal of a bill before the hearing in chancery, was a bar to further proceedings. * * * '^q doubt the court decides the suit in the pleadings of which such matter is alleged and denied, when it dismisses that suit for de- fault on the plaintiff's part, whether the default be non-appear- ance or failure to furnish security ; but I do not think that the court can properly be said to hear and decide the matter which 1. 21 W. R. 272. 5. Bessessur v. Murli, Indian L. R. 2. Brindabun Chunder v. Dhunun- 9 Calcutta 163. joy, Indian L. R. 5 Calcutta 246. 6. Indian L. R. 3 Bombay 223. 3. Elahi Baksh v. Sheo Narayan, 17 7. Indian L. R. 6 Bombay 482. W. R. 360. 8. 27 W. R. (Eng.) 664. 4. Deodhari Singh v. Lewsurun, 3 Calcutta L. R. 395. ABATEMENTS, NONSUITS, ETC. 179 it is relieved from hearing and deciding by the plaintiff's de- fault. * * * J i-gst jj2y decision on the matter not having been heard and decided in the former suit.' **In Bhukhandas v. Lallubhai,^ tli»e former suit had been dismissed as against some of the defendants for want of juris- diction over them, and in a subsequent suit against them in a competent court, the order of dismissal was pleaded as res judicata. The plea was overruled, however, Bayley, J., observ- ing in the judgment of the court that ' there was no decision on the merits, and the proceedings against them in that court were a nullity.' In Muhammad Salim -y. Nabian Bibi,^ the former suit had been dismissed on the ground of misjoinder and non-payment of additional court fees, and the Allahabad high court held that that would not bar a fresh suit on the same cause of action, Mr. Justice Mahmood observing that the earlier decisions referred to above would apply under the pres- ent code also. In fact, it is quite a generally admitted princi- ple that, if it can be gathered from the record of the former suit that the merits of the controversy were not passed upon, but that the decision proceeded upon some technical objection not affecting the plaintiff's ultimate right to sue, the decision will not bar a subsequent suit. "52. Matter omitted. — The same general rule is applica- ble, even if the decision is not on a preliminary point. Thus, in a suit for rent at a certain rate, if that rate was held not to have been proved, and a decree was given for the amount due at the rate admitted by defendant, without any finding in favor of that rate, the Calcutta high court held in Punnoo Singh V. Nirghin Singh, ^ that the question as to the rate of rent could not be said to have been decided, so as to constitute res judi- cata in a subsequent suit. 'It was one thing,' said Sir Rich- ard Garth, C. J., in delivering the judgment of the court in that case, ' to adjudge that the plaintiff should recover from the defendants as the rent for those years the sum which the de- fendants admitted to be due. It was another thing to adjudge 1. Indian L. R. 17 Bombay 565. 3. Indian L. R. 7 Calcutta 298. 2. Indian L. R. 8 Allahabad 282. 180 THE MERITS. that the sum so admitted by the defendants was the proper amount of rent.' In Hurry Behari v. Pargun/ the decision in a former suit as to the rent for a certain year was held to be conclusive as to the rent payable for that year in a subsequent suit for another year's rent, but only on the ground that the former decree could, in the peculiar circumstances, be con- strued so as to have decided the rate of rent. Pigot and Gordon, JJ., said — 'We have been referred to the cases Punnoo Singh V. Nirghin Singh, ^ and Jeo Lai Singh v. Surfun,* and it is urged upon us that where a plaintiff claims as rent a particular sum, and it is held by the court that he has failed to establish that to be due, and the court upon an admission by the defend- ant gives a decree for a lesser sum, that can not operate under the rule of res judicata as determining conclusively the due amount payable for the year, the rent of which is sued for. That proposition is too large. It may or may not be res judicata according to what the court actually finds. It may be discovered from an examina- tion of the proceedings in the suit that all that was deter- mined in it was that the plaintiff should recover from the defendants, as rent for the period in question, the sum ad- mitted by them to be due ; or it may be that what was decided was that the sum admitted by the defendants was the proper amount of rent payable for the land in suit for the year or years in question. That may be ascertained from a common sense view of the judgment by seeing what was decided.' This de- cision has been followed in Bakshi v. Nizamuddin,* on the ground that * the judges in arriving at the conclusion at which they arrived, as to the amount of money due from the defend- ants to the plaintiffs, tried and decided the question judicially, what was the yearly rent at which the tenure was held by the defendants under the plaintiffs. The decisions in Roghoouath V. Juggout Bundhoo, and in Nil Madhub v. Brojo Nath, are not against this. The former turned on the ground that the question of the extent of the land for which the defendant had 1. Indian L. E. 19 Calcutta 656. 3. 11 Calcutta L. R. 483. 2. Indian L R, 7 Calcutta 298. 4. Indian L. R. 20 Calcutta 505. ABATEMENTS, NONSUITS, ETC. 181 been paying the rent claimed, even if relevant in the earlier suit, had not been heard nor determined in it. In the latter case, the claim in the earlier suit was for arrears of rent for certain years on account of a certain quantity of land, and the defendant denied his liability for the entire amount on the ground that a portion of the land comprised in the tenure was in the possession of the plaintiff himself. The court, without framing any issues and without having any measurement of the land, but after considering the evidence which the defend- ant adduced, rejected his contention on the ground that he had failed to prove it ; and the decision was held not to be res judicata in regard to the same contention by the defendant in a subse- quent suit by the plaintiff for rent for the same land for some subsequent years. Macpherson and Banerjee, JJ., said : 'The decision in the suit of 1888 went no farther than this, that the defendant, upon whom the burden of proof lay, had failed to make good the plea he advanced, and the necessary conse- quence was that he failed to get the relief asked for, that is to say, a reduction of the rent for the years for which the rent was then claimed. But the cause of action is in this case different, each year's rent being in itself a separate and entire cause of action, and the mere failure of the defendant to prove what he tried to prove in the previous suit would not, we think, prevent him from proving it in this. The case might have been different if the court had in the previous suit definitely determined the area of the land in the defendant's possession and the annual rent payable for the same. It might then be said that the de- termination was general, and not limited to the particular years for which rent was claimed, and that the defendant could only succeed in the present suit by proving that the area and rent had since altered. The determination was not, however, of that character; and there is nothing in the judgment to indi- cate that the court intended to decide anything more than it was strictly necessary to decide for the purpose of the suit, namely, the amount of money which the plaintiff was to recover for the years then in question * * * "WTg can not say that the questions which the defendant raises in this suit were heard 182 THE MERITS. and finally determined in the suit of 1888.' In Ram Gobind V. Mungur Ram/ the subordinate judge trying it expressed an opinion on one of the several points at issue in the suit, but that opinion was held not to constitute res judicata, as the suit was dismissed on the ground that it ought to have been insti- tuted in the court of a munsiff. ' * The contrary has been argued in some cases on the ground that if an issue is or has to be raised in a certain suit, the dismissal of the suit on any ground involves a decision of that issue, and the plaintiff by submitting to the order of dismissal may be said to acquiesce in that decision. Mr. Nelson^ ob- serves, with reference to the principle of such cases, that in them 'the plaintiff should be held to have abandoned the ground or question of right not adjudicated upon, in that he did not make it a ground of appeal before the proper court, and that, if the court declines to consider a question of right before it, and dismisses the suit untried, the proper and only legal remedy is to appeal from the decree of dismissal.' That also was the view taken with reference to section 2 in Ghasee Khan V. Kallu,' in which a suit by the purchaser of a widow's rights in certain property for the separate possession of her share had been dismissed on the ground that the plaintiff must first es- tablish the extent of his right and the validity of his purchase, and the subsequent suit brought for that purpose was held barred because ' if the court failed to decide all the matters be- fore it, the remedy lay in an appeal and not in a second suit.' So also, in Shah Newaz v. Mowaz,* a decree for money due on a mortgage-bond, in spite of the mortgagor's plea of want of some of the consideration, was held to bar a subsequent suit by him for the recovery of the consideration, though it was admitted that the court in a former suit made a mistake in not inquiring into the consideration. "As against that view, it is usually pointed out that the plaintiff is not bound to appeal against the dismissal, even if it is wrong, and that there is no warrant for holding that 1. 13 Calcutta L. R. 83. 3. 1 Agra 152. 2. Com. Civ. Proc. 33. 4. 3 Punjab R. 80. ABATEMENTS, NONSUITS, ETC. 1S3 the decision on a preliminary or any other point is a decision on any issue which has expressly been left undecided. Their lordships of the privy council have recently held in .Jagatjit Singh V. Sarabjit Singh ^ that the dismissal of a suit, in which a certain claim is included, without any inquiry or finding as to that claim, does not bar a subsequent suit for that claim ; and Lord Hobhouse, in delivering their lordships' judgment, said : ' Section 13 does not enact that no property comprised in a suit which is dismissed shall be the subject of further litigation between the parties. The moment land was shown to belong to Tappa S., it was considered as out of the suit. It seems to have been the express intention of both courts to decide nothing about Tappa S.' "53. Matter expressly omitted. — On the same princi- ple it is generally held, that if, in a former suit, a point was expressly left undecided, it can nx)t be held to have been de- cided in that suit ; ^ and this is a fortiori so if the party raising it and pressing for its decision was referred to a sepa- rate suit. In ordinary cases this would appear to be quite a truism. In Mobaruck Hossein v. Sheo Gobind,^ and in Sheoraj Xundun Singh v. Deo Xundun Singh,* all the points in the former suit had been expressly reserved for determina- tion in a future suit as between the parties to the subsequent suit, and the decision in the former suit was therefore held not to constitute res judicata. In Ghursobhit v. Ramdut,^ a suit for rent on the basis of an agreement was dismissed because the agreement was not proved, and without any finding as to the occupancy-title on which the defendant relied. In a subse- quent suit for ejectment, the defendant contended that, on ac- count of explanation 2, he was in regard to the cjuestion of title in the same position as if that point had then (in the former suit) been decided in his favor; but the contention was nega- tived, and Sir Richard Garth, C. J., said in his judgment of the court that, ' that explanation was intended to apply to a 1. Indian L. R. 19 Calcutta 159. 3. 18 W. R. 61. 2. Bago V. Diwan, 1884 Punjab R. 4. 24 W. R. 23. No. 25. 5. Indian L. R. 5 Calcutta 923. 184 THE MERITS. case in which the defendant had a defense and a decree was passed against him because he did not raise that defense, and was never intended to enable a party to treat a point as having been decided in his favor in a former suit, which was in fact not so decided, and which it was not necessary for the purposes of the suit to decide at all.' In Thyila Kandi Ummatha v. Kun- hamed,^ the plaintiff had first sued for a paramba, alleging that it was hers and that she had let it to the defendant, but the munsiff inquiring only about the letting, and considering it unproved, dismissed the claim. The plaintiff sued for it again, alleging the same title and letting, and Mr. Justice Innes and Mr. Justice Muttusamy Ayyar held, * that the ques- tion of title can not be said to have been heard and determined in the former suit in which, though the question was originally in issue, the judge excluded it from consideration and prac- tically proceeded with the suit as though it was simply a suit to recover rent, on the footing that the relation of landlord and tenant subsisted between the parties.' The judges further ob- served that — ' it has often been held that matters directly and substantially in issue have been heard and determined, al- though the judgment of the court does not expressly allow or disallow them. In such a case, the aggrieved party has his remedy in an appeal or an application for review ; but, if he acquiesces in the judgment, the matter so put in issue must be regarded as having been decided when the judgment be- comes final.' This observation was a mere obiter dictum how- ever, and no authorities were referred to in support of it. In the English and the American courts also, if a bill in equity is dismissed without prejudice, the effect' of the reservation is to prevent the decree from constituting a bar to another suit brought for the same subject-matter.^ "54. Incidental matter omitted. — The real difficulty is experienced in those cases in which the decision of the point raised was necessary for the disposal of the suit, and the court wrongly refused to decide the point. This was the case in Emamooddeen 1. Indian L. R. 4 Madras 308. 2. Bl. Jud. 860. ABATEMENTS, NONSUITS, ETC. 185 v. Futteh Ali,^ in which the former suit for possession against a person as sublessee was dismissed by the original court on the ground of the defendant having purchased the land from the intermediate holder, but the lower appellate court gave a decree, and refusing to inquire into and determine the question of the purchase, referred the defendant to a separate suit on that ground. Jackson, J., in delivering the judgment of the high court in the subsequent suit, said that, although the defendant was not well advised in omitting to appeal specially, yet neither the terms of section 2, nor the general principles usually acted upon, absolutely precluded the hearing of the (subsequent) suit ; and that as plaintiff had done all he could, * we ought not, in the interest of justice, to hold the plaintiff bound as by an estoppel.' In Kanai Lall v. Sashi Bhuson,^ Mr. Justice McDonell, in delivering the judgment of the Calcutta high court, said : ' We think it impossible to say, that a question, not only not decided in the previous suit, but in express language excluded from the decision, can be treated as a res judicata.' In Ram Charan 7;. Reazuddin,^ the courts found themselves unable in the former suit, on account of error in its frame, to decide as to what lands the plaintiff was entitled to by virtue of his purchase ; and they therefore refrained from deciding that point, and left it to the plaintiff to bring a fresh suit, framed in such a manner that the court might be able to grant the relief sought. Sir Richard Garth, C. J., in deliv- ering the judgment of a division bench in the subsequent suit, said : * It may be that in the former suit both courts ought, properly speaking, to have insisted on proper issues being raised, and to have tried those issues upon the best evidence that the parties could adduce. But we are not prepared to say that the course taken by those courts was ultra vires. They considered, rightly or wrongly, that they were not in a position to try the main c^uestion in the cause; and it is clear that a question, which was advisedly left undecided in the former suit, can not be said to have been heard and finally decided within the mean- 1. 3 Calcutta L. R. 447. 3. Indian L. R. 10 Calcutta 856. 2. Indian L. R. 6 Calcutta 781. 186 THE MERITS. ingof section 13.' In Babu Lai v. Ishri Prasad/ certain prop- erty hypothecated as security to M was sold, at his instance, in satisfaction of his debt and purchased by him. The second mortgagee of the same property then sued the mortgagor and M to have that property sold in satisfaction of his mortgage debt, and got a decree which provided that ' it would be competent to M to sue to enforce his lien, and that, when he did so, the pur- chaser, under the decree, would have the option of discharging the first incumbrance,' and the full bench finally held that a subsequent suit by M was not barred, as the title asserted by him in the subsequent suit was not disaffirmed, but rather declared in the first suit. "In Becharji v. Puj^jiHhe plaintiff had first sued for half a share of the undivided property as a coparcener, and on a pri- vate compromise effected between the parties, which did not make any substantial alteration in the plaintiff's right to par- tition as an undivided member of the family, the suit was with- drawn without any express permission as to a fresh suit. The plaintiff sued again for the same share as a coparcener without alleging the compromise, but the suit was dismissed as barred by the prior suit, the plaintiff's application to amend the plaint by inserting in it the compromise having been wrongly re- fused, and the high court finally held, that that dismissal could not bar a subsequent suit for the same share on the basis of the compromise. Jardine, J., said that, in Ram Charan v. Reazud- din and Babu Lai v. Ishri Prasad, ' the courts which had tried the first of the two suits under consideration had indeed sug- gested to plaintiff to bring a fresh suit, and the plaintiff's con- duct in so doing rather than appealing was treated by the high courts as a reasonable submission to the court. In the present case no such suggestion was made. * * * But, plaintiff's conduct in bringing the present suit on the compromise is much the same ; and the above two cases are authorities for the posi- tion that in such circumstances the rule of res judicata can not be applied with justice.' Mr. Justice Candy observed that, in 1. Indian L. R. 2 Allahabad 533. 2. Indian L. R. 14 Bombay 31. ABATEMENTS, XONSUITS, ETC. 187 Umatara Debi^ and Denobundhoo,^ the plaintiff had refused in the former suit to put forward the title on which he relied in the second suit, and thereby prevented the court from dealing with it, and said : ' Refusal to bring forward a title is very dif- ferent from omission to recite in the plaint. * * .* Assum- ing that the cause of action in the present suit, even so far as it is based on the agreement of 1874, is the same as the cause of action in the suit based on a general right for partition, no law or authority hitherto accepted in this court can be found for holding that, because Pujaji did not recite the agreement in. his plaint of 1883, though it was brought forward in the proceed- ings, and the subordinate judge expressly excluded it from ad- judication, Pujaji's sons are now barred from suing on that agreement. To use the language of the judgment of this court in Kakaji Ranoji v. Bapuji Madhavrav,^ it would certainly be strange and but little creditable to our system of procedure, if we were obliged to hold that the present action is barred by the former suit in which nothing was decided except that the pres- ent action was the remedy to which the plaintiff should resort.' In Avala v. Kuppu,*also, effect was given to a reservation, em- bodied in the decree, of a plaintiff's right of future suit as to a certain point which it was necessary to adjudicate upon for the decision of the case. In America, the Supreme Court of the United States, in Washington Packet Co. v. Sickles,^ said that * even if it appears from the intrinsic evidence that the mat- ter was properly within the issue controverted in the present suit, if it be not also shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.' " 55. Reservation of matter, effect of. — A reservation of any matter for disposal in a future suit, is not, as such, bind- ing on the court trying the subsequent suit. Thus, in Watson V. The Collector of Raj-Shahye,^ the former suit was dismissed, because the evidence of the plaintiff's right to sue was not 1. 2 Bengal L. R. A. C. 102. 4. Indian L. E. 8 Madras 77. 2. Indian L. R. Calcutta 155. 5. 5 Wall. 592. 3. 8 Bengal H. C. R. A. C. 208. 6. 13 Madras I. A. 160. 188 THE MERITS. produced on the date fixed ; but the decision was accompanied with a direction that the order was not intended to bar the plaintiffs from proceeding as if that action had not been brought. Notwithstanding the reservation, the high court held the subsequent suit barred, and their lordships took the same view on appeal. Sir J. W. Colvile, in delivering their lord- ships' decision, said : ' We have not been referred to any case, nor are we aware of any authority, which sanctions the ex- ercise by the country courts of India of that power which courts of equity in this country occasionally exercise, of dismissing a suit with liberty to the plaintiff to bring a fresh suit for the same matter. Nor is what is technically known in England as a nonsuit known in those courts. There is a proceeding in those courts called a nonsuit, but that seems to be limited to cases of misjoinder either of parties or of the matters in con- test in the suit ; to cases in which a material document has been rejected because it has not borne the proper stamp ; and to cases in which there has been an erroneous valuation of the subject of the suit. * * * * n j^^s been argued that that decree, not having been appealed against in the original suit, was, at all events, whether regularly or irregularly made, bind- ing in the particular case, and that it was not competent to the high court in this suit to question its propriety. Their lord- ships are not disposed to take that view. Without laying down positively that in no case could such a reservation be properly made by a judge in one of the Indian courts, they think that it was open to the high court to consider the propriety of the reservation.' In Mohan Lai v. Ram Dial,^ a suit for recovery of a bond and for some money paid in excess of the amount due on it was dismissed on the ground that a certain amount due on the bond remained unpaid. On appeal by defendant the lower court held that a still larger sum was payable, but the high court set aside that order on the ground that the de- fendant had no right of appeal from the original decree, as it was in his favor, expressing its regret * that if the parties are again obliged to come into court the account must be taken 1. Indian L. R. 2 Allahabad 843, F. B. ABATEMENTS, NONSUITS, ETC. 189 again.' A subsequent suit for fresh account was held barred, however, the observations of the high court in the former suit being treated as mere ohiter dicta, which, as observed by Straight, J., could 'have no force nor effect to alter the legal rights and disabilities of the parties.' Oldfield, J., further said : 'Obviously those remarks can not amount to a judicial determination that the accounts might be reopened, for that was a point which could only be determined judicially at the hearing of any fresh suit which might be brought, and by the court deciding that suit.' In Sukh Lai i;. Bhikhi,^ such a reservation in a decree was treated by a full bench of the Allahabad high court on a review of the prior decisions of the court,^ as having been without jurisdiction and in excess of the powers vested in the judges in India, and therefore a nullity. In that case the plaintiff's claim to a third share of the land sued for in the former suit was considered proved ; but the entire suit was dismissed, with a remark in the decree that that order would not prevent the plaintiff from instituting a suit for the one-third ; and a subsequent suit for that one- third was held barred by the former dismissal on the ground of res judicata. In Udmi v. Neki,^ in the former suit the claim for redemption was dismissed on the ground that the plaintiff had no locus standi while the mortgagor's sons were alive. In the judgment there was a remark that if the sons did not claim redemption within three years, the plaintiff would be able to do that. A subsequent suit after three years was held barred on the ground of res judicata, but chiefly on the ground that the remark was not embodied in the decree, and was rather thrown out as a suggestion than recorded as a part of the final order in the case. This case was much like that of Avala, with the exception that in this the decree was not amended so as to embody the remark about the reservation as to the subsequent suit, as was done in Avala's case. 1. Indian L. R. 11 Allahabad 187. Xabian Bibi, Indian L. R. 8 Allaha- 2. Ganesh Rai v. Kalka Prasad, bad 282 ; Kudrat v. Dinu, Indian L. Indian L. R. 5 Allahabad 595; Salig R. 9 Allahabad 155. Ram V. Tribhawan, 1885, Allahabad 3. 15 Punjab R. 202. W. N. 171; Muhammad Salim v. 190 THE MERITS. "56. Evidence not heard. — It is not necessary to con- stitute a decision in a suit res judicata, that evidence should have been recorded in that suit and the decision passed on the evidence. Thus it was often held that a decision under section 148 of the civil procedure code of 1859 would be res judicata. In Mofizooddeen v. Amooddeen/ the plaintiff failed to pro- duce evidence on the date fixed, and there being nothing else to support his case, the court dismissed the suit ; and in a sub- sequent suit, Mr. Justice Ainslie finally held that the court which made the decree of dismissal ' heard all that was laid before it by either party, determined the suit on the materials then before it, and made such a decree as is an estoppel under section 2 of act 8 of 1859.' In Venkatachalam v. Mahalakshmamma,^ a decision under section 148 of the civil procedure code, 1859, was held to constitute res judicata, and Muttusami Ayyar and Parker, JJ., said: * The plea (of res judicata) no doubt ordinarily presupposes an adjudication on the merits as contradistinguised from an adjudication of which the effect consists of suspending the right of action until a certain event occurs or for some time. The counsel for the appellant overlooks the fact that there may be a statutory di- rection that in case the plaintiff neglects to produce evidence and to prove his claim as he is bound to do, the court do pro- ceed to decide the suit on such material as is actually before it, and that the decision so pronounced shall have the force of a decree on the merits, notwithstanding the default on the part of the plaintiff. We are of opinion that section 148 contained such direction. * * * The ground of decision under that section is not simply that there was default, but that there were no merits proved, « * * j^ ^^\^q section) directed that the court might proceed to decide the suit, notwithstand- ing the default, constituting thereby the decision on the imper- fect material on the record into a decree on the merits, which under section 13 would bar a suit. ' The same has been held in regard to decisions under section 158 of the civil procedure code, 1877, the language of which is identically the same with 1. 23 W. R. 58. 2. Indian L. R. 10 Madras 272. ABATEMENTS, NONSUITS, ETC. 191 that of the present code. Thus in Kartick Chandra v. Sridhar Mandal,^ Mr. Justice Tottenham, in delivering the decision of a division bench of the Calcutta high court, said : * The plaintiffs having failed to adduce evidence, which it was in- cumbent upon them to do, the suit was dismissed ; and must be held to have been dismissed on the merits.' In Arunachala V. Panchanadam,^ Sir C. Turner, C. J., and Brandt, J., held that a decision under section 158, civil procedure code, 1877, as to a plaintiff not having been adopted, was res judicata in a subsequent suit against the next reversioner."^ § 52. Misjoinder or nonjoinder of parties. — An action which fails because of the misjoinder* or nonjoinder* of parties is no bar to a new one . The nonjoinder of proper parties defendant does not affect the conclusiveness of the decree as to those who are parties.® So, if the husband and wife bring an action at law for what the evidence discloses to be her equitable separate es- tate which had previously been reduced to possession by the husband, there is a misjoinder of the wife ; and if the action is defeated for that cause, it is no bar to a new one by the hus- band.' A sheriff, having an execution against one person, seized and sold property owned jointly by two, at a place not 1. Indian L. R. 12 Calcutta 563. extract from the settlement record re- 2. Indian L. R. 8 Madras 348. lating to the particular lands claimed 3. In Sham Singh v. Khask Singh by him, had tiled an extract relating (1880 Punjab R. No. 107) the decision to the whole holding, and the court in the former suit was held not to be was thus unable to say what the binding, yet that case is not an au- plaintiff was really claiming, thority against the general rule; for, 4. O'Neil v, Percival, 25 Fla. 118 (5 though that decision professed to S. R. 809) ; McLean v. Hansen, 37 111. have been passed under section 158, App. 48; Vaughan v. O'Brien, 57 it really decided nothing, and was Barb. 491, 494. regarded as tantamount to a mere re- 5. Weinberger v. Merchants' Ins. jection of the plaint. No issues had Co., 41 La. Ann. 31 (5 S.R. 728); Corl been framed, and even the defend- v. Riggs, 12 Mo. 430, 432 — owners of ant's statement was not recorded, cause of action did not all join. The suit was simply summarily dis- 6. Salter v. Salter, 80 Ga. 178 (4 S. missed, because the plaintiff, instead E. R. 391). of tiling, as the court had directed, an 7. McCall v. Jones, 72 Ala. 368, 372. 192 THE MERITS. authorized by law. This gave the one not named in the writ an action of trover for conversion, and the other an action on the case for damages ; but they both joined in an action on his bond, the cause was tried on the merits, and by an erroneous ruling they recovered only nominal damages. The one not men- tioned in the writ then brought an action against the sheriff for a conversion, and it was held that, the first action having been tried on the merits, neither the misjoinder of the parties nor the erroneous rulings of the court affected the question, and that it was a bar.^ Set-off. — The disallowance of a set-off against two plaintiffs is no bar to an action upon it against one of them.^ § 53. Nonsuit. — A judgment of nonsuit,^ even upon an agreed state of facts ;* or in the circuit court upon appeal from a jus- tice of the peace f or whether voluntary or involuntary,® un- less it is shown to be on the merits,' is no bar to a new action. Detinue. — So in an action of detinue, if the plaintiff suf- fers a voluntary nonsuit, the judgment does not conclude him from showing ownership in mitigation of damages if sued on the bond.* Evidence insufficient — (See § 47). — A nonsuit granted' or ordered" by the court, or submitted to by the plaintiff," or 1. Hopkins v. Shelton, 37 Ala. 306, Walker,14 Oregon 481 (13 Pac.R.450) ; 310 (Ala. Select Cases 303). Vought v. Sober, 73 Pa. St. 49; Man- 2. Fifield v. Edwards, 39 Mich. 264. hattan Life Ins. Co. v. Broughton, 109 3. Gates v. McLean, 79 Cal. 42 (9 Pac. U. S. 121, 124. R. 938) ; Smith v. Floyd County, 85 Ga. 4. Derby v. Jacques, 1 Clifford 425. 420 (11 S. E. R. 850) ; Baudin-y. Roliff, 5. Lee v. Kaiser, 80 Mo. 431. 1 Martin N. S. (La.) 165 (14 Am. D. 6. Holmes v. Chicago & Alton R. R. 181) ; D'Arensbourg v. Chauvin, 6 La. Co., 94 111. 439. Ann. 778 ; Ensign v. Bartholomew, 1 7. Brett v. Marston, 45 Me. 401 ; Mete. (42 Mass.) 274; Jones v. How- Jay v. Carthage, 48 Me. 353, 359. ard, 3 Allen (85 Mass.) 223 ; Clapp v. 8. Savage v. Gunter, 32 Ala. 467, 469. Thomas, 5 Allen (87 Mass.) 158; Tay- 9. Tattersall v. Hass, 1 Hilton 56. lor w. Larkin, 12 Mo. 103 (49 Am. D. 10. Robinson «.Merchants'& Miners' 119) ; Holton v. Gleason, 26 N. H. 501, Transportation Co., 16 R. I. 217 and 505; Audubon v. Excelsior Ins. Co., 637 (19 Atl. R. 113). 27 N. Y. 216; People v. Vilas, 36 N. 11. Knox v. Waldoborough, 5 Me. Y. 459 (93 Am. D. 520); Hughes v. (5Greenleaf) 185. ABATEMENTS, NONSUITS, ETC. 193 granted uj)ou the defendant's motion^ because of the insuffi- ciency of plaintiff's evidence to make a case, is no bar to anew action. Jurisdiction. — In an action in a county court for forcible entry and detention, the plaintiff was nonsuited, and carried the case to the district court, which decided that the county court had no jurisdiction. These proceedings were no bar to a new action before a justice of the peace. ^ The same is true in respect to a trial before a justice of the peace in which the ver- dict was " no cause of action, "and the judgment was "that the plaintiff be nonsuited."^ See § 50, supra. Replevin — Reversal — Set-off. — A judgment of nonsuit in a replevin,* or after a reversal in a higher court,® or a recovery by the defendant on a set-off after the plaintiff is nonsuited,® is no bar to a new suit. What makes? — After a justice of the peace had heard the evidence in a case, and concluded that he had committed errors, he made an entry that he ** conceives it to be his duty to quash the proceedings, nonsuit the plaintiff and tax him with the costs. Judgment is therefore given by the justice against the 1. Reynolds v. Garner, 66 Barb, sas City court of appeals, which re- 310, 313 ; Gummer v. Trustees, 50 versed the judgment, and remanded Wis. 247 (6 N. W. R. 885) . the cause for a new trial. The plaintiff 2. Pence v. Uhl, 11 Neb. 320 (9 N. then took a nonsuit, and brought this W. R. 40). action, and the defendant set up the 3. Delany v. Reade, 4 la. 292. judgment of the court of appeals in 4. Westcott V. Bock, 2 Colo. 335; bar of this action. The lower court Poor V. Darrah, 5 Houston 394; Dag- overruled this defense, and we think gett r. Robins, 2 Blackf. 415 (21 Am. committed no error in doing so. The Dec.) 752. This decision was put judgment of the court of appeals can upon the ground that the statute of not be regarded as res judicata, be- Westminster 2, prohibiting the plain- cause there was no final judgment in tiff in replevin from instituting a new the former suit adjudicating the rights action after a nonsuit, was not in of the parties as presented in this force in Indiana. action." 5. Norton v. Bohart, 105 Mo. 615 5. (Continued) Holland v. Hatch, (16 S. W. R. 598). The court said: 15 0. St. 464; Bucher v. Cheshire R. "The plaintiff instituted another suit R. Co., 125 U. S. 555, 579. for the recovery of the money in dis- 6. Anderson v. Gregory, 43 Conn, pute here, and got judgment for it. 61. The defendant appealed to the Kan- 13 194 THE MERITS. plaintiff, for the sum of eleven dollars and ninety cents. The record also showed that the costs taxed were $11.90. This was held to be a judgment of nonsuit and no bar to a new action.^ See § 49, supra. § 54. Practice, irregular. — A debtor was notified of the as- signment of the claim, but on a subsequent garnishment, he admitted the debt and judgment was rendered against him. After the close of the term, he and the assignee moved to open the judgment. The denial of this motion, because made too late, was not an adjudication that would protect the debtor in a suit on the claim by the assignee, as the merits were not passed upon.^ So also, if a person holding a chattel mortgage inter- venes in a case in which the mortgaged goods are attached, but the record fails to show any adjudication in respect to his peti- tion, it will not bar an action by him against the purchaser of the goods under the attachment sale.^ After a cause was tried 1. Ellington v. Crockett, 13 Mo. 72, 74. 2. Davis V. Schaffner, 3 Tex. Civil App. 121 (22 S. W. R. 822) . The court said : "It was shown at the trial that the court declined to set aside the judgment on the ground that the ap- plications came too late, and made no investigation into the merits of the claim asserted by appellees to the debt. It seems plain that this was no adjudication of the issue presented in this cause. The point decided on the motions was that the parties could not get behind the judgment which had been rendered against the gar- nishees. Without going behind that judgment, the court in that case had no occasion to investigate the title of appellees to the debt. The parol evi- dence offered by appellees as to the ground upon which that judgment was based was, perhaps, unnecessary, but it was admissible. If the is- sues adjudicated are not shown by the record, and the effect of the judg- ment depends upon the grounds upon which it is based, evidence is admissi- ble to show those grounds. It suffici- ently appears from the record of the proceedings that no such judgment was rendered as would preclude ap- pellees from asserting this claim, and the parol evidence, whether admissi- ble or not, was harmless." 3. Kern v. Wilson, 82 Iowa 407 (48 N. W. R. 919). The court said: "Defendant, in support of his plea of former adjudication, introduced in evidence the files and records of the circuit court in a case of Olney v. Dwy- er, and of Kern v. Wilson, sheriff. It appears from this record that in the former case an attachment was issued and levied upon the goods in question, and these plaintiffs inter- vened, and claimed the goods by vir- tue of their mortgage. The defendant Dwyer failing to appear, default and judgment were entered against him, with an order for special execution against the attached property. It does ABATEMENTS, NONSUITS, ETC. 19^ before a justice of the peace and a jury in Texas, the justice, conceiving that the plaintiffs had failed to make out a case, withdrew it from the jury and decided for the defendant. This was held to be an act of usurpation and no bar to a new suit/ If the plaintiff's evidence did not tend to prove any material issue, it was the duty of the justice to do as he did. If he erred in judgment that did not affect his jurisdiction. § 55. Preliminary matters omitted. — If the plaintiff is de- feated because a deed'^ was not tendered to, or demand^ made upon. not appear that any proceedings whatever were had upon plaintiff 's petition of intervention, or that their claim to the property was in any wise considered or adjudicated. In the other case these plaintiffs claimed, as in this, the stock of goods, by virtue of the same chattel mortgage, and the defendant claimed the stock by virtue of the same attachment. The case went to trial, and after both parties rested, and upon motion of the de- fendant herein, and it appearing to the court that the notice required and contemplated by chapter 45, laws 20th general assembly, had not, prior to the commencement of this action, been served upon the defendant, the court directed the jury to return a ver- dict in favor of the defendant, and fixing the value of the property in controversy at $500; and thereupon, under that direction, the jury re- turned their verdict as follows : 'We, the jury, find for the defendant that he is entitled to the possession of the property in dispute, and we find the value to be |500.' Plaintiffs moved in arrest and for a new trial, which was overruled, and judgment was entered upon the verdict 'that the defendant have and recover of and from the plain- tiffs herein the property taken upon plaintiffs' writ of replevin herein, to- gether with the costs of suit, taxed at $43.30; said property to be released into the custody of the defendant.' It is evident from these records that there was no decision, upon the merits, of the respective claims of these parties to the property in question in either case. It is said in argument that, in the former case, the petition of interven- tion was not filed until after the de- fault was entered, and, being too late, was not considered. The record fails to show when it was filed, but it also fails to show any adjudication upon it. In the latter case, the verdict and judgment are based solely upon the want of notice. Defendant's motion was in the nature of a motion for nonsuit, and the judgment, being en- tered simply because of the want of notice, is one of dismissal rather than upon the merits. The basis upon which an adjudication bars a farther action is that the same matter was or should have been adjudicated in the former case. The claims of these parties to this property were not, and unless notice of ownership was waived, could not be adjudicated in the former case between them." 1. Bailey v. Knight, 8 Tex. 58, 61. 2. Whitlock V. Appleby, 49 Mo. App. 295; Carmony v. Hoober, 5 Pa. St. (5 Barr.) 305. 3. Gray v. Dougherty, 25 Cal. 266, 274; Roberts v. Norris, 67 Ind. 386; 196 THE MERITS. the defendant before the suit was brought, he may sue again. In the case cited from 124 Indiana, the defendant in replevin, having defeated the action for want of a demand, was not per- mitted to show in defense of the second action that a demand was made before the commencement of the first one. So, if one who sues to recover the purchase-money paid for land upon the ground that his title has failed is defeated because he has not been evicted, he is not precluded from suing again after evic- tion.^ And a dismissal of a bill to set aside a fraudulent con- veyance because an execution had not been issued and returned unsatisfied f or a judgment in favor of a guarantor, upon the ground that the plaintiff had not exhausted his legal remedy against the principal debtor, is no bar to a new suit after he has done so;^ The same result follows if an action is defeated for want of a notice.^ Thus, in an action to enforce a forfeiture for breach of a condition subsequent, a judgment for the defendant because he had not been notified of the breach, is no bar to a new action after notice.^ If the plaintiff is defeated in an action of forcible entry and detainer because of the failure to serve a copy of the decree on the defendant, he may then serve a copy and bring a new action.® So, if a bill is filed to enjoin the col- lection of a judgment, its defeat for want of a tender is no bar to a new bill after tender made.' On a motion against a sheriff for the default of his deputy in failing to pay over money col- lected, a judgment for him because of a variance between the notice of the motion and the officer's receipt in the description of the claim, is not on the merits, and is no bar to a new pro- ceeding.^ Williams v. Lewis, 124 Ind. 344 (24 4. New England Bank v. Lewis, 8 N. E. R. 733) ; Crosby v. Baker, 6 Pick. (25 Mass.) 113, 117. Allen (88 Mass.) 295; Tracy v. Mer- 5. Rose v. Hawley, 133 N. Y. 315 rill, 103 Mass. 280; Oleson v. Merri- (Rose v. City of Yonkers, 31 N. E. R. hew, 45 Wis. 397, 402. 236) ; Rose v. Hawley, 141 N. Y. 366 1. Hurst V. Means, 2 Sneed (34 (36 N. E. R. 335). Tenn.) 545. 6. Vahle v. Brackenseik, 145 111. 2. Yankey v. Sweeney, 85 Ky. 55 231 (34 N. E. R. 524). (2 S. W. R. 559). 7. Dwyer v. Goran, 29 la. 126. 3. Boyer v. Austin, 54 la. 402 (6 N. 8. Witcher v. Oldham, 4 Sneed (36 W. R. 585). Tenn.) 220. ABATEMENTS, NONSUITS, ETC. 19: § 56. Premature suits. — The courts of last resort in Cali- fornia, Illinois, Kansas, Michigan and Ohio hold that a judg- ment recovered upon a demand which appears upon its face not to be due is void collaterally, and, of course, the judgment would not bar a new suit upon the same cause after maturity. The ruling in Indiana and Texas, and by the Supreme Court of the United States, is to the contrary, and, for reasons elsewhere given, I think sounder.^ But all the cases agree that, if the plaintiff is defeated because his proceeding is premature,^ or, for that reason, fails to recover upon a portion of his account,' or upon one of his causes of action,* he may sue again upon the same matter after it is due. If an action for conversion is defeated because no conversion had taken place until after the action was commenced, the plaintiff can maintain an action to recover the property from the person who purchased of the de- fendant pending the first action.^ If a lease provides that it shall continue until the lessor sells the land, the failure of the 1. Van Fleet Coll. Attack, §§ 228, 260. 2. Brackett v. People, ex rel. Wei- mett, 115 111. 29 (3 N. E. R. 723) ; Krapp V. Eldridge, 33 Kan. 106 (5 Pac. R. 372) — set-off not due; Seaton «. Hixon, 35 Kan. 663 (12 Pac. R. 22) — a mechanic's lien not due ; Dillinger V. Kelley, 84 Mo. 561; Eastwood v. Worrall," — X. J. Eq. — (5 Atl. R. 180) ; Quackenbush v. Ehle. 5 Barb. 469, 473; McFarlane v. Cushman, 21 "Wis. 401, 404; Oleson v. Merrihew, 45 ■Wis. 397, 401; Palmer v. Temple, 1 Perry & Dav. 379, 387; Palmer v. Temple, 9 Ad. & El. 508, 521. 3. Chisholm v. Morse, 11 T. C. C. P. 589. 4. Deloach r. Turner, 9 Rich. Law 181. 5. Witkowski v. Stubbs, 91 Ga. 440 (17 S. E. R. 609K The court said: "Before the present case was begun, Stubbs had brought suit against Pow- ers for the recovery of the horse. This latter action was commenced before Powers had made the sale at which he himself became the purchaser, and which amounted to a conversion by him of the property. Accordingly, the jury who tried that case found in favor of Powers, basing their verdict solely and expressly upon the ground that the conversion was not committed until after the action was brought. It therefore distinctly appears that the title to the property, as between Stubbs and Powers, was in no way then passed upon nor adjudicated ; and it follows clearly and conclusively that the judgment rendered in that case, construed in the light of the verdict upon which it was founded, could not bar Stubbs from bringing a second action for the recover^' of the horse against either Powers himself, or "Witkowski, who held under him." 198 THE MERITS. lessor to recover possession is no bar to an action by his ven- dee after a sale.* §57. Withdrawing cause or withholding evidence — Principle involved. — (See §35, supra). — If a cause of action, or counter-claim or set-off is withdrawn before the trial is so far advanced that the right to dismiss no longer exists, or if no evidence is offered upon it, its merits can not be in- vestigated, and it is open to future litigation. Cause of action, withdrawn. — If a cause of action is withdrawn before the trial, ^ or a claim against an insolvent estate is dismissed because no proof is offered,* or the record shows that all claim for use and occupation, in an action to recover land, is withdrawn before the trial,* those matters may be sued upon anew. So if a record shows a suit on three notes, and answers withdrawn, and a judgment for much less than the notes, it is competent, in a new suit, to prove that the original judgment did not embrace all the notes. ^ And if the plaintiff sues upon a note and an account, but, upon default, simply takes judgment on the note and offers no evidence on the account, he may bring a new suit upon it.® So, in a suit on two notes, if one is withdrawn by leave of court, even after it has announced its opinion that the plaintiff is entitled to re- cover on both, it can be sued upon again.' And in an action of assumpsit to recover money due upon a lease, and also the value of land occupied outside of that lease, if all the evi- dence in respect to the latter matter is withdrawn from the jury, the judgment will be no bar to an action of trespass for it.* In an action to recover land in Iowa, the plaintiff having also made a claim for use and occupation, a recovery of the land bars a new action for the use and occupation, al- 1. Aydlett v. Pendleton, 114 N. C. 1 5. DunlaptJ. Edwards, 29 Miss. 41. (18 S. E. R. 971). 6. Seddon v. Tutop, 6 Term Report 2.'Louwv. Davis, 13 Johns. 227; 607. Steelmanw. Sites, 35 Pa. St. 216. 7. Wood v. Corl, 4 Mete. (45 Mass. 3. Allinet v. His Creditors, 15 La. 203. Ann. 130. 8. Middletown Mfg. Co. v. Philadel- 4. Wells V. Newsom, 76 Iowa 81 (40 phia and Reading R. R. Co., 145 Pa. St. N. W. R. 105). 187 (22 Atl. R. 748). ABATEMENTS, NONSUITS, ETC. 199 though no evidence was offered on that issue. ^ This case seems to ine to be unsound. § 58. Withdrawing counter-claim or set-off, or withholding evidence. — If a counter-claim is pleaded, but no evidence is offered upon it,^ or if it is withdrawn and the action is defeat- ed on a plea in bar,^ it may be used in another case. The same is true if a breach of warranty is pleaded to a declaration for the price of goods,* or title in an action to trespass to land,^ and then a default is suffered. But it was said in New York that if a counter-claim is pleaded, although the record shows that the defendant did not appear at the trial, nevertheless the judgment is a prima facie bar to an action upon it.^ I think this is wrong. If, how^ever, the record shows that it was with- drawn,^ or no evidence offered in respect to it,^ there will be no prima facie bar. So, a right to redeem from a tax sale having been pleaded as an equitable defense to an action of ejectment, and having been w^ithdrawn at the trial, the judgment for the plaintiff is no bar to a new suit by the defendant to redeem.^ And in an action for services, if a counter-claim is set up, but withdrawn on the trial upon the plaintiff's objection that it is not a proper subject for a counter-claim, there is no bar to an independent action upon it." So, in a suit for use and occupa- tion of land, if a counter-claim for improvements is filed, but afterwards withdrawn, a judgment for the plaintiff is no bar to a suit upon it." What is not a withdrawal. — In an action on a note, the answer was that it was given for sheep warranted to be sound, 1. Schmidt v. Zahensdorf, 30 Iowa 7. Foster v. Milliner, 50 Barb. 385, 498. 394— J. C. Smith, J., dissenting; Mc- 2. Glass v.Wheeliss, 24 La. Ann. 397. Donald v. Christie, 42 Barb. 36. 3. Mason v. Summers, 24 Mo. App. 8. Burwell v. Knight, 51 Barb. 267, 174, 184. 269. 4. Bascom v. Manning, 52 N. H. 132, 9. Cockerill v. Stafford, 102 Mo. 57 134. (14S. W. R. 813). 5. Green v. Thompson, 5 Me. (5 10. Watson v. Cowdrey, 23 Hun (30 Greenleaf) 224. N. Y. Supr.) 169. 6. Dictum in Foster v. Milliner, 50 11. Finnegan v. Campbell, 74 Iowa Barb. 385, 394. 158 (37 N. W. R. 127). 200 THE MERITS. which were diseased and worthless. On the trial, the defend- ant simply examined one witness of the plaintiff in respect to his defense, and introduced no witness himself, but he did not withdraw his answer. It was held that the judgment for the plaintiff was a bar to an action against him for the breach of warranty.^ To an action on a note, the defendant pleaded a counter-claim for services, and also an answer to which a de- murrer was interposed, and then the record showed this entry: "On this day, to wit, September 24, 1885, this cause comes on for hearing on plaintiff's demurrer to defendant's answer, which is duly submitted. Defendant withdraws and dismisses, his counter-claim pending the argument on said demurrer, which is taken under advisement, and thereafter, on this day, to wit, September 25, 1885, the cause comes on for hearing on plain- tiff's demurrer to defendant's answer, overruled, and plaintiff excepts." On the trial, the court gave the following charge; "By way of cross-demand, defendant avers that, from 1867 to date of answer, he was engaged as an agent of plaintiff, in thf employment of loaning and collecting money and in renting and selling houses, and that the services so performed were worth $2,000, for which he prays judgment. Under the issues thus joined, you will return your verdict. The burden of prool" is on the defendant to establish his defense. He has offered no evidence to support his cross-demand for services, and so you will not consider that matter." There was a verdict and judgment for the plaintiff. The defendant in that action then sued for the same services which he there pleaded as a counter-claim, and it was decided that the record in that case was a bar. The court said : ' ' The language contained in the record of Sep- tember 24, 1885, considered alone, would authorize the conclu- sion that the words 'pending the argument on said demurrer,' were designed to express the time when the counter-claim was withdrawn, and not merely the time during which it was withheld from consideration. But the charge of the court clearly recognizes the counter-claim as presenting an issue in the case, and shows that the defendant was de- 1. Ehle V. Bingham, 7 Barb. 404, 496. ABATEMENTS, NONSUITS, ETC. 201 manding judgment upon it. It does not appear that he in- terposed any objection to the charge. In order to support the action of the court, we must presume that the dismissal of the counter-claim was temporary only, and that it was restored as a pleading in the case before the final submission to the jur}-. The fact that he offered no evidence to sustain the counter- claim does not rebut the legal presumjDtion that the court prop- erly charged the jury in regard to the issues presented by the pleadings." It seems to me that the court erred. The record showed that he withdrew his counter-claim, and the charge to the jury, although somewhat confused, plainly told them that they could not consider it because no evidence was given concerning it.^ If a record shows that the plaintiff applied for a discontinuance which was refused, that he offered no evi- dence on the trial, and that a judgment was rendered for the defendant on a counter-claim, this is no bar to a new action by the plaintiff.^ Set-off. — Matters of set-off pleaded but not given in evi- dence are not barred.^ 1, Munn V. Shannon, 86 Iowa 363 3. Smith v. Berry, 37 Me. 298; (53 N. W. E. 263) . Wright v. Salisbur^^ 46 Mo. 26. 2. Jones v. Underwood, 35 Barb. 211 (13 Abb. Pr. 393, 397). CHAPTER V. CAUSE ENTIRE OR DIVISIBLE, OR THE DOCTRINE OF SPLITTING CIVIL CAUSES. ( 59. Principle involved in Chapter § 72. V, and the exceptions : (Ac- cident, excusable neglect, fraud or mistake — Rule in 73. India). 74. 60. Accounts — General rule. 75. 61. Accounts: (Cash on delivery — Delivery at different times — Express and implied) . 76. 62. Accounts — Due at different 77. times. 63. Accounts: (Goods Bold and money loaned — Moneys paid and expended) . 64. Accounts: (Moneys received by agent or removed execu- 78. tor). 79. 65. Accounts — Note. 66. Accounts — Withdrawing of items. 67. Arbitration and award. 80. 68. Attorney's fees and damages — 81. Baggage and merchandise — 82. Behavior, bond for — Bill of review — Bonds and coupons. 69. Breaches of contract, several existing : (Indian cases) . 83. 70. Cancellation suits: (Deeds — Execution sales — Insurance policy — Judgments — Mort- gages and trust deeds — Sher- iff's deed— Tax-deed— Will) . 84. 71. Carrier and warehouseman — Caveats — Certiorari — City or- 85. ,dinance — Claim case. (202) Commissions and goods fur- nished — Commissions and salary. Condemnation suits. Condition in contract. Consent — Omission of matter by : (Compromise decree : De- fault is a consent) . Continuing covenants. Conversion: (Notes converted — Owned in different capaci- ties — Replevin and trover — Services of chattel— Times of taking, different — Stranger converts part — Indian cases) . Conveyance, suit to compel. Damages for wrongful act, present and prospective : (Permanent injury or nui- sance — Indian cases). Declaring lien. Detinue. Distribution of estate — Double covenants — Double rent — Ejectment — Ejectment and mesne profits in India. Evidence, insufficient, new, newly discovered, or omitted : (Distributees — Divorce — Fraud — Marriage or no — Rec- ognizance—Verdict directed) . Executor, settling accounts and removing — Fiduciary debts. Express and implied covenants in same instrument. THE DOCTRINE OF SPLITTING CAUSES. 203 §86. Final report — Forcible entry §106. and damages. 107. 87. Foreclosure as between defend- ants — Foreign state, land in. 108. 88. Foreclosure, note not due — Foreclosure on partial interest. 89. Foreclosure — Personal claim 109. against heirs. 90. Foreclosure — Personal claim on 110. bond or note: (Foreclosure on constructive service) . 91. Foreclosure — Personal claim on oral promise. 111. 92. Foreclosure — Personal claim in tax proceedings. 112. 93. Foreclosure — Wife's separate estate. 94. Fraudulent conveyance : (Pro- 113. ceeds of other lots — Setting aside illegal alienations in 114. India) . 95. Furnishing men, surety for — 115. Furnishing security. 116. 96. Garnishment — Fraud of gar- nishee. 117. 97. Goods sold — Part delivered. 98. Husband and wife : (Divorce, absolute — Adultery — Cruel treatment — Property rights). 118. 99. Husband and wife : (Enticing away and debauching wife — 119. Injury to both — Wife in- jured). 120. 100. Improvements. 101. Individual and partnership claim — Individual debt and 121. assumed debt. 102. Injunctions: (Ejectment— Tax 122. sales and assessments — Plain- tiff defaulted in Louisiana). 123. 103. In rem. 104. Installments: (Building de- layed — Principal and interest 124. — Rent — Subscriptio n — Weekly payments — Indian 125. cases) . 105. Interest: (Simple and com- pound — C u p o n s) — I n t e r- vener. Joint and several obligors. Judgment and costs — Justice of the peace in Illinois. Malicious prosecution : (At- tachment — False imprison- ment — Slander) . Negligent act described differ- ently. Negligent act kills several per- sons, the damages for which go to the same persons — Per- son and goods injured. Negligent destruction — Toll first taken by wrongdoer. Negligent injuries to personal property — What makes sev- eral. Notes: (Deficit — Money loaned). Note and mortgage or vendor's lien: (One ignored). Nuisance. Offer to confess judgment, ac- cepted — Offer to convey. Ofiicial bonds : (Administrator, executor or guardian's — Con- stable's bond — Sheriff's bond) . Option of creditor to declare debt all due — Order. Parent and child — Child taken. Partial recovery : (Principle involved— Finding for de- fendant, but no judgment) . Partial recovery : (Special mat- ters — Trover — Indian cases) . Partition — Partition suits in India. Partnership agreement — Part- nership and contract to pay debts. Patent, royalties for use of — Paupers brought into a town. Payment in advance, total fail- ure to perform — Payment of claims — Payment before judg- ment — Payment "per day." 204 THE MERITS. §126. Penalties : (Breach of contract — Dividend unpaid — Railway — Tenant holds over) . 127. Pending suit — Damages accru- ing: (Rents — Waste) — Ex- ceptions : (Accounting — Trust matter) . 128. Pleadings, matters omitted from. 129. Quieting title — Release of claim according to contract. 130. Railway crossing — Re-convey- ance, suit to compel. 131. Redemption suit and breach of contract — Redemption and contribution" — Redemption and damages. 132. Rent ignored — Rent and attor- ney's fees — Rent in advance. 133. Replevin : (Damages for deten- tion — Interest on bonds — Re- turn not awarded — Return not demanded) — Rescission and rents. 134. Reservation in decree of right to bring new suit. 135. Right of property and damages. 136. Salary, services and wages — Special deposit and wages. 137. Salary, services and wages: (Wrongful discharge, and re- covery of damages for — Prior wages) . 138. Salary services and wages — Wrongful discharge, and sub- sequent recovery of wages. 139. Salary and supplies. 140. Sequestration bond — ^Title. 141. Several obligations for same debt: (Debt — Guaranty to lease). §142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. Several persons damaged by one breach of warranty. Slander and libel. Specific performance: (Dam- ages — Securities) . Subsequently-acquired rights and titles: (Divorce — Eject- ment) . Subsequently-acquired rights and titles— Equitable rights. Subsequently-acquired rights and titles: (Failure of con- sideration — Income of fund — Partition — Patent for inven- tion — Payment for homestead — Promise, new — Railroad — Ratification— Reassignment — Substituted plaintiff) . Sureties on replevin bond, ig- nored. Taxes — Title to land. Tort connected with contract — Principal and agent. Trespass to personal property. Trespass upon real estate — Fire. Trespass upon real estate, con- version of goods and waste — Waste and use. Trustee's bond. Usury. Warranty of title — Water sup- ply- Water-rights injured and land overflowed — Way, right of, ignored. Widow's rights : (Dower — In- jury to husband). § 59. Principle involved in Chapter V. — The maxim which declares that no person shall be twice vexed for one and the same cause prohibits a person from splitting a single cause into several and suing his adversary piecemeal. If he does so, THE DOCTRINE OF SPLITTING CAUSES. 205 the first adjudication will bar all the other suits/ The su- preme court of Indiana said: "The splitting of a cause of action does not me^n the suing upon several causes of action in different suits, wjiich might all be united in one, but the bringing of a suit for a part of a single cause of action."^ Of course, demands arising from several and distinct transactions may be sued separately,^ but what makes a single or several transactions is frequently a difficult question. The supreme court of Pennsylvania said: "It is the consideration to be paid, and not the subject or thing to be performed, that determines whether or not a contract is severable. Its entirety or separableness depends not upon the singleness of its subject, or the multiplicity of its items, but upon the entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single, the contract is entire, whatever the number or variety of the items embraced in its subject ; but if the consideration is apportioned, expressly or impliedly, to each of these items, the contract is severable."* If a breach of a contract or covenant entirely destroys it, the person injured can maintain but one suit for his entire damages, both present and prospective. Thus, a corporation made a contract with A to take all his milk at his farm, daily, and to furnish the cans from November 1, 1887, to November 1, 1888. In January, 1888, the stock- holders duly dissolved the corporation, and it ceased to do business. In August, 1888, A sued it for failing to take his milk in April, May and June, and recovered. Afterwards he sued for failure to take his milk for the balance of the term, but it was decided that he could not recover, because he had 1. Campbell v. Board of Commis- which lay down this general proposi- sioners, 71 Ind. 185 j Davis v. Davis, tion are very numerous, but they are 65 Miss. 498 (4 S. R. 554) ; Ruddle v. cited to other points elsewhere. Horine, 34 Mo. App. 616; Yeghte r. 2. Griffin v. Wallace, 66 Ind. 410, Hoagland, 29 N. J. Law (5 Dutcher) 416. 125— an award ; Bartels v. Schell, 16 3. Flaherty v. Taylor, 35 Mo. 447. Fed. R. 341; Stockton v. Ford, 18 4. Lucesco Oil Co. u. Brewer, 66 Pa. How. (59 U. S.) 418; Baird v. United St. 351, 355. States, 96 U. S. 430, 432. Other cases 206 THE MERITS. but one cause of action, and ought to have recovered all his damages in the first suit.^ An early case in Massachusetts gives a clear illustration of the principle in respect to trespass. Thus, A owned land and a mill on the north side of a river, and his dam rightfully ex- tended across the river and was abutted on land on the south side. B crossed the river below the land of A to the south side and tore away the dam, and then recrossed at the same place and w^ent upon the mill-lot and did damage. It was held that a recovery for the latter trespass was no bar to an action for the former, because they constituted two transactions. The court said : "The defendant went upon one close and destroyed part of the mill-dam, and then went upon the other close. If he had gone upon this other close in order to complete his design, there would have been but one trespass, and the circumstances that he passed over the land of a stranger in going from one close to the other would be immaterial. But it seems to us that the object of the defendant was to destroy the mill-dam, and this was effected before he recrossed the river ; and his going upon the other close was rather accidental and not with reference to the mill-dam. The former judgment, therefore, is not a bar to this action."® Exceptions — Accident, excusable neglect, fraud, mis- take. — If a person, by excusable accident, mistake, or neg- lect ; or by the fraud of his adversary unmixed with his own fault, splits a single cause of action into two parts, an adjudi- cation in respect to one will not bar a suit upon the other. Thus, if A sues B on a book account, and the latter presents a counter- account as a set-off, but by accident omits one item, the judg- ment rendered will not bar a new action upon it.^ So, if a per- son takes an appeal from the probate court to the county court, a dismissal of the appeal, because not properly taken, is no bar to a suit to be allowed on appeal upon the ground that he was 1. Bowe V. Minnesota Milk Co., 44 2. White v. Moseley, 8 Pick. (25 Minn. 460 (47 N. W. E. 151). Mass.) 356, 358. 3. Post V. Smilie, 48 Vt. 185. THE DOCTRINE OP SPLITTING CAUSES. 207 ■deprived of one by accident and mistake.' Likewise, if a plain- tiff divid.es his cause of action by an excusable neglect in be- lieving that the part not presented had been settled, the judg- ment is no bar to a suit upon the omitted part.^ And the pendency of an action to recover goods is no bar to an action to recover other goods, which might have been included in the first, if the plaintiff, at the time he brought the first action, was ignorant of their detention.^ If a cashier embezzles the money of a bank, a recovery by it is no bar to a new action for an amount subsequently discovered to have been appropriated by him by false entries and omissions to account for sums received.* A having sued B upon his promise to cancel a deed for. eighty acres of land made by him to B for the purpose of de- frauding creditors, with a prayer to have his title quieted, his failure to recover upon the ground that the statute of limit- ations had barred his rights, is no defense to a suit to cor- rect the deed so as to exclude his homestead of forty acres ( which was exempt from execution ) upon the ground that it was fraudulently inserted in the deed by B, which fraud was not discovered by A until after the first suit was commenced.^ So also, if a recovery is had upon an administrator's bond for the amount shown by his reports to be in his hands, and then it is discovered that an item had been placed to his credit with which he ought to have been charged, a new suit will lie to recover it.® Nor does a recovery upon the bond of a justice of the peace of several sums of money collected by him and not paid over, bar another action for two sums " omitted, by mis- take, in taking the former judgment."' So, if an agent fails to account for money received, a recovery by the principal is no bar to a new suit for a balance in the agent's hands which 1. Burton v. Barlow, 55 Vt. 434. 6. State, ex rel. Richardville, v. 2. Stevens v. Damon, 29 Vt. 521, 524. Brutch, 12 Ind. 381. 3. Risley v. Squire, 53 Barb. 280, 7. Byrket v. State, ex rel. Silvers, 3 284. Ind. 248 — How the mistake occurred, 4. Phillips V. Bossard, 35 Fed. R. the case does not show very clearly, 99. but it would seem that the plaintiff 5. Clemens v. Clemens, 28 Wis. 637. forgot to prove the items omitted. 208 THE MERITS. he fraudulently concealed.^ And if an agent sells articles to different persons at different times and receives payment, a re- covery by the principal of him for the money received for some of the articles, in ignorance that the others had been sold, is no defense to a new suit for the money received for them.^ A and B settled their accounts and a balance of $169 was found due A, for which he was paid $100 in cash and given an order on C for $69. This order C refused to accept, and then A sued B for its amount and recovered. When the settlement was made they both supposed that a previous order for $75 drawn by A on D in favor of E had been paid by D and charged to B under an arrangement to that effect. But after A had recovered judgment on the balance agreed upon, he discovered that D had not paid the order drawn on him, and that, consequently, the crediting of its amount by him to B was a mistake, and he sued B to recover it, who contended that the first recovery was a bar. But this contention was denied.* In a case in Missouri in which B had converted seventeen of A's hogs, and he, having knowledge of the conversion of thir- teen, sued and recovered for six, and afterwards sued for the other eleven, it was decided that he could recover for four, of the conversion of which he had no knowledge when he brought his first suit, but that he could not recover for the other six.* But in Massachusetts, the rule against allowing a new suit for omitted matters is held quite strictly. Thus, it was decided generally that a recovery for the conversion of goods bars a new action for those accidentally omitted.® So, if one sues in that state for the conversion of a derrick, a recovery will bar a new action for special damages suffered, although it is alleged that they were not claimed in the first action by mistake.® Another case holds that if all the tools in a shop are con- verted, a recovery for a portion of them bars an action for the 1. Johnson v. Provincial Ins. Co., 4. Moran v. Plankinton, 64 Mo. 337. 12 Mich. 216. 5. Folsom v. Clemence, 119 Mass. 2. Sweeny v. Daugherty, 23 Iowa 473. 291. 6. Sullivan v. Baxter, 150 Mass. 261 3. Kane v. Morehouse, 46 Conn. 300. (22 N. E. R. 895). THE DOCTRINE OF SPLITTING CAUSES. 209 value of the omitted articles, even if the defendant fraudu- lently concealed the fact that they were a part of those originally taken. The court said that the cause of action was entire and that it was not concealed ; that the fraud was in preventing the plaintiff from proving the full extent of his damage ; that he ought to have compelled the defendant to disclose all the articles taken and then amended his com- plaint/ It seems to me that that distinguished tribunal is en- tirely too tender of the rights of those who set about deliber- ately to defraud their neighbors. In a suit in Ohio to foreclose the lien of a street assessment, by an oversight the claim was stated to be $1,000 less than the true amount, and a fore- closure by default was taken for the amount stated, which was paid and the judgment satisfied. This was decided to be a bar to a recovery of the $1,000 omitted, because it was the result of the negligence of the plaintiff without any fault on behalf of the defendant.^ A suit upon an entire account being on trial, the withdrawal of an item because the witness to prove it is drunk will not authorize a new suit upon it.^ If a suit is brought to restrain a person from violating an agreement and for an accounting, and a cross-bill is filed to have the agreement canceled because procured by fraud, a dismissal of the bill and cross-bill will preclude the defendant from maintaining a new suit to cancel the agreement on account of matters which he then knew and might, with diligence, have brought forward.* 1. McCaffrey v. Carter, 125 Mass. same parties. The execution, the va- 330. lidity, the binding force, of this agree- 2. Ewing V. McNairy, 20 O. St. 315, ment, were passed upon by the New 322. Jersey chancery court. Ellen Harper 3. Button V. Shaw, 35 Mich. 431. and Collins, her trustee, alleged its 4. Harper v. Harper, 53 Fed. R. 35 validity,madeprofert of it, and prayed (C. C. A.). The court said that the specific performance of it by John bill showed " an attempt, under the Harper. In his answer Harper alleged guise of additional allegations, to raise she had forfeited her rights under it, a second time an issue which had al- and in his cross-bill went still further ready been passed on by a court of and prayed it to be declared void. He competent jurisdiction between the then had the opportunity to set up all 14 210 THE MERITS. Mistake of law. — If property is burned by the careless- ness of a railroad company, the owner may recover its entire value notwithstanding the fact that a portion of his loss has been paid by an insurance company. But if, by mistake of law, he deducts from his claim against the railroad company the amount of the insurance received, a recovery will bar a new action for the balance deducted.^ Splitting causes in India. — Chand on Res Judicata, sec- tions 46-48, says : * '46. The rule of res judicata, as enacted in the present civil pro- cedure code, omits all reference to the cause of action. The explanation 2 clearly enacts that it is matters which not only 'might,' but 'ought ' to have been made ground of attack in the former suit, that shall be deemed to have been in issue in that suit. It is nowhere laid down what matters ought to be made a ground of attack in any suit. Section 45 of the civil procedure code allowing several causes of action to be joined together is merely permissive. Section 42 is more comprehen- sive as requiring that 'every suit shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute, and so to prevent further litigation con- thegroundsof relief on which he bases N. J. Law 193. To sift the evidence, his present bill. At that time he knew to analyze the reasons, which led to it, all the facts he now alleges. He says would avail nothing. The question is in his bill he learned them in June, not, why was the judgment entered? 1887, and the former bill was not filed but simply whether a judgment was until July following. That he may not entered by a court of competent juris- have then presented some phases diction between the same parties on of relevant evidence, or not in as the same issue. ' The allowance of strong a light ; that he may not have such a plea as is set up in this case is stated his grounds of relief as fully as based on the maxim, " exjiedit reipub- now — can not avail him to procure a licce nt sit finis litium; " and the test retrial of substantially the same issue question is whether the parties had in in another court. He had the oppor- the former suit full opportunity to liti- tunity of doing so ; the facts were in gate the subject-matter of the present his possession; and 'in legal theory one.' Gardners. Raisbeck, 28 N. J. the conclusive presumption is that all Eq. 71. Tried by this test, the bill matters susceptible of being presented was rightfully dismissed by the circuit were passed upon and decided by the court." court at the time of rendering a judg- 1. Weber v. Morris & Essex R. R. ment.' Belvidere v. Railroad Co., 34 Co., 36 N. J, Law (7 Vroom) 213. THE DOCTRINE OF SPLITTING CAUSES. 211 cerning them.' The words 'as far as practicable,' introduce into the section an indefiniteness and uncertainty which, though perhaps unavoidable, deteriorates a great deal from its value as a rule of law. The important question now in connec- tion with this point will always be whether or not the ground on which the subsequent suit is based was such as ought to have been a ground of attack in a former suit. It appears to be gen- erally agreed upon that a plaintiff, though ' bound to bring be- fore the court all grounds of attack available to him with ref- erence to the title which is made the ground of action, is not bound to put forward in one suit all his titles to the subject sued for, is not bound if several independent grounds of action are available to him, to unite them all in one suit.' In Muttu Chetti v. Muttan Chetti,^ it was held by a majority of the full bench of Madras high court, that a suit on a bond would not be barred by the dismissal of a prior suit for the bond-money brought on the ground of a subsequent oral prom- ise by the obligees to pay their proportionate shares of the amount due on the bond. Mr. Justice Kernan dissented from that judgment on the ground that the subsequent suit was ' a claim for the same matter supported by or evidenced by a dif- ferent means.' Mr. Justice Innes, on the other hand, agreed with Sir Charles Turner and Mr, Justice Forbes, observing that it could not be * said within the meaning of the explana- tion ( 2 ) that the claim in the present suit upon the original agreement ought to have been made a ground of attack in the former suit, ' and that * in determining vf hat ought to be or ought to have been a ground of attack in a suit, matters must not be included which are not within the scope of it, that is, which are not embraced within the same cause of action.' Muttusami Ayyar, J., also was of the same opinion and said: * Reading the explanation together with the rule enacted in section 13, it relates, I think, to matters of facts or forms of relief referable to the cause of action in the former suit. Even supposing that it refers to all available grounds of action en- titling the plaintiff to the relief then sued for, still I do not see 1. Indian L. R. 4 Madras 296. 212 THE MERITS. how it can be applied to this case, in which the document was alleged to have been superseded by the oral agreement. The two- transactions could not coexist and they could not si- multaneously be made grounds of attack.' In Allunni v. Kunju Sha/ the dismissal of a claim brought by the karnawan of the defendants' tarwad for certain lands granted to them for main- tenance under an agreement alleged to have been broken by the defendants mortgaging some of them, was held not to bar a subsequent suit for those same lands brought on the ground that he was entitled to resume possession thereof as karnawan; Mr. Justice Muttusami Ayyar observing 'that explanation 2 must be taken to refer to the title litigated in the former suit as contradistinguished from the relief claimed, and that if several independent grounds of action are available, a party is not bound to unite them all in one suit, though he is bound to bring before the court all grounds of attack available to him with reference to the title which is made the ground of action.' Similarly, in Sathappayyar v. Periasami,^ the dismissal of a former suit for the defendant's removal from tlie office of ma- hant on the ground of his not having been duly appointed by the zamindars, was held not to bar a subsequent suit for the same relief brought on the ground of the defendant being dis- qualified for that office as being a married man ; Best, J., ob- serving that ' though this objection might have been taken in the former suit, he was not prepared to say that it ought to have been taken.' "The high court of Allahabad took a similar view in Sheo Ratan Singh v. Sheo Sahai,^ in which the dismissal of a pre- emption claim by a reversioner, in respect of certain land sold by the widow, was held not to bar a subsequent suit for a declaration as to that sale not being binding on the plaintiff. Duthoit, J., in delivering the judgment of the high court, said : ' Nor was the plaintiff's presumptive title matter which might and ought to have been made the ground of attack in the former suit. The law does not require a plaintiff at once 1. Indian L. E. 7 Madras 264. 3. Indian L. R. 6 Allahabad 358. 2. Indian L. R. 14 Madras 1. THE DOCTRINE OF SPLITTING CAUSES. 213 to assert all his titles to property, or to be thereafter estopped from advancing them. A plaintiff may, with the leave of the court, join causes of action ; but he is nowhere compelled to do so. The cause of action in the present suit, although the date of its accrual is the same, is separate and distinct from the cause of action asserted in the former suit. To have made the title upon which they now come into court the ground of attack in the former suit, would have been inconsistent with the object of the plaintiffs in that suit.' So also, the Bom- bay high court, in Konerrav v. Gurrav,^ held that the dis- missal of a suit for a certain parcel of land alleged to have fallen to the plaintiff's share on a partition of a joint estate, would not bar a subsequent suit for a general partition of that estate — Mr. Justice Melville observing as follows : * It is pos- sible that the plaintiff might, in his former suit, have made an alternative case, and have prayed that, if the court should come to the conclusion that the title which he set up was a bad one, and that he was not entitled to the relief which he claimed, it should nevertheless award to him a different relief, founded upon a different and antagonistic cause of action. The plaintiff might, we sa}^, possibly have been allowed' to combine two such grounds of attack in one suit ; but we can not say that he ought to have done so. The injustice and incon- venience of insisting on such a procedure are very clearly pointed out by Garth, C. J., in his decision in Denobundhoo v. Kristomonee.' A majority of the full bench of the high court held the same in Girdhar i;. Dayabhai,^ in which both the suits were for ejectment, on the ground that the defendant was a tenant of plaintiff, but in a former suit a lease was relied upon and held disproved, and the subsequent suit was therefore based merely on the general relation arising from de- fendant's possession and payment of rent — Mr. Justice Mel- ville, observing that this constituted a difference, not in the cause of action, but merely in the evidence by which the cause of action is supported, said: 'The cause of action in the present suit, namely, the breach of an obligation arising out of 1. Indian L, R. 5 Bombay 589. 2. Indian L. R. 8 Bombay 174. 214 THE MERITS. the relation of landlord and tenant, was fully heard and de- termined in the former action ; and that the present suit can not be maintained, unless it can be held that a party who has failed in one action can bring another suit to establish the same case by different evidence.' The court held, however, that the cause of action and the specific right alleged in the two suits were different, and would have to be supported by dif- ferent evidence, and West, J., said : ' If, on account of the case being one between landlord and tenant, the several grounds were so connected as properly to admit of investigation and adjudi- cation together, the district judge ought to have dealt with them together, and determined whether or not, on any view of the case before him, the plaintiffs were entitled to a decree. If they were not so connected, it can not be said that the former adjudication constitutes res judicata for the purposes of the present case.' In Nilo Ramchandra v. Govind Ballal,^ the dismissal of a suit brought for possession of certain land on an agreement, was held not to bar a subsequent suit for the same land by the same plaintiff on his hereditary right as a member of the family — Sir Charles Sargent expressly observing that ' the circumstances of the present case are certainly stronger than those which were held in Girdhar v. Dayabhai to prevent the bar of res judicata.' " In Becharji v. Pujaji,^ a suit for partition of a joint estate by a co-parcener, as such, had been dismissed as barred under section 373 of the civil procedure code on account of a former suit for partition by the plaintiff's father, which was withdrawn without liberty to bring a fresh suit, on the arbitrators having made an award which had been accepted by the parties, but did not alter their rights. In this latter suit the plaint did not re- fer to the award, but after the settlement of the issues, the plaint- iff applied for an amendment of the plaint, so as to include in it his claim on the award, but the amendment was refused on the ground that it would materially alter the character of the suit. A division bench of the Bombay high court held that the dismissal of the suit did not bar a subsequent suit for par- 1. Indian L. R. 10 Bombay 24. 2. Indian L. E. 14 Bombay 31. THE DOCTRINE OF SPLITTING CAUSES. 215 tition brought on the basis of the award; Candy, J., in an elaborate judgment reviewing the prior authorities, observed that though the plaintiff * might have framed that plaint ( in the dismissed suit) to the effect that even if his general right to partition as a member of an undivided Hindu family was lost owing to the withdrawal of the suit of 1874, he was still entitled to partition by the agreement of the parties subsequent to the filing of the former suit (that was withdrawn), it does not fol- low that he ought.' Mr. Justice Jardine further said : * It is true that the question referred to the full bench in Denobund- hoo's Case, and answered in the affirmative by the majority of the judges, was framed in such a way as to lay down the prop- osition that a title to property not set up in a former plaint can not, under any circumstances, be relied on in a subsequent suit to recover the same property. But the grounds of the decision, and the authorities quoted in its support, did not cover such a wide proposition, nor has such a strict interpretation of the law been approved of by the high courts in this country.' This decision and the decision in Allunni v. Kunju Sha^ were fol- lowed by the Punjab chief court in Muhammad Din v. Rahim Gul^ — Tremlett, J., observing that the words 'matter, which might and ought to have been made ground of attack,' show that a plaintiff is not bound to assert at once all his titles to property, or to be estopped from hereafter advancing them. The same view had been taken by the Punjab chief court in the earlier case of Syad Yar Khan v. Ram Chand,^ in which the dismissal of a suit for land, brought on the ground that it was not included in a conditional sale, was held not to bar a subse- quent suit brought for the same land on the ground that the conditional sale did not bind the estate after his death; and Barkley, J., observed that explanation 2 was an explanation only of words used in section 13, and section 13 did not apply, * as though the plaintiff in the former suit might have made the invalidity of the alienation ground of attack, he did not in fact do so, and the question not having been raised in that suit, 1. Indian L. R. 7 Madras 264. 3. 1882 Punjab R. No. 24. 2. 1886 Punjab R. No. 6. 216 THE MERITS. the matter can not be said to have been heard and finally de- cided by the court. ' The decision of the Punjab chief court in Palamal v. Maya^ is not against this view, as in that case the claim in the former suit was for T's estate on the ground of cus- tom, and in the latter suit for the same estate on the ground of law ; and Stogdon, J., in delivering the judgment of the court, expressed an approval of the decision in Allunni-y. Kunju Sha, and said : ' In the former case the right to inherit T's estate was the title which was made the ground of action. If plaint- iffs were entitled to succeed to it, both by law and custom, they were bound to make both law and custom grounds of attack. They were not entitled to bring one claim based on custom and a second one based on law.' In Kameswar Pershad v. Ruttan Keer,^ A mortgaged for her debts certain lands of her deceased husband's estate, and afterward surrendered the estate to R on an agreement providing inter alia that he would pay off her liabilities; and on a suit by the mortgagee for the mortgage- amount against A and R, the mortgage was held to be not binding against the estate; and after A's death, it was held that the decree against A could not be executed against R except in respect of personal property of A which had come to his hands. The mortgagee then brought a suit against R to have him de- clared liable on the ground of the agreement, but their lord- ships of the privy council held that — ' it was only an alterna- tive way of seeking to impose a liability on R, and the matter ought to have been made a ground of attack in the former suit, and therefore that it should be deemed to have been a matter directly and substantially in issue in the former suit. ' ''47. Reply divided. — The same principle of explanation 2 has been held to apply to the grounds that ought to have been urged by the plaintiff in reply to some plea raised by the defend- ant, as essentially such grounds are also grounds of attack. Thus in Nirman Singh v. Phulman Singh, ^ a suit by a minor contesting the validity of a mortgage of his share of lands, was held barred by a decision in favor of the mortgagee in a previous 1. 1890 Punjab R. No. 146. 3. Indian L. R. 4 Allahabad 65. 2. L. R. 19 Indian Appeals 238. THE DOCTRINE OF SPLITTING CAUSES. 217 suit against him, in which no objection was taken against the validity of the mortgage relied on by the mortgagee, and the decision of the court proceeded on the hypothesis of its valid- ity. In England the rule has been held to apply even to the grounds based on matters which arose after the plea pleaded by the defendant. Thus in Newington v. Levy,^ Blackburn, J., observed that — * in the present case, by the non-payment of the installment of the composition due on the 6th of April, 1869, the covenant not to sue came to an end before the con- fession of the plea, and might and ought to have been taken advantage of at the time.' So also Bramwell, B., said : ' If the plaintiff could, after the 6th of April, 1869, have replied the non-payment of the installment due on that day, he ought to have done so ; having missed his opportunity, he could not have done it afterwards.' " 48. Title acquired pending suit. — The same rule would apply if the point was raised in the original court, but left undecided by it, and not raised on appeal. Thus in Sultan Ahmad v. Mania Bakhsh,^ M brought a suit to have it declared that the property attached in execution of a decree against her husband was hers, and therefore not liable to attachment as her husband's, and on her death the suit was proceeded with in the name of her sons who claimed under her will. The lower courts decreed the claim on the ground that the property was hers, but her sons did not rely on the will in the high court on appeal, and it was held that the judgment-debtor's fourth share in the property as her heir was liable to attachment and sale. This decision was held to bar a subsequent suit by M's sons against the purchaser of that share, on the ground that ' the mother's will was plainly a matter which should have been made the ground of the de- fense in the course of the trial ' in the high court." In sections 235-239, 242, the same author says: "235. Principle OF BAR BY suit. — The doctrine oi res judicata, as now recognized, directly forbids the retrial of an issue, and nec- essarily involves the bar of a suit brought on a cause of action 1. L. R. 5 C. P. 193. 2. Indian L. R. 4 Allahabad 21. 218 THE MERITS. which should have formed the basis of a prior suit and been tried therein. And this bar is held to apply even if the subsequent suit is for a claim or relief arising out of the same cause of action, and not asked in the former suit. "The rule is not a recent one, but was recognized even among the Romans.^ Nor is the rule merely a technical one. In Smith V. Jones, ^ the New York supreme court observed that ' the principle which prevents the splitting up of causes of ac- tion, and forbids double vexation for the same thing, is a rule of justice and not to be classed among technicalities. It was intended to suppress serious grievances.' 'There is no rule of procedure,' said Mr. Justice Straight in Hikmatulla v. Imam Ali,^ ' which is founded in better reason and good sense than that which prohibits persons who bring suits from what is called splitting their demands.'* Speaking of the rule, Sir Whitley Stokes says : ' Were the rule otherwise, a man might be sued repeatedly in respect of different parts of the same mat- ter, and conflicting judgments might be pronounced regarding separate portions of the same property, included in the same cause of action. And as the value of the property claimed by the plaint determines the class of judges by which a suit is cog- nizable and the remedies of the parties in an appeal, a suit might be split up so that each branch of it should be decided by a judge of a lower class than that by which, with reference to the value of the whole property in litigation, it ought to be decided, and the right of the parties to appeal would be unfairly limited.'"' "236. Bar by suit, or splitting causes, distinguished FROM RES JUDICATA. — The rule, however, which may be desig- nated as that of bar by suit, though derived from that of res judi- cata, is in practice different from it in several respects, and the difference has important results in regard to its scope and extent 1. Dig. 44, 2, 7. ticularly careful to give it a construe- 2. 15 .Johns. 229. tion no larger than it will reasonably 3. Indian L. R. 12 Allahabad 206. bear." The learned chief-justice was 4. Sir Richard Garth, C. J., ob- strongly against the principle of con- served in Pramada Dasi v. Lakhi structive bar implied in the doctrine Naraitf (Indian L. R. 12 Calcutta 63), of res judicata, and formally enacted that section 43, however construed, in explanation 2 of section 13. "has done, and will do, a vast amount 5. Ang. Ind. Codes 397. of injustice ; and I am therefore par- THE DOCTRINE OF SPLITTING CAUSES. 219 of application. It is based exclusively on the ground of public policy, and can not commend itself on the ground of the presump- tive correctness of a former judgment, which may be urged in support of the doctrine of res judicata. As a direct result of this difference, this rule has no application if the former suit was in a foreign court. Another difference,is that it is depend- ent entirely on the identity of the cause of action of which the rule of res judicata has, to a considerable extent, now freed itself. Moreover, the bar in the case of this rule is created directly by the institution of a suit, and not as in the case of res judicata by the rendition of a judgment ; and the rule, there- fore, is allied as much to the rule of lis pendens as to that of res judicata.' ' ''237. Indian code as to splitting causes. — The Indian legislature has, therefore, provided for the rule separately, from the very first enactment of the civil procedure code. Section 7 of the code of 1859 thus laid down that ' every suit shall include the whole of the claim arising out of the cause of action. If a plaintiff relinquish or omit to sue for any portion of his claim, a suit for the portion so relinquished or omitted shall not afterwards be entertained.' The bar being absolute, the language of the section was im- perative, and a plaintiff could not reserve his right to sue again by alleging in his plaint in the first suit that he intends to bring a second suit for the portion omitted.^ The same form has been retained in subsequent legislation, and thus, though there was such a reservation in the former suit in Maksud Ali v. Nargis Dye,^ it was not even contended that it would bar the application of the rule of bar by suit. As an effect of the rule as enacted, a suit for rent in company's ru- pees, though it was really due in rupees of a higher value, was held to bar a suit for the difference — Trevor and Glover, JJ., observing that, as the plaintiff ' either omitted or abandoned the difference when he sued, or erred in his calculation, and claimed what the special appellants were willing to pay him as the entire sum due to him for rent, we think that he fairly 1. Soonder Bebee v. Khilloo Mul, 2. Indian L. R. 20 Calcutta 322. 2 Allahabad H. C. R. 90. 220 THE MERITS. comes within the purview of section 7, act 8, of 1859, and has "omitted to sue" for a portion of his claim in the origi- nal suit, and can not now recover it in a fresh suit.'^ Their lordships of the privy council held in Buzloor Ruheem v. Shumsoonnissa,^ that the section plainly included accidental or involuntary omissions as well as acts of deliberate relin- quishment, and that the correct test in all cases of this kind was whether or not the claim in the new suit was in fact founded on a cause of action distinct from that which was the foundation of the former suit. The same had been held before, and their lordships' decision has since been expressly followed in a con- siderable number of cases.' In Pittapur Raja v. Surya Rau,* Sir Barnes Peacock, in delivering their lordships' judgment, observed that * that section does not say that every suit shall include every cause of action or every claim which the party has, but every suit shall include the whole of the claim arising out of the cause of action — meaning the cause of action for which the suit is brought. ' "Indian code as to splitting remedies. — In the present code the rule, in a more extended and complete form, is reproduced in section 43, which accordingly provi4es as fol- lows : * Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If a plaintiff omit to sue in respect of, or in- tentionally relinquish, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relin- quished. * * * If he omits (except with the leave of the court obtained before the first hearing) to sue for any of such remedies, he shall not afterwards sue for the remedy so omit- ted. * * * An obligation and a collateral security for its performance shall be deemed to constitute but one cause of ac- tion.' The reference in this section to the splitting of the remedies was introduced for the first time, and it has been often attempted to explain the practical effect of this addition. 1. Meer Mahomed v. Forbes, 5 W. 3. Vide Ganes Chandra v. Ram R., Act 10, Rul. 90. Kumar, 3 Bombay L. R. A. C. 265. 2. 11 M. I. A. 551. 4. L. R. 12 Indian Appeals 119. THE DOCTRINE OF SPLITTING CAUSES. 221 In Kalidliun v. Shiba Natli/ Field, J., in the order of refer- ence to the full bench, said: *A ''claim" is a demand of right, a challenge of interest of something which is not in possession of the claimant. A remedy is the legal means to recover a right. * * * Xhe remedy appears to be the mode of enforcing the legal claim. In this view, a case of more than one remedy seems to suppose more than one claim. The words "more than one remedy" can scarcely mean a remedy against more than one person.^ The recovery of immovable property, and the recovery of mesne profits, are treated, not as separate remedies, but as separate causes of action. In mort- gage cases we get more than one remedy.^ In the following cases, also, perhaps, we find instances of more than one rem- edy in respect of the same cause of action. Okhoy Coomar v. Mahatap Chunder,* in which a patnidar, who had previously ob- tained a decree for abatement of rent, was allowed to maintain a second suit for a refund of the excess rent paid before the in- stitution of the suit for abatement; Tarini Prasad v. Raghab Chundra ;^ Tarini Prasad v. Khudumani Debia f Luchmun Sahoy v. Ramsarn,' and Routledge v. Hislop.* In many cases there is an option of suing on the contract, or for breach of the contract, and in these cases there are more than one remedy, but the remedies are alternative. It is not very easy to define what constitutes a ** claim" as distinguished from a "rem- edy," for the former appears to include the latter to some ex- tent. Doubtless the two terms were intended to overlap, and the second portion of section 43 was added for more abundant caution, and in consequence of the different form in which sec- tion 2 of the old code was drafted, when it became section 13 of the new code. A declaratory decree can scarcely be termed a "remedy," although there are cases (see Tulsi Ram v. 1. Indian L. R. 8 Calcutta 483. 4. Indian L. R. 5 Calcutta 24. 2. Sabeer Khan v. Kalli Das, 1 W. 5. 5 Bombay L. R. 184. R. 199. 6. 5 Bombay L. R. 187. 3. Dos Money Dossee v. Joumen- 7. 20 W. R. 144. joy, Indian L. R. 3 Calcutta 363; 8. 2 E. & E. 549. Emam Momtazooddeen v. Rajkoomar Das, 14 Bombay L. R. 408. 222 THE MERITS. Ganga Ram*) in which it is spoken of as a remedy. I can understand an injunction being a relief or remedy, Marsh v. Keith/ but I do not understand how a decree, which declares a right merely and gives no relief, can be termed a remedy.' So also, in Ram Sewak v. Nakched,^ Tyrrell, J., in his judg- ment, observed that ' a remedy is a man's legal means of re- covering or otherwise asserting a right to which he deems himself entitled, or of obtaining a redress for a wrong. In section 43, the word " remedy " is used to denote the decree or decretal order with its proper legal results, which is the suc- cessful suitor's warrant for obtaining the relief he has achieved by his suit.' "As to the scope of the section, there is a general unanimity of opinion that the claim and the remedy mentioned in it have reference to the cause of action litigated in the former suit.* The section can, besides, have an application only if there was a cause of action in existence at the time of the institution of the first suit. This was held in Ahmad Khan v. Mehrk- han,® by Sir Meredyth Plowden, who said : * Section 43 is not applicable if the former suit set up in bar has been dis- missed because there is no cause of action. A premature suit is not within the purview of the section at all. What is con- templated in the second clause is a second suit advancing a claim supplementary to the first and in respect of ''the portion omitted or relinquished in the first suit." When the cause of action arises, a second suit may be brought for the whole of the claim arising out of it, notwithstanding the dismissal of the first suit as premature, and it need not be for the same claim, or the same remedies as were sued for in the first plaint." " 238. The section has been often held not to apply to claims of which the plaintiff was not aware at the time of bringing 1. Indian L. R. 1 Allahabad 252. 699 of 1883; Audi v. Thatha, Indian 2. 1 Dr. & Sm. 342. L. R. 10 Madras 347; Naro Balvant^. 3. Indian L. R. 4 Allahabad 261. Ramchandra, Indian L. R. 13 B«jmbay 4. T. K. Ummatha v. Kunhamed, 326. Indian L. R. 4 Madras 338; Fathuma 5. 1893 Punjab R. No. 35. V. Ayissa, Madras H. C. Su. Ap. No. THE DOCTRINE OF SPLITTING CAUSES. 223 the first suit, because a right which a litigant possesses with- out knowing or ever having known that he possesses it, can hardly be regarded as a portion of his claim within the mean- ing of section 43.' The same has been held by the Madras high court repeatedly. Thus, in Viraragava v. Krishnasami,^ the plaintiff knew nothing of the alleged sale by the defend- ant's mother or of the acquisition by the railway company, and Kernan and Kindersley, JJ., said: 'The provision in section 43 as to omitting a claim clearly involves the idea that the plaintiff so omitting was at some time prior to the suit aware or informed of the claim, or aware of the facts which would give him a cause of action. He, therefore, did not omit within the meaning of section 43 to sue in respect of that claim, nor did he designedly relinquish it.' The same was held by Best and Muttusami Ayyar, JJ., in Ambu v. Ketlilamma.^ " In Doorga Nath v. Kalee Narain,* Mr. Justice Jackson by way of analogy observed, that ' supposing that the plaintiff found, on re-entering into his own land, that the defendant had retained fraudulently and wrongfully possession of certain lands, and brought a suit for recovery of possession, and it afterwards came to his knowledge, what he did not know at the time of bringing the first suit, that the defendant had retained other lands to which he is also entitled, it is conceivable that even in that case a second suit might be maintainable ; because, if the plaintiff were debarred from bringing a suit in respect of the land as to which he was not informed of the wrong done until he had ascertained the whole wrong done to him by the defendant, he might be barred as to a great part of his cause of action." "(239.) In Pattaravy v. Audimula,® Mr. Justice Innes ob- served that * a reasonable construction must be put upon sec- tion 7, and the words ''whole claim" understood with the qualification "in so far as it is cognizable by the court in 1. Amanat Bibi v. Imdad Husain, 3. Indian L. R. 14 Madras 23. L. R. 16 Indian Appeals 106. 4. 24 W. R. 213. 2. Indian L. R. 6 Madras 344. 5. 5 Madras H. C. R. 419. 224 THE MERITS. n which the suit can be lawfully entertained." ' In this case, the plaintiff in the former suit had not included a claim for a certain inam for w^hich a suit could not be brought in a civil court without the previous sanction of the government, and a subsequent suit for the inam was held not to be barred. Mr. Justice Innes observed that, if at the time of a cause of action ' arising to a plaintiff, or in the interval between that and a subsequent date, any part of his claims is not cogniza- ble by the court in which the remainder of it is cognizable, it can not, I think, be intended that he must postpone his suit for the cognizable portion of his claim until the court acquires jurisdiction over the portion at present uncognizable or be barred of all future remedy for the recovery of that portion.' The Madras high court had, on the same principle, held in Subba Rau v. Rama Rau,^ under the code of 1859, that a suit for a certain portion of a property would not bar a subsequent suit for another portion of the same property, which was sit- uate outside the local jurisdiction of the court that took cog- nizance of the former suit ; and the decision was followed in Pattaravy v. Audimula by Holloway, J., who expressed, how- ever, doubts as to its correctness. A contrary view was taken by the Calcutta high court in Jumoona Dassee -u. Bamasoon- deree.^ The point as to the local jurisdiction is not important at present, as the decision of the Madras high court was based on the ground that sections 11 and 12 of the civil procedure code of 1859 were not imperative, but optional ; and the corre- sponding sections of the present code are worded differently, and do not require the sanction of a higher authority for the exercise of jurisdiction by the court in which the suit contem- plated by them may be instituted. Even the Calcutta high court held, that if the former suit were for the whole of the property, and the decree turned out void in regard to the property outside the court's jurisdiction, on account of the sanction required by section 12 not having been obtained, a subsequent suit for that property would not be barred, as in such a case there would be no relinquishment or omission of it 1. 3 Madras H. C. R. 376. 2. 2 W. R. 148. THE DOCTRINE OF SPLITTING CAUSES. 225 in the former suit.' Under tlie present code, the Allahabad high court has held, on the same principle, that the suit in a revenue court for rent will not bar a subsequent suit in a civil court to recover the amount of the rent from property hypothe- cated for it, the former suit not having been cognizable by a civil court, and the latter not cognizable by a revenue court.* In Narasinga Rau v. Venkatanarayana,' a suit to recover the amount of a mortgage from the mortgagor, as well as from the mortgaged lands, had been brought in a court that had not ju- risdiction over the lands, and it was dismissed on that ground as regards the land, and on another ground in regard to the defendant personally. . The plaintiff then brought another suit in the court having jurisdiction over the lands for the recov- ery of the mortgage-money by a sale of the mortgaged lands, and it was contended that the suit was barred as the plaintiff must be taken to have intentionally relinquished that portion of his claim relating to the lands, so as to get the personal de- cree which alone the former court could give him. Sir Arthur Collins, C. J., and Handley, J., said: 'The facts as to plaint- iff's conduct in the former suit can not bear that construction,. So far from relinquishing that part of his claim relating to the land, he sued for enforcement of the mortgage by sale of the mortgaged lands, and persisted in his claim until the hearing, when it was disallowed. He had a right to sue the mortgagor for the mortgage debt in the court within whose jurisdiction the mortgagor resided, and the fact that he erroneously claimed in that suit relief against the lands, which that court had no jurisdiction to give him, does not, in our opinion, bring him within the bar of section 43 of the code.' "The English courts also appear to act on that principle; and in the recent case of the Midland Railway Company v. Mar- tin,* Wright, J., said : * The magistrate had no power to deal 1. Grish Chunder v. Ramessuree Allahabad 180 ; Chunni Lai t^. Banas- Dabee, 22 W. R. 308; Bungsee Singh pat, Indian L. R. 9 Allahabad 23. V. Soodist Lall, Indian L. R. 7 Cal- 3. Indian L. R. 16 Madras 481. cutta 739. 4. (1893) 2 Q. B. 174. 2. Banda v. Abadi, Indian L. R. 4 15 226 THE MERITS. with this part of the case ; consequently the doctrine that if a person has two alternative remedies in respect of the same subject-matter, he is put to his election between them, has no application here.' *'242. The application of the bar by suit, like the rule of res judicata under the code of 1859, depends entirely on the identity or rather the unity of the cause of action. Some reference has been made to the cause of action and its identity in sections 9 and 148. The question involves considerable difficulty, however, and unanimity has not been arrived at as to some of its aspects. The expression 'cause of action,' in its strict and scientific sense, signifies merely the act (including omission) that infringes any right of another person, and gives him a secondary right for seeking proper relief or redress for that infringement. In this sense, a tort or a breach of contract is an entire cause of action, altogether independent of the right or title infringed, and the contract or other cir- cumstances giving birth to it. Practically, however, the ex- pression 'cause of action' has always been used and understood in England as well as in this country in a broad sense, so as to include in it not only the act constituting the infringement of a right, but also the right itself, and even the circum- stances giving it birth. Thus in Harjeebun Doss v. Bhug- wan Doss/ Phear, J., said : 'I venture to think that in all cases the English courts have held that the cause of action is only complete in case the facts out of which the plaintiff 's right immediately arose are comprehended in it, as well as the facts which constitute its infraction. * * * The inconsist- encies of decision of which Mr. Justice Holloway complains^ do not appear to exhibit an oscillation between and including of the "ground of origin of the right" on the one side, and an excluding of it on the other, but rather manifest themselves in the differing quantities of that ground, which it was thought necessary in the various cases to take in. * * * The diversities of decision are all referable to the practical diffi- 1. 7 Bombay L. R. 110. 2. Vide De Souza v. Coles, 3 Madras H. C. R. 405. THE DOCTRINE OF SPLITTING CAUSES, 227 culty which so often presents itself of determining what is the immediate proximate cause of the plaintiff's right as distin- guished from that which is prior and more remote.' The con- trary view was, no doubt, adopted for the purposes of the rule relating to the service of writs, in Vaughan v. Weldon,* on a conference of all the judges of the three common-law courts that are now represented by the queen's bench division of the supreme court of judicature, England. The popular use of the expression has not disappeared, however, and even recently Esher, M. R., in Read v. Brown, ^ said : that 'cause of action' had been defined in Cooke v. Gill,^ as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court, * and I think that the definition is right. ' " Mr. Justice Holloway, in DeSouza v. Coles,* said : * The words " cause of action" may have either the restricted sense of immediate occasion of the action or the wider sense of necessary conditions of its maintenance. In one sense, it is the mere matter of fact, the failure of the defendant to do or for- bear from doing, to give, or make good, that which the plain- tiff 's right entitles him to insist upon. In the other, it is this matter of fact plus the right resident in the plaintiff. ' In this country, Mr. Justice White, in delivering the judgment of the Calcutta high court in Jibunti Nath v. Shib Nath,® observed, that a ' cause of action consists of the circumstances and facts, which are alleged by the plaintiff to exist, and which, if proved, will entitle him to the relief, or to some part of the re- lief, prayed for ; ' and this observation has since been quoted with approval by other judges.^ Whichever view be taken, however, of the expression, the 'cause of action,' its iden- tity, is to be gathered from the facts stated in the plaint. Mr. Justice White thus added, that the cause of action has * to be sought for within the four corners of the plaint. ' It was contended against this, that the court must not confine 1. L. R. 10 C. P. 47. 5. Indian L. R. 8 Calcutta 822. 2. 22 Q. B. D. 131. 6. Nono Singh v. Anand Singh, In- 3. L. R. 8 C. P. 107. dian L. R. 12 Calcutta 294. 4. 3 Madras H. C. R. 406. 228 THE MERITS. itself to the claim made in the two suits in judging whether or not the 43d section of the code had been infringed, but ought to travel outside the statements contained in the plaint and see how the facts stood upon the finding of the court in the first suit, but the learned judge said : * The argument is this : that, inasmuch as the cardinal allegation was disproved upon which was grounded the plaintiff's title to the limited relief prayed in his first suit, and inasmuch as the subordinate judge held the plaintiff not to be in possession at that date, it follows that the plaintiff ought, in his first suit, to have brought a suit praying not only for a declaration of title, but also for an award of possession, and that not having done so he has split his rem- edies. I can not agree that this is the correct test. The ques- tion to be determined turns not upon what was the proper suit for the plaintiff to have brought, or the proper remedies for him to have used, having regard to the facts as found upon the trial of the first suit, but upon whether or not the causes of action in the two suits are one and the same, or are distinct. It is contended that, in the case of Buzloor Ruheem v. Shum- soonissa Begum, ^ their lordships, in deciding that the plain- tiff had omitted in her first suit a portion of his claim, founded their judgment upon the evidence in the suits and not upon the facts alleged in the pleadings. But this does not appear to be so. The omission of a portion of the claim from the first suit became apparent from comparing together the plaints in the two suits. It was then perceived that the causes of action in the two suits were the same, and that the government paper sought to be recovered in the second suit was merely an item omitted from the plaintiff's demand in the first suit." § 60. Accounts — General rule. — A recovery upon a part of a single,^ or of a continuous or running account,^ bars a suit 1. 11 M. I. A. 551. 650, 654— omitted item; BorngessertJ. 2. Lucas V. Lecompte, 42 111. 303; Harrison, 12 Wis. 544 (78 Am. D. 757) Ex parte Gale, R. M. Charlton 214 — an — omitted item. account of sixty dollars for goods; 3. Oliver v. Holt, 11 Ala. 574 (46 Smith V. Jones, 15 Johns. 229 — three Am. D. 228) ; Grayson v. Williams, barrels of pot ashes sold at one time ; Walker (1 Miss.) 298. Dictum in Manning v. Irish, 47 Iowa THE DOCTRINE OF SPLITTING CAUSES. 229 for the balance. Thus, it was said by the court of last resort in MississipjDi, that but one suit can be maintained on a book account in those cases in which * * the known custom of the country, or the agreement of the parties, or their general course of dealing, warrants the belief that it was intended that the several items should constitute one indebtedness, whether due at the same or different times. "^ It was also said in Minnesota, that several sales of goods, made at different times, may be so connected, either by express agreement or by circumstances, as to constitute but one cause of action. But that, in the absence of such evidence, distinct sales constitute different. causes of ac- tion.^ And in a later case the same court said that. in the ab- sence of special facts to create an exception, it is a general rule that an indebtedness for goods bought from time to time at re- tail, for instance, fresh meat purchased daily of a butcher, con- stitutes a single cause of action.^ So, if A has a running ac- count against B for merchandise sold and delivered from time to time, from June 4 to August 27, all being due, a recovery for the items sold up to July 19 bars a suit for the remainder.* In accord with this, it was decided in Kansas that, if A agrees to purchase coal from B at prices specified, and gets seven different quantities within two months, there is but one cause of action.^ 1. Dictum in Pittman v. Chrisman, company in an account against the 59 Miss. 124, 126. brick company. This account, em- 2. American Button-Hole, etc., Co. bracing the several items, was pre- V. Thornton, 28 Minn. 418 (10 N. W. R. sented to the brick company for pay- 425). ment, and, the same not being paid, 3. Memmer v. Carey, 30 Minn. 458 two actions were brought thereon be- (15 N. W. E. 877). fo.re the same justice of the peace, and 4. Guernsey r. Carver, 8 "Wend. 492 upon the same day. One action was (24 Am. D. 60). brought to recover the first two items 5. BolenCoal Co.i'. WhittakerBrick of the account, and the remaining Co., 52 Kan. 747 (35Pac. R. 810). The items were embraced in the other ac- courtsaid: " It appears that the brick tion. In the first action a judgment company agreed to purchase coal for was obtained against the brick com- its use from the coal company at prices pany for $71.60, which was paid and named by the latter. Afterwards, the satisfied. Subsequently, the other ac- brick company obtained coal from tion was tried upon the balance of the time to time on seven different days account, and the judgment in the for- during the months of Maj^ and June, mer trial was claimed to be a bar to which was entered uj) by the coal any further recovery. The coal was 230 THE MERITS. Likewise, if A has a running account against B for meat, part of which was furnished for his house and part for his vessel, a recovery for the items sent to his house bars a suit for those sent to the vessel.* And if a person goes into a store and selects dif- ferent parcels of goods, agreeing on the price of each, thus pur- chasing twenty parcels before leaving, there is only one cause of action created.^ But in Massachusetts, a person having agreed to furnish advances and supplies for a vessel, in consideration of which he was to receive a certain sum for each man shipped and to be repaid the advances, a recovery for advances and supplies furnished, is no bar to another suit for other advances and sup- lies, although all were due when the first suit was brought, be- cause the advances and supplies made from time to time created different causes of action. The court said : ''As the law is, we think it can not be maintained, that a running account for goods sold and delivered, money loaned, or money had and re- ceived, at different times, will constitute an entire demand, un- less there is some agreement to that effect, or some usage or course of dealing from which such an agreement or understand- ing may be inferred."^ sold in accordance with an oral agree- ning accounts, like the one under con- ment, and a running account of the sideration ; and, if the plaintiff could several lots delivered was kept by the split this account into two causes of coal company. The items of the ac- action, he might bring as many actions count upon which the actions men- as there were items in the account, tioned were based corresponded with The doctrine of res judicata forbids a the items and charges in the run- repetition of vexatious lawsuits, and a ning account which was presented to former trial and judgment upon one the brick company. The balance due of the items, is conclusive between upon this account constituted one, and the same parties as to all matters only one, cause of action. Tootle v. which were or might have been liti- Wells, 39 Kan. 452, 18 Pac. 692. It is gated in all other actions, whether the policy of the law to avoid a multi- commenced before or after the action plicity of actions, and a party is not in which the adjudication was made." permitted to split a cause of action into 1. Borngesser v. Harrison, 12 Wis. two or more parts, and maintain sep- 544. arate actions for each of the separate 2. Magruder v. Randolph, 77 N. C. parts. A recovery of one part of an 79. action so split up will constitute a 3. Badger v. Titcomb, 15 Pick. (32 complete bar to a recovery upon any Mass.) 409 (26 Am. D. 611), denying remaining portion thereof. The prin- Guernsey v. Carver, supra. ciple of indivisibility applies to run- THE DOCTRINE OF SPLITTING CAUSES. 231 The supreme court of Georgia holds that a suit upon an ac- count for work and labor must include all that is then due, and that the remainder will be barred.^ §61. Accounts — Cash on delivery. — A person furnished ice b)'' the load, to be weighed and paid for as each load was de- livered. The ice was weighed as each load was delivered, but it was not paid for. On October 14 he presented an account of $172 which was not paid. On October 16 and 18 other loads were furnished, amounting to $45, and, as they were not paid for, suit was brought for them and judgment recovered. Suit was then brought upon the $172 account, and it was held that the first judgment was no bar.^ Delivery at different times. — If three tons of hay are sold at one time and delivered in part at one time, and in part at another, there is but one cause of action.^ So, under a con- tract to furnish maps at a specified price for each, all the moneys due at any time for maps furnished constitute a single cause of action.* And the same is true in respect to the pur- chase of two lottery tickets from the same person at different offices from different agents.^ Express and implied. — Malt having been shipped in bags, with an agreement that the bags should be returned, and a suit having been brought for the malt alone, in which the defend- ants recovered a judgment against the plaintiff for balances in their favor, the plaintiff in that suit, when sued upon the judg- ment, can not use the claim in his favor for the value of bags not returned as a set-off, because it ought to have been includ- ed in his original cause of action.® Three persons were in partnership in business as ship chand- lers and ship carpenters. They kept the two branches of business separate and in different stores. Two of them man- aged one store and the third the other. Under these circum- stances, a captain of a vessel having contracted accounts at each I.Evans v. Collier, 79 Ga. 319 (4 4. O'Beirne t'.'Lloyd, 43 N. Y. 248. S. E. R. 266). 5. Colvin v. Corwin, 15 Wend. 557. 2. Stifel V. Lynch, 7 Mo. App. 326. 6. Hopf v. Myers, 42 Barb. 270. 3. Miller v. Covert, 1 Wend. 487. 232 THE MERITS. store, two causes of action arose.* By an oral contract, in 1872, a corporation acquired the exclusive right to use a per- son's inventions on the mowers and reapers manufactured by it, and was to pay him what was reasonable. No time was fixed for the contract to expire, nor for the payment of royalty. Under this contract, it was held that the agreement to pay was not entire, and that the patentee might recover, after a reason- able time had elapsed, what was then due.^ § 62. Accounts — Due at different times. — If there are inde- pendent transactions having no connection with each other, a suit may be brought on each, although all are due.^ So if, by agreement, goods furnished were to be due and payable at the end of each month, those delivered each month constitute a separate cause of action, and a recovery for the January bill is no bar to a suit for the bill of the previous month.* And two bills of goods having been sold at different times, one on a credit of six months and the other without any, two actions may be maintained on them, although both are due.^ So, if two bills of goods are bought at the same time and place, one to be paid for on January 15 and the other two weeks later, they still constitute two causes of action after both become due. One could have been sued upon before the other became due, and the latter after the statute of limitations had barred a suit on the former.® So if one employs another to carry a par- cel of goods, and about a month later employs him to carry another parcel, he has two causes of action.' But a carpenter, having agreed to construct window-frames, shutters and doors for a house, at prices fixed for each, to be paid for as they were respectively completed, has but one cause of action after the items are all due.* This case is in- consistent with the others above cited, and is wrong, I think. 1. Secor V. Sturgis, 16 N. Y.548, 558. 4. Beck v. Devereaux, 9 Neb. 109 (2 2. Skinner v. Walter A. Wood Mow- N. W. R. 365) . ing and Reaping Machine Co., 140 N. 5. Staples v. Goodrich, 21 Barb. 317. Y. 217 (35 N. E. R.'491), affirming 20 6. Stickel v. Steel, 41 Mich. 350. Y. Suppl. 251. 7. Rex v. Herefordshire, 1 B. & Ad. 3. Dictum in Pittman v. Chrisman, 672 (20 E. C. L. 644). 59 Miss. 124, 126. 8. Jarrett v. Self, 90 N. C 478. THE DOCTRINE OF SPLITTING CAUSES. 233 § 63. Accounts — Goods sold and money loaned. — An account for goods sold and one for money loaned, constitute two causes of action.^ And an account for a horse sold, for goods sold and for rent, make three causes.^ Moneys paid and expended. — A was guardian for B, an in- sane person, and after B had been declared sane they had a set- tlement, in which it was found that B was indebted to A, by reason of the guardianship, $145, which B agreed to pay. Aft- erwards the asylum sent A an account of $12 for supporting B, which he paid. He then sued B, in a complaint of two counts, the first being upon the $145 as a settled account, and the other on the $12 account. He dismissed the second count and sued upon it before a justice of the peace and recovered judgment. This judgment was then pleaded in bar of the first suit upon the theory that he had split his cause of action, but this theory was denied — the court holding that he had two causes.* § 64. Accounts — Moneys received by agent or removed ex- ecutor. — If the defendant, as steward of the plaintiff, receives various sums of money from time to time and fails to account for them, a recovery for a part bars a new action for all the bal- ance of which the plaintiff had knowledge at the time he com- menced the first action.* So, the money in the hands of a removed executor, which he neglects to pay over to his succes- sor, constitutes but one cause of action, and a recovery of a part of it by the successor in one action bars a new one for the re- mainder.® § 65. Accounts — Note. — A person having executed a note which was indorsed to a bona fide holder, and then the alleged account for which the note was executed having been also transferred to him, upon w^hich he brought suit, his de- feat because the account was fictitious is no bar to an 1. Robbinsu. Harrison, 31 Ala. 160 3. Brown v. Chadwick, 32 Mo. App. ■ — accounts made at different times; 615. Brunskill v. Powell, 1 L. M. & P. 550; 4. Bagot v. Williams, 3 B. & C. 235 Kimpton v. Willey, 9 M. Gr. & Scott (10 E. C. L. 115). (67 E. C. L.) 719. 5. Pinney v. Barnes, 17 Conn. 420, 2. Neale v. Ellis, 1 D. & L. 163. 426— two judges dissenting. 234 THE MERITS. action by him upon the note, for the reason that the causes of action are not the same.^ A, being indebted to B, in Pennsylvania, on a book account for goods sold and delivered, executed to him five notes for different parts of the account, leaving a balance not included in any note. For this balance B sued him and recovered a judgment. The notes not being paid, B sued upon the balance of the original account. It being the settled law of that state that the taking of a note for an account is not a payment and does not cause an extension of time for payment unless so agreed or understood ; and there being no such agreement or understanding, it was decided that, notwithstanding the notes, the account remained one entire demand, and that the former judgment was a bar.^ If a person has an account for goods to $1,595.95 ; that the defendant had given to them his notes, as follows: March 6, 1884,' at three months, for $225 ; April 2, 1884, at two months, for $100; April 10, 1884, at three months, for $100 ; April 2, 1884, at four months, for $125 ; and May 17, 1884, at 60 days, for $267.65 ;and that the payment of the account was thereby extended accord- ing to the tenor and effect of the sev- eral notes. Deducting the credits and the amount of these notes, the balance of the account on July 1, 1884, was $52.67, and the plaintiffs say that the suit instituted on that day was for the recovery of that por- tion of the account represented by this balance and the first two of the notes above recited, which were then due and unpaid ; that the itemized coi)y of account filed showed a balance of $52.67, and was accompanied by copies of the two notes onlj^ The verdict and judgment in that case was for the plaintiff in the sum of $393.30. The present action, they sa}', is brought to recover that portion of the account represented by the last three notes. The suit is not upon the notes; it is for goods sold and delivered. A 1. Slauson v. Englehart, 34 Barb. 198, 201. 2. Buckw. Wilson, 113 Pa. St. 423 (6 Atl. R. 97) . The court said : " This action of assumpsit was brought by W. H. Wilson & Co. against Dr. M. J. Buck on a book ac- count for goods sold and delivered. The defendant gave in evidence the record of a former action upon which judgment had been rendered in favor of the plaintiff, and, under the plea of the general issue, defended upon the ground of a former recovery. The former suit was also an action of assumpsit for goods sold and delivered ; and an examination of the particular statement of the plaintiff 's claim filed in the respective suits shows that the items are in each case identical. The sales, it is admitted, were on 30 days' credit. The last item in the account was for goods sold and delivered April 23, 1884. The first suit was in- stituted on July 1, 1884, and the en- tire claim of the plaintiff was there- fore at that time due and payable. "The plaintiffs contend, however, that on July 1, 1884, their whole ac- count against the defendant amounted THE DOCTRINE OF SPLITTING CAUSES. 235 sold and also a note then due, a recovery on the account is no bar to a suit on the note/ copy of the book entries, properlj' verified by the oath of the plaintiff 's book-keeper, is filed, and these en- tries are, as we have said, preciselj'^ the same as were contained in the former suit. The balance, however, which the account discloses to be 'due and owing thereon,' is ?375.46, which is, as the account itself shows, the amount of the whole five notes before mentioned, with the interest thereon, and the $52.67, which, with the first two notes, was embraced In the prev- ious action. The plaintiff 's claim at trial, however, notwithstanding the showing of the account and of the ac- companying affidavit, was for that part of the account only which is rep- resented by the last three of the notes, and, as showing this, we are referred to an indorsement on the narr to that effect. It is admitted that the notes were neither given nor received in payment of the account ; that there was no other extension of time on the part of the plaintiffs when the notes were given than was to be implied from their receiving them. A promissory note, taken for the whole or part of a debt, will only operate as an extinguishment of it if so intended by the parties. The notes did not, therefore, discharge the orig- inal debt evidenced by the account. They were taken merely for conven- ience, and as concurrent securities only. A debt due upon a continuous account of book entries, made in the ordinarj' course of dealing, is entire. It can not, without agreement to that effect, be split up into separate and distinct demands so as to form the basis of several suits. If divisible into two parts, it may, on the same principle, be divided into as many parts as it contains distinct items of charge, and no one would suppose that an action might be instituted on every item in a book account. It is undoubtedly true, however, that if parties contract that a debt shall fall due and be payable in installments, they have severed it, and distinct re- coveries may be had for the several installments in portions of the debt, according to the agreement, without involving the whole debt; but when the consideration is fully executed, and there is no stipulation of sever- ance, the obligation to pay is ordin- arily indivisible and entire. Sterner v. Gower, 3 Watts & S. 136, 143 ; Logan v. Caffrey, 30 Pa. St. 196. There can be no question, under the evidence, that on July 11, 1884, if, in case of the threatened insolvency of the defend- ant, the plaintiffs had desired to col- lect the whole debt, they might have done so. The entire claim and de- mand of the plaintiffs was then due and unpaid, and they had the un- doubted right to sue for and recover it. It is equally clear that the plain- tiffs had a right, in the first suit, to proceed upon the two notes then due, which they then held as concurrent or cumulative securiti's; but they pro- ceeded also upon tho account, declar- ing for goods sold and delivered, and filed an itemized statement or bill of particulars embracing every item of charge in the account filed in the present case. If they allowed credit upon it, to which the defendants were not entitled, and in consequence failed to recover as much as they were in fact entitled to recover, their failure must be attributed to a misap- prehension as to the effect of such a proceeding; but, in our view of the case, they are certainly barred from recovering in a second suit for the same subject-matter embraced in the first. To permit a party to recover in a second action what was included in and might have been recovered in the first, would be against the policy of the law, and unjust, because it would harass a defendant, and expose him to double costs. Brenner r. Mover, 98 Pa. St. 274; Hess v. Heebie, (i Serg. & R. 57." 1. Miller v. Boss, 23 New Brunswick 439. 236 THE MERITS. § 66. Accounts — Withdrawing of items. — If one item of an entire account is witlidrawn on the trial, a new action can not be maintained upon it.^ A sued B in Missouri before a justice of the peace upon an account for $186, and recovered a judg- ment for $52, from which B appealed to the circuit court. In that court. A, by leave, struck out from his account certain items, whereupon B dismissed his appeal and paid the justice's judgment. A then sued B upon the items so stricken out, but it was held that the former proceedings were a bar.^ So, if A sues B on an account for house rent, repairs, labor, wood, etc., running from July, 1828, to January, 1830, and on the trial, withdraws two items of the account dated in July, 1829, so as to bring the amount within the justice's jurisdiction, a recovery bars a new action on these two items.* § 67. Arbitration and award. — It is held in New York that, if the parties submit all demands between them to arbitration, the failure to present any claim will not prevent the award from barring a suit upon it.* But in Vermont, in order to have that effect, the submission must be by deed or a rule of court ^ — that effect being denied if the submission was oral.® In New Hampshire, if a bond is entered into to submit all de- mands to arbitrators, the failure to submit them all is a breach of the bond, but the award made will not bar an action on those not submitted.' A matter erroneously rejected by arbi- trators because, in their opinion, it was not within the sub- mission, is not barred.* §68. Attorney's fees and damages. — A party having the right, upon breach of a written contract, to recover his dam- 1. Smedly v. Tucker, 3 Philadel- 181, citing Russell's Arb. 339. Ac- phia 259; Logan v. Caffrey, 30 Pa. St. cord, Robinson v. Morse, 26 Vt. 392, 196, 200. 396 — an intentional omission. 2. Piel V. Finck, 19 Mo. App. 338. 6. Buck v. Buck, 2 Vt. 417, 420. 3. Stevens v. Lockwood, 13 Wend. 7. Whittemore v. Whittemore, 2 N. 644 (28 Am. D. 492). H. 26, 30. 4. Owen v. Boerum, 23 Barb. 187, 8. Bixby v. Whitney, 5 Me. (5 197. Greenleaf) 192, 196. 5. Barker v. Belknap, 39 Vt. 168, THE DOCTRINE OF SPLITTING CAUSES. 237 ages and attorney's fees incurred in that suit, a recovery of his damages upon a quantum valebant precludes a new suit for his attorney's fees.^ Baggage and merchandise. — A person having a railway ticket which entitled him to have his trunk and "baggage " contained in it carried free, was compelled to pay an extra charge for merchandise in the trunk. The trunk and contents having been lost, it was held that a recovery for his baggage was no defense to a new action to recover for the merchandise, as the contracts in respect to them were different and imposed different obligations.^ Behavior, bond for. — In an action on a bond binding the defendant to abstain from all injuries to the plaintiff 's prop- erty, a judgment for the plaintiff bars an action of tort for an injury to his property committed between the time of giving the bond and the commencement of the former action.^ Bill of review. — A decree dismissing a bill filed by stock- holders to review a judgment against the corporation for vari- ous causes, bars them from contesting the judgment upon new grounds when sued to collect an assessment to pay it.* 1. Koenig v. Morrison, 44 Mo. App. afterwards sought to avoid the judg- 411. ment for a different cause. But the 2. Millard v. Missouri, K. & I. R. supreme court, adopting the language E,. Co., 20 Hun (27 N. Y. Supr.) 191 of the supreme court of Kansas, said: — affirmed, Millard v. Missouri, K. & 'Such a general appearance to contest I. R. R.. Co., 86 N. Y. 441, a judgment on account of irregulari- 3. Goodrich v. Yale, 97 Mass. 15. ties will, if the grounds therefor are 4. Hambleton v. Glenn, 72 Md. 351 not sustained, conclude the parties as (20 Atl. R. 121). The court said: to any further questioning of the judg- "There must be an end of litigation, ment. A party can not come into and a party will not be heard to make court, challenge its proceedings on successive applications to be relieved account of irregularities, and, after of the effect of a judgment or decree being overruled, be heard to say that simply because he may be able to he never was a party in court, or found his applications upon different bound by those proceedings. If he grounds. This principle was dis- was not in fact a party, and had not tinctly held by the supreme court in been properly served, he can have the the recent case of Sugg v. Thornton, proceedings set aside on the ground of 132 U. S. 524, 529, 530, 10 Sup. Ct. Rep. want of jurisdiction; but he must 163, 165. In that case a party had at- challenge the proceedings on that tempted to attack and have vacated a single ground.' The defendants, by judgment on particular grounds, and their petition for review, sought to 238 THE MERITS. Bonds and coupons constitute different causes of action.* § 69. Breaches of contract, several existing. — All breaches of one contract constitute but one cause of action.^ Hence, a judgment on the covenants in a lease for a part of the demands then due, bars an action for the others.^ A sued B, alleging that he, A, had conveyed a tract of land to him, B, in consid- eration of which, he, B, had executed a written contract, giv- vacate and have set aside the decrees of the Virginia court, and they were bound to avail themselves of all the defenses then open to them ; and if the decree of December 14, 1880, had in fact been obtained by fraud or col- lusion, as alleged in the sixth plea, or if there had been any other reversible errors committed in the passage of either of the decrees sought to be vacated, the matter should have been presented to the court with the other matters set forth in the petition for review ; and, having failed to do this, the decree is no longer open to at- tack, and the defendants are con- cluded by the judgment on their peti- tion for review." 1. Nesbit V. Riverside Independent District, 144 U. S. 610, 619. The court said: "Each matured coupon is a separable promise, and gives rise to a separate cause of action. It may be detached from the bond and sold by itself. Indeed, the title to several matured coupons of the same bond may be in as many different persons, and upon each a distinct and separate action be maintained. So, while the promises of the bond and of the cou- pons in the first instance are upon the same paper, and the coupons are for interest due upon the bond, yet the promise to pay the coupon is as dis- tinct from that to pay the bond as though the two promises were placed In different instruments, upon differ- ent paper." 2. Wilson V. Buell, 117 Ind. 315,317 (20 N. E. R. 231). The court said: " Counsel for the appellant contend that the answer does not show with sufficient definiteness that the mat- ters litigated in the former action were the same that are involved in this action ; that it was not sufficient to allege that the contract counted upon in the former action was the same contract sued upon in the pres- ent action, but to make the an- swer good it was necessary that it con- tain an averment that the breaches complained of were the same. We have carefully examined the authori- ties cited, and do not think they sup- port counsel's position. The law is well settled in Indiana by an unbroken line of cases from the organization of this court to the present, that an ad- judication in a prior action is a de- termination not onl}'^ as to what was actually decided therein, but also as to every other matter which the par- ties might have litigated in the case. If at the time of the prior action the contract sued upon had been broken in other particulars than alleged in the complaint, the judgment is none the less a bar as to those than it would have been if they had been included in the complaint. The proceedings in the former action merged the contract and all rights of action because of breaches thereof into the judgment." 3. Bendernagle v. Cocks, 19 Wend. 207 (32 Am. D. 448). THE DOCTRINE OF SPLITTING CAUSES, 239 ing a copy, agreeing to pay certain claims against him, A, and to reconvey in case he. A, should repay the amount of these claims and interest within three years ; and, that it was the agreement (outside of the written contract) that he, A, should remain in possession of the land for three years ; that one of the claims so assumed by B was a foreclosure decree against the land, and that, instead of paying it, he, B, induced the owner of the decree to sell the land, and another person to buy at the sale and to obtain the title and to dispossess iiim. A, from the land ; and that he, B, had neglected to pay the other claims mentioned in the written contract, for all of which he demanded damages, and, after a trial, recovered $1,600. He afterwards began a new action on the same written contract, apparently to recover for the failure of B to pay to Cone of the claims therein mentioned of $1,800. In this case it was shown that this claim was evidenced by a note, in which A was principal and B the surety, upon which C sued A and B ; that while the suit was pending B conveyed to C certain land at the agreed price of $1,000 and obtained a release from all further liability, and a dismissal of the case as to himself, allowing it to stand as to A, against whom a judgment was taken for the full amount of the note by agreement between B and C, with the further agree- ment that if C should succeed in collecting the judgment from A he should refund to B the $1,000, the agreed price of the land ; that C, during all this time, w^as ignorant of the contract with A which bound B to pay his claim ; and that A was igno- rant of the arrangement between B and C at the time it was made and at the time the judgment was rendered against him ; but at what time A did learn of the arrangement between B and C (whether before or after the commencement or termination of his first suit against B), the evidence did not show. While it was clear that the evidence in this case showed a cause of action against B for $1,800 and interest, yet it was decided that the first judgment was a bar to a recovery because it ought to have been litigated in that suit. The case is an authority to the point that, if one sues upon a contract and does not include all the breaches then existing, he can not recover on those omitted, 240 THE MERITS. in a new action, if the evidence fails to show when he learned of them.' A breach of the covenant against encumbrances caused by a lease, gives but one cause of action ; and a recovery therefor must embrace all the damages up to the expiration of the lease. ^ If a contract contains several stijjulations to be performed at different times, although an action may be maintained for each breach as if occurs, yet if no suit is commenced until several breaches have taken place, they must all be united, as they constitute but one cause. ^ Indian cases. — Chand on Res Judicata, section 255, says : "255. Breaches, several existing. — If there are in any contract more than one covenant, the breach of them all constitutes one cause of action, unless from their nature the covenants are so different from each other as to be considered separate contracts ; in which case the breach of each covenant will be a separate cause of action. Thus, a lease having con- tained seven distinct and independent covenants, the third of which was to keep the buildings and fences in repair, and the seventh to build 125 rods of fence during the term, it was held that a suit by the lessor, upon the last covenant, for not build- ing the fence, would not bar an action subsequently brought upon the covenant to repair — the two covenants being distinct and having no connection with each other, except that they were contained in and evidenced by the same instrument.* A suit for rent by a lessor has, however, been held to bar a subsequent suit to enforce the forfeiture of the lease for the non-payment of the same rent.^ So also, if a mortgage- deed provides for the delivery of the possession of the mort- gaged property to the mortgagee and for the credit by him of the net profits toward the payment of the annual interest, and for the payment of the deficiency, if any, by the mortgagor, and for the redemption after four years by him on payment of 1. Kurtz V. Carr, 105 Ind. 574 (5 N. 4. Mcintosh v. Lown, 49 Barb. 550. E. E. 692). 5. Subbaraya v. Krishna, Indian L. 2. Taylor v. Heitz, 87 Mo. 660. R. 6 Madras 159. 3. AVhitaker v. Hawley, 30 Kan. 317 (IPac. 11.508,516). THE DOCTRINE OF SPLITTING CAUSES. 241 all the principal and interest due at that time, a suit for inter- est after some time on the ground of the non-delivery of pos- session will bar a subsequent suit, brought by the mortgagee after the expiry of the four years, for the principal and the in- terest accrued subsequently to the first suit. This was held di- rectly in Hikmatulla v. Imam Ali,* on the ground that there was no continuing breach in case the mortgagor failed to give possession of the mortgaged property to his mortgagee under a usufructuary mortgage; and Mr. Justice Straight said, that 'the plaintiffs' cause of action to recover their principal sum of Rs. 300 accrued to them upon the date when possession of the mortgaged property was first refused to them, and this was the same cause of action which entitled them to claim interest in the mouth of April, 1882, and that when they brought their suit to recover the unpaid interest, which could be only due to them upon the view that the contract to give possession had been broken, they were bound to sue for the principal amount and were not entitled to wait until the four years had expired.' So also, a suit to redeem on the ground of the mortgagee having received more than the amount due in respect of the mortgage will bar a subsequent suit for the amount of the surplus received. This was held in Baloji Tamaji v. Tamangoud,^ in which Sir Richard Couch said : ' That the claim which arose out of the cause of action when the suit for redemption was filed was, that the plaintiff, the mortgagor, was entitled, first, to recover possession of the mortgaged property on the ground that the mortgage had been satisfied out of the rents and profits received by the mortgagees, and, secondly, to get back any sum over-paid ; and that, there- fore, the first suit should have claimed both possession and surplus.' A suit by the purchaser of a certain share of the mortgagor's equity of redemption for the possession of that share, will bar a suit by him, as such, for the remaining share of the property; but it will not bar a subsequent suit he may 1. Indian L. R. 12 Allahabad 203. 2. 6 B. H. C. R. 97. 16 242 THE MERITS. bring for the remaining share on liis purchase of it during the pendency of the former suit.* So also, in a contract for the sale of certain goods, some of which the purchaser refuses to take, and some of which he has taken but refuses to pay for, the covenants to take all the goods and pay for them are not really distinct, but only one contract, and their breach constitutes one indivisible cause of action. In Anderson v. Kalagarla,^ Sir Richard Garth expressed a contrary opinion, and said: 'In actions founded on con- tract the most diverse causes of action might, under the En- glish system of pleading, have formed the subject of one and the same special count ; but it was never suggested on that ac- count, that these diverse claims could be considered in any sense the same cause of action. Thus, in an action upon a lease, claims might have been made in the same count : 1st, for rent; 2d, for not repairing the demised premises; 3d, for not paying rates and taxes ; 4th, for not insuring the premises from fire, and 5th, for improperly cutting down trees. But no one ever heard, so far as I am aware, of any two of these claims being considered as one cause of action. I have looked through all the reported cases that I could find, and all the English as well as Indian digests, for any authority that a claim for debt and a claim for damages, though arising out of the same contract, has ever been considered as the same cause of action, but I have found none ; and I believe that this is the first occasion when such a proposition has ever been suggested. ' Mr. Justice Wilson, however, differed from him and said : 'If there are two breaches of one term in one contract, and both occur before any suit is brought, the cause of action within the meaning of section 43 is the non-performance of the promise, and only one suit will lie. In this case, I think the cause of action is, that the defendant contracted to take and pay for ten bales of yarn, and failed to do so.' This last view has been adopted by a full bench of Calcutta high court in Duncan Brothers v. Jeetmull,^ in which Sir William Comer Petheram 1. Brahannayaki v. Krishna, Indian 2. Indian L. R. 12 Calcutta 339. L. R. 9 Madras 92. 3. Indian L. R. 19 Calcutta 372. THE DOCTRINE OF SPLITTING CAUSES. 243 cited the above observation of Wilson, J., with approval, and after referring to the judgments of their lordships of the privy council in Buzloor Ruheem v. Shumsoonnissa Begum,* in Shankar Baksh v. Daya Shanka,^ and in Soorjomonee Dayee v. Suddanund,' said : 'To appl}' the test laid down by their lordships of the privy council, each of the two cases before us is founded, in fact, on a cause of action distinct from that which is the foundation of the other. The two suits were brought simultaneously, and they are, no doubt, different in the form of action, but still the claim in both is for damages on account of breaches of the same contract. The difference in the form of action is of no consequence, for it has been laid down by their lordships of the privy council that the substance rather than the form of action should be taken into considera- tion. In both, the plaintiff seeks to recover moneys due from the defendant on breach of the same contract — in the one suit as the price of goods delivered, in the other as damages in con- sequence of non-acceptance of other goods. In substance, the two suits are the same. In both, the plaintiff seeks to obtain the benefit of his contract. Taking this with the illustration to section 43, I think that the plaintiff was debarred from bringing two suits.' " § 70. Cancellation suits — Deeds. — In a suit to cancel a deed, the plaintiff must bring forward all his grounds, as a decree de- nying relief will bar a new suit for any cause.* But one w^ho is induced by fraud to purchase land, and to pay part in cash and to execute notes for the balance, may, when sued on the first note, have the purchase canceled upon a cross-complaint with- out raising the question as to his right to a return of the money paid ; and for this he may bring a new action, and the former proceedings will be no bar.® 1. 11 Madras Indian Appeals 551. said: "The theory of the appellee's 2. L. R. 15 Indian Appeals 66. answer is that, the appellant having 3. 12 Bengal L. R. 304. filed a pleading in response to the 4. Foster v. Hinson, 76 Iowa 714, complaint, in which he sought and 720 (39 N. W. R. 682). obtained affirmative rehef, the adjudi- 5. "Wright V. Anderson, 117 Ind. 349, cation bars a recover}' in the present 355 (20 N. E. R. 247). The court action, as the subject-matter of the 244 THE MERITS. Cancellation of execution sales. — A, having filed a bill to set aside " a pretended sale " of his land on an execution, because of defects in the advertisement, a decree dismissing his bill on the merits is no bar to a new bill to set aside the deed, which alleges that his agent was present with the money, either to satisfy the execution, or to buy in the property, but did nothing because no sale was made, nor bids called for, and that the property claimed to have been sold for $10 was worth $500. The decision was placed upon the ground that the second bill set forth different facts and circumstances as grounds for re- lief.^ The court said : ''The following English cases fully show that the dismissal of a former suit after hearing is not a bar to a second suit, if the bill in the second suit, while asking for the same relief, sets forth different facts and circumstances as the ground for it. Marchioness of Londonderry v. Baker, 3 Giff. 128, affirmed on appeal ; 3 action arises out of the same transac- tion as did the subject-matter of the former action. An adjudication once had between the parties bars and cuts off all future litigation, not only as to what was actually litigated and de- termined, but as to all matters that might have been litigated and de- termined in the action. There is a class of cases in which the gravamen of the action is one entire, indivisible contract or wrong. In such cases the law will not allow the plaintiff to split up the various covenants or injuries, and bring separate actions, but merges the contract or tort into the judgment. But in the case under consideration we do not think the cause of action was embraced within the issues in the former action, nor are we of the opin- ion that there was a merger. The counter-claim charged a fraud, and demanded a rescission of the contract because of the fraud. To a complete rescission of the contract the cause of action involved in this suit was in no way material. The right of rescission depended entirely upon the fraud charged, and the offer to put the ap- pellee in statu quo. Until the contract was rescinded by a decree of the court the appellant could not enforce collec- tion of the money now sued for. The right of rescission was an equitable one, but the right which the appel- lant now seeks to enforce is a legal one. As all distinctions between law and equity are abolished by our code of practice, the appellant might have made the allegations of his counter- claim broad enough to have enabled him to recover the money he now sues for, in the former action, but he was not required to do so. The right of action involved in this suit was in no way before the court in the former ac- tion, and under the issues could not have been considered and determ- ined." 1. Horton v. Bassett,17 R. I. 129 (20 Atl. R. 234). THE DOCTRINE OF SPLITTING CAUSES. 245 Gex, F. & J. 701; Hunter v. Stewart, 4 De Gex, F. & J. 168 ; Moss v. Navigation Co., L. R. 1 Ch. 108. In the first of these cases it was decided that, although a plea or a demur- rer to one bill for want of equity may be good to another, yet if the plaintiff's title to relief depends, not on the construc- tion of an instrument, but on facts and circumstances, and the allegations of the two bills are different, the plea can not be sustained. The decision in the second case was, that the de- fense of res judicata can not avail if the grounds of relief alledged in the bills in the two suits are different. 'One of the criteria of the identity,' said the lord chancellor, in con- sidering a plea of res judicata, 4s whether or not the same evi- dence would support both. But in the present case, the evi- dence required to prove the allegations in the first bill would not sustain any of the material allegations in the second, and the evidence given in the second suit would not be receivable for want of proper allegations in the first. ' The third case de- cides that a demurrer will not lie to a bill on the ground of res judicata, unless the bill avers that everything in controversy as the foundation of relief was also in controversy in the former suit. We decide on the authority of these English cases, which appear to us to be directly in point, that the demurrer can not be sustained on the first ground." Cancellation of insurance policy. — A took out a policy of insurance on the life of his brother. Afterwards the insur- ance company sued A to cancel the policy, upon the ground that he had made false and fraudulent statements in order to procure it, but no question was raised in regard to his insur- able interest, and there was a decree for the defendant that the policy was * ' not void for the reason alleged in the complaint. After the death of his brother, A sued the company on the policy, and it was held that, as the question of insurable inter- est was not in issue in the first suit, the company was at liberty to show that A had none in the life of his brother, be- cause the latter was not his debtor.^ 1. Ferguson v. Massachusetts Mutual Life Ins. Co., 22 Hun (29 N. Y. Su- preme) 320. 246 THE MERITS. Cancellation of judGxMents. — A purchased land at a sher- iff's sale, and received a deed ; but in an action to recover the land this deed was held to be void, because of irregularities of the sheriff in making the sale. A then brought a suit against the judgment plaintiff and defendant and the sheriff, and pro- cured an order setting aside the satisfaction of the judgment, and that it should be continued in force for his benefit, and also a judgment compelling the sheriff to refund so much of the purchase-money as still remained in his hands. He then sued the sheriff on his bond for damages caused by his illegal conduct in making the sale, and the sheriff contended that his former proceeding was a bar; but this contention was denied, because the matters now in issue were not, and could not have been, litigated in that suit.* If the judgment defendant brings 1. Moore v. State, ex rel. Miller, 114 Ind. 414, 421 (16 N. E. R. 836). The court said : " The counsel claim that the matters in issue in the pend- ing suit were adjudicated in the former action between the same par- ties, wherein Miller, the relator here- in, had the Sharpe judgiment restored and the satisfaction thereof set aside by the order of that court. This po- sition is wholly untenable, as it seems to us. It is wholly a mistake to say that 'the former action,' wherein the relator had the satisfaction of the * Sharpe judgment ' set aside, and that judgment revived and continued in full force for the relator's benefit, was ' between the same parties,' as the action we are now considering. The parties to the two actions were and are different each from the other, and the objects and purposes of those actions were and are far more widely different. We recognize the rule de- clared by this court more than sixty years ago, in Fischli v. Fischli, 1 Blackf. 360, and invoked by defend- ants' counsel in support of their posi- tion, that if a matter is adjudicated and finally determined by a court of competent jurisdiction, ' it is consid- ered as forever at rest.' We also con- cur in the view that the rule declared not only embraces what actually was determined, but also extends to all matters fairly within the issues in the cause, which the parties might have litigated therein. However much this coui-t may have departed from the doctrines declared in our earlier cases upon other questions, it may well be said, we think, that ' without variable- ness, or shadow of turning,' we have adhered, and still adhere, strictly and tenaciously to the rule declared in Fischli V. Fischli, supra. Without doubt, the rule invoked by defend- ants' counsel in support of their posi- tion is a good and sound one, but it can not be said, we think, with any degree of legal accuracy, that this rule has any application to the case under consideration. This is an action upon the ofiicial bond of defendant Moore, as sheriff of Boone county, against him and his sureties, to recover damages for an alleged breach of his official duty. As shown by the THE DOCTRINE OF SPLITTING CAUSES. 247 an action to have it adjudicated that the judgment is satisfied and is defeated, he can not make any future contest on that question, as it was his duty to bring forward all matters and things that would entitle him to that benefit/ Cancellation of mortgages or deeds of trust. — A mort- gagor filed a bill to cancel a mortgage on the ground of fraud, and it also stated that a statutory foreclosure had been had under the power of sale contained in the mortgage, and asked that it be also set aside, but alleged no irregularity in [those proceedings. An answer was filed insisting upon the validity of the mortgage, and after a hearing the bill was dismissed. It was held that this did not bar the mortgagor from showing, in an action of ejectment, that the foreclosure proceedings were void. The court said that the mortgagor had two causes of action, one to cancel the mortgage and one to set aside the foreclosure, and that no issue had been made in respect to the latter in the former suit ; that he merely asked that the sale be set aside as a deduction from the cause that the mortgage was void.^ In a suit to cancel a mortgage upon the ground that it had been satisfied, a decree refusing any relief is no bar to a new suit to cancel it upon the ground that the maker was an infant, and had, since coming of age, avoided it. The court said that, in order to settle a question, it must have been mate- rial in the former case and directly decided. It seems to me agreed evidence, the substance of are now considering, were not and which we have given, the so-called could not have been litigated in the * former action,' or proceeding, was ' former action,' or proceeding. We instituted by the relator herein for the can not hold, therefore, that the mat- two-fold purpose (1) of having the ters in issue in the suit now before us surplus of his bid remaining in the were or might have been adjudicated sheriff's hands, after the satisfaction in the former action. The cause of of the execution issued to him on the action, the parties, and the relief Sharpe judgment, refunded by him to sought were wholly different in the the relator; and (2) to have the satis- pending suit from those in the for- faction of the judgment, as shown by mer action." the return of the aforesaid execution, 1. Griffin v. Hodshire, 119 Ind. 235, set aside by an order of the court be- 243 (21 N. E. R. 741). low. It is absolutely certain, as it 2. Bonker v. Charlesworth, 33 Mich. seems to us, that the matters presented 81. for trial by the issues in the cause we 248 THE MERITS. that the court was in error. The mortgagor had but one cause of action, namely, to cancel the mortgage; and he ought to have brought forward all his reasons.' So^ if a mortgagor sues to cancel the mortgage upon the ground that the description was inserted after delivery, his defeat does not bar him from showing a partial want of consideration in a suit to foreclose.* The court said: ''The only other questions which we think proper to consider upon the record presented pertain to the consideration for the five notes, of $5,000 each, and as to the credits which the defendants claim thereon, and as to whether or not the Wilson collaterals, although not pledged in the mort- gage, should be exhausted before resorting to the mortgaged property. It is claimed by the appellee, that all of these ques- tions were proper matters for adjudication in the former action, and that the defendants are estopped from urging them now. We do not concur in this view of the rights of the parties. The former action was a demand that the mortgage should be canceled as being void. The mortgagee did not seek a foreclosure of the mortgage by a cross action, but stood merely on the defensive. No question was raised as to pay- ments, or a partial want of consideration. It is time enough to raise these questions when the mortgagee seeks a foreclosure of the mortgage. It is very plain that the issue in the former action did not involve partial defenses to the mortgage, such as a partial want of consideration, or partial payments, or the question of compelling the mortgagee to resort to other securi- ties for the debt before resorting to a foreclosure against the homestead." But a dismissal of a bill, -brought to set aside a note and deed of trust securing it, on the ground that the note was usurious, bars a new bill for the same purpose on the ground that it was obtained by fraud, ^ So, if a bill to cancel a mortgage on trust property is de- feated, that bars a new bill on different grounds for the same 1. Dixon V. Merritt, 21 Minn. 196, 3. Hamilton v. Quimby, 46 111. 90, 201. 94. 2. DesMoines National Bank v. Harding, Iowa (53 N. W. R. 99). THE DOCTRINE OF SPLITTING CAUSES. 249 purpose.^ A dismissal of a bill brought to set aside a deed of trust, after a hearing on the merits, bars a second bill for the same purpose for the same and additional reasons, which were or ought to have been known at the time the first bill was"^ filed. ^ So, if the beneficiaries in a trust bring a suit to set aside and cancel a deed made by their trustee to the defendant, on account of fraud, and are defeated, they can not maintain a new bill for the same purpose, containing additional alle- gations and reasons why the relief ought to be granted, all of which were well known to them before the first suit was brought, because they ought then to have made their entire case.^ But a decree compelling a mortgagee to discharge a mortgage is no bar to an action to recover the statutory penalty and special damages for failure to discharge it.* Cancellation of sheriff's deed. — An order sustaining a demurrer to a petition to set aside a sheriff's sale, for want of facts sufficient to constitute a cause of action, bars a new action for the same purpose, although new matters are stated. The court sa,id that the plaintiff was bound to state in his petition all matters and things which then existed, and that omitted mat- ters could not help out in a new case.^ Cancellation of tax-deed. — A sued B, C and D, alleging that he was the owner of the undivided one-half of a lot of land of which B was the owner of the other undivided one- half, and that the defendants had kept him out of possession for several years, and had collected the rents ; and that C and D claimed to own the property by virtue of a tax-deed, but that it was void ; and that they had collected rents in excess of the taxes paid. He prayed for partition, for possession, for rents and profits, and for the cancellation of the tax-deed. After a trial, there was a special finding of facts, which showed that all his allegations were true, and that C and D had col- lected $470.75 rents in excess of taxes paid by them, and that 1. Watkins v. Lawton, 69 Ga. 671, 3. Hightower v. Cravens, 70 Ga. 674. 475. 2. Brown v. State, 64 Md. 199 (1 4. Mallory v. Mariner, 15 Wis. 177. Atl. R. 54 and 6 Atl. R. 172). 5. Lamb v. McConkey, 76 Iowa 47 (40 X. W. R. 77). 250 THE MERITS. their tax-deed was void, and partition was made between A and B, and his title was quieted as to C and D. One of the findings was this: "The plaintiff's claim for a judgment for rents received by C and D, being a matter of accounting be- tween A and them, and not affecting B, the same can not be determined in this action, and it is refused." A took an ex- ception to this finding, but the court dismissed so much of his petition as demanded an accounting for rents received by C and D. He then sued them to recover the rents, and they in- sisted that the former action and dismissal by the court was a bar, but the court decided that the record showed that the merits in respect to the rents were not passed upon. The ques- tion as to whether or not A had split his cause of action, being an equitable one, was not made.^ Cancellation op will. — An heir having filed a bill against all persons interested, to set aside the will of the decedent, upon the ground that its provisions were inoperative and void under the statute, a decree dismissing his bill on the merits does not bar him from contesting its execution in the probate court. The court said that no issue was made on this point in the first suit, and that, therefore, it was not concluded.^ § 71. Carrier and warehouseman. — If the same fire destroys two parcels of goods, for one of which the defendant is liable as a carrier, and for the other as a warehouseman, a recovery for the former is no bar to an action for the latter.^ Caveats. — In a caveat suit between two locators of land, the failure of the caveator to set up any claim he had, is no bar to his setting it up in a new caveat suit ; and therefore, he is not barred from using it in an action of ejectment.* Certiorari. — If an execution plaintiff, by gross negligence, fails to make the money out of the execution defendant, whereby his right to levy on the stayer is lost, and the stayer petitions by way of certiorari to obtain relief, but places his 1. Smith V. Auld, 31 Kan. 262 (1 3. Kronshage v. Chicago, M. & St. Pac. R. 626). P. Ry. Co., 45 Wis. 500, 504. 2. Mason v. Alston, 9 N. Y. 28 (59 4. Beckwith v. Thompson, 18 W. Am. D. 515). Va. 103, 125. THE DOCTRINE OF SPLITTING CAUSES. 251 case on untenable grounds, by reason of which he is defeated, he can not maintain a suit for relief in equity, because he ought to have proceeded upon the proper grounds in certiorari} So, if a defendant removes a cause from the county court to the circuit court on a writ of certiorari, and there, on account of his negligence in bringing forward all his facts, the suit is dis- missed on the merits, that bars a new proceeding upon the omitted facts, as he has had his day in court. ^ City ordinance. — In a suit against a gas company by a city, if an ordinance is adjudged to be valid, the city can not, in a new suit for gas furnished under the ordinance, deny its validity upon grounds not litigated in the first suit.^ Claim case. — If claim to property levied upon is made by a third person and defeated on the merits, that bars detinue on any title then held by the claimant.* § 72. Commissions and goods furnished. — A person em- ployed another to furnish the materials and labor necessary to erect a building, and agreed to pay for them monthly as the work progressed. The contract then provided: " On the bills so rendered, the builder shall be entitled to charge a commis- sion of ten per cent, for his general services in connection with the work, the purchase of material, the employment of labor, and such clerical work as is necessary in connection with the execution of the work in a good and workmanlike manner." It was decided that the commission was not due until the whole work was completed, and that, therefore, a recovery for monthly installments for material and labor under the first branch of the contract, before the job was done, was no bar to a suit afterwards for the commission.® Commissions and salary. — If an employe is paid partly by a salary and partly by commissions on sales made, and is 1. Lindsley v. Thompson, 1 Tenn. City of Keokuk, 80 la. 137 (45 N. W. Ch. 272. R. 555). 2. Welsh V. Harman, 8 Yerger (16 4. Patton v. Hamner, 33 Ala. 307, Tenn.) 103, 110. 312, and 28 Ala. 618. 3. Keokuk Gas-light & Coke Co. v. 5. Van Keuren v. Miller, 28 N. Y. Suppl. 971. 252 THE MERITS. wrongfully discharged, one recovery will bar an action for fu- ture commissions, even though the court excluded proof in re- gard to them on the first trial.* A employed B to work for twelve dollars per week, and he was also to have a commission on the amount of goods manufactured, payable each six months. B, having been wrongfully discharged, sued A for two weeks' wages subsequently accruing, but not for commissions, and re- covered twenty-two dollars, which were paid. About the same time he also sued A for his commissions on goods manufact- ured, and it was decided that the judgment for wages was no bar.' § 73. Condemnation suits. — A city having built a dam which overflowed land, and afterwards having taken steps to condemn it, in which the owner was entitled to recover not only the value of the land, but also the damages for the origi- nal wrongful overflow before the condemnation proceedings were begun, a judgment for the value of the land bars an ac- tion for the prior overflow.' In assessing damages in condem- nation proceedings for lands taken for the purpose of construct- ing a ditch or reservoir, injuries which will probably result to adjoining lands from seepage and leakage must be considered, and a separate action will not lie to recover them as they oc- cur.* If a railroad company proceeds to condemn a described parcel of land in Nebraska, the owner may have damages as- sessed not only for the parcel described, but for any injury to his adjoining and contiguous lands, whether in farms or lots. Hence, a person having owned a block laid off into five lots, and a railroad company having brought proceedings to con- demn a strip along the west side of the block, adjacent to an alley, upon which three of the lots abutted, he was entitled, without any pleadings describing them, to have his damages assessed for the injury done to the two lots which did not 1. Landsberg v. Lewis, 6 N. Y. 3. Lewis v. Boston, 130 Mass. 339. Suppl. 561. 4. Denver City Irrigation & Water 2. Perry v. Dickerson, 7 Abb. New Co. v. Middaugh, 12 Colo. 434 (21 Cases 466 — approving Mcintosh v. Pac. R. 565). Town, 49 Barb. 550. THE DOCTRINE OF SPLITTING CAUSES. 253 touch the alley ; and this right, although not exercised, was held to be a bar to a new action against the company to recover for that injury; * and the same ruling was made concerning 1. Atchison & Nebraska R. R. Co. v. Boerner, 34 Neb. 240 (51 N. W. R. 842, 33 Am. St. R. 637). The court said: "It is contended by the rail- road company that the defendant in error is estopped by the adjudication in the condemnation proceedings from prosecuting this action. The soundness of this position depends upon whether or not the matters now sought to be litigated were directly involved in the former litigation. If they were, this suit can not be main- tained, for the judgment of a court having cognizance of the subject-mat- ter is conclusive upon the parties as to all questions actually litigated as well as all matters necessarily within the issue joined, although not formally litigated. Wells, Res. Adj. §§ 10, 217. The undisputed testimony discloses that lots 4, 5, 6, 7 and 8, in block 2, lie contiguous to each other, upon which the defendant in error had resided for nearly a quarter of a centurj' prior to the location of the railroad, and had operated the brewery situated on one of the lots. All the lots, at the time of the pro- ceedings to condemn lot 4 and parts of lots 7 and 8, were improved, and used as one property. The land-owner had the right to have considered the de- preciation in value of the portion of his property not taken, resulting from the proper construction and careful operation of the road over his prem- ises ; the measure of his damages be- ing the value of the strip actually ap- propriated, and the diminution in value of the portion remaining. Al- though but a part of the lots are de- scribed in the proceedings to con- demn, yet neither the commissioners nor the district court on appeal from the award were confined in their in- vestigation to the damages done to the lots mentioned in the petition for the appointing of commissioners. It was proper for the commissioners and the jury to consider the direct effect of the location of the road upon the entire tract. Any other rule would put it in the power of a railroad company to limit the amount of damages in con- demnation proceedings, by describing in the petition to the county court for the appointment of commissioners to condemn its right of way, a portion of the tract over which the road is to be constructed. The rule for which we contend is fully sustained by the au- thorities. In Wilmes v. Railway Co., 29 Minn. 242, 13 N. W. Rep. 39, plaint- iff was the owner of 120 acres of land, consisting of three 40's in a line from east to west, which he occupied and used as a farm, his residence be- ing upon the east 40. The railroad corporation, having located the line of its railway across the two westerly 40's, commenced proceedings for con- demnation, describing in the petition only the two 40's through which the road crossed. It was held that the owner was entitled to have considered as an element of damage the effect of the appropriation of the right of way upon the entire 120 acres of land. In Sheldon v. Railway Co., 29 Minn. 318, 13 N. W. Rep. 134, the tract of land contained about 30 acres, a part of which had been laid out and platted into village lots, but the owner con- tinued to use the whole tract as one farm. The railroad company filed its petition to acquire the right of way across the land by condemnation, in 254 THE MERITS. damages caused by obstructing an alley alongside of, and a street in front of, property, part of which was condemned, as those damages ought to have been assessed in the original proceeding.^ § 74. Conditions in contract. — A sold a harvester to B with a warranty which it did not fulfill. But he was induced to keep it upon A's promise to perfect it, and to execute three notes for it, the last two of which contained the condition that which was described only the partic- ular lots, according to the plat, through which the line of road was located, and made no mention of the remainder of the tract. It was decided that the land-owner was not limited in the damages he was entitled to re- cover to the lots described in the peti- tion, but was entitled to compensation for damages done to the whole tract out of which the right of way was taken, and that it was not necessary that the land-owner should have the description in the petition corrected so as to include the entire tract. In Cummins v. Railway Co., 63 la. 397, 19 N. W. Eep. 268, proceedings were instituted by the railroad company for the condemnation, for right of way purposes, of one of the contig- uous city lots, owned and occupied by Cummins as one property. But one of the lots was described in the pro- ceedings. It was held that he was entitled to compensation for the in- jury to the property as a whole. Port Huron, etc.. Railway Co. v. Voorheis, 50 Mich. 506, 15 N. W. Rep. 882, was a proceeding to condemn for right of way and depot grounds one of six lots owned and occupied by Voorheis as a homestead. The lots were divided by an alley. The petition in describing the land sought to be appropriated only referred to one lot. It was ruled that the award of damages could not be confined to the portion actually taken, but must cover such actual injury as was done to the entire homestead, including the easement in the alley. The same principle was recognized by this court in the case of Northwest- ern, etc., R. R. Co. V. Frazier, 25 Neb. 42, 40 N. W. Rep. 604. Max- well, J., in the opinion says: 'The rule is that, if a railway runs through an entire tract, the land- owner is entitled to all the damages which result to him from the taking. He is not limited to the lands de~ scribed in the petition of the railway company, nor the award of the com- missioners, but may show the facts and circumstances and direct effect upon his land accompanying or flow- ing from the appropriation. * * * In other words, just compensation for real estate taken or damaged, entitles the owner of several descriptions used as one farm or body of land, to com- pensation for injury to the whole, al- though the right of way extends across but one or two of the sub- divisions.' To the same effect are Kansas, etc., R. R. Co. v. Merrill, 25 Kan. 421 ; Atchison, etc., R. R. Co. V. Gough, 29 Kan. 94; Parks v. Railroad Co., 33 Wis. 413; Harts- horn V. Railroad Co., 52 Iowa 613, 3 N. W. Rep. 648." 1. Atchison & Nebraska R. R. Co. v. Forney, 35 Neb. 607 (53 N. W. R. 585). THE DOCTRINE OF SPLITTING CAUSES. 255 '''This note is given with the understanding that the harvester must be perfected, or this note is void." The first note was paid, and, in a suit on the second, B set up as a defense both the breach of the warranty and the failure to perfect the machine according to the condition. A special verdict was returned finding the damages for the breach of warranty to be equal to the note, and the defendant recovered costs. To an action on the third note, B pleaded all the foregoing facts, and A contended that the former adjudication showed his plea to be bad, but this contention was denied because the real matter adjudicated was that the note was void for breach of the condi- tion. While the conclusion reached was correct, I do not think a sound reason was given. There were two defenses to the second note, namely, breach of warranty and failure to perform the condition. Because it was defeated upon the former defense alone, was no reason why the latter should not be used against the third.* If A sells goods to B, upon condition that the title shall not pass until full payment is made, and takes B's notes secured by a mortgage on other property, which he afterwards fore- closes and fails to realize sufiicient to pay the debt, he may then maintain an action to recover the goods sold.^ 1. Bayliss ??. Deford, 73Iowa495 (35 the plaintiff, before this suit was N. W. R. 596). instituted, proceeded to foreclose 2. Montgomery Iron Works v. the mortgage, and to apply the Smith, 98 Ala. 644 (13 S. R. 525). proceeds towards the payment of The court said: "On the same day the notes, whereby, as, is averred, the contract of sale was executed, as the title to the property sued for appears, the defendant executed and became vested in defendant, and delivered to plaintiff a mortgage on a the plaintiff is estopped to prose- tract of land to secure the payment of cute this suit in detinue for the pos- the three notes first referred to above, session of the property. This is the amounting, together, to the sum of point of contention in the cause. The $420. By the terms of the contract all plaintiff demurred to the plea, and the notes became due and payable on the court overruled the demurrer. It default in the payment of either, is not averred in the plea that the The defendant pleaded specially property sold under the mortgage the fact of the execution and deliv- brought enough to pay the purchase ery of this mortgage, and averred that, notes, nor is it shown what the after all of the notes for the purchase property did bring at the sale, and money for the property had matured, this is the point of the demurrer. 256 THE MERITS. A leased land to B with a condition against assigning to C. B sowed wheat, and then assigned the lease to C, who had no actual notice of the condition. A brought ejectment and re- covered on account of the breach of the condition, but the right to the wheat was not litigated. It was held that that question was still open to controversy, and that C could re- cover it.^ The contention of defendant can not be sustained. The title to the prop- erty sold was retained in the plaintiff, as a form of security for the payment of the purchase money. Common ex- perience teaches that the liability to wear, tear, and depreciation in value of machinery such as this, while in use, is very great, and the contract entered into bears evidence of an in- tention on the part of the plaintiff to provide against loss in this direction. It is expressly stipulated that all pay- ments made, before default in the payment of the notes, should be treated as payment for the use of the machinery. It is also provided that, upon default in the payment of any of the notes, plaintiff might take pos- session of the property, or might sue on all of the notes, if it saw proper ; but it is reiterated in the contract that the title should remain in plaintiff, and should not become vested in de- fendant, until all of the notes were paid. We may reasonably infer, un- der these circumstances, considering the nature of the property sold, its liability to deterioration from use, and the possibilities of loss on the part of plaintiff in the transaction, that the object it had in taking the mortgage, and in all the other caution- ary measures referred to above, so legal and proper to be reserved, was to increase the security for the carry- ing out of the contract, in the pay- ment of the purchase price for the property sold, and not have it thrown back on plaintiff's hands, worth, per- haps, not half its value when sold to defendant. If the plaintiff had sued on the notes, recovered judgment, and levied execution on and sold this property, as in Tanner, etc., Engine Co. v. Hall, 89 Ala. 628, 7 South. Rep. 187, or, having an election between two inconsistent rights, had pursued one of them in abandonment of the other, in either case the courts would hold the plaint- iff to an abandonment of his title, and to have treated the defendant as a common debtor, invested with the title to the property ; but the plaintiff has done nothing of the kind, and all it has done is not inconsistent with the conditional sale it made, and the retention of the title in itself. Miller, Sales, 62; Matthews v. Lucia, 55 Vt. 308. The proof shows that the prop- erty sold under the mortgage brought $100. The demurrer to defendant's plea should have been sustained. The mortgage offered in evidence against plaintiff's objection was ir- relevant. The general charge in favor of defendant should not have been given, and the one asked by plaintiff ought to have been given." 1. Collier v. Cunningham, 2 Ind. App. 254 (28 N. E. R. 341). The court said: "The appellee further contends that the judgment for the recovery of the possession of the real property, carried with it the right to cut and harvest the wheat that had been growing on the land some THE DOCTRINE OF SPLITTING CAUSES. 257 § 75. Consent — Omission of matter by. — If the plaintiff, upon the request of the defendant, splits his cause, he may sue upon the residue/ On a bill by the executrix and sole devisee of a deceased partner against the survivor to wind up the busi- ness and to sell and divide the proceeds, the parties entered into a stipulation that the court should enter a decree for the sale of the entire assets to the survivor, subject to all the lia- bilities, upon his payment to the plaintiff of one-half the net value, to be fixed by arbitrators. It was also stipulated that "the accounts due by or from the partners, respectively," to the firm, were to be ''treated as the accounts of strangers." In accordance with the stipulation, the arbitrators fixed the value of all the assets, and deducted therefrom all the liabili- ties, which showed the net value of the assets. When this was filed in court, it ordered a sale of the entire assets to the sur- vivor, subject to all the liabilities, which he was to pay, and ordered her to make him a conveyance upon the same terms, which she did, and he paid her the one-half of the net value, as agreed. As the firm was indebted to the decedent, she sued the survivor to recover that debt, and he contended that the suit in equity settled all the partnership matters between them ; but this contention was denied, the court saying : "The chan- cery proceeding led up to and ended in an agreement by him months previous to the commence- ment was against the appellant ; that, ment of the action. There was noth- if the judgment determined the right ing in the special verdict of the jury to the wheat, it was only because of that invested in the appellee the right its legal effect, and not because the to the wheat ; in fact, the jury found right was actually tried. We do not that in the action to recover the real concur with the appellee that it was estate the question as to the right and the duty of the appellant to put the title to three-fifths of the wheat was question as to the right to the wheat not litigated nor determined ; that no in issue in the ejectment suit, or that evidence was given in relation to the the rule 'that what might have been wheat ; that the sole question deter- litigated will be considered as having mined in that action was whether or been litigated and adjudicated,' ap- not there was a condition in the lease plies to this case." against assignment or underletting, 1. Kavanaugh v. Shaughnessy, 41 and whether the appellant entered in Mo. App. 657. violation of that condition ; that upon that question the verdict and judg- 17 258 THE MERITS. to pay the liabilities of the firm. This agreement was con- tained in a deed made and accepted after the final decree in the chancery suit was entered. The obligation of appellant to pay the present claim rests upon and grows out of the agreement in the deed.'" A, B and others entered into an agreement by virtue of which they paid, from time to time, sums of money to C, to be invested in property for their mutual benefit. Afterwards A brought a suit against all those interested, in which he asked for a general accounting, and that the share of each party, in- cluding B, should be determined. B filed no answer. Subse- quently an order was made allowing the complaint to be amended, and limiting the benefit of the action to A and those defendants who had answered, and a decree was had settling their rights. Afterwards B brought a suit to compel C to ac- count, and he contended that the former suit was a bar, but this contention was denied.^ Compromise decree. — If a suit in equity by the United States against a railroad company is compromised and settled by an agreement entered of record, by which it is admitted that one million dollars is due the plaintiff, after allowing all credits for services rendered for mail or military transportation, or on any other account, this is a bar to a suit by the company against the United States for mail services rendered before the war, although those services were not mentioned in the plead- ings, and the law at that time prohibited their payment.^ Default is a consent. — If, by the negligence of A, the property of B, which is insured in two companies, is burned, A is primarily and the insurance companies are secondarily liable. And if they pay B's loss, they can maintain a suit in the name of B to recover it back from A. But if one of them sues A for the amount which it paid to B, and recovers by de- fault, that will be no defense to an action by the other to re- 1. Schmidt v. Glade, 126 111, 485 (18 3. Nashville, Chattanooga and St. N. E. R. 762) . Louis Ry. Co. v. United States, 113 U. 2. Rodman v. Devlin, 23 Hun (30 S. 261, 266. N. Y. Supr.) 590. THE DOCTRINE OF SPLITTING CAUSES. 259 cover the amount paid by it, as the default is equivalent to a voluntary payment.* § 76. Continuing covenants. — If there is a continuing cove- nant, successive actions may be maintained for successive breaches, and a judgment in one is no defense to another. This applies to covenants to protect one against incumbrances,^ or to keep premises^ or a gate closing a way* in repair, or to save one harmless against partnership debts,® and the like. Thus, a railroad comiDany, in consideration of the right of way over a person's land, agreed to erect and maintain thereon awater- 1. Mobile Ins. Co. v. Columbia & Greenville R. Co., S. C. (19 S. E. R. 858). The court said : "From these authorities it would seem to follow that, if several insurance companies have paid to the assured the sev- eral amounts required by their re- spective policies, and thereby become subrogated to the rights of the assured against the person or corporation by whose tortious act the loss has been caused, the proper mode of enforcing the right of subrogation (passing by for the present the consideration of any change which may have been made by the code of procedure) would be by an action in the name of the as- sured for the benefit of the insur- ance companies. If this be so, it fol- lows that the Springfield Fire & Ma- rine Insurance Company had no right to maintain a separate action, either against the defendant company or its lessee, to recover its proportion of the loss sustained by the tortious act of the companies, or either of them; and, accordingly, it has been so held in Continental Ins. Co. v. H. M. Loud & Sons Lumber Co., 93 Mich. 139, 53 N. W. 394, a case in all respects sim- ilar to this. Hence, the defendant company having permitted the Spring- field company to take judgment against it, from which there was no appeal, and having paid the amount recov- ered, it was practically the same thing as a confession of judgment and a vol- untary payment, which, of course, can not operate as a bar to the present ac- tion. The fact that the Springfield com- pany took from Carroll & Stacy, when it paid them its proportion of the loss, the subrogation recei^Dt above copied, in which said Carroll & Stacy assigned to that company its claim against the railroad company to the extent of the amount so paid, can not affect the question. For that was a partial as- signment of a single and indivisible cause of action, and whatever equita- ble rights it may have conferred upon the Springfield company, it certainly did not confer upon it the right to maintain an action at law to re- cover its proportion of the dam- ages resulting from a single and indi- visible cause of action shared in by others. See National Exchange Bank V. McLoon, 73 Me. 498, and James v. Newton, 142 Mass. 366, 8 N. E. 122." 2. Priest v. Deaver, 22 Mo. App. 276. 3. Block V. Ebner, 54 Ind. 544. 4. Beach v. Crain, 2 N. Y. 86 (49 Am. D. 369) , affirming Crain v. Beach, 2 Barb. 120. 5. Orendorfi v. Utz, 48 Md. 298, 302. 260 THE MERITS. tank, and to pay him as much, per month, as should be paid to any other person for a like privilege. The company took possession of the right of way, erected the tank and used it for several years, and then removed it. The land-owner then sued the company, alleging the removal of the tank and the failure to pay the monthly compensation since that time, and recov- ered. He then sued the company again, and it contended that he ought to have recovered all his damages in the first action, and that the matter was res judicata. But it was decided that the company could not hold the right of way and refuse to per- form the consideration, namely, to maintain the tank and pay a monthly compensation, and hence that new causes of action arose from time to time.^ 1. Howe V. Harding, 84 Tex. 74 (19 S. W. R. 363). The court said: "The only question that we pass upon is that presented by the plea of res judicata. It appears from the con- tract that a right of way was by ap- pellee granted to the railway company in 1880 over lands owned and con- trolled by him ; that the railway went into possession of the land, and con- structed its road thereon, and has since used and operated it; that for several years prior to this suit a re- ceiver has been in possession of the road, operating it, and was operating it during the pendency of this suit. The consideration agreed upon by the parties for the grant of the right of way was, that the railway company agreed to erect and maintain a water tank on the land of appellee, to be supplied with water from an elevated spring thereon, which was to be used by the railway company, and for which appellee was to be paid as much per month as the company should pay to any other person on its line for like privilege or service. It appears that the tank was erected, and was used by the company in furnishing it water from the spring ; that appellant used the tank and spring for like purposes from July, 1885, up to July, 1887, when appellant removed the tank, and ceased to use the spring or water therefrom, and from that time refused to pay there- for. It further appears that other persons along the line of road, for similar water service, received $50 per month. The court in the case re- ported in 76 Tex. 17, 22, 13 S. W. Rep. 43, in speaking of this contract, say : 'The contract in question is not shown to have provided in express terms how long appellee should render water service and be entitled to the agreed compensation therefor ; but, as compensation to be paid for his ser- vice embraced the consideration for right of way, the obligation to make compensation must be held to have been intended by the parties to con- tinue as long as the right for which it was to be paid is exercised, unless appellee should violate his part of the contract.' The facts show that the appellant is reaping the bene- fits of this contract by continuing the use and enjoyment of the right of way. This the railway company nor he has never surrendered. The con- THE DOCTRINE OP SPLITTING CAUSES. 261 § 77. Conversion. — The wrongful conversion at one time/ or by one continuous tortious act/ of several articles of personal property owned by one person, constitutes but one cause of ac- tion ; and a recovery for a part of those taken bars a new action for the residue. Thus, a recovery in conversion of one-half of the value of a slave upon the erroneous idea of the jury that there was another joint owner, bars an action for the other one-half.^ So a judgment for the value of a female slave in an action for her conversion, and its payment, is a defense to an action to recover the value of her children born pending the action.* Notes converted. — A bought an engine of B and gave four notes. He afterwards returned the engine, and rescinded the contract and made a demand for his notes, which was refused. This was a conversion of the notes. B afterwards transferred two of the notes to an innocent purchaser, who sued A and compelled him to pay them. A recovery by A for the amount of these notes was held to be a bar to a new suit brought by him against B to recover the amount of the other two notes, sideration for this right of way is the a breach of the contract to the extent compensation agreed to be paid to ap- of abandoning not only the use of pellee for the privilege and use of the the water, but also the right of way, water by the company. The failure then an action to recover the of the appellant to use the water does damages resulting from the entire not relieve him of his obligation to breach would have been conclusive pay for the right of way so long as he of the rights and liabilities of the continues to use it. This amount parties in a second controversy. We agreed upon as consideration for the do not think the judgment rendered right of way is a sum equal to that paid in the former smt •was res judicata." per month to any other person on the 1. Farrington v. Payne, 15 Johns, line of road engaged in furnishing 432 — a bed and quilts ; Draper v. Stou- water to the company. The evidence venel, 38 N. Y. 219, 223 — a quantity of in this case shows that others, for goods; Marks v. Barker, New Zea- like service, are receiving §30 per' land Law 5 S. C. 428. month. We do not think that the ap- 2. Herriter v. Porter, 23 Cal. 385. pellant, in refusing to use the water, 3. Saddler v. Apple, 9 Humph. (28 and in removing the tank, can escape Tenn.) 342. his liability to pay this sum agreed 4. White v, Martin, 1 Porter 215. upon so long as he enjoys the use of the right of way. If there had been 262 THE MERITS. upon the ground that the conversion gave but one cause of ac- tion.^ Owned in different capacities. — If a stock of goods is wrongfully seized, a part of which belongs to a person individ- ually and a part to him as trustee, he has but one cause of ac- tion ; and if he sues for those owned by him as trustee, and recovers, that bars an action by him for his individual loss.^ I doubt this case. It construes the law in favor of the wrong- doer, though it could be as well construed against him. Replevin and trover. — If several articles have been con- verted at the same time, a recovery in replevin for those that can be seized on the writ, bars an action of trover for those that can not be so seized, because their value could have been recovered if they had been included in the first action.^ Services of chattel. — A recovery of the value of chattels in trover is a bar to an action of assumpsit for their services rendered before the conversion, as they ought to have been considered in the first action.* Times of taking, different. — Each independent wrongful taking constitutes a cause of action. Thus, if an employe re- ceives two sums of money at different times, and fails to ac- count for them, he is liable in two actions.^ A deputy sheriff had a writ of replevin against A for a piano, and levied on it on February 28, but did not remove it from the house where it was. On the same day B replevied the piano from the sheriff, and, upon a trial by default, on March 25, recovered a judg- ment for six cents damages and costs, which were paid April 1. On March 2, the deputy sheriff, by virtue of his levy of Feb- ruary 28, removed the piano from B's possession by force, and B sued him for its value. The deputy contended that the judg- ment against the sheriff and its payment was a bar, but this contention was denied, because he removed the piano after B 1. Skeenv. Springfield Engine and 3. Funk v. Funk, 35 Mo. App. 246, Thresher Co., 42 Mo. App. 158, 164. 251. 2. O'Neal v. Brown, 21 Ala. 482, 4. Cook v. Cook, 2 Brevard 349. 484. 5. Shook v. Lyon, 16 Daly 420 (11 N. Y. Suppl. 720.) THE DOCTRINE OF SPLITTING CAUSES. 263 had replevied it from the sheriff, which was a new con- version.* Stranger converts part, — In a suit by A against B for the non-delivery of logs, the latter gave in evidence the record in an action of trover, wherein A sued C for their conversion, and recovered a judgment which had been paid, thus passing the title to C. A was then allowed to prove by parol that the evidence in the former suit showed that C had only taken a part of the logs for which the recovery was had, and for the non-delivery of the residue he was held entitled to recover from B.' Indian cases. — Chand on Res Judicata, section 244, says: *'244. — Conversion of several articles at one time. — As a general rule, if the damage is caused by the same act to several rights or properties, there will be only one tort and therefore one cause of action. The real difficulty in such cases arises, if on account of the difference of the rights or of the distance of the properties, or of the different character of the damage caused or of the different times of its accrual, it is doubtful whether the damage is caused by the same tort, or by different acts each constituting a separate tort. Thus Sir James Colville, in delivering the judgment of their lordships of the privy council in Buzloor Ruheem v. Shumsoonnissa' said : 'The cause of action in the former suit seems to them to be the refusal by the husband to restore, or his misappropriation of, the wife's property, which she says she intrusted to him. There is nothing to distinguish the deposit of this particular company's paper from the deposit of those which she deposited with it, and has recovered in the former suit. It was a mere item of her demand. * * * jf gj^^ -^^s justified in institut- ing a separate subsequent suit for this particular company's paper for Rs. 10,000, she would have been equally justified in making each one of the company's papers which are comprised in the "property suit," successively, the subject of an inde- 1. Blaisdell v. Scally, 84 Mich. 149 2. Converse v. Colton, 49 Pa. St. (47 N. W. R. 585.) 346, 351. 3. 11 Madras Indian Appeals 605. 264 THE MERITS. pendent suit.' On the same principle, Sir Barnes Peacock in delivering their Lordships' judgment in Pittapur Raja v. Suriya Rau* observed that 'the act of conversion of the several things is one cause of action, and you can not bring an action for the conversion of one of the things, and a separate action for the conversion of another. The conversion of the whole is one claim and one cause of action.' " § 78. Conveyance, suit to compel. — In an equitable suit to compel the defendant to convey lands alleged to be held wrong- fully, but in trust, the complainant must bring forward all his reasons, as a new suit will be barred.^ The court said: "It is also suggested that the plea of a former adjudication is not tenable, for the reason that the right to relief in the former action was predicated on the alleged fraud of the appellees, in constructing their road for some distance through the territory where the land grants interfere, on a route somewhat different from that indicated by their original map of definite location. In other words, it is urged, in substance, that the respective suits proceed upon a different theory, and state different grounds of recovery, and that the plea is bad for that reason. This contention would be immaterial, so far as the lands now and formerly sued for are concerned, even if it was true, as supposed, that the right of recovery in the former action was predicated solely on the ground of fraud. The appellant might have pleaded in the former action the same grounds of recov- ery which it now relies upon, and if it did not do so it can not take advantage of that neglect. It will not be allowed in this suit to avoid the conclusive effect of the former decree, by averring that it did not plead a particular ground of recovery which it obviously might have pleaded. The parties to the two suits being the same, the judgment in the former case operates as an estoppel, both as to those grounds of recovery which were pleaded, and as to those that might have been 1. L. R 12 Indian Appeals 116. sion Co. v. St. Paul & S. C. R. Co., 55 2. Southern Minnesota Ry. Exten- F. R. 690, 694 (5 C. C. A. 249.) THE DOCTRINE OF SPLITTING CAUSES. 265 pleaded, so far as the lands n<3w sued for are concerned, which were also claimed in the previous action." § 79. Damao^es for wrongful act, present and prospective. — The damages, both present and prospective, to any person, which arise from one wrongful act or transaction, constitute but a single cause of action. Thus, Lord Chief Justice Holt decided that if the defendant assaulted the plaintiff and beat his head against the ground, a recovery for that would bar a new action for subsequent damages caused by a piece of his skull coming out. He said there was no new battery, and that in trespass ' ' the grievousness or consequence of the battery is not the ground of the action, but of the measure of the dam- ages, which the jury must be supposed to have considered at the trial." ^ This case has never been departed from. Permanent injury or nuisance. — If the thing done is law- ful in itself, but was done in a wrongful manner to the damage of another, he can not compel the wrongdoer to place matters in their former position, and the injury is said to be perma- nent. The same is true in respect to any continuing annoy- ance or nuisance which the law will not abate or prohibit. And for such an injury, but one action can be maintained.* Thus, the consequential damages to a dock caused by a railway swing bridge;^ or the deterioration in value of premises caused by gas works shutting off the underground supply of water;* or the depreciation of land occasioned by ashes, cinders, smoke and soot cast upon it from railway locomotives, if those acts are a necessary concomitant of running trains;® or a wrongful 1. Fetter v. Beale, 1 Salkekl 11 (1 5. Chicago and E. I. R. Co. v. Loeb, Ld. Raymond 339). Accord in prin- 118 111. 203 (8 N. E. R. 460). The ciple are Warner v. Bacon, 8 Gray court said: " The following facts ap- (74 Mass.) 397, 405, and Whitney ■??. pear: The Chicago, Danville and Town of Clarendon, 18 Vt. 252 (46 Vincennes Railroad Company was Am. D. 150.) created, by a private charter, Febru- 2. Bizer v. Ottumwa Hydraulic ary 16, 1865, and during the year 1872, Power Co., 70 Iowa 145 (30 N. W. R. under its charter and the provisions 172.) of an ox'dinance of the city of Chi- 3. Chicago and Alton R, R. Co. v. cage, it built a railroad on the west Maher, 91 111. 312. side, and on one of the public streets. 4. Decatur Gas-Light and Coke Co. It used the same as a railroad until V. Howell, 92 111. 19. April, 1877, when all its property in 266 THE MERITS. change of the grade of an alley by a city under claim and color this state was sold, under a mortgage foreclosure, to Messrs. Hindekoper, Dennison and Shannon, who after- ward conveyed the same to the Chi- cago and Nashville Railroad Com- pany; which company consolidated with the State-Line and Covington Railroad Company, creating the Chi- cago and Eastern Illinois Railroad Company, the defendant. The plaint- iff, during the year 1876, purchased the lots in question, being 75 feet on May street, and 125 feet on Carroll avenue, near the railroad, which had been in constant operation since 1872 : and on the lot there were four tene- ment houses at the time of his pur- chase. After he purchased the lots he purchased two more houses, and moved them on the lots, making six houses on the lots. He rented the houses to tenants, and they have, ever since he became the owner, been oc- cupied by his tenants. The position taken by him is that the operating of the railway caused a private nuisance to his property ; that the construction of the railroad was lawful, and pro- duced no damage, but that its opera- tion was the sole cause of the injury ; and that in such case, if the structure in itself does not cause damages, but its use does, the damage arising from the use is the cause of action; that the grantee of premises upon which a nuisance is erected is liable for damages ensuing from his mainten- ance of it, because every day's contin- uance is a new nuisance. There is quite a weight of authority to the effect that one may bring suit for the deterioration in value of real property from a nuisance, alleging its perma- nency, and that by such an action the plaintiff consents to the continuance of the nuisance, and accepts the judg- ment recovered as a compensation therefor; that such a recovery will have the effect to give the defendant a permanent right to do the acts which constitute the nuisance as fully as though there had been a condemna- tion of the property by the exer- cise of the power of eminent domain. It has frequently been held by this court that, in an action brought for deterioration in the value of real es- state from a nuisance of a perma- nent character, all damages for past and future injury to the property may be recovered ; and that one recovei-y will be a bar to all future actions for the same cause. Ottawa Gas Co. V. Graham, 28 111. 73 ; Illinois Cent. R. Co. v. Grabill, 50 111. 241 ; Cooper V. Randall, 59 111. .317 ; De- catur Gas Co. ■?;. Howell, 92 111. 19; Chicago & A. R. Co. v. Maher, 91 111. 312. The latter was an action of much the same character as the present. It was an action of trespass, for damage to the premises of an adjoining land- owner by the construction and opera- tion of a railroad draw bridge across the Chicago river, on which plaintiff's property abutted, and which was used as dock property. After the bridge was constructed, and had been in operation for considerable time, Maher, who was the owner when the bridge was built, sold the premises to the plaintiff in the suit, who was his wife. The same question was presented there as here— whether or not the plaintiff might recover for damages she had sustained by the continuance of the obstruction since she purchased. The solution of that question was found by the court in the determina- tion that the character of the cause of injury was such, from its permanency, that one recovery would be a bar of all future actions growing out of the erection of the structure; that Maher, the original owner, might have sued for and recovered all the damages which were sustained by the property from the erection, whether at the time or in the future; that, THE DOCTRINE OF SPLITTING CAUSES. 26; of right;' or the damages caused to real estate by negligence of that being true, the right of action was in him for a recovery of all dam- ages that were or might be caused by the structure, and, as that right could not be transferred to his grantee, the I^laintiff, there was in her no right of recovery. The distinction which ap- pellee's counsel draws in that case, that it was one of trespass, some piles in the protection of the bridge hav- ing been actually driven in Maher's land, does not make a satisfactory discrimination. There is no signifi- cance in that action having been one of trespass, and not case, as our statute has abolished all distinctions between the actions of trespass and trespass on the case. The decision was not rested upon the point of that act of trespass committed being the only cause of action, but upon the permanent character of the structure as giving a right of recovery once for all ; and the continuance of the ob- structions since the purchase by the plaintiff was urged as ground of re- covery in the case, which was met by the court in the manner above stated. If thte above doctrine as to entireness of recovery in one action, in which the cause of injury is of a permanent kind, is to be admitted, it should apply peculiarly in this character of case. The cause of damage here is not a nuisance proper. A railroad track laid upon a street of a city by authority of law, properly constructed, and operat- ed in a skillful and careful manner, is not in law a nuisance. For the class of injuries here sued for, there was no remedy, as we understand, previous to the constitution of 1870. The con- stitution of 1848 provided only that private property should not be taken for public use without just compensa- tion. The provision for the fii'st time was incorporated in the constitution of 1870 that ' private property shall not be taken nor damaged for public use without just compensation. Such compensation, if not made by the state, shall be ascertained by a jury as shall be pi*escribed by law.' Be- fore the adoption of the latter con- stitution, if land was taken for pub- lic use, there was a provision for compensation. But if there was other disconnected land not touched by the improvement, but dam- aged merely, as complained of in this case, no compensation was pro- vided. To meet this want, the clause of the constitution, restrictive of the exercise of the power of eminent do- main, provides that private property shall not be taken nor damaged for public use without just compensation. We think it to be within the true in- tent and meaning of this provision as to damage, that there should be but one proceeding for its recovery, in which there should be a recov- ery for the entire damage, past, pres- ent, and future ; that it should be similarly regarded, in this respect, as the provision in regard to the taking of property, in which there is but one proceeding, and an assessment of compensation and damages once for all. The two provisions are coupled together, and are both in restriction of the exercise of the power of emi- nent domain. The just compensation to be made for damage to land was, in our opinion, intended as an idemnity, not for successive, constantly accru- ing damages, as they may after- wards be suffered, but for all the damage the land owner may suffer from all the future consequences of the careful and prudent operation of a railroad; it being the immediate damage done to the land-owner's es- tate by changing its permanent con- dition, and impairing its present value. The action for damage may be regarded as in the nature of one kind of condemnation proceeding. As all damages which will be sustained as the necessarj' result of the operation of the road, can be immediately estimated at the time of its construction and putting in operation from the effect on the value of the land to be dam- aged, it would seem to answer all just purpose of the land-owner to allow but one action, in which there might be a recovery for all damages. The allowance of successive actions for damage, as it should occur from day to day, as new damage would seena to serve' but the purpose of harassing and the wasting of means in expenses of litigation. The law does not favor the multiplying of actions." 1. Citv of Lafavette r.Nagle,113 Ind. 425, 430* (15 N. E.R.I). 268 THE MERITS. a city in grading a street/ constitute but one cause of action. In the case from 113 Indiana above cited the court said: "The change of the grade of the alley was an act of a permanent na- ture, and was done by a municipal corporation under claim and color of right. It was not a mere fugitive trespass, but it was a wrongful act, permanent and enduring in its character. The case therefore belongs to the class in which only one action can be maintained. All the damages, past and prospective, must be recovered, for successive actions can not be prosecuted. There is a plain distinction between an unlawful act constitut- ing a nuisance, and an act wrongful because the authority of the person by whom it is done has been exceeded. There is an equally plain distinction between a mere transient trespass and an act which both litigants treat as of an enduring char- acter. The case before us illustrates the wisdom of the rule which the authorities sustain. If more than one action can be maintained, then who can place a limit upon their number? If more than one action can be maintained, then each time the appellee is prevented from taking into her lot a load of coal or a load of wood she may sue. Either this must be true, or else all damages, past and prospective, must be recoverable in one ac- tion, since at the very foundation of the law of damages lies the rule that a wronged party shall receive full compensation for the injury he has suffered. A denial of this rule would be a denial of justice. In such a case as this, and in all cases in which the thing done is done under color of legal authority and is permanent, the wrongdoer, while he may not be vexed with many actions, must pay full compensation to the person he has injured. But the public has an interest in these matters, and that interest demands that, if one action will fully set- tle a controversy and bring the wronged person full compen- sation, one action only shall be permitted. "The grade to which the alley has been brought is, by the act of the corporation, asserted to be permanent, and so it is treated by the appellee. There is therefore a recognition of the permanency of the work that caused the injury, and neither 1. City of North Vernon v. Voegler, 103 Ind. 314 (2 N. E. R. 821). THE DOCTRINE OF SPLITTING CAUSES. 269 the court nor the parties can do otherwise than act upon the presumption that it will remain in its present state. If the wrongdoer would relieve himself of this presumption, he must bring forward countervailing facts; and until this is done the presumption must prevail, and one action must forever settle the rights of the parties. An abutter can not restore the grade of a street or alley to that originally established; and it is a natural presumption, if a work of an enduring nature is constructed, that it is to remain. It would be folly to construct a street, sewer, or other work of a permanent character, and re- move or change it; and folly is not to be anticipated from officers of a, public corporation, assuming to act under statu- tory authority. If the work is temporary in its nature, and not done under claim of legal right, then a different rule ob- tains; for in such a case the act of the wrongdoer is a mere fugitive trespass, or else it is an abatable nuisance. " Damages to land arising from one permanent wrong, com- mitted under color of legal right, can not be collected in shreds and patches as each new loss arises, but must be recovered in a single action. It is not the damages alone that constitute the cause of action, for a cause of action is composed of both injury and damages. If there is a single injury, and there can be only a single injury, the thing that causes it being perma- nent, there can be only one action; for a single injury can not be dissected into many parts, and thus made to yield a prog- eny of actions, limited only by the possibility that a time may come when no new inconvenience nor loss can be suffered. It is not because a wrongdoer persists in doing wrong that one action must cover all damages, but because the permanency of the work done under color of legal authority makes one indi- visible injury. If the thing done is permanent, the injury is not repeated; and if there is no repetition of an injury there can not be successive actions. In City v. Voegler, supra, we exhibited the difference between a thing constituting a nuisance, and abatable as such, and a thing wrongfully done under color of authority, which can not be regarded as a nui- sance. We do not care to repeat what was there said, nor to en- 270 THE MERITS. large upon it, further than to say that a grade of a street can not be abated as a nuisance, and therefore can not be regarded as governed by the rules which prevail in cases wherein the wrong constitutes a nuisance. It is true that there are some plausible objections to the rule that prospective damages may be recovered, but, as Dr. Johnson long since said, there are objections to all propositions; so the question is not whether there are objections, but whether the reasons in favor of a proposition outweigh those against it. One who should under- take to find a rule against which no plausible objections could be urged would find his quest as fruitless as that of the knight of La Mancha. In favor of the rule we sanction are these reasons: If successive actions are allowed, one injury may be made to constitute many causes of action. If successive actions are permitted, the rule forbidding the splitting of demands is violated. If many actions may be maintained, a recovery in one may embrace what has been recovered in former actions. If many actions are allowed, the public welfare and conven- ience is disturbed." A city in Iowa ordered a street to be low- ered, and unlawfully cut it down to the new grade from curb to curb without first assessing and paying damages to an abut- ting lanfl-owner, and then notified him to lower his sidewalk. He sued for the damages already done, and a recovery by him was decided to be a bar to another action for damages occa- sioned by cutting down the sidewalk, upon the ground that the entire wrong gave but one cause of action.* Indian cases. — Chand on Res Judicata, section 247, says : *' Subsequent damages. — In Nil Monee Singh v. Issur Chunder,^ the plaintiff having been induced to take a putnee taluq settlement at a certain rent by fraudulent and false repre- sentations as to the lands alleged to be comprised in the taluq, sued on that ground to recover a part of the consideration money and the excess of rents paid, and to obtain an abatement of the same proportionate part of the rent for the future. He got a decree for the amount sued for, but even though the 1. Hempstead v. City of Des Moines, 2. 9 W. R. 121. 63 Iowa 36 (18 N. W. R. 676). THE DOCTRINE OF SPLITTING CAUSES. 271 claim for abatement was rejected, a subsequent suit by him for the excess of rent he had to pay since the first suit was held barred, on the ground that that, as well as other future dam- ages, should have been claimed in the former suit. Mr. Justice Phear (with whom Bay ley, J., concurred) said : * The plaint- iff's present contention amounts to this: that if the cause of action is such as to produce a successive recurrence of damage, then the person injured may bring a fresh suit on the occasion of the accrual of each portion of such damage. But I think this is clearly incorrect. In many cases of wrong, no doubt, the cause of suit is not complete until actual damage has ensued ; but when once the cause of suit is matured, the subsequent occurrence of further damage, whether after or be- fore this has been adjudicated upon, does not originate a fresh cause of suit. Were it otherwise, litigation would have no end; for I suppose that in very few cases does the damage flowing from a wTong or a breach of contract cease with one event.' ' '■ It has been held on this principle that a person suing for the value of cattle illegally taken away should include in his plaint whatever claim he wishes to make in respect of damages caused to him by the defendant's wrongful act, and can not after- wards maintain another suit for any damages which he might have claimed in the former suit.' In Shaikh Punju v. Oodoy^ it was argued that the claim for damages arose out of a differ- ent cause or action, namely, the detention and not the seizure, of the cart and bullocks, and that the plaintiff was entitled at least to recover the damage which accrued subsequent to the institu- tion of the former suit for the "recovery of the cart and bul- locks ; but Ainslie, J., in delivering the judgment of the court, said : * There is no such detention as would constitute a sep- arate cause of action ; it is only the consequence of the seizure. There was nothing to prevent the plaintiff from asking for, or the munsif from awarding, compensation entirely sufficient to satisfy the plaintiff's claims against the defendant ; and although the amount of compensation might be regulated by 1. Mohubut Mundul v. Shoorendre 2. 18 W. R. 337. Nath Roy, 4 W. R. S. C. C. R. 20. 272 THE MERITS. the period of detention, the right to sue, or cause of action, it began when the property was wrongfully seized, and not at any later date.' " § 80. Declaring lien. — A hotel having been built by sub- scriptions advanced, upon an agreement that the subscribers should be paid seven per cent, interest, payable annually, and they having brought a suit to have the subscriptions declared a lien on the hotel, a decree declaring the installments of in- terest then due a lieii on an undivided part of the premises, is no bar to suits for subsequent installments as they become due.^ The court said: "There was no such merger by the decree as prevents the plaintiff from maintaining this action. It is true that he has a decree for certain installments of inter- est accrued under the agreement prior to August 22, 1890, but the case is not different from one in which a recovery is had upon one installment of a note or for an installment of rent due on a lease. In neither case is there such a merger worked as prevents a recovery for installments subsequently falling due." § 81. Detinue. — According to the supreme court of Alabama, the rule in relation to dividing causes does not apply to the action of detinue. Thus, a person having wrongfully detained ten slaves from another by virtue of one instrument or title, a recovery of five of them by an action of detinue was held to be no bar to a similar action for the other five. The court said: "The detention of chattels is distinguishable from a trespass upon or a conversion of them. A detention may be included in a trespass or conversion; but there may be a detention suffi- cient to support detinue though there has been neither a trespass nor a conversion, and when, therefore, neither trover nor tres- pass could be maintained.^ If by a single act there has been a trespass upon or a conversion of chattels, which are detained by the tort-feasor, the owner is not bound to treat that act as a 1. Near v. Donnelly, 93 Mich. 460 (53 6 East 538 ; Walker v. Hampton, 8 Ala. N. W. R.616). 412, and Glisson v. Herring, 2 Dev. 2. The court cites Six Carpenters' Law 156. Case, 8 Coke 290 ; McCombie v. Davies, THE DOCTRINE OF SPLITTING CAUSES. 273 trespass or conversion. He may do so, or he may elect to waive the trespass or conversion, and to treat the detention as lawful, temporarily, as to each or all of the chattels. If he elects to treat the act as a trespass or conversion, he is bound to regard it as indivisible, and as giving him but one cause ©f action; and he can not afterwards split it up into several. If, however, he elects to proceed for the detention only, no such consequences ensue, because in detinue the cause of action is the detention, which, at the election of the plaintiff, is divisi- ble and referable to each chattel detained.* § 82. Distribution of estate. — In a suit against an adminis- trator for settlement and distribution, and for "all equitable relief in the premises," it is the duty of the parties to bring forward all their rights, and they can not afterwards institute a new suit on account of matters then appearing in the admin- istrator's accounts which were not in controversy in the first suit.* Double covenants.^ — A recovery for one breach of covenant contained in an instrument is no bar to a suit for the breach of another covenant in the same instrument.^ Thus, if one cove- nants to build and to keep in repair cattle-guards, a recovery for the failure to build is no bar to a subsequent action for failure to keep in repair.* So, a recovery in an action for a breach of the covenant in a deed against incumbrances, is no defense to an action for a breach of the covenant of warranty of title contained in the same deed.' If a lease contains a cove- nant *'to keep the buildings and fences in good repair, except natural wear and tear," and also one "to build, during the continuance of the lease, one hundred and twenty-five rods of post and board fence, four boards high," a recovery for a 1. Wittick V. Traun, 27 Ala. 562 (62 4. Columbus & Shelby R. R. Co. v. Am. D. 778). Watson, 26 Ind. 50. 2. Blackwell v. Bragg, 78 Va. 529, 5. Donnell v. Thompson, 10 Me. 170 540. (25 Am. D. 216). 3. Merchants' Ins. Co. v. Algeo, 31 Pa. St. 446. 18 274 THE MERITS. breach of the last covenant is no bar to an action on the first for failing to keep a barn in repair.' Double rent. — If a tenant agrees *' to pay double rent for every day he shall hold on to the said premises after the ex- piration of the term hereby created," a recovery for double rent for holding over one month bars a new action on that covenant for subsequent holding.^ Ejectment. — One Eggers was the owner of lot No. 1, and Smith and Morgan claimed to own lot No. 2 adjoining No. 1 on the south. Eggers had built a fence upon what he con- tended was the dividing line, and Smith and Morgan, thinking that the fence was some distance south of the line, and on No. 2, commenced an action of ejectment in the circuit court of the United States to recover the north 753 feet of that lot ; and, after a trial, they recovered '' so much of said lot 2 as lies south of the south line of lot No. 1 as indicated by a fence con- structed and maintained by the defendant as and on said south line, said fence running from the state line eastward to Lake Michigan." Afterwards, one Roby, who was in privity with Smith and Morgan, brought ejectment against Eggers for the same land, but he was defeated and appealed. The supreme court said : * ' ' It is insisted by the appellee that the case in the circuit court of the United States between Smith and Morgan, on one side, and the appellee here, settled the right of the ap- pellee to the ownership of the land involved in this suit, and that the appellant is bound by the result of that suit ; while, on the other hand, it is claimed by the appellant that the judg- ment rendered by the circuit court of the United States is void. The contention of the appellant that this judgment is void is based principally upon the fact that it appears by the special verdict in this case that no part of the land sued for in the circuit court of the United States was south of the line fixed by the judgment rendered in that cause. Whatever else may be said of this judgment, it is certain that it fixed the fence 1. Mcintosh V. Lown, 49 Barb. 550, 3. Roby v. Eggers, 130 Ind. 415, 424 554. (29N.E.R. 365,367). 2. Kerr v. Simmons, 9 Mo. App. 376. See § 126 infra on Penalties. THE DOCTRINE OF SPLITTING CAUSES. 275 erected by Eggers in 1852 as the line between lots 1 and 2, and fixed the right of the plaintiffs in that case to recover their costs as against Eggers. If it be true, as contended here, that no part of lot 2 for which suit was brought was south of the fence erected by the defendant, the court probably erred in rendering judgment in favor of the plaintiffs for the recovery of any land, and for the recovery of costs ; but, as that was an error in favor of the plaintiffs, they should not now com- plain. "We think the effect of that judgment was also an adju- dication that the plaintiffs in that case were not entitled to re- cover from Eggers any portion of lot 2 situated north of the line which it fixed. The case was appealed to the Supreme Court of the United States, and is reported in 127 U. S. 63. 8 Sup. Ct. It was contended in that court that there was, in effect, a general finding for the plaintiffs as to all the land in dispute, and that judgment should have been in their favor for the whole of the premises described in the complaint. In re- lation to this contention, the court said : ' But the record, fairly interpreted, does not show any such finding. * * * That order plainly indicates a general finding for the plaintiffs only as to a part of the land in controversy ; that is, as to the part described in the order. The judgment is for the recovery only of the possession of the premises so described. Such a judgment was proper if the plaintiffs failed to show title to the remaining part of the premises in dispute.' It is an element- ary principle of law that an entire cause of action can not be split up so as to enable a party to maintain more than one ac- tion upon it. This is especially true of a cause of action sounding in tort. An entire claim arising from a single tort can not be divided, and made the subject of sev- eral suits, however numerous the items of damages may be ; and a judgment upon the merits of any part of such cause of action will be available as a bar in other actions arising out of the same tort. Thus it has been held that for a single and complete trespass upon, and injury to, an entire tract of land, severals actions for damages can not be maintained ; a recovery of damages in respect to a part of the land being a bar to any 276 THE MERITS. further recovery for the same trespass. In this case Smith and Morgan brought their action for the recovery of a part of a single tract of land, alleging that Eggers unlawfully held pos- session of the same. The action was prosecuted to final judg- ment, in which they recovered judgment for so much of the land as was located south of a line designated in the judgment, damages for its detention, and for costs of the action. This action is for the recovery of the same land which they sought to recover in that action. If that judg- ment is inoperative so far as it directs the recovery of land, by reason of the fact that no land is located south of that line, still it is binding and operative as a judgment for damages and for costs ; in other words, it is not void. So, too, it set- tles the right of Eggers to hold all the land north of the desig- nated line as against Smith and Morgan, inasmuch as they can not prosecute another action for its recovery." Ejectment and mesne profits in India. — Chand on Res Judicata, sections 248 and 249, 260, 261, 262, says : "248. Subsequent mesne profits recovered — A suit for possession of land (of which plaintiff has been dispossessed) and for mesne profits by way of damages for ten years, was held in Rookminee Kooer v. Ram Tohul* to bar a suit for mesne profits for a prior year. The decision proceeded on the ground that mesne profits, though usually measured by the actual rents and profits of the land issuing during the period of disposses- sion, were eventually damages recoverable on account of the defendant's wrongful conduct in dispossessing plaintiff and keeping him out of possession; that the cause of action in the subsequent suit was the same as in the first, and that a claim for mesne profits could not itself be divided. In Venkoba v. Subbanna,^ even a suit only for possession of land was held to bar a suit for the mesne profits of that land. In this case, Muttusami Ayyar and Brandt, JJ., referred to the alteration in the phraseology of section 43, and on the ground of it, ex- pressed it as their * opinion, that the words "every suit shall include the whole of the claim, in respect of the cause of ac- 1. 21 W. R. 223. 2. Indian L. R. 11 Madras 151. THE DOCTRINE OF SPLITTING CAUSES. 277 tion," include not only the claim arising out of that cause of action, but also any other claim founded on the same cause of action, and enforcible at the date of the former suit. ' No ref- erence was made, however, in the argument or the judgment to inference drawn against the identity of the cause of action in such cases from section 44 (corresponding to section 10 of the code of 1859), which provides that ' no cause of action shall, unless with the leave of the court, be joined with a suit for the recovery of immovable property, except a claim in respect of mesne profits or arrears of rent, in respect of the property claimed.' The learned judges observed, however, that their view was in accordance with the decision of the judicial com- mittee, in Madan Mohan Lafi;. Sheo Sanker Sahai.^ In that case, however, their lordships only intimated that the judg- ment of the high court^ was correct ; and the facts of that case, which arose out of a breach of contract, were quite different, as there had been a prior suit not only for possession of the property leased, but also for mesne profits as damages for one year, and the suit for subsequent years' mesne profits was held barred not by the suit for possession, but by that for mesne profits. '*A full bench of the Calcutta high court had held, how- ever, in Pratap Chandra v. Swarnamayi,^ that a suit for pos- session of land, and mesne profits to the date of the suit, would not bar a subsequent suit for mesne profits from the date of the decree, the decision being based on the ground of section 10, of the civil procedure code of 1859, as well as on the fact that the cause of action for the mesne profits claimed in the second suit had not arisen at the time of the institution of the first. In Imdad Ali v. Boonyad Ali,* a division bench of the Calcutta high court held that on account of section 10, a suit for possession of a property would not bar a suit for its mesne profits that accrued due prior to the decree. Con- versely, on similar ground, it was held in Monohur Lall v. 1. Indian L. E. 12 Calcutta 482. 3. 4 Bombay L. R. 113. 2. Sheo Shunkur Sahoy v. Hridoy 4. 14 W. R. 92. Narain, Indian L. R. 9 Calcutta 143. 278 THE MERITS. Gouri Sunkur^ that a suit for mesne profits of a property would not bar a suit for its possession ; Mitter, J., in delivering the judgment of the court, pointing out that ' the difference as to the priority of the suit for mesne profits was immaterial, so far as the question of construction of sections 7 to 10 is concerned,' The same has been held under the present civil procedure code by the Madras high court, in Tirupati v. Narasimha,^ on the ground that ' the suit to recover mesne profits, and the suit to eject, are not parts of a claim founded on the identical cause of action, within the meaning of section 43.' It was argued in the case, that if a tenant should hold over in opposition 4© the landlord, the latter would be under an obligation to eject him at once, and would not have the option of suing simply for mesne profits on the ground of adverse occupancy, until either the tenant gave up possession, or he desired to eject the tenant, but the high court only observed that if the causes of action were distinct and independent, the plaintiff could not be bound to unite all the claims founded upon them in one suit." **249. Suits on title, infringement of title consti- tutes THE CAUSE OF ACTION. — In suits for property on the ground of title, it is not the title, but the infringement of it, that constitutes the cause of action ; and that must determine the applicability of the rule of bar by suit. This was held di- rectly by the Calcutta high court, in Jardine Skinner v. Shama Soonduree,* in which Mr. Justice Mitter, in delivering the judgment of a division bench of the court, said, * If the lands included in the present suit have been taken possession of by the defendants on a date different from that on which the plaint- iff was ejected from the lands included in the former suit, there can be no doubt whatever that the two causes of action are en- tirely distinct, from one another. * * * if the plaintiff was dispossessed from the parcel on the same date on which the de- fendants took possession of the lands included in the present suit, and by the same act, her cause of action in the two suits 1. Indian L. R. 9 Calcutta 283. 3. 13 W. R. 196. 2. Indian L. R. 11 Madras 210. THE DOCTRINE OF SPLITTING CAUSES. 279 would then be identical, but not otherwise.' It was urged against this in the case that the title upon which the present suit was based was precisely the same as that involved in the former suit. But Mitter, J., said: 'This circumstance can make no difference whatever. It is not a title upon which a party relies, but the infringement of it which constitutes his cause of action; and it does not, therefore, follow that two suits are necessarily brought upon the same cause of action, merely because the title relied upon in both the cases is one and the same. Thus, for instance, a man's riglit to enjoy a piece of land may depend upon one and the same title ; but if he is ejected from different parts of it by distinct acts of ouster, each act of ouster would constitute a distinct and separate cause of action. Were it otherwise, it might be argued ujDon precisely sim- ilar grounds that he is entitled to one period of limitation only, commencing from the date of the first act of dispossession. A man may be dispossessed from one room in a house on a particular day, and he may also be dispossessed from another room in that very house, twelve years afterward. But if the two acts of dispossession are to be considered as constituting one cause of action, merely because his title to both the rooms is one and the same, the action for the second room would be barred by limitation, before there could be any necessity for its institu- tion.' " It has also been held that the fact that a defendant's title rests upon different and distinct transactions, supported by dis- tinct and separate evidence, does not necessarily imply that to a party contesting that title there are different causes of action warranting separate suits ; and the existence of a separate cause of action will depend on there being a distinct and sepa- rate act of dispossession.^ The principle of these rulings was followed in Riayatullah Khan v. Nasir-Khan,^ in which Straight, 0. C. J., observed that, 'although the respondent's title to both houses rested on the title acquired by him under one and the same sale-deed, yet the cause of action, viz., his 1. Ram Soondur v. Delanney, 20 W. 2. Indian L. R. 6 Allahabad 616. R. 103. 280 THE MERITS. ouster from the two houses on different occasions, gave rise to two separate causes of action.' " In Pittapur Raja v. Suriya Rau/ certain immovable proper- ties and half of all the movable properties had been left by a will to the parties, and the defendant got the immovable prop- erty left for the plaintiff entered in the records in his name ; and a suit by the plaintiff to set aside that entry and to obtain possession of that property was held not to bar a suit by the plaintiff for his share of the movable property, as 'the claim in respect of the personalty was not a claim arising out of the cause of action, which existed in consequence of the de- fendants having improperly turned the plaintiffs out of posses- sion of (the immovable property claimed in the first suit).* The principle of this decision has been followed by their lord- ships in Mahomed Riasat Ali v. Hasin Banu,^ in which a de- cree in favor of a Mahomedan lady for her dower against the brother of her deceased husband has been held not to bar a suit by her for a declaration of her right to a life-estate in all the property of the husband, Sir R. Couch observing that * it can not be said that 'the claim of the plaintiff as heir of her husband to the whole of his property was a portion of her claim to dower. The causes of action in the dower suit and in the present suit are distinct.' In an early case,' how- ever, the Calcutta high court held that in the case of a unity of title to different properties from which the owner was dis- possessed on different dates, all the acts of dispossession prior to the former suit would be considered as constituting one cause of action. In that case the plaintiff, claiming to be en- titled to two estates in different districts as her deceased hus- band's, under his father's will, sued for one of the estates, and the suit was held to bar a subsequent suit for the other estate, on the ground that there was but one cause of action, namely, the denial of the plaintiff 's title under the will of her husband's father; It was contended that the plaintiff alleged having been dispossessed from the estates on different dates, but the 1. L. R. 12 Indian Appeals 110. 3. Jumoona Dassee v. Bamasoonde- 2. Indian L. R. 21 Calcutta 157. ree, 2 W. R. 148. THE DOCTRINE OF SPLITTING CAUSES. 281 high court said that that did not affect the case. 'All the acts of ouster complained of were prior to the institution of the first suit, and should have been comprised in it, as their being legal or illegal depended solely on the question of inheritance, and the validity of the will relied on by the plaintiff ; and the separate acts of ouster, so long as they were committed by the same persons and as part of the same contest, would not form distinct causes of action.' "If the title is entirely different, it will indicate a dis- tinct act of infringement, giving a separate cause of action. Thus, as the relative rights and duties of owner and trespasser on the one hand, and of mortgagor and mortgagee on the other, are wholly different, a failure in a suit of simple eject- ment does not bar a subsequent suit by the same person to en- force his right to redeem as mortgagor.* Nor will a suit for the possession of mortgaged land, brought on the ground that it was likely that the mortgage debt had been paid off, de- fault on the mortgage not being proved, bar a suit for the same property by way of ejectment ; because in the former suit, the obligation to restore the land on the payment of the mortgage- debt constitutes the cause of action, and the question of title does not arise even incidentally, while in the subsequent suit the plaintiff's right of action is based on the plaintiff's title. "^ In sections 258 to 262, the same author says : "258. A suit for possession of a piece of land which the defendant had in- cluded in her homestead by building walls, brought with the allegation that there were two palm trees on it, to which the defendant wrongfully denied access to plaintiff, was held, in Maksud Ali v. Nargis Dye,^ to bar a suit for the trees themselves, and the high court said, 'that the plaintiff's present claim arose, and now arises, out of the same cause of action as that in the former suit. He claims the right in the trees and, by implication at least, a right of way to them for the pasis to enable them to draw the juice. We think that his cause of ac- 1. Shridhar Vinayak v. Narayan, 11 2. Naro Balvant v. Ramchandra, In- Bengal H. C. R. 224; Amanat Bibi v. dian L. R. 13 Bombay 326. Imdad Husain,L.R. 15 Indian Appeals 3. Indian L. R. 20 Calcutta 322. 106. 282 THE MERITS. tion in respect of this arose out of the matters the subject of the former suit. As a matter of fact the defendant did then claim the trees, both expressly and also by the building of the wall so as to bar the access to them at her pleasure; the plaint- iff applied for that reason to have the right to the trees deter- mined in that suit, but this was refused, as he had not asked for relief in respect to them in the suit. * * * * p^j.^ Qf the cause of action which he then had was the interference by the defendant both with the plaintiff's possession of the trees and with the access to them.' "A suit for a declaration of the plaintiff's title to a mokur- ruree will bar a suit for the amount the plaintiff may be en- titled to on account of that title, if the former suit was brought because the defendant by his denial of that title pre- vented the collector who held the amount in deposit from pay- ing it to plaintiff. This was held in Luchmun Sahoy v. Ram- saru.^ Mr. Justice Phear in his judgment in this case said that plaintiff 'relied solely upon establishing his title in that suit in order to be enabled to get payment of the money; and he complains in the very last passage in his plaint that, not- withstanding he got a decree for his title, the defendant would not let him get the Rs. 23 out of the collectorate. It is very clear to me that he is barred from bringing this suit by the simple reason that he brought a suit before, which, as against the present defendant, was based on the same cause of action which he now sues upon, and that inasmuch as he might in that suit have made the present claim, he can not bring a second suit on the same cause of action for that purpose.' In Nund Lall v. Aboo Mahomed,^ the first suit comprised also the land which had been taken over by the government for public purposes, as the plaintiff did not know of that fact, and a subsequent suit for the amount of compensation which the defendant had received from the collector, after the decree in the former suit, was held to be not barred, as the plaintiff at the time of the first suit had no cause of action in respect of the money against the defendant. 1. 20 W. R. 144. 2. Indian L. R. 5 Calcutta 597. THE DOCTRINE OF SPLITTING CAUSES. 283 "A suit for the specific performance of a contract for the sale of land which the defendant had sold to another person, will bar a subsequent suit for damages for the loss of the interest on the amount of consideration paid by the plaintiff, and for the deprivation of the profits that would have accrued to him if the sale had been made to him in accordance with the contract; as the cause of action in both the suits is the same breach of contract. This was held in Shib Kristo Dah v. Abdool Sobhan,* in which it was contended that section 7 did not apply as *P. (the subsequent alienee) was made a defend- ant in the former suit, and issues might have arisen between P. and the plaintiff in that suit, who is also the plaintiff in the present suit.' The contention was overruled, the court ob- serving that as between the Mahomedan defendant (the ven- dor ) and the plaintiff, there was nothing to prevent the latter from including in his claim any damages accruing from the breach of the contract entered into between him and the Mahomedan defendant." "259. A suit for rent at an enchanced rate payable under some law or on account of a special notice will, however, not bar a suit for rent at the original rate,^ as the con- tract giving rise to the obligation of the payment and the consequent cause of action in the two cases are differ- ent. The contrary was held in Kunnock Chunder v. Guru Dass,* as it apj^eared to the judges 'that looking at the word- ing of sections 42 and 43 of the code of civil procedure, it is clearly the intention of the legislature that plaintiffs should bring their entire claim and every remedy enforcible in re- spect of that claim into court at once, and that if they fail to do that in any suit, they can not afterwards avail themselves of any other remedy on which they have not chosen to insist in the first suit.' Cunningham, J., in delivering the judg- ment of the court, said: 'It is true that the privy council have pointed out that a suit for enhanced rent and a suit for rent are very different proceedings. None the less are they, 1. 15 W. R. 408. 3. Indian L. R. 9 Calcutta 919. 2. Khedaroonissa v. Boodhee, 13 W. R. 317. 2S4 THE MERITS. in our opinion, remedies or claims arising in respect of the same subject-matter.' This decision has been overruled by a full bench of the high court in Sudduruddin v. Bani Madhub,* Wilson, J., having pointed out in the judgment of the full bench that the judges in that case did not address their atten- tion precisely to the point arising on the section, and that a suit for enhancement and a suit for rent may, no doubt, be correctly said to be in respect of the same subject-matter, but they are not claims arising out of the same cause of action. "In Doorga Nath Roy v. Kalee Narain,^ a suit by a lessor for certain lands which the lessee had, in accordance with the power given to him by the lease, resumed on behalf of the lessor and himself retained, was held not to bar a suit by the lessor for the land the lessee had actually taken on lease; Jack- son, J., in delivering the judgment of the high court observing that 'these appear to us to be entirely distinct causes of ac- tion, although the plaintiff's title to recover is the same, and the defendant's opportunity of doing two wrongs is the same.' A suit for the cancellation of a deed of gift of certain property on the ground that the defendant had not taken possession nor executed a release of it, will not bar a suit to obtain a declara- tion that the deed was nominally executed a'nd was not in-: tended to take effect; and that notwithstanding that the defend- ant, since the dismissal of the first suit, is setting up a claim to it, and the relief sought in both the suits is substantially the same, as the cause of action put forward in the second suit is different from that in the first.* " In Ambu v. Ketlilamma,* a suit by a claimant of the prop- erty attached in execution proceedings, to set aside the auction sale of the property, has been held not to bar a subsequent suit for its possession. This decision was based chiefly on the circumstance that the grounds of action in the two suits were not identical, and Muttusami Ayyar, J., in his judgment said that 'Section 283 (civil procedure code) gives a special right 1. Indian L. R. 15 Calcutta 145. 3. Nagathat v. Ponnusami, Indian 2. 24 W. R. 212. L. R. 13 Madras 44. 4. Indian L. R. 14 Madras 23. THE DOCTRINE OF SPLITTING CAUSES. 285 to sue for a declaration of title by reason of the special attribute with which the order on the claim petition is invested, unless it is invalidated. The right is one which the plaintiff is at liberty to exercise without reference to the court sale and the transfer of possession under that sale, which may or may not at once follow the order. * * * After the claimant's title has been declared, he must no doubt sue but once, both to set aside the sale and recover possession, but, until that declaration is made, the sale and transfer of possession are in the nature of successive wrongful acts originating from the invalid order, rather than of remedies which he is bound to claim in the declaratory suit which is specially allowed.' Nor will a suit for recovery of,* or a declaration of title in,^ property attached in execution, bar a suit for damages for wrongful attachment. * ' A balance on an account stated and an omission to account for the assets of a partnership entered into between the parties on the day of the statement of accounts, were held in Subbayj^a V. Venkatesappa,^ to be distinct causes of action, and a release given for all demands under duress being a wrong by defend- ant himself, could not be set up by himself, and could not operate as a merger of the two causes of action, and, therefore, a suit brought for the balance, coupled with a prayer for the setting aside of the release, might not bar a subsequent suit for the dissolution of the partnership, as the allusion to the execution of the release was by way of an answer to a plea, which, it was anticipated, might be founded upon it, and the prayer for the cancellation of the release was regarded only as ancillary to the primary relief, namely, the recovery of the bal- ance. A suit against some of the heirs of a debtor for the por- tion of the debt payable to them will not bar a suit against the other heirs of the debtor for the balance." * "260. Suits for declaration of title to property do not bar a suit for possession of the property. a suit fof a declaration of title to a property, if dismissed on the ground 1. Dawson v. Baum, 3 Wash. Ter. 3. Indian L. R. 6 Madras 49. 464 (19Pac. Rep. 46). 4. Purumsookh v. Soobhan, 2 Agra 2. Lenoir v. Wilson, 36 Ala. 600, 323. 286 THE MERITS. that the plaintiff not being in possession was not entitled to a declaration, was held, in Jibunti Nath v. Shib Nath,^ not to bar a subsequent suit for the possession of that prop- erty, brought on the ground that the defendant, on account of the decision in the former suit sued and obtained decrees against some of the tenants of the estate, and thus led to an ac- tive disturbance of the plaintiff 's possession. This decision was followed in Komola Kaminy Debia v. Loke Nath,^ by Cunningham and Tottenham, JJ., who, observing that in the first suit ' There was not any intentional and voluntary aban- donment by the plaintiff of any portion of his claim or of any remedy to which he was entitled,' added that 'they could not think that if a plaintiff, mistakenly believing himself to be in possession, sues merely for a declaratory decree, and if, in accordance with this rule, the court, finding him not to be in possession, dismisses his suit on this ground, without any inquiry into his rights, he is precluded from subse- quently suing for his entire cause of action.' Both these decisions were followed in Nonoo Singh v. Anand Singh,* by Tottenham and Agnew, JJ. A full bench of the Allahabad high court held, in Ram Sewak v. Nakched,* that a suit to have a declaration of the plaintiff 's right to a share of certain property and to have a deed of its gift by a widow (then de- ceased ) set aside, if dismissed on the ground that plaintiffs are not in possession of the share, will not bar a suit for its possession. Straight, J., in his decision, said: 'While, at the time of the in- stitution of the former litigation, their cause of action was the deed of gift, when the present suit was brought something more had accrued to them by reason of the obstruction of- fered by the respondent to their exercising the right of proprietorship over their shares. In the one case, no pos- session having been asserted by the respondent, the ap- pellants were not entitled to sue him for possession; in the 1. Indian L. R. 8 Calcutta 819, per 2. Indian L. R. 8 Calcutta 825 (n). White and McPherson, JJ. ; followed 3. Indian L. R. 12 Calcutta 291. in Mohan Lai v. Bilaso, Indian L. R. 4. Indian L. R. 14 Allahabad 261. , 14 Allahabad 512. THE DOCTRINE OF SPLITTING CAUSES. 287 other case an additional cause of action had arisen, which gave them the right to the further remedy. Under these circum- stances, it does not appear to me that the appellants have laid themselves under the prohibition of the third paragraph of section 43 of the civil procedure code.'^ Tyrrell, J., said: ' It is obvious that the test of the applicability of this rule is to ascertain if the person at the time he brought the former suit was, in point of fact, a person entitled to more than one remedy in respect of his claim. * * * in the present case the court had found when the first suit came before it that the plaintiffs were not persons entitled to the special form of rem- edy or relief they sought to obtain by that suit in respect of their claim, namely, the remedy by way of declaration of the unlawful character of the invasion of their reversionary rights and interests; but that, under the circumstances disclosed and ascertained in regard to the possession of the parties after the widow's death, the plaintiffs had no such remedy — their only remedy being by way of a suit for clearance of their title and removal of disturbance to their possession, that is to say, by bringing such a suit as the plaintiffs brought in No- vember, 1879. It is not suggested that the plaintiffs had any other remedy than this, failing the mistaken one for which they were nonsuited ; and thus the action of the court itself in the determination of the first suit cleared from the plaintiffs' path the obstruction of this provision of section 43. It was then determined, and the decision has become final, that the plaintiffs were then ' ' persons entitled in respect of their claim to one remedy only," and that they were mistaken in enter- taining the belief to the contrary under which they had been led to bring the bad suit for another supposed remedy which was then dismissed. In this view of the law, it was an error to defeat the plaintiffs on the threshold of their present suit 1. In Kalidhun v. Shiba Nath, In- account itself , but the decision proceed- dian L. R. 8 Calcutta 482, a full bench ed on section 15 of the civil procedure of the Calcutta high court held that a code of 1859, and the full bench itself suit for a declaration of the plaintiff's observed that the result of that judg- right to an account, even if successful, ment would not be very material in wouldnotbarasubsequentsuit for the the future. 288 THE MERITS. with the objection that they were persons who, having been at the time of the first action entitled to more than one remedy in respect to their claim, had elected to sue for one omit- ting the other which they now seek to obtain in their present suit. At and after the death of the widow and on the as- sumption by her donee of her possession, the plaintiffs had no other remedy than that which they are now asking by the pres- ent suit, and they can not be barred by a rule prohibiting per- sons who have in fact alternative remedies, and have elected to sue their adversaries on one of such, omitting others, from bringing a suit for the omitted alternative relief.' " " 261. Suits for recovering debt and those for en- forcement OF COLLATERAL SECURITIES THEREOF. — It is a gen- erally accepted rule that a suit on a collateral security given for a debt will not bar a suit for the debt itself.^ Thus a suit against only the indorser of a note extinguishes and merges the cause of action arising upon his contract of indorsement, but does not bar a suit on the contract obligation of the debtor.^ So, if a creditor receives a draft on a third party, indorsed by the debtor, as collateral, a judgment in favor of the debtor in a suit on the draft is not a bar to an action on the debt.' Mr. Black says* that, 'The converse of this rule is also good law. The recovery of a judgment against a princi- pal debtor on a note given by him, is no bar to an action against him and another on a note given as collateral security for the debt of the principal, unless such judgment has been satisfied.' ^ Thus a judgment for a debt does not bar a suit to enforce a mortgage or other lien given to secure its payment.^ Section 43 provides a contrary rule, and a division bench of Allahabad high court held, in Gumani v. Ram Padarath,' that a suit for money, due on a bond hypothecating property, would 1. Drake v. Mitchell, 3 East 251; 5. McCullough v. Hellman, 8 Oreg. Fairchild v. Holly, 10 Conn. 474 ; Chip- 191 ; White v. Smith, 75 Am. Dec. 589 ; man v. Martin, 13 Johns. 240. Fisher v. Fisher, 98 Mass. 303. 2. Howell V . McCracken, 87 N. Car. 6. Kempner v. Comer, 73 Tex. 196 ; 399. Muncie v. Brown, 112 Ind. 474. 3. Betterton v. Roope, 3 Lea 215. 7. Indian L. R. 2 Allahabad 838. 4. Bl. Jud. 895. THE DOCTRINE OF SPLITTING CAUSES. 289 bar a subsequent suit in respect of the same cause of action for enforcing the lien. ' ' The full bench of the Calcutta high court in Jonmenjoy Mullick V. Dossmoney Dossee^ is not against that view as it only held that a mortgagee did not lose his lien by taking a mere money decree. Sir Richard Garth observed in the judg- ment of the court that ' having enforced one remedy without fully realizing his debt, he may afterwards proceed to enforce the other,' but it is to be borne in mind that this observa- tion was made with reference to section 7 of the civil pro- cedure code of 1859, which did not, at least in express words, provide against the splitting of remedies.^ But even under that section, a suit for rent was held in Chunni Lai V. Banaspat Singh, ^ not to bar a subsequent suit to realize the same from property hypothecated for it, Oldfield and Tyrrell, JJ., having observed that, 'the plaintiff's right of suit to enforce his mortgage arises by reason of there being an existing debt for rent, and it remains till it is satisfied, or so long as he can institute a suit to enforce it. The mere taking of a money -decree does not extinguish the creditor's lien.'* The effect of the last clause of section 43 was not considered in this case, though that section was gen- erally referred to. But section 43 is to be construed in regard to the mortgaged property, as subject to section 99, of the transfer of property act (4 of 1892), which provides that a mortgagee may institute a suit for the sale of the mortgaged property, under section 67 of the act, notwithstanding any- thing contained in section 48 of the civil procedure code. "262. Suit to recover maintenance does not bar a SUIT to have maintenance charged on property. — A suit for maintenance against certain persons will bar a suit to have the maintenance charged on certain property. This was held di- 1. Indian L. R. 7 Calcutta 714. 3. Indian L. R. 9 Allahabad 23. 2. Vide Jibunti Nath v. Shib Nath, 4. ^lomtazooddeen v. Rajcoomar, 15 Indian L. R. 8 Calcutta 819. Bombay L. R. 408. 19 290 THE MERITS. rectly in Rangamma v. Vohalayya/ in which it was contended that the two claims were different and did not arise out of one and the same cause of action, and that a widow, or other female member of a family entitled to maintenance, might have cause to sue for maintenance, without having at the same time suf- ficient cause to demand that the maintenance be made a charge on the property or any part thereof ; and that, if, subsequently, the manager of the family or others were to commit waste, or alienate any part of the property, the claimant would be at lib- erty to come in and sue to have the maintenance already awarded made a charge upon the property. Sir Collins, C. J., and Brandt, J., overruled this contention, observing that, * On the principle to which effect is given by the provisions of the code of civil procedure, the plaintiff was bound, when she sued in 1878, to have asked for all the remedies in respect of the right of maintenance, to which she was then entitled, and these claims did arise out of one and the same cause of action, that cause of action being the right to maintenance.' A somewhat contrary opinion was expressed by Sir Richard Garth, C. J., in Pramada Dasi V. Lakhi Narain,^ but the decision in that case turned on another point." § 83. Evidence, insufficient, new, newly discovered, or omitted. — If one brings a suit and is defeated, he can not sue again upon newly discovered evidence.^ So, a decree in chan- cery bars farther contest over the same matter upon new evi- dence.* A bill having been filed in 1876, by heirs, to set aside a sheriff's sale of their father's land made in 1855, a judgment sustaining a demurrer to it for laches and lapse of time, bars a new suit for newly discovered matters such as that the judg- ment was paid before the sale, and that the acknowledgment of service was a forgery, if these matters, with reasonable diligence could have been discovered before the first suit.® 1. Indian L. R. 11 Madras 127. Vide, Still, it is deemed best to bring a few also, Saminatha V. Rangathammal, In- prominent ones together in a section, dian L. R. 12 Madras 285. 4. Magwire v. Tyler, 40 Mo. 406, 2. Indian L. R. 12 Calcutta 63. 442. 3. Hawkins i-. Lambert, 18 B. Mon. 5. Parkes v. Clift, 9 Lea (77 Tenn.) (57 Ky.) 99, 106. Cases on this point 524. will be found all through the work. THE DOCTRINE OF SPLITTING CAUSES. 291 Distributees. — If distributees sue to recover slaves, charg- ing that they had been conveyed to their deceased ancestor by a deed of gift for life, with remainder to themselves, and are defeated because they can not prove the execution of the deed, that will bar a new suit by the administrator of their ancestor for their sole benefit, founded upon the theory that the deed of gift conveyed the slaves absolutely to him.^ Divorce. — A wife having separated from her husband, and having brought a suit for a divorce from bed and board on ac- count of his extreme cruelty and wanton neglect, a judgment in favor of the husband bars a new suit by her, after five years' absence, to be relieved from the bonds of matrimony, although at the hearing of the second suit the evidence shows acts of cruelty not shown in the first suit and occurring before the separation.^ So, the answer to a wife's libel for a divorce on the ground of desertion, being that her conduct was so lewd and improper as to justify him in refusing to live with her, a trial upon that issue and decree granting her a divorce nisi, bars a libel by him for a divorce because of adultery committed by her before filing her libel. ^ Fraud. — If a suit is brought to set aside a contract on the ground of fraud, a decree denying relief is a defense to a new suit founded on newly discovered facts tending to prove the fraud alleged in the first case.* Marriage or no. — A having sued B in Scotland to procure a declaration that they were married, a judgment for the de- fendant on the merits bars a new suit for the same purpose, upon the ground that he can now prove that defendant's wit- nesses committed perjury.^ Recognizance. — A recognizance was filed in and made a part of the record of the court to which it was returnable, but . in an action upon it, the plaintiff was unable to prove these facts, for which cause the court made this entry: "That the 1. Manly v. Kidd, 33 Miss. 141, 146. son, L. E. 4 Appeal Cases 801. 2. Fera v. Fera, 98 Mass. 155. 5. Lockyer v. Ferryman, L. R. 2 3. Edgerly v. Edgerly, 112 Mass. 53. Appeal Cases 519. 4. Phosphate Sewage Co. v. Molle- 292 THE MERITS. recognizance was never filed in, or made a record of, any court * * * and that the complaint be dismissed with costs." This was held to bar a new action upon it.* Verdict directed — If the court, after the evidence is all heard, directs the jury to return a verdict for the defendant upon the ground that the plaintiff has failed to make a case, which is done and judgment rendered, that bars a new suit.^ And in a suit for goods sold, if the court instructs the jury that some of the items are not proved, and the plaintiff does not withdraw them, a disallowance of them bars a new suit upon them." § 84. Executor — Settling accounts and removing. — Al- though a decree settling the accounts of an executor concludes further litigation concerning them, it is no defense to a pro- ceeding to remove him for misconduct in reference to the prop- erty thus adjudged to be in his hands.* Fiduciary debts. — Creditors filed a bill against the admin- istrator and heirs to subject property to the satisfaction of their claims, and, in this suit, a widow of another person filed a petition alleging that the deceased was the administrator of her husband, and, as such, received funds belonging to one of the heirs from whom she had since inherited, and asked to have the same declared a fiduciary debt with a priority over other claims. Her petition was granted, and she was paid first, and a further decree was made ordering the balance of the assets to be distributed pro rata among the general credi- tors. After this she filed a new bill claiming that the deceased also had funds that belonged to her as widow, and asked for payment, but the former decree was decided to be a bar, be- cause the sum due her from the t^wo sources made but one cause of action.® § 85. Express and implied covenants in same instrument. — 1. Peoples. Smith, 51 Barb. 360,362, 4. Matter of Estate of Hood, 98 N. 2. Morgan v. Chicago M. &. S. Ry. Y. 363, 371. Co., 83 Wis. 348 (53 N. W. R. 741). 5. Tilson u. Davis, 32Gratt. (73 Va.) 3. Ramsay v. Hamilton, 2 Kerr (N. 92, 103. B.) 511. THE DOCTRINE OF SPLITTING CAUSES. 293 The owner of two hundred and eighty acres of land let it for a term of years for the purpose of obtaining oil, in considera- tion of which the lessee agreed to deliver to him three- sixteenths of all the oil produced on ninety acres, and five- sixteenths of that produced on the other one hundred and ninety acres. Afterwards he sued the lessee, alleging that he had entered under the lease and had drilled wells and obtained large quantities of oil, but had failed to deliver to plaintiff his share. The claim made in his declaration was not confined to the ninety acres, nor to any other distinct part of the land, and he recovered a judgment. He afterwards sued the lessee upon the imj)lied covenant contained in the lease, that he would use reasonable diligence to discover oil on all parts of the land, alleging that he had not tried to obtain oil from the one hundred and ninety acres, to the plaint- iff's damage. The court said that the implied covenant ''can not be said to be a distinct contract embraced in the same in- strument with the one expressed. It is implied only because it is evidently a part of the contract expressed. The relation between it and the express covenant to pay a portion of the mineral produced is not similar to that between separate in- stallments, successively falling due, under the same instru- ment. The implied covenant is rather a continuing, insepara- ble part of the express one, which it directly affects throughout the term of the grant." And because the express covenant to deliver a portion of the oil obtained, and the implied one that reasonable diligence should be used to find it, gave but one cause of action, it was decided that the first suit barred the second.^ § 86. Final report. — If the residuary legatees oppose the final account of the executors, its confirmation bars a proceed- ing to recover interest from them for failure to deposit the funds in bank.^ So, if an executor claims specific commissions 1. Hill V. Joy, 149 Pa. St. 243 (24 Ann. 95. Approved, Stadeker t. His Atl. R. 293). Creditors, 12 La. Ann. 817. 2. Succession of Anderson, 12 La. 294 THE MERITS. in his final account which are rejected, that precludes a new suit by him to recover on a quantum meruit} Forcible entry and damages. — In forcible entry and de- tainer in Illinois, neither damages nor rent can be recov- ered. Hence, the plaintiff may maintain a new action for those matters. "^ § 87. Foreclosure as between defendants. — A sued B and C to foreclose a mortgage executed to him by B, alleging that C had purchased the land of B and assumed and agreed to pay the mortgage, and he asked for a personal judgment over against both defendants. B filed a cross-complaint against C setting up the same facts, and C denied all the allegation of both complaint and cross-complaint in regard to his assump- tion of the mortgage. At the trial, B dismissed his cross-com- plaint and A recovered a personal judgment against B alone and a decree of foreclosure against both. This was held to bar an action by B against C to recover damages upon the allega- tion that he, C, had assumed and agreed to pay the mortgage, because that question might and would have been decided on the cross-complaint if it had not been dismissed.^ This case 1. Simonds v. Creswell, 10 La. Ann. dence on the cross-complaint was 318. presented on each side, and when the 2. Shunicku. Thompson, 25 Ill.App. court was about to decide the case the 619, 623. See § 10, supra. cross-complaint was withdrawn by 3. Stanton v. Kenrick, 135 Ind. 382 Kenrick, and the court rendered (35 N. E. R. 19). The court said: judgment against him alone on the "The plea of former adjudication is complaint. In this withdrawal of his good, not only as to what was decided, cross-complaint by Kenrick no fraud, but also as to what might have been collusion, nor inducement on the part decided. The answer shows that the of appellant is shown, or even inti- matter in controversy in this case mated, and they are, moreover, ex- was presented by appellee Kenrick by pressly denied in the answer under con- cross-complaint, and that issue was sideration, and it is plain that by his joined in a suit brought by appellee own act in thus withdrawing his plead- Bowen against all the other parties to ing Kenrick could gain no new right as this suit to foreclose the mortgage against the appellant. Ely v. Wilcox, given him by appellee Kenrick, the 26 Wis. 91. It thus appears that the payment of which had been assumed court in that case might have decided by appellant. The same issues as in all the issues raised in this case, and this case and the same parties were we think the parties to that suit are ^ before the court in that case, and the estopped from again bringing suit on court had jurisdiction of both the sub- the same matter. As to all the parties ject-matter and the parties. The evi- \t\s res judicata." THE DOCTRINE OF SPLITTING CAUSES. 295 IS an authority that the defendants must settle their rights be- tween themselves, or that they will be barred, which seems to be new doctrine. Foreign state, land in. — A bill having been filed in Mary- land to foreclose a vendor's lien on lands lying partly in Mary- land and partly in Virginia, the failure of the court to order the sale of the part lying in the latter state, although it could have done so by compelling a conveyance to a commissioner for that purpose, does not bar a suit to foreclose in Virginia.' § 88. Foreclosure — Note not due. — If there is a foreclosure of a mortgage upon one "note due and one not due, and the de- cree provides that when the second note becomes due, the plaintiff may go before a master on the foot of the decree, and procure a report as to the amount due, and that upon the com- ing in and confirmation of that report a further decree may be made for a sale of the mortgaged property, the sale of the whole property to satisfy the decree on the first note does not bar an action at law on the second note when it becomes due.^ So, a foreclosure on a part of the land covered by a mortgage to sat- isfy a note due is no bar to a suit to foreclose the same mort- gage on the other land to satisfy an after-due note.^ If a mort- gage secures several notes, the holder may, by statute in In- diana, foreclose for the whole, as soon as the first one is due ; but a foreclosure as to the first one alone is no defense to a suit to foreclose the others.* Foreclosure on partial interest. — A foreclosure of a mortgage upon a life-estate, if set up by way of cross-bill, bars a new suit to forclose it on a greater estate.* § 89. Foreclosure — Personal claim against heirs. — ^A suit was brought to foreclose a lien against an administrator and heirs, and the latter pleaded a set-off, and a foreclosure was 1. Piedmont Coal and Iron Co. v. 4. Crouse v. Holman, 19 Ind.30, 37. Green, 3 W. Va. 54, 60. 5. Manigault v. Deas, Bailey's Eq. 2. Bliss V. Weil, 14 AVis. 35 (80 Am. 283, 294. D. 766). 3. Bressler v. Martin, 133111. 278 (24 N. E. R. 518). 296 THE MERITS. had without any diminution by reason of that fact. The plaint- iff in that case, failing to make all his money, sued the heirs for assets converted by them, and it was decided that the former proceedings, in which no personal judgment was sought against them, were no bar to a defense by them against the original cause of action. The court said that the second action involved a different demand from the first so as to in- voke the rule that only matters contested would be barred; that the first suit did not seek a personal judgment, whereas the second did.^ § 90. Foreclosure — Personal claim on bond or note. — If a mortgage secures a note, a recovery upon the latter is no bar to a suit to foreclose the former,^ and vice versa. ^ But a case 1. Jones V. Commercial Bank, 78 Ky. 413, 422. 2. Hensicker v. Lamborn, 13 Ind. 468 ; O'Leary v. Snediker, 16 Ind. 404 — judgment stayed and stay not ex- pired; Jenkinson v. Ewing, 17 Ind. 605 ; Conyers v. Mericles, 75 Ind. 443, 446 ; Muncie National Bank v. Brown, 112 Ind. 474, 481 (14 N. E. R. 358)— judgment rendered on note and decree of foreclosure in same cause at subse- quent day ; Houston v. Musgrove, 35 Tex. 594 — a vendor's lien ; Kempner V. Comer, 73 Tex. 196 (11 S. AV. R. 194) ; Gibson v. Green, 89 Va. 524 (16 S. E. R. 661). In the case from 112 Indiana, above cited, the court said : " The fourth proposition of counsel is thus expressed : ' Taking personal judgment for |15,490 merged the suit into that judgment.' We can not as- sent to this doctrine. We know of no principle upon which it can be held that a party who sues on a note and mortgage is precluded from obtaining a decree of foreclosure by taking a judgment for the amount due in a case in which the decree for the foreclosure is prevented by the interposition of intervening creditors. We concede as broadly as can be claimed the rule that a party can not split his demands, but must recover in one action. But there was here no splitting of demands. There w^as one suit, and all the dam- ages were assessed, so that the rule can have no application. We suppose it to be well settled that a personal judg- ment may be taken on a promissory note secured by a mortgage in an in- dependent action, and that a foreclos- ure of the mortgage may be secured in a subsequent suit. We can not con- ceive why a plaintiff can not enter a personal judgment on one day of the term, and on a subsequent day enter a decree of foreclosure, even in a case in which the decree is not postponed by the action of intervening creditors. The judgment merges the cause of action so that no second judgment can be obtained ; but it does not merge the mortgage security. The au- thorities go so far as to hold that the decree of foreclosure does not merge the lien of the mortgage, although it merges the mortgage as a cause of ac- 3. Spence v. Insurance Co., 40 O. St. 517 — mortgage foreclosed first. THE DOCTRINE OF SPLITTING CAUSES. 297 in Indiana holds that, if A gives a mortgage to secure a note, made by B, and agrees in his mortgage to assume and pay the note, a foreclosure against A and personal judgment against B, bars a new action to recover a personal judginent against A upon his agreement contained in the mortgage, because the re- lief might have been had in the first suit. This was put on the ground that the agreement to pay was in the mortgage and not in a separate instrument.^ But just why that should make any difference in principle was not explained. He agreed to pay the debt — which gave a legal cause of action — and pledged his land to secure it — which gave an equitable cause of action. That is precisely what is done if one executes a note and a mortgage to secure it. All distinctions which are not based on principle serve as traps to catch the unwary. Foreclosure on constructive service. — A person pur- chased land in Virginia, for which he executed his bonds, and afterwards absconded. The bonds were assigned to an admin- istratrix, against whom and the maker of the bonds, the heirs brought a suit for an accounting and distribution, and made service on him by publication, and caused such proceedings to be taken that the amount due on the bonds was ascertained, and the land for which they were given was sold and the pro- tion. Teal v. Hinchman, 69 Ind. 379 ; until extinguished, it is enforcible bj Evansville, etc., Co. r. State, 73 Ind. a decree. Counsel lose sight of the 219 ; Manns v. Bank, 73 Ind. 243, 246 ; fact that, in every case like this, there Pence v. Armstrong, 95 Ind. 191, 207 ; are two distinct things — a debt, and Curtis ». Gooding, 99 Ind. 45, 51. But the mortgage securing it. A personal here there was no decree of foreclos- judgment does not extinguish the debt, ure, so that there was not even a mer- although it merges it as a cause of ac- gerof the mortgage as a cause of action, tion. But, while there is a merger of and surely the lien continued until the debt in the personal judgment, the foreclosed. If the lien continued until lien of the mortgage remains unaf- foreclosed, then it is not possible that fected. The mortgage will sustain a it could have been merged by a simple suit for a decree of foreclosure, al- personal judgment. A personal judg- though there may be a personal judg- ment can not dro'v^Ti the mortgage se- ment. Until there is a foreclosure, curity ; nothing but a decree of fore- there is no judgment merging, or even closure can do so much ; and until this impairing, the mortgage security." drowning takes place there can be no 1. Crosby v. Jeroloman, 37 Ind. 264, merger. A personal judgment does 276. not extinguish the mortgage lien, and, 298 THE MERITS. ceeds credited on the bonds. These proceedings were held to be no bar to a suit on the bond against the maker in Alabama, because the decree in Virginia made on service by publication did not and could not merge them, its sole effect being to se- questrate the land and credit its proceeds upon them.* § 91. Foreclosure — Personal claim on oral promise. — A, the owner of a lot, contracted with B to erect a building upon it for a specified consideration. B employed C, who did some of the work, and filed notice of his intention to hold a mechanic's lien for the balance due him. Another person, also having a mechanic's lien, brought a suit to foreclose it, making A, B and C defendants. C, by way of counter-claim, set up his claim and lien, alleging the contract between A and B, and that he had done work for B, and taken a lien for the balance due, and that there was sufficient due from A to B to pay his, C's, claim, and he prayed for a foreclosure of his lien and sale of the premises, and for a personal judgment against A and B. This personal judgment against A was asked upon the allega- tion that he owed B sufficient to pay the claim. The case was sent to a referee, who reported that C had done the work for B and taken his lien, as alleged ; that a designated sum was due from A to B, which was not sufficient to pay the liens prior to C's. Upon this report, a judgment was rendered for the sale of the premises and payment of the proceeds to creditors prior to C. C then sued A, alleging that, as he began the work, he told A that B was not responsible, and that he would not pro- ceed unless he. A, would stand good for his pay, which he promised to do. The former adjudication was held to be a bar to this action, because *'it adjudged that the moneys now claimed by the plaintiff were due the contractor, ' ' and also because the plaintiff had had his judgment in the lien suit. But if C had also an independent cause of action against A for the work, it does not seem to me that he was compelled to set it up in his lien suit, and, if not, it would not be barred.^ A, holding the 1. Phillips V. Thompson, 3 Stewart 2. Toope v. Prigge, 7 Daly 208. & Porter 369, 380. THE DOCTRINE OF SPLITTING CAUSES. 299 legal title to land, and B, being the equitable owner, the latter employed C to furnish the material and labor to erect a building upon it, and A also agreed with C to become responsible for, and to pay all the bills. C furnished the material and did the work and took a mechanic 's lien, and afterwards sued to foreclose it, making A and B parties, and obtained a personal judgment against B and a foreclosure as to both. He sold the land on his decree, and having failed to realize sufficient to satisfy his claim, he sued A to recover a personal judgment on his promise to pay the bills. But the court held that he had split his cause of action ; that he ought to have recovered his personal judgment against A in the foreclosure suit, and for that reason he was defeated.^ § 92. Foreclosure — Personal claim in tax proceedings. — A, B and C were equal joint owners of a tract of land, the legal title being in A. The land being sold for taxes, was bought by B, who had it conveyed to his wife. Afterwards D recov- ered a judgment against A, issued an execution and levied on the land, and B's wife brought a suit on her tax-deed against A and D. A decree was rendered that A owned the undivided two-thirds, and B's wife the undivided one-third, her. bill was dismissed, and she was adjudged to have a lien for A's share of the taxes paid on his two-thirds, and D was given the right to redeem within ninety days in order to protect his judgment lien, which he did. He was proceeding to sell A's two-thirds on his execution, when C filed a bill in equity claiming that he owned the one-third, and that A owned one-third upon which he, C, had a mortgage superior to D's judgment. D denied the matters alleged by C, and further answered that he had paid the taxes (by redeeming, as aforesaid), which were a lien on the entire tract, and one branch of his prayer was that he have a special lien for the taxes so paid, and judgment for their amount, with interest and costs. After a hearing, the court found that C owned the undivided one- third, and had a mortgage on A's undivided one-third which was superior to the lien of D's judgment, and a decree was entered accord- 1. Kirk V. Goodwin, Kan. (36 Pac. R. 1057). 300 THE MERITS. ingly. Nothing was said in the finding nor in the decree about D's taxes or tax-lien. D then sued C to recover a per- sonal judgment for the one-third of the taxes, upon the theory that they were paid for his benefit, and he set up the foregoing proceedings in bar. But the court held that, because no per- sonal judgment was asked by D, and the relief sought was against all the owners, they were no bar.^ § 93. Foreclosure — Wife's separate estate. — ^If land is con- veyed to a married woman upon which she and her husband execute a mortgage to secure the purchase-money, its fore- closure and sale does not bar a suit against her to subject her separate estate to the payment of the balance due.^ § 94. Fraudulent conveyance. — A, being insolvent, and being entitled to a conveyance of land from a third person, caused it to be made to his son, who thereafter executed a mortgage upon it to B to secure a debt of A, his father. Sub- sequently, insolvency proceedings were instituted against A, in which C was appointed receiver. He brought a suit against all the parties in interest to recover the land for the estate of A and to cancel the mortgage to B, alleging that the conveyance to the son was without consideration as between him and his father. A, who was then insolvent, and that it was fraudulent and void as to creditors ; and that the mortgage to B was a fraudulent preference under the insolvent law, having been taken by him when he had reasonable ground to believe that A was insolvent. After a trial on the merits, there was a judgment for the defendants. The receiver then brought a new suit against the same parties for the same purpose, namely, to recover the land for the benefit of A's estate and to cancel the mortgage as a fraudulent preference, alleging that the son was a creditor of his father. A, to the amount of about $1,200, and that the land was conveyed to him in payment of this debt; that this was a fraudulent preference under the statute, and therefore void ; and being void as to the son, the 1. Lindley v. Snell, 80 Iowa 103 (45 2. Avery v. Vansickle, 35 O. St. 270, N. W. E. 726). 274. THE DOCTRINE OF SPLITTING CAUSES. 301 mortgage given by him was also void. The defendants set up the former proceedings as a bar, and the court agreed with them, saying that the claim or right demanded was the same in both cases, although the basis upon which the right was placed in the two suits was different, and would require differ- ent testimony to sustain it, which seems to me to be sound.' Proceeds of other lots. — A decree setting aside the sale of certain lots from A to B as a fraud jipon A's creditors, is no bar to a suit by attachment to reach the proceeds of other lots sold by B which were received from A by the same fraudulent conveyence.* Setting aside illegal alienations in India. — Chand on Res Judicata, section 251, says: "In suits to set aside aliena- tions, each alienation constitutes a separate cause of action.' In Rao Kurun Singh v. Mahomed Fyz Ali Khan,* a Hindu widow first made a mortgage of her deceased husband's prop- erty to a certain person, and after that made a gift of it to him; 1. Patterson v. Wold, 33 Fed. R.791. 2. Dicken v. Hays (Pa.), 7 Atl. R. 58. The court said: "Was the de- cree in equity a bar to this proceed- ing? The bill clearly shows that its whole object was to declare the con- veyance of the 16 lots by deed of July 1, 1874, fraudulent as to creditors, of whom Hays was one, and to order a conveyance of such as were fraudu- lent to the purchasers at sheriff's sale on the Hays writ. The bill did not ask that the money received by Dicken on the eight lots sold by him to inno- cent purchasers for value without no- tice should be paid to him on his judgment. On the contrary, it ex- pressly charged that the lots sold to Patterson were also fraudulent and void. Nor would the prayer for gen- eral relief help the matter ; for, as to the money Dicken received from inno- cent purchasers without notice, the plaintiff had an adequate remedy at law by his attachment execution, then in full force, i fail to see anything in the record of the equity case that shows Hays sought to have Dicken charged with sufficient of the money he received to pay the balance of his judgment, or that he ought so to have claimed, and there was no judgment of the court on the point. Shriver v. Eckenrode, 87 Pa. St. 213. The de- cree of the court is in harmony with the bill, and declares the deed for the 16 lots fraudulent, and made with in- tent to cheat and defraud the credi- tors of Dickson, of whom Hays was one, and decrees that Dicken convey 8 of them to Hays, the purchaser at the sheriff's sale, and that the bill, as to Patterson, who, with others, hold the other 8, be dismissed be- cause they were purchasers for value without notice. We think the equity proceeding is not a bar to this attach- ment in execution." 3. Jehan v. Saivak, 1 Agra F. B.109. 4. 14 M. I. A. 187. 302 THE MERITS. and a suit in the widow's lifetime for possession by setting aside the gift was held not to bar a suit after her death to have the mortgage declared to be not binding against the plaintiff, the two suits being based on different causes of ac- tion; and the first suit having been really only for a declara- tion of the invalidity of the gift as against the plaintiff, be- cause in the widow's lifetime a suit for possession could not lie. In the same way, each mortgage was, in Moro Raghu- nath V. Balaji Trimbak/ held to constitute a separate cause of action, though it is to be observed that, in that case, the second mortgage on which the first suit was based comprised only some of the lands mortgaged by only one of the persons who had made the first mortgage. The decision in Shafkat-un- nissa v. Shib Sahai^ is not against this view. In that case, J. having a right to certain shares in her father's estate as his and her brother's heir, alienated her rights by two deeds exe- cuted on different dates; and a suit by the alienee for the shares comprised in one deed against the persons who had purchased all the estate in execution of decrees against the other heirs of the father and brother, was held to bar a subsequent suit for the shares conveyed by the other deed. The decision pro- ceeded, however, on a different ground, Tyrrell, J., in deliver- ing the judgment of the high court, having said: 'It is in- disputable that the parties to both actions are substantially the same, the alienees of Sahib-ud-din's heirs being in fact Shib Sahai alone in his own and his brother's names, and it must be admitted that as regards this alienee the plaintiff's common cause of action in both suits rose from the circumstance that the possession of a part of her inheritance was wrongfully with- held. It can not affect the principle embodied in the rule of section 43 that the plaintiff's title in respect of the whole in- heritance happened to have a double root. This circumstance would not alter the wholeness of her claim as against the alienee of the false heirs arising out of her one cause of action against him, which was nothing but his possession on a bad title, to her wrong. It is possible that, if the portions of the 1. Indian L. R. 13 Bombay 45. 2. Indian L. R. 4 Allahabad 171. THE DOCTRINE OP SPLITTING CAUSES. 303 inheritance coming to the plaintiff through her father and brother respectively had been defined and ascertained, and if the first transfer had purported to alienate the one portion so ascertained and specified, the other similarly purporting to affect the other known share, the court might see its way to a decision not adverse to the present suit. Under such circum- stances it might have been held that each alienation con- stituted a distinct cause of action, and that it was therefore not obligatory upon the plaintiff to make each separate purchaser a party to her first suit upon pain of forfeiting all future right of suit against them by reason of such omission.' " § 95. Furnishing: men, surety for. — A, having become surety to B that four seamen should proceed with him on a voyage, and they having all left the vessel together, a recovery because of the default of one of them bars a suit for the default of another.^ Furnishing security. — A contract to execute an obligation to become surety for rent, which is to be paid in installments, is entire ; and for its breach only one action will lie. Hence, if the landlord sues the promisor in such a case and recovers the amount of one installment of rent, he can not sue him again. ^ § 96. Garnishment — Fraud of garnishee. — In a suit against a garnishee to reach property of the principal defendant, a judgment in favor of the garnishee is no bar to an action against him for fraudulently secreting and transferring the property of the defendant, because the only question that could be tried in the garnishment proceeding was whether or not he then had control of the property.' § 97. Goods sold — Part delivered. — If there has been a partial delivery and acceptance of goods sold and a refusal to 1. Coggins V. Bulwinkle, 1 E. D. 3. Tarns v. Lewis, 42 Pa. St. 402, Smith 434. 411. 2. Waterbury v. Graham, 4 Sand- ford 215, 220. 304 THE MERITS. accept the residue, under an entire contract, a recovery for those sold bars an action for not accepting the others.* In an action to recover for beer barrels, a judgment against defendant for the beer contained in the barrels is no defense.^ §98. Husband and wife — Divorce, absolute — (See §§179- 181, infra). — If a wife sues for an absolute divorce on the ground of cruel treatment, a decree denying relief bars a suit for a divorce from bed and board, as that relief ought to have been had in the first suit.^ The court said: "In June, 1885, plaintiff brought the present action for a limited divorce, on the grounds of cruel and inhuman treatment by defendant, and such conduct on his part toward her as rendered it unsafe and improper for her to cohabit with him. As to all facts alleged as cruel and inhuman treatment prior to June, 1884, he pleaded the judgment in the former action in bar. On the trial she offered to prove that on the night before she left him ( and prior to the commencement of the former action ) he violently choked and otherwise assaulted her. The exclusion of this evidence is now assigned as error. This presents the question whether, after judgment upon the merits against her in an action brought by a wife for an absolute divorce on the ground of cruel and inhuman treatment by her husband, she can maintain an action for a, lim- ited divorce on the same grounds which constituted her cause of action in the first suit, or whether the judgment in the first is a bar to the second. We apprehend this depends upon whether or not, in the first action, the plaintiff might have obtained the relief prayed for in the second. Although our statute relating to absolute divorces and that relating to limited divorces are two separate acts, yet the proceedings under both are to be commenced and conducted in the same manner. The formal allegations re- quired in the complaint in the former include everything that is required in the complaint in the latter. Cruel and inhuman 1. Carvill v. Garrigues, 5 Pa. St. (5 3. "Wagner v. Wagner, 36 Minn. 239 Barr) 152. (30 N. W. E. 766). 2. Milligan v. Browarsky, 147 Pa.St. 155 (23 Atl. R. 398) . THE DOCTRINE OF SPLITTING CAUSES. 305 treatment, as a cause for divorce, is common to both. The two actions are intimately related to each other. The relief asked for in an action for absolute divorce may be said to include the relief asked for in an action for limited divorce, in the same sense in which the whole includes the part. They seek for different degrees of change in the marriage relation, and concern the same subject-matter. "In those states in which the same grounds are cause for either kind of divorce, it is often left to the discretion of the court, upon the trial, which kind shall be granted. In some jurisdictions it is the practice to state in the same complaint one cause of action for absolute divorce, and another for a limited one, and put the prayer for relief in the alternative, and upon the trial the court will grant the one or the other, according to the proof. "■ We see no good reason why, in an action for an absolute divorce on the grounds of cruel and inhuman treatment, the wife might not obtain a separation from bed and board, if the evidence warrants it. We apprehend that there might be cases in which a court would, in the exercise of a sound judicial dis- cretion, grant a separation from bed and board on account of cruel and inhuman treatment of the wife, although it would not grant an absolute divorce; and if the wife desires the limited, in case she can not obtain the absolute divorce, she ought to make her prayer for relief in the alternative. The doc- trine that what is once litigated to final judgment can not be retried between the same parties, governs divorce equally as other civil actions. If a plaintiff fails to obtain the relief which she asks for, she ought not to be permitted to bring a second suit on the same cause of action for a part of that relief, if she might have obtained this par- tial relief in the first action. The judgment in the first ac- tion was a bar to any new application for a divorce from bed and board upon the same grounds or facts, and the court was right in excluding the evidence." Adultery. — ^The dismissal of a libel seeking a divorce for 20 306 THE MERITS. adultery, is a bar to a new one for any such act committed be- fore the first suit was begun. ^ Thus, a decree dismissing on the merits a bill for a divorce upon the ground of adultery com- mitted in 1883 and 1884, bars a subsequent bill charging adul- tery prior to 1882, although it alleges that the complainant did not learn of those acts of adultery until a short time before the filing of the last bill, but fails to show that any efforts had been made to discover them before the first suit.^ So, if a libel for 1. Vance v. Vance, 17 Me. 203. 2. Wagoner v. Wagoner, 76 Md. 311 (25Atl.R.338). The court said : "The question, therefore, is whether the bill filed in this case in 1892, alleging adultery committed prior to 1878, and during the years of 1875, 1876, 1877, 1878, 1879, 1880, 1881, and 1882, or some of them, is barred by a bill filed on the 7th of November, 1885, alleg- ing adulteries committed in 1883, 1884, and in the month of October, 1885, and which last-named bill was, as al- leged in the plea, dismissed by final decree. It is true that in the bill of 1892 the appellant alleges that she was informed of her husband's infi- delity during the years mentioned in that bill only a short time or a few days before the filing thereof; but nowhere does she allege in this bill of 1892 that she made any efforts, or, if any, what efforts, in 1885, before she filed her bill of that year, to as- certain the facts which are set forth in her bill of 1892, all of which are al- leged in the last-named bill to have transpired before the filing of the bill of 1885. Now, in view of the well- settled principle that it is the interest of the public, to say nothing of liti- gants, that there should be an end of litigation, it would, we think, be tak- ing a long step in the wrong direction to hold that the bill of 1892 is not barredby thatof 1885. The object of the two bills is identical. The parties are the same, and the only difference between the two suits is that in th^ first the appellant selected certain acts of adultery, alleged to have been committed in 1883, 188-4 and 1885, andi in the second she selected certain other acts of adultery, alleged to have been committed prior to the time men- tioned in the first bill ; alleging also that she had been only recently informed as to the facts alleged in her second bill. When, however, she filed her first bill in 1885, it was her duty to have secured the information on which she based her second bill in 1892, if it could have been obtained by the ex- ercise of diligence and the use of such means as are usually resorted to by prudent persons to obtain such infor- mation ; and, if she did not see proper to make any effort to present her whole case at once, she ought not now to be allowed to rely upon facts which might have been brought forward and made a part of the subject-matter in control in the first bill, but which were not therein alleged, or made part of her first case, either through inadvertence or negligence. It will not do to say that the facts relied upon in the second bill were not alleged in the first bill, and could not, therefore, have been proved in the fii'st case, for the answer is, it was the appellant's duty to have either alleged them in the first case or to have showed in this case some good reason or excuse why she did not so allege them." THE DOCTRINE OF SPLITTING CAUSES. 307 desertion has been dismissed generally for insufficiency of proof, the libelldnt can not maintain a subsequent libel for an adul- tery that was known to him when the first suit was brought, without showing a reason for its omission from the libel in that suit.' But in a suit by a wife for divorce upon the ground of the husband's adultery with a woman named, a judgment for the defendant is no bar to a new suit for divorce by the wife charging the same act to have been an assault with intent to commit rape, of which he had been convicted.^ Cruel treatment. — If the wife abandons the husband be- cause of alleged cruel treatment, and sues him for a divorce for that cause and is defeated, that is no defense to a new suit by her upon the ground that his treatment was so cruel that she was compelled to leave him, which would be an abandonment on his part, because the court can not say that acts which would not amount to cruel treatment might not justify her in leaving him.^ This case seems unsound. If there is any one class of cases, the dividing of which into fragments, public policy dis- countenances more than any other, it would seem to be divorces. They are nearly always disagreeable, and sometimes filthy and disgusting. Property rights. — A decree of divorce settles all property rights and bars a suit for alimony.* § 99. Husband and wife — Enticino: away and debauching wife. — A recover}^ for enticing away the plaintiff's wife is no bar to an action for debauching her, as those acts constitute two causes of action.^ Injury to both. — If a husband and wife are both injured by one wrongful act, a recovery by him of the damages sustained by himself individually is no defense to an action by him to recover for the loss of her society and services and the expenses incurred in her care.® 1. Bartlett v. Bartlett, 113 Mass. 312. 5. Schnell v. Blohm, 40 Hun (47 N. 2. Yinsant v. Vinsant, 49 Iowa 639. Y. Supr.) 378. 3. Rand v. Eand, 58 N. H. 536. 6. Skoglund v. Minneapolis Street 4. Roe V. Roe, 52 Kan. 724 (35 Pac. Ry. Co., 45 Minn. 330 (47 N. W. R. R. 808). 1071) ; Texas & P. Ry. Co. v. Nelson, 308 THE MERITS. Wife injured. — If a husband and wife recover damages for a breach of the contract of a railroad company to carry her safely, that will bar a new suit by the husband to recover for Tex. Civ. App. (29 S. W. R. 78). The court said: "We have recently had occasion to consider whether, if one's person and his horse were injured at the same time, and as a result of the same negligence, a judgment recovered by the owner for injury to his property would bar a suit for injury to his per- son. Watson V. Railway Co. (Tex. Civ. App.), 27 S. W. 924. We then an- nounced that such a recovery would not constitute a bar; and we think that, perforce of the reasoning and authority invoked in that case, we must announce a similar conclusion here. If an injury to one's property in the guise of chattels is to be dis- tinguished from an injury to his per- son, a fortiori a similar distinction should obtain in the case of an injury to one's wife, entailing consequences different, more delicate and more dis- astrous, in proportion to the immeas- urably greater dignity of the victim. The view announced in the Watson Case, though not unquestioned, seems to rest upon the weight of authority. It is sustained by the court of last re- sort in England, Coleridge, C. J., dis- senting from the majority ; the dissent meeting with the approbation of Mr. Sutherland in his work on Damages (volume 1, section 118), whom the dis- tinction ' impresses as being too met- aphysical for practical purposes, and out of harmony with the analogies of the law.' If, however, we should be required to regard an injury done to the person of a man and that simul- taneously inflicted upon his chattel as but one cause of action, because aris- ing from the same tort, we would yet hesitate to extend the merger so as to include injuries inflicted upon the per- son of the husband with those inflict- ed upon that of his wife. We would be loath so to lose sight of the char- acter of the injuries which might be inflicted upon her, growing out of the delicate physical and mental organism peculiar to her sex, as to ascribe to the marital relation the effect of oblit- erating a cause of action, which, with- out it, would unquestionably exist. If, for injuries sustained by her while yet a maid, she should be entitled to re- dress in the courts, no good reason is perceived for holding her barred of such redress because of a change of relation, social or domestic, and be- cause of the failure of the husband to seek recovery in the same suit in which he asserts a complaint for injuries pe- culiar to himself, and which exist wholly without reference to his wife. The former suit, brought by this plaint- iff, may, therefore, be said to have been instituted and prosecuted in a different capacity from that in which he here acts. In that case, he sought damages in his own right, and for in- juries to his own person ; here he seeks a recovery in his right as husband, springing, so far as he is concerned, exclusively through the medium of the marital relation. While the judg- ment will inure to his benefit, it will inure also to the benefit of the wife, whose injuries and sufferings were in no way involved in the former litiga- tion. The former action, therefore, involving a different issue, represented by the plaintiff in a different capacity, and requiring in its support different evidence, was properly regarded as; different from the right here asserted. '* THE DOCTRINE OF SPLITTING CAUSES. 309 the same injuries.^ But a recovery by a wife (her nusband joining) for damages caused to her by a defective sidewalk, is no bar to a suit by the husband for loss of her services and for expenses/ § 100. Improvements. — If the defendant in ejectment pre- sents a claim for the value of a part of his permanent improve- ments, the judgment bars a new suit in equity for the re- mainder.^ § 101. Individual and partnership claim. — A, B and C were in partnership, and afterwards B agreed in writing, upon a sufficient consideration, to pay A a specified per cent, of the net profits of the firm for the year 1873. Subsequently C died, and B brought a suit against A and the representative of C for an accounting and settlement of the business. The partner- ship articles had fixed the percentage of the net profits which each partner should have, but A claimed that by virtue of the contract between him and B, he was entitled to a larger share for 1873. This claim was rejected by the court, and the ac- counting and settlement was made on the basis mentioned in the original articles. A then sued B upon the contract of 1873 to recover the percentage therein stipulated for, and B con- tended that the rejection of this contract in the former suit was a bar ; that it was intended to effect a change in the part- nership relations between A and B as to their shares in the partnership, and thus related to the partnership, and was set- tled in that suit. But the court held that it was not connected with the partnership and was not barred.* Individual debt and assumed debt. — If a corporation is indebted to a person for work done for it, and also for work done for another which it has assumed, he has two causes of action, and a judgment for the latter cause is no defense to an action for the other. ^ 1. Pollard V. Railroad Co., 101 U. S. 4. Emery v. Wilson, 79 N. Y. 78. 223. 5. Gottlieb v. Fred W. Wolf Co., 75 2. Mann v. City of Rich Hill, 28 Mo. Md. 126 (23 Atl. R. 198) . The court App. 497. said: "The claims for which judg- 3. Gaines «. Kennedy, 53 Miss. 103, ment was obtained were for commis- 107. sions on sales effected by the plaintiff 310 THE MERITS. § 102. Injunctions. — If a person sues to enjoin an act, he must bring forward all his causes and reasons, as a failure will bar a new suit. A second injunction for new matter can not be allowed, if the matter subsisted and was known at the time the first bill was filed. ^ So, a decree dissolving an injunction is a defense to a new suit for any cause that existed prior to the suit, even though not set up,^ if known to the com- plainant.^ Ejectment. — One Rogers held land by a conveyance from a married woman which was void at law. After she became a widow, she conveyed it to one Higgins who brought ejectment against Rogers. The latter filed a bill in equity to enjoin the prosecution of that action on the ground of an equity in him arising out of the execution of the deed to him, but was de- feated. He then filed a new bill for the same purpose based on the same equity, but made an additional allegation that the land w^as the separate estate of his grantor. But it was held for Frederic W. Wolf in his individ- ual capacity, and which were assumed by the defendant corporation, and re- coverable by the plaintiff, who ac- cepted the corporation as paymaster, on the principle of novation. The claim now sued on is for service rendered or commissions earned, as is alleged by the appellant, in making sale of a ma- chine for the corporation. The claims were not indivisible in any sense, for they existed and were due, if due at all, in different rights. If the plaint- iff had not accepted the agreement of the corporation to pay instead of Frederic W. Wolf, and thereby re- leased Wolf by actually suing the cor- poration, he could have sued Wolf individually, for what was due from him individually ; but he could not have sued Wolf for what the corpora- tion owed the plaintiff. The corpora- tion only was answerable for that. Therefore the corporation could have been sued originally in two suits — one for its own debt, and one foi the debt of Wolf it had assumed to pay; and when the plaintiff joined the two in one suit it was perfectly competent for him, with leave of the court, to amend or withdraw the claim for the corporation's individual debt, as was done, and reserve that for a separate demand. It was only discontinuing his suit without preju- dice, with leave of the court, quoad that claim which was withdrawn. This, we think, is the established law in respect to distinct causes of action ; and it is because we think the claims recovered in the first suit, and sued for in this one, are distinct causes of action, and therefore divisible." 1. Bank of United States v. Schultz, 3 Ohio 61. 2. McMickenv. Morgan, 9 La. Ann. 208 ; Porter v. Morere, 30 La. Ann. 230. 3. Bass V. Nelms, 56 Miss. 502, 507. THE DOCTRINE OF SPLITTING CAUSES. 311 tliat he ought to have included that in his first bill and that the first suit was a bar.^ Taxes and assessments. — A decree dismissing a bill to en- join the collection of taxes, bars a new bill for the same pur- pose though founded on new reasons.^ A lot-owner was as- sessed for a local improvement to be paid in installments. The first installment not being paid, the lot was sold, and he brought a suit to restrain the city from making a deed on ac- count of various irregularities, but was defeated on the merits. When the next installment came due, he sued again to restrain its collection, but the court held the former suit to be a bar, although new irregularities in the original levy were alleged.* But if the owner of land seeks to enjoin its sale for taxes, al- leging that it is exempt by virtue of a specified statute, an order sustaining a demurrer to his complaint for want of facts sufficient to constitute a cause of action does not bar a new suit for the same purpose based on irregularities in the assess- ment. The court said that only the matters alleged in the complaint were settled.* It did not notice another rule, that the plaintiff must bring forward all his reasons why he ought to recover, in cases of this kind. The relief which he asks is single, and that shows that his cause of action is single; and he must bring forward all his grounds at his peril. 1. Rogers v. Higgins,o7 111. 244,246. when a complainant in equity brings 2. Ruegger v. Indianapolis and St. his suit, he must present to the court Louis R. R. Co., 103 111. 449, 456; all the grounds then existing for its Breeze v. Haley, 11 Colo. 351 (18 Pac. support. He is not at liberty to pre- R. 551). The court said : "The com- sent a portion of the grounds upon plaint in the former case stated sub- which his claim for equitable relief de- stantially the same grounds for enjoin- pends in one suit, and, if that fail, to ing the collection of these taxes as present the rest in another action, that filed in the latter case ; the prin- The former adjudication is held to be cipal ground being the invalidity of conclusive, in a subsequent proceeding the assessment. Additional grounds between the same parties, as to every for equitable relief are alleged in the matter properly involved, and which present complaint, but they all existed might have been raised and deter- at the time of the former action, and mined in it." it is not even alleged that they were 3. Guest v. City of Brooklyn, 79 X. unknown to the appellee at the time Y. 624. the original suit was pending. The 4. Bode i'. New England Investment doctrine of the authorities is that, Co., 6 Dakota 499 (42 N. \V. R. 658.) 312 THE MERITS. If a person sues to enjoin the collection of a tax, because of the invalidity of the law authorizing it, and is defeated on the merits, he can not maintain a new suit to enjoin the collection of another tax levied by virtue of the same law upon the ground that it is invalid in reference to other matters not considered in the first case, as it was his duty to bring forward all his reasons in that suit.^ A decree dissolving an injunction is con- clusive that it was not rightly granted.^ So, if a petition for an injunction to restrain county commissioners from levying an assessment upon grounds specified is denied on the merits, that will bar a new petition for the same purpose based on different grounds.* And if a bill is filed to enjoin a town from issuing bonds to a railroad company, on account of defects in the pe- tition and notice, a decree dismissing the bill precludes a new suit for the same purpose, because of other defects in the pro- ceedings.* 1. Snell V. Campbell, 24 Fed. R. 880. 2. Yale v. Baum, 70 Miss. 225 (11 S. R. 879). 3. Dictum in Martin v. Roney,41 O. St. 141, 143. 4. Harmon v. Auditor of Public Ac- counts, 123 111. 122 (13 N. E. R. 161, 164). The court said : " It is claimed, however, that the cause of action in the present suit is not the same as the cause of action in the Pinckney Suit. To sup- port this position reference is made to the case of Chicago, etc., R. R. Co. v. Mallory, 101 111. 583, in which it was held that the provision in the charter of the Chicago and Iowa Railroad Com- pany for holding an election to author- ize subscriptions and donations by the town requires such election to be held by three judges and two clerks, as in general elections, and that an election at a town meeting, presided over by one moderator and with only one clerk, is void, and confers no author- ity to issue the bonds. The election in the town of Mount Morris, which authorized the issuance of the bonds above specified, was held at a town meeting presided over by one moder- ator, and therefore falls within the terms of the decision in the Mallory Case. It is too late, however, to apply the doctrine of the Mallory Case to the Mount Morris bonds. The opinion in the Pinckney Case only discusses two points : First, whether or not the constitution of 1870 prohibited a dona- tion by a town to a railroad, the dona- tion being authorized by a vote of the people before the adoption of the con- stitution ; and, second, whether or not the vote in favor of the Mount Morris donation was void by reason of defects in the petition for the election and in the notice of the election. As the opinion makes no reference to the point discussed in the Mallory Case, as the same is above stated, counsel say that the Pinckney decision is not res judicata as to that point. We are therefore asked to set aside the bonds held by the appellees in this case, be- cause the election which authorized their issuance was held at a town THE DOCTRINE OF SPLITTING CAUSES. 313 Plaintiff defaulted in Louisiana. — If a person procures a temporary injunction in Louisiana against a sale on execu- tion, to which the defendant answers, a trial of the cause in the absence of the plaintiff and the dissolving of the injunc- tion bars a new application, because the claim of the defend- ant for interest and damages is analogous to a claim in recon- vention, and he has the right to have the matter finally set- tled.' meeting, presided over by one moder- ator. The value of a plea of former recovery is not to be determined by the reasons which the court rendering the former decree or judgment may have given for doing so. Nor is the former judgment or decree conclusive only as to questions actually and for- mally litigated. It is conclusive as to all questions within the issue, whether formally litigated or not. In Rogers V. Higgins, 57 111. 24-1, it was held : ' "When a complainant in chancery presents his cause of action before the court, he should bring forward and urge all the reasons which then exist for its support. After a determi- nation of the suit, the controversy can not be reopened to hear any additional reason which before existed, and was within the knowledge of the party, in support of the same cause of action. The principle of res judicata em- braces, not only what has actually been determined in the former suit, but also extends to any other matter properly involved, and which might have been raised and determined in it.' We think the point now raised against the bonds was presented by the pleading and issues in the Pinck- ney suit, and might have been raised and determined in that suit. The bill there refers to the sections of the rail- road charter which provide for calling the election. It alleges ' that the said special town meeting and election,' etc., 'are in direct conflict with the provisions of the constitution of the state,' etc. It further alleges that the * ballots deposited by the voters of said town, at said special town meeting and election for said donation, were illegal and void in this : that the said voters had no legal power to determine by the casting or depositing of their said ballots as aforesaid, at said special town meeting and election, whether the said town should * * * make such donation of $75,000, or to bind * * * by their votes deposited at said special town meeting and elec- tion, the said town to make such do- nation or to issue their said bonds,' etc. The prayer is ' that the town,' etc., ' be enjoined from making any donation in bonds * * * under and in pursuance of said special town meeting and election,' etc, and that ' said special town meeting and elec- tion held thereunder may be decreed to be altogether null and void,' etc. The answer admits the provisions of the charter as alleged, and also admits the special town meeting and election, and avers that ' said special town meeting and election was held, con- ducted, and return thereof made, in all respects as required by law.' The decree found the equities for the com- plainants, and that the allegations in the bill were true. The order of this court reversed the decree and dis- 1. Moch V. Garthwaite, 11 La. Ann. 287. 814 THE MERITS. § 103. In rem. — A judgment in rem against a boat, without satisfaction, is no defense to a suit against the owner. ^ So a suit under the Pennsylvania statute to enforce the lien of a material man upon a vessel is a proceeding in rem, and is not barred by a judgment at law against the contractors.^ § 104. Installments — Building delayed. — A agreed to erect a building and to have it ready for the occupancy of B by a specified date ; and he further agreed to pay B damages at the rate of $100 per month for the time during which the com- pletion should be delayed beyond that specified. After a delay of four months, B sued him and recovered four hundred dollars which he paid. It was six and one-half months afterwards be- fore the building was ready for delivery to B, and for that de- lay he brought a new suit. A contended that the first judg- ment was a bar, but the court denied his contention, holding that each month's delay gave a cause of action for which suit could be brought at once, but saying that all that was due must be included in each suit/ The court said : *'By the contract in this case, the defendant agreed to pay the plaintiff, at the rate of $100 per month for the time after missed the bill. It is very evident, pressed upon our attention here, was from this review, that the validity of not brought to our notice in the Pinck- the election authorizing the bonds to ney Case, does not destroy the force be executed was at issue in the Pinck- of the Pinckney decree as a bar to the ney suit. Not one question alone, but present proceeding. As was said in every question affecting the validity Preble v. Board of Sup'rs, supra, the of the election, was there at issue, complainants could not divide their Under the issues formed by the plead- cause of action, setting up one ground ings, the question whether or not the of illegality in that suit, and, if they election should have been conducted failed in that, bring a second suit for as a general election, with three judges a like purpose, setting up another and two clerks, instead of being con- ground of illegality. They should ducted as a town meeting election, have disclosed the entire wealth of with one moderator and one clerk, their case at once." was just as much involved as the ques- 1. Toby v. Brown, 11 Ark. (6 Eng.) tion in regard to the sufficiency of the 308. petition and notice, which was dis- 2. The Odorilla v. Baizley, 128 Pa. cussed by this court in its opinion. St. 283 (18 Atl. R. 511). "The fact that the point afterward 3. Hallack v. Gagnon, 4 Colo. App. decided in the Mallory Case, and now 360 (36 Pac. R. 70). THE DOCTRINE OF SPLITTING CAUSES. 315 August 1, 1891, during which the completion of the hall should be delayed. This language requires the payment of $100 for each full month, and in the same proportion for a fraction of a month. If the agreement had been for a gross sum, it would have supported but one action, but it was not. It was for a sum certain for each separate month of delay, whether the time was long or short ; and, in the absence of any agreement other- wise, that sum became due at the end of each successive month, and a proportionate part of it at the end of the half month with which the defendant's liability expired. If plaintiff had waited until all the demands were due, he would have had but one cause of action for the whole, and would not have been permitted to apportion it so as to bring different suits upon the different liabilities ; and likewise, in the action brought upon a portion of the obligations, he must have included all which were then due, and could not afterwards maintain a suit upon any of the liabilities which might have been so included. Na such difficulty, however, is suggested. The first action seems to have been for the several sums due when it was brought, and this is for those which subsequently matured. It follows from what has been said that the two causes of action are entirely different, and that the first judgment is no bar to a recovery in this case." So, if money is payable in installments, of course, a recovery upon one will not prevent a suit for another which subsequently matures.* But a recovery of a part of an installment will bar a suit for the remainder.^ Principal and interest. — A recovery of an installment of interest on a note will not prevent an action for the principal even though it was due when the first suit was commenced.' Rent. — If rent is payable in installments, it is held in Con- 1. Ramsey County Building Society ment of rent was sequestered by a V. Lawton, 49 Minn. 362 (51 N. W. R. statutory attachment. 1163) ; Ahl V. Ahl, 60 Md. 207— in- 3. Dulaney v. Payne, 101 111. 325 stallments on a penal bond. (40 Am. R. 205) ; Sparhawk v. Wills, 2. Warren v. Comings, 6 Cush. (60 6 Gray (72 Mass.) 163; Andover Sav- Mass.) 103; Campbell r. Hatchett, 55 ings Bank v. Adams, 1 Allen (83 Ala. 548, 552— $500 of a $750 install- Mass.) 28. 316 THE MERITS. necticut, Iowa and New York/ that all those due constitute but one cause of action, while the contrary is maintained in Illinois.^ Subscription. — If a subscription becomes due in annual in- stallments, a recovery upon one bars a suit for all others due at the time that action was commenced.^ But a late case in the same state holds that if two installments due upon one contract are assigned at different times to the same person, he can main- tain separate actions upon them, although the assignor could not, because he has to prove his title by different deeds.* But why that placed him in a more favorable position than his as- signor, the court did not explain and I can not. Weekly payments. — A contract to pay plaintiff ten dollars per week until returns are had from his inventions, no services being rendered by plaintiff to defendants, is not a contract of hiring, and a recovery for one installment is no bar to a suit for a subsequent one.® Indian cases. — Chand on Res Judicata, section 256, says : "In British India also, a lessor having failed to give posses- sion of the land leased by him to the lessee, a suit by the lat- ter for mesne profits for one year was held by the Calcutta high court® to bar a suit by him for those for the subsequent years prior to the former suit, as the cause of action in both the suits was the nondelivery of the possession ; and the decision was affirmed on appeal by their lordships of the privy coun- cil.' But a bond for the repayment at a certain time of certain money with interest having further stipulated that, in default of payment at that time, interest would continue to be paid yearly and the principal and the interest remaining unpaid 1. Burritt v. Belfy, 47 Conn. 323 (36 4. Miller v. Union Switch and Sig- Am. R. 79) ; Perry v. Mills, 76 Iowa nal Co., 59 Hun (66 N. Y. Supr.) 624 622 (41 N. W. R. 378) ; Jex v. Jacob, (13 N. Y. Suppl. 711). 7 Abb. New Cases 452, denying Mcln- 5. Smith v. Moonelis, 18 N. Y. Suppl. tosh V. Lown, 49 Barb. 550. 135 (44 N. Y. St. Reporter 638). 2. McDole V. McDole, 106 111. 452, 6. Sheo Shanker Sahoy v. Hridoy 459. Contra, Casselberry v. Forquer, 27 Narain, Indian L. R. 9 Calcutta 143. 111. 170. 7. Madan Mohan v. Shersanker, 3. Reformed Protestant Dutch Indian L. R. 12 Calcutta 482. Church V. Brown, 54 Barb. 191, 199. THE DOCTRIXE OF SPLITTIXG CAUSES. 317 would be paid on the redemption of another mortgage, a suit for interest after the time fixed for repayment ab initio would not bar a subsequent suit for the interest for a period subse- quent to the first suit/ In Appasami v. Ramasami,^ the de- fendants on a statement of accounts found a balance of Rs. 3,500 against them, and gave an order for Rs. 2,520 on their servants to pay the same from the income received from cer- tain villages for certain years, and promised to pay the balance in a month; and two separate suits being instituted for the re- covery of the two items respectively, at plaintiff 's option, the suit for the smaller amount was held barred by the other ; the high court observing that ' the two claim's, or rather the claim in respect of which two separate suits have been brought, in our opinion arise out of one and the same cause of action, namel}^, an obligation on the part of the debtors to pay, and a right in favor of the creditor to sue for payment of, the sum which the debtors admitted as due on settlement of accounts and which they thereon promised to pay ; and the fact that the debtors undertook to pay part of that sum at once, and part after expiry of a fixed time which had elapsed when these suits were brought, can not enable the creditor to split an entire demand in a manner which section 43 was intended to pro- hibit. * * * xhe district munsif is not correct in saying that a different cause of action arises on each occasion when, in respect of a debt secured by an instrument providing for payment by installments, there is a failure to pay an install- ment ; under the terms of the agreement there accrues due to the creditor a part of his debt in respect of which he can sue, but the cause of action out of which the claim arises is the same, and the creditor is bound to include in his suit all that is then due in respect of his claim.' The Calcutta high court held the same in Mackintosh v. Gill,^ Sir Richard Couch observing that ' it is incumbent on the plaintiff, if two or more install- ments of such a promissory note as this are due at the time he brings his suit, to sue for them in one action, and he is not at 1. Shailapa v. Balapa, Indian L. R. 2. Indian L. R. 9 Madras 279. 7 Bombay 446. 3. 12 Bombay L. R. 37. 318 THE MERITS. liberty to sue separately for each installment or for some of them.' "Sir Richard Garth, C. J., observed in Anderson v. Ka- lagarla/ that ' claims under the same contract for several installments of the same rent, or for several installments of the same promissory note have been held over and over again (under section 43) to be claims for the same cause of action. The claims in these cases are not only of the same nature but are virtually for installments of the same debt or obligation. And the illustration given in section 43 seems to me to show that these are the sort of cases to which the sec- tion is intended to apply.' The Madras high court had also acted upon that principle in Chokalinga Pillai v. Viruthalam,' in which a lease for two years had provided for the payment of rent in kind at four different times. In this case the court said: 'The dealing was continuous for two years, and though plaintiff of course might have sued for each item or installment of rent as it fell due, the aggregate of two or more of such un- paid installments can not be divided into two or more causes of action, but must be deemed one cause of action.' Under the code of 1859, it was held in Sutto Churn v. Obhoy Nund,^ that a separate suit would lie for the rent of each year; and that de- cision was followed in Ram Soondur v. Krishno Chunder,* and Kristo Kinkur -y. Ram Dhun,* * In one sense,' said Wilson, J., in Anderson v. Kalagarla, 'every breach of contract is a separate cause of action. But the illustration to section 43 shows that the framers have not here used the expression in this sense.' That illustration is: 'A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1881 and 1882 is due and unpaid. A sues B only for the rent due for 1882, A shall not afterwards sue B for the rent due for 1881.' Speaking of the illustration, Pontifex, J., in deliver- ing the judgment of the court in Taruck Chunder v. Panchu Mohini,® said: * It represents only the exact state of circum- 1. Indian L. R. 12 Calcutta 342. 4. 17 W. R. 380. 2. 4 Madras H. C. R. 334. 5. 18 W. R. 326. 3. 2 W. R. (Act 10, Rul. 31). 6. Indian L. R. 6 Calcutta 791. THE DOCTRINE OF SPLITTING CAUSES. 319 stances which existed in the case of Raja Sutto Churn v. Obhoy Nund, and it would have befen clear if the illustration had been general and not confined to the peculiar circumstances of that case. But it was certainly intended to reverse the de- cision of Sutto Churn v. Obhoy Nund, and with it the entire foundation of the decisions in the two other cases likewise fails. In my opinion, there can be no reason to distinguish between a suit omitting to claim an earlier rent and a suit omitting to claim a later rent which is due at the date of its institution. The illustration certainly treats a claim to all arrears of rent as a single cause of action.' " § 105. Interest — Simple and compound. — A husband re- ceived money from his wife and loaned it, together with a larger amount of his own, on mortgage security, and collected all the interest for several years, and finally received a payment of a larger sum than her share. She then sued him, and it was decided that a recovery by her of her principal and simple inter- est barred another action for compound interest.^ The court said : * * The complaint in the first action was sufficient for the recovery of all the interest she now claims, and the proper parties were before the court for the adjustment of the entire controversy between them. If the $1,700 was in the hands of Mr. Price at the time of his death as plaintiff's money, then she, having recovered the simple interest thereon, can not now maintain this action to recover an additional sum created by compounding the interest. Whatever interest she was entitled to upon that sum should have been recovered in the first ac- tion. If she was entitled to interest upon the annual interest received upon the mortgage, why should that not have been adjusted in the first action ? She claimed some interest, why did she not claim it all? The action related to the trust and the trust fund, and the amount of the fund, principal and in- terest, was in controversy, and was to be determined. In that equitable action the court could take and state the account in reference to the fund, down to the time of the trial, and could 1. Price V. Holman, 135 N. Y. 124 (32 N. E. R. 124). 320 THE MERITS. determine what should be done with the interest as it came in after the trial, and could, if needful, render a money judg- ment against the executors. It would be contrary to all au- thority to permit the plaintiff, after she has recovered a part of the interest claimed by her, to maintain another action to recover more interest, and that, too, upon substantially the same evidence. It appeared upon the trial of the first action that the $17,000 had been paid upon the mortgage to Mr. Price, and that the annual interest had been paid, and hence it can not now be claimed that she did not then know the facts upon which she now bases this action. The first adjudication Was not affected with fraud or mistake, and there is no ground whatever for the maintenance of this action to rectify that ad- judication, or to agitate anew the controversy which the court was then competent forever to put at rest. The doctrine of res judicata, properly applied to this case, defeats this action." Coupons. — Interest coupons attached to negotiable bonds constitute different causes of action even though all are due.* Intervener. — If third persons intervene and claim the ; roperty in suit and are defeated, they can not afterwards claim it on new grounds.^ § 106. Joint and several obligors. — To a petition to recover money paid for defendant at his request, the answer was that the plaintiff had sued the defendant and nineteen others named on the same alleged cause of action, and that they denied that they, or either of them, had made the request or promise alleged, and that, after a trial on the merits, they recovered a judgment for costs. As the statute in such cases authorized the plaintiff to recover against any one or more of the defend- ants, it was held that the answer was good, because he might have recovered against the defendant now sued, if he had made the request now alleged.* § 107. Judgment and costs. — If a judgment is reversed after 1. Butterfield v. Town of Ontario, missed ex parte, Fonda v. Denton, 13 44 Fed. R. 171. La. Ann. 343. 2. Bowman V. McElroy,15La. Ann. 3. Roby v. Rainsberger, 27 O. St. 663. Accord, even if his claim is dis- 674. THE DOCTRINE OF SPLITTING CAUSES. 321 its collection, the defendant is entitled to recover the amount paid and costs, but he does not have two causes of action, one for the judgment paid and one for the costs.* Justice of the peace in Illinois. — A statute of Illinois provides: "In all suits which shall be commenced before a justice of the peace, each party shall bring forward all his demands against the other, existing at the time of the com- mencement of the suit, which are of such a nature as to be consolidated, and which do not exceed $200 when consolidated into one action or defense; and on refusing or neglecting to do so, shall forever be debarred from suing therefor." If the plaintiff has two notes, both past due, and each exceeding $100, he may bring a suit on each before the justice.^ § 108. Malicious prosecution — Attachment. — A recovery for maliciously prosecuting an attachment bars an action on the attachment bond.^ False imprisonment. — A recovery for an assault and false imprisonment is no defense to an action for malicious prosecu- tion based on the same acts, even if all the grievances com- plained of in the latter action were given in evidence in the former.* Slander. — The court of appeals of New York, in speaking of the question under consideration, said: "In an action for malicious prosecution, the plaintiff is entitled to recover dam- ages, not only for his unlawful arrest and imprisonment, and for the expenses of^ his defense, but for the injury to his fame and character by reason of the false accusation;" hence, a recovery in such an action, bars a suit for slander in making the false accusation upon which the first action was based.* And the court of last resort in Mississippi said: "In an action for malicious prosecution, damages may be recovered for the injury to reputation, and this will be a bar to an action of slander for the same cause. So, undoubtedly, a recovery in 1. Clayes v. White, 83 111. 540. 4. Guest v. Warren, 9 Exch. 379. 2. Nickerson v. Rockwell, 90 111.460. 5. Sheldon v. Carpenter, 4 N. Y. 579 3. Hall V. Forman, 82 Ky. 505. (55 Am. D. 301). 21 322 THE MERITS. an action of slander for injury to character through a malicious prosecution would be a bar to a claim for damages on the same ground in a direct action for malicious prosecution."^ A case in Florida was this: A accused B of a crime in November, and caused him to be arrested upon the same charge in Decem- ber, upon which he was acquitted. He then sued A for mali- cious prosecution and was defeated. This was decided to be a bar to an action for slander in making the original accusation, because his damages for defamation of character were provable in the suit for malicious prosecution.^ But in an action for maliciously prosecuting the plaintiff upon a charge of larceny, a recovery by him is no bar to an action by him for slander in subsequently accusing him of the same larceny.^ § 109. Negligent act described differently. — If a person is injured by the negligence of another but is defeated in an ac- tion to recover damages, he can not maintain a new action by describing the negligent act in a different manner. Thus, in an action against a railroad company, if the allegations are that its train approached a public road crossing at a dangerous rate of speed without giving the usual and customary notice, whereby the plaintiff was decoyed so near the crossing that his horse became frightened and ran away and injured him person- ally, a judgment in favor of the company bars a new action in which the allegations are that the defendant's agents negli- gently gave a loud and unusual whistle of its engine after the plaintiff had crossed the track in safety, thus frightening his horse and causing the injury.* A Massachusetts statute made a railway company responsible for injuries to property from fire caused by sparks from its locomotives. Goods having been destroyed by fire in a railway company's warehouse, the owner brought suit, alleging in the first count that the fire was caused by sparks from one of its locomotives, and in the second that it was caused by the company's negligence. On the trial, he 1. Dictum in Jarnigan v. Fleming, 43 3. Rockwell v. Brown, 36 N. Y. 207. Miss. 710, 724 (55 Am. D. 303, note). 4. McCain v. Louisville and Nash^ 2. Tidwell v. Witherspoon, 21 Fla. ville R. R. Co., (KyO 22 S. W. R.325. 359 (58 Am. R. 665). THE DOCTRINE OF SPLITTING CAUSES. 323 rested his case entirely on the first count, and was defeated. He then sued anew charging that the fire was caused by the negligence of the company, but it was held that he had the op- portunity to prove that charge in the first action; that his cause of action was the loss of his goods by fire negligently caused by the defendant; and that if he failed to prove the actual negligent act, it was his own fault. ^ § 110. Negligent act kills several persons, the damages for which go to the same persons — (See §151 infra). — If two brothers are killed at the same time by a railway collision, and the same person is appointed administrator of each estate, a recovery by him for the killing of one is no bar to an action for killing the other, even though the damages in both cases go to the same relatives.^ So a recovery by a creditor against 1. Bassett v. Connecticut Eiver R. Co., 150 Mass. 178 (22 N. E. R. 890). The court said: "A former judg- ment, if rendered upon the merits, constitutes an absolute bar to a sub- sequent action, for the same cause between the same parties. They are concluded by the judgment, not only upon all the issues which were act- ually tried, but upon all issues which might have been tried ; so that a new action, for the same cause between the same parties, can not be maintained on grounds which might have been tried and determined in the former action. In the case at bar the parties and the cause of action are the same as in the suit of Bassett v. Conn. River R. R.Co., reported in 145 Mass. 129(13 N. E. Rep. 370) . In each suit the cause of action is the loss by fire of the plaintiff's goods while in the wai'ehouse of the defend- ant. The second count of the decla- ration in the former suit is in legal effect the same as each of the counts in the present suit. It charges the defendant with negligence in keeping the goods in its warehouse. The fact that the plaintiff, either by his laches or misfortune, failed to prove any negligence, and chose to rest his case solely upon the liability of the defend- ant under Pub. St. C. 112, § 214, is im- material. The question of negligence was one of the issues involved in the case. He then had his day in court to prove this issue. It might and ought to have been tried in that case. If his proof had shown negligence, he would have been entitled to judgment on that ground. Having failed to show negligence, a judgment against him is a bar to any future action for the same cause of action." 2. Illinois Central Ry. Co. v. Slater, 139 111. 190 (28 N. E. R. 830). The court said : "It will be observed that the same railroad is defendant in each case ; the same tortious act led to the death of the two persons ; the same father and mother, brothers and sister, in each case ; the same next of kin and beneficiaries in each case. It will also be noticed that, as the 324 THE MERITS. the sheriff for the vakie of goods lost, does not bar a junior judgment creditor from suing him for the same loss and recov- killing of the two boys resulted from one and the same transaction, in the trial of the first case, the evidence in reference to the death of Lewis W. Slater, the deceased in this case, was all gone over and introduced before the jury. Indeed, it was impossible for the plaintiff to prove the death in the one case without at the same time, and by the same evidence, proving the death in the other case ; or to es- tablish a cause of action in the one case without at the same time, by the same evidence, proving the facts which led to a recovery in the other. Under these particular facts, it is in- sisted by counsel for the railroad com- pany, with much earnestness, that the judgment in the first cause is a bar to this action. The law is well settled, not only by text-writers, but by the decisions of numerous courts of last resort, that a judgment in a civil proceeding, based upon a certain cause of action, is binding and con- clusive on the parties to the proceed- ing, and another suit or proceeding can not be maintained upon the same cause of action. There is no trouble in regard to the law of former adjudi- cation. Its principles are well set- tled. Indeed, opposing counsel do not disagree so much as to what the law is, as they do in regard to its ap- plications to the facts of this case. We have, however, after mature con- sideration of the question, arrived at the conclusion that the former action is not a bar to the present one. The parties were not the same in the two actions ; the defendant was the same in both actions, and the beneficiaries were the same, but in the former suit the plaintiff was the administrator of the estate of Arthur B.Slater,deceased. As such administrator he sued, and as such administrator he recovered, while in the present action the plaint- iff sues as the administrator of the es- tate of Lewis W. Slater, deceased. The two plaintiffs have no interest or connection whatever with each other. They are as separate and distinct as if the plaintiff in the first case had been William Smith, administrator of the estate of Silas Huber, and in the second case had been William Smith, administrator of the estate of John Jones. The beneficiaries have no bearing on the question. They are not plaintiffs in the action, but, under the statute, the administrator is made a plaintiff in hia respective character as such. Suppose, on the trial of the former case, — wherein the action was brought to recover for the negli- gent killing of Arthur B. Slater, ■ — the plaintiff had proven that Lewis W. Slater came to his death by the negligent operation of de- fendant's trains, and that he was administrator of the estate of Lewis W. Slater, who had next of kin; could a verdict on that evidence have been rendered for the plaintiff in the former action? The answer is apparent that no recovery could have been had in that case on that evi- dence, and yet it will not be denied that it would make out a prima facie case, upon which a verdict and judg- ment might be rendered in the latter case. The fact is therefore apparent, that the same evidence would not support both actions. In the former case, it was necessary to establish that Arthur B. Slater, while in the ex- ercise of ordinary care, was killed through the negligence of defendant; while in the present action it de- THE DOCTRINE OF SPLITTING CAUSES. 325 ering the actual value, less the amount recovered by the prior creditor.' Person and goods injured. — A recovery for an injury to one's goods is no defense to an action for an injury done, by the same act, to his person.^ If a person is killed and his horses and wagon destroyed by the same railroad collision, his administrator can maintain two actions in Ohio, one for kill- ing him and one for the injury to his property.* §111. Negligent destruction — Toll first taken by wrong- doer. — A person having brought an action on the case, alleging that he had carried a quantity of cotton to tlie defendant's ma- chine to be picked and packed, and that, by his negligence, it had been destroyed, a recovery is a bar to a new suit, alleging that before the cotton was destroyed, the defendant had taken from it his toll for picking and packing, to which he was not en- titled, because it was destroyed before it was picked or packed, although this toll was not considered in the first suit.* § 112. Negligent injuries to personal property — What makes several — (See § 151, infra). — A mare and colt, at the same time and place, entered upon the grounds of a railway company and were walking upon its tracks. A train coming caused them to run ahead, and the colt was first struck and killed, and about thirty rods farther on the mare was also struck and injured. All these things occurred solely on ac- count of the negligence of the railwa}' company. The owner volved upon the plaintiff to prove that in this case was not Utigated in the Lewis "W. Slater, while in the eser- former one ; and we are aware of cise of ordinary care, came to his no well-settled principle upon which death through the negligence of the it can be held that the former action defendant. The fact that both of these is a bar to the present one." parties came to their death at the I.Anderson r. Bright, 12 Ala. 478. same time, and from one and the same 2. Brunsden v. Humphrey, L. R. 14 accident, is a matter of no particular Q. B. Div. 141— by Brett and Bowen, moment, and has no special bearing J J. — Coleridge, C. J., dissenting, upon the question involved. Here 3. Peake v. Baltimore and Ohio R. the plaintiffs were different in the two Co., 26 Fed. R. 495. actions. The subject-matter was not 4. Bates v. Quattlebom, 2 Nott' and the same, and the question involved McCord 205. 326 THE MEKITS. sued for and recovered the value of the colt, which the com- pany paid. Subsequently, the mare died from the effect of her injuries, and a suit was brought for her value. The company contended that the injuries to the two animals constituted but one transaction and cause of action, and that the former recovery and payment was a bar. But the court did not agree with this view, and held that each injury was a distinct transaction, which gave a separate cause of action,' which seems to me to be correct. § 113. Notes. — Several causes of action can not be main- tained upon one note by dividing it.^ But several different notes, even if they are all due,^ and were given as a part of one transaction,* constitute as many different causes of action as there are notes. Deficit. — If a note is transferred to one upon the represent- ation that one hundred and thirty-five dollars are yet owing upon it, and he sues the transferrer before a justice of the peace, alleging a deficit of twenty-five dollars, and is defeated, that bars an action in the circuit court alleging that it was fully paid before the transfer.® Money loaned. — A judgment on a decla-ration upon a note, and for work and labor, is no bar to a suit for money loaned.^ Pledged to two persons. — If a note is indorsed by a stranger in blank for the accommodation of the maker, who pledges it first to one person to secure a debt, and then to another person to secure another debt, all without the consent of the indorser, a recovery against the latter by the first pledgee of the amount of his debt, although it is but one-half the amount of the note, is a defense to a suit by the second pledgee.' His indorsement made but one cause of action. § 114. Note and mortgage or vendor's lien — One ignored. — 1. Missouri Pacific Ry. Co. v. Scam- 604; Nathans v. Hope, 77 N. Y. 420; men, 41 Kan. 521 (21 Pac. R. 590). Boyle v. Grant, 18 Pa. St. 162. 2. Willard v. Sparry, 16 Johns. 121. 5. Berringer v. Payne, 68 Ala. 154. 3. Nickerson v. Rockwell, 90 111.460. 6. Athearn v. Brannan, 8 Blackford 4. Williams v. Kitchen, 40 Mo. App. 440. 7. Erwin v. Lynn, 16 0. St. 539, 547. THE DOCTRINE OF SPLITTING CAUSES. 327 In a suit on a note and mortgage ^ or vendor's lien,^ a judgment on the note alone, ignoring the mortgage or lien, bars a new suit to foreclose it. So, a person having been made a defendant in a foreclosure suit, and having set up a junior mortgage and a judg- ment lien which he prayed to have foreclosed, a decree foreclos- ing the plaintiff 's mortgage and the defendant's judgment lien, but silent as to his mortgage, prevents him from foreclosing it in a new suit.^ So, if A sues B to foreclose a mortgage on cattle, and makes C and D defendants, alleging that they, severally, purchased portions of the cattle after the registry of the mort- gage, and simply takes a personal judgment against B and a decree of foreclosure against all, he can not afterwards sue C or D for a conversion because they had disposed of the cattle before the foreclosure, as he ought to have had his personal judgment against them in that suit.* Likewise, one who held 1. Johnson v. Murphy, 17 Tex. 216. 2. Eoberts v. Johnson, 48 Tex. 133, 136. 3. Haines v. Fhnn, 26 Xeb. 380 (42 N. W. R. 91) . The court said : "Flinn, in his answer, alleges that the land in controversy was the homestead of him- self and wife, and that the mortgage to the plaintiSs was not signed by his wife. The reply consists of certain denials. The answer of Haines Bros, in the nature of a cross-petition in the former action, is set out in the record, from which it appears that in the former action they had filed a cross-bill, and asked to have their mortgage foreclosed. The decree, how- ever, fails to show that any sum was allowed Haines Bros, on the foreclos- ure of their mortgage, but they were al- lowed certain judgment liens claimed by them. No appeal was taken, and they seem to have been satisfied with the decree. It is impossible for us to hold the decree to be void. The court may have found that the moi'tgage had been satisfied, or that it was void, or given without consideration. The mortgage was then due, and, for aught that appears, it should have been fore- closed unless some of the defenses to it were considered sufficient to defeat it. The evidence in that case is not before us, and the presumptions are that the decree was right. The matter involved in the plaintiffs' peti- tion, therefore, having been set up in a former action by cross-petition, and a judgment rendered thereon, is res judicata." 4. Kenyon v. Wilson, 78 Iowa 408 (43 X. W. R. 227). The court said: " It is plain that the identical relief — a personal judgment against defend- ants — sought in these actions could have been recovered in the original foreclosure proceeding. If defendants were liable for the conversion of the property, a decree could have been entered requiring them to surrender it in execution; and, upon failure, exe- cution could have issued against them for the value of the property. In case defendants had disposed of the prop- erty before judgment, the decree could have so provided that the execution 328 THE MERITS. a several note executed by four persons and secured by a mort- gage, brought a suit and prayed for a judgment against all of them, and, upon default, took a personal judgment against one and a foreclosure as to all, without continuing or dismissing as to any of them. Afterwards he brought an action on the note against one of the makers against whom no personal judg- ment was rendered, and it was held that the former proceeding was a bar upon the ground that he must be presumed to have there received all the relief to which he was entitled.* § 115. Nuisance. — An adjudication by a magistrate that an engine is not a nuisance bars the plaintiff from showing, in a new suit, that it was one prior to that time.^ If a railroad company so uses a street in a city as to cause unnecessary damage to a lot owner, such as running its trains at an unlaw- ful speed, packing cars in front of his lot, and the like, he may maintain successive actions for successive injuries.^ In a suit to restrain the pollution of a stream, the damages resulting dur- ing the pendency of the suit constitute a part of the cause of action, and a new action to recover them can not be main- tained.* § 116. Offer to confess judgment, accepted. — If the defend- ant offers to confess judgment for a part of the plaintiff 's de- mand, he can not take a judgment on the offer and then sue should issue at once. There can be no ters growing out of his causes of action doubt that plaintiff could have had upon which a remedy may be sought, full and adequate relief in the original Thus he can not seek a foreclosure of action for the deprivation of any right a mortgage in one action, and in a which he did suffer or would suffer by subsequent action ask for a personal reason of the appropriation of the judgment against the defendant." mortgaged property to his own use. 1. Lawrence u. Beecher, 116 Ind. 312 " An adjudication is final and con- (19 N. E. R. 143). elusive of all matters which the par- 2. Dickison v. Mornington Tramway ties could have presented to the Co., New Zealand Law 6 S. C. and C. court for adjudication in the case. A. 132. The law hates a multiplicity of suits, 3. Harman v. Louisville, N. O. and and will not permit a plaintiff to split T. R. Co., 87 Tenn. 614 (11 S. W. R. up his demands, presenting one at a 703) — two judges dissenting, time, in separate successive actions. 4. Inderlied v. Whaley, 32 N. Y. He must litigate in one action all mat- Supplement 640. THE DOCTRINE OF SPLITTING CAUSES. 329 for the residue. Thus, A having sued B for a year's rent ex- piring November 1, and B having offered to confess for the six months ending May 1, the acceptance of this offer by A, and the rendition of judgment accordingly, bars a new action by A for the last six months' rent.^ Offer to convey. — In a suit for redemption, if there was an offer in the answer to convey to plaintiff upon the payment of a sum specified, which offer was not then accepted, a final de- cree against the plaintiff bars a new suit by him setting forth the same matters as in the first, together with the offer and its acceptance.^ ages for a refusal now to make that offer good. We confess our utter in- ability to appreciate the force of the argument by which it is thought such a result can be accomplished. If the offer made by the defendants in their answer can be considered a direct one to the plaintiff of any specific terms, it was made in and for the purposes of that suit only, and, at best, can be con- sidei'ed as a proposition of terms upon which, so far as the defendants were concerned, they were willing that it might be disposed of. Acceptance of it then might have obviated the ne- cessity of submitting their controversy to the judicial tribunal before which it was pending for arbitrament, the only purpose for which it could have been made; but the plaintiff refused to accept the offer, insisted upon hav- ing the issues between him and the defendants tried and adjudicated ; and having been adjudicated, the final judgment concluded the merits of all the issues in the case as presented in the pleadings, as also all offers made therein; and thereafter there was none which could be accepted or made binding upon either party by a subsequent expression of an accept- ance, or a willingness to accept those offers." 1. Davies v. Mayor, 93 N. Y. 250, 254. 2. Givens v. Thompson, 110 Mo. 432 (19 S. W. R. 833). The court said: " The only distinction that counsel for plaintiff undertake to point out be- tween the present and former case is that in the former the plaintiff asked to redeem upon paying the $15,000 loaned, and the defendants, in their answer, offered to convey the property to plaintiff or anybody else who would refund to them the money they had expended for it and on it, alleged to have been $30,000, with 10 per cent, interest ; and in the present case the plaintiff alleges in the petition, that, after the former case had been decided against him, he accepted the defend- ants' offer in writing. This offer and acceptance, counsel seem to contend, created a new and different cause of action, the merits of which were not passed upon in the former case, upon which the plaintiff is entitled to sue ; or that they in someway give the plaintiff a right to retry the original case with this feature superadded, and now to obtain a convej^ance of the property upon compliance with the terms con- tained in the offer in defendants' an- swer in the former suit, which it is alleged he accepted after that suit was decided against him ; or a right to dam- 330 THE MERITS. § 117. Official Bonds — Administrator, executor or guard- ians. — In an action in Indiana upon the bond of an adminis- trator or guardian by one interested person, the damages for the entire breach must be recovered, and the fund brouglit into court for distribution, as the obligors can not be compelled to litigate with each person interested seriatim.^ Constable's bond. — A recovery upon a constable's bond for failing to make any return upon an execution, is no bar to a new suit for making a false return.^ Sheriff's bond. — A judgment against a sheriff in Iowa for misconduct in office is no bar to an action on his bond for the same cause.' But in Kentucky, a recovery by the county auditor against the sheriff for a balance of revenue bars a new suit for matters not included.* § 118. Option of creditor to declare debt all due. — Although a note payable ten years after date with ten pex cent, interest payable annually, provides that ''if the interest is not so paid, the entire principal sum shall immediately become due and payable," nevertheless the failure to pay the interest when due does not make the entire claim a single demand so that a re- covery of one year's interest is a bar to a suit for another.® So, if a mortgagee, upon the failure of the mortgagor to pay the first note, has the option to declare them all due, his fail- ure to do so does not make a foreclosure on the first one a bar to a suit to foreclose on the others.® And if the creditor has an option upon a specified contingency to declare all the notes executed in a transaction due, and he exercises that option and recovers a personal judgment upon those not due, he may still foreclose a trust deed given to secure them.' Order. — The acceptance of an order by A, drawn on him by 1. Moody V. State, ex rel. Burton, 84 5. Wehrly v. Morfoot, 103 111. 183, Ind. 433. 186. 2. Winningham ». State,exreZ. Gap- 6. Bressler v. Martin, 34 111. App. en, 56 Ind. 243. 122, 136. 3. Charles v. Haskins, 11 Iowa 329, 7. Kempner v. Comer, 73 Tex. 196 334. (11 S. W. E. 194). 4. Hobson v. Commonwealth, 1 Du- vall (62 Ky.) 172. THE DOCTRINE OF SPLITTING CAUSES. 331 B, to pay C, '' two hundred dollars out of the first money be- longing to me, which you may receive, on account of the East- ern Star," a newspaper, is a contract to pay out of a particular fund, from time to time as received, on reasonable request ; and therefore a recovery of a part is no bar to a suit for the balance when collected.^ § 119. Parent and child.^ — If the same act injures two per- sons, it will constitute a cause of action in favor of each. This rule applies to cases in which damage results to two by reason of an injury done to one. In such cases, the one who is pri- marily injured has a cause of action to recover for his suffer- ing and loss of time, if he is receiving wages, and the one who is secondarily injured has a cause of action to recover for his loss of profits, and expenses incurred, by reason of the disability of the other to perform service and his need of care. The recipro- cal duties which exist between parent and minor child bring them within this rule. Hence, a recovery on behalf of an in- fant, even if had by its father as guardian,' or next friend,* for an injury done to the infant is no bar to an action by the father to recover the damages sustained by himself. So, a recovery by the father, as such, for an injury to his son, is no bar to an action by the son, and is therefore no bar to an action by the father as administrator of the son.^ The death of a minor child in Washington from the wrong- ful act of another creates two causes of action — one on behalf of the father for loss of services during his minority, and one on behalf of his administrator for loss after his majority. And if the father is the administrator, he may prosecute both ac- tions.^ The court said: "A parent, at common law, could maintain an action for damages for loss of services of his minor child from the time of the injury until death, if death did 1. Perry v. Harrington^ 2 Mete. (43 5. Bradley W.Andrews, 51 Vt. 525, Mass.) 368 (37 Am. D. 98). 528. 2. See § 158, infra. 6. Hedrick v. Ilwaco Ry. & Nav. 3. Karr v. Parks, 44 Cal. 46, 48. Co., 4 Wash. St. 400 (30 Pac. R. 714). 4. Wilton V. Middlesex R. R. Co., 125 Mass. 130, 133. 332 THE MERITS. not immediately follow the injury; and the object of the statute is to create a new and independent right of action for the loss of services subsequent to the decease of the child, which did not exist at common law. And this right is separate and dis- tinct from that of the heirs or personal representatives. Two actions may thus spring from the same wrongful act, because two distinct injuries are thereby inflicted. But the actions are prosecuted in different rights, and the damages are given upon different principles. The damages recovered by a parent for loss of services of a child belong to the parent in his own right, and are not distributable among the heirs, and do not become a part of the estate of the deceased. The measure of damages in such cases is the value of the child's services from the time of the injury until he would have attained the age of majority, taken in connection with his prospects in life, less the cost of his support and maintenance. To this may be added in proper cases the expense of nursing and medical treatment, and in some jurisdictions even funeral expenses." If the father, as next friend of his minor son, takes part in the trial of a case against a railway company for injury to the son, and insists on his right to recover for loss of earnings, which is had, this will bar him from maintaining a suit to re- cover for the same loss of earnings, upon the ground that his conduct is a relinquishment of them to the son.* The court said : "It appears that the plaintiff in this case, as next friend of his son Oscar, took part in the trial of the former case, and insisted upon a recovery by his son for the very damages — that is, the value of the loss of Oscar's services — which he now seeks to recover in the present case. It is undoubtedly true that as matter of law Oscar had no right in his suit to re- cover those damages without the consent of his father, but he did recover with the consent of his father ; therefore the father is now estopped from setting up a claim for the same damages in this action in his own name. It is true that the earnings of a minor son belong to the father, unless the father has given him his time and earnings ; but the father can not recover 1. Baker ». Flint & Pere Marquette R. R. Co., 91 Mich. 298 (51 N. W. R. 897). THE DOCTRINE OF SPLITTING CAUSES. 333 for such earnings if he has emancipated him. If the case here had been for the earnings of the minor son, and it ap- peared that in a former action by the son — the father acting as his next friend — he had recovered the value of his wages in such former suit with the consent of the father, that fact would be held tantamount to a manumission of the infant, so far as that suit was concerned, and the father would be es- topped from recovery of the same wages. There can be no distinction between such a case and the present ; and the fact that the father appeared and prosecuted as next friend was tantamount to a relinquishment of such loss of services. The court should have admitted the evidence, and have directed the jury that no recovery could be had by the father for the loss of such services, as their value had already been recovered by the son with the father's consent." Child taken. — All the damages sustained by the plaintiff on account of the taking and detention of a child prior to bringing suit constitute but one cause of action, and one judg- ment will bar a new suit.' § 120. Partial recovery — Principle involved. — If the plaint- iff sues for his entire demand, thus not splitting his cause, but fails to recover upon a part, the result is precisely the same as if he had omitted it in the first place. But if he sues upon two or more distinct and independent demands, and gives evidence upon all, a failure to recover uj)on any one of them is a bar to a new suit upon it. Thus, if the record is silent as to one count, ^ issue, ^ or paragraph,* of a complaint, that is an implied adjudication of it in favor of the defendant. Finding for defendant, but no judgment. — In an action to recover three tracts of land, A, B and C, the finding was that the plaintiff was the owner in fee-simple and entitled to the possession of tract A, and that the defendant was the owner in fee-simple and entitled to the possession of tracts B and C. It was therefore considered and adjudged by the court that the 1. Fields V. Law, 2 Root 820. 3. Fink v. Martin, La. Ann. 103. 2. Hoyle v. Farquharson, 80 Mo. 4. Shaw v. Barnhart, 17 Ind. 183. 377. 334 THE MERITS. plaintiff have and recover of and from the defendant the said tract A, and that a writ issue to remove defendant therefrom and to place the plaintiff therein, and that the costs be paid, one-third by the defendant and two-thirds by the plaintiff. There was no judgment on the finding that the defendant should recover tracts B and C of the plaintiff, nor that, as to them, he should "go hence without day;" and, because of that omission, the plaintiff brought a new action to recover tracts B and C, and contended that the finding for defendant was the same as the verdict of a jury, which has no binding force until sanctioned by a judgment. But this contention was denied, the court holding that the judgment in his favor for tract A only was an adjudication that he did not own the other tracts.^ So, if A and several others, each owning separate tracts of land, are made defendants to a suit to foreclose a mortgage covering them all, and A pleads a tax deed, and, after a trial, there is a finding that his deed is valid and that the plaintiff has no lien on his tract, a decree ordering the sale of the other tracts without mentioning his tract, is an adjudi- cation in his favor which will bar any further attack upon his tax title.* 1. Woodin V. demons, 32 Iowa 280, did, the question must be answered 286. in favor of the defendants ; if it did 2. Redden v. Metzger, 46 Kan. 285 not enter into the final determination (26 Am. St. R. 97; 26 Pac. R. 689). of the case, nothing was settled The court said: "A final judgment by it. It is true, as counsel for and decree were rendered in the fore- plaintiff in error contends, that no closure proceedings in the district one should be bound by any litigation court of Leavenworth county. A per- until there is a final judgment ; but in sonal judgment was rendered against this case there was a final decree, and George R. Hines, and in favor of W, our judgment is that the finding was J. Buchan, as trustee, and certain considered in rendering this decree, lands were ordered sold to satisfy that for the reason that the land claimed judgment, but the land in controversy by Metzger was not included with the was not included in this decree. The other tracts of land to be sold. This question, therefore, which this case land was described in the mortgage, presents, is this : Did the special find- The plaintiff in the foreclosure suit ing in favor of Eli Metzger, concern- asked that it be sold, with the other ing this land, become a part of, and lands, to satisfy the mortgage. The was it included in, the judgment and defendant Metzger answered that he decree finally rendered by the district was the owner by virtue of a tax-deed, court cf Leavenworth county? If it The ownership of this land thus be- THE DOCTRINE OF SPLITTING CAUSES. 335 §121. Partial recovery— Special matters. — The omission from a judgment of a part of a demand/ or of one chattel claimed/ or the failure to assess all the damages to which plaintiff is entitled/ or to recover all the land sued for/ or for all the injuries done to it/ is no excuse for a new suit to re- cover the omitted part. Thus, in an action to recover a tract of land, if the verdict is, ''We find for the plaintiff all the land mentioned * * included within blue lines on said plat ; the portion included within red lines on the plat, and came one of the issuable questions to be settled, and, as the holder of that title, he had the right to make full defense. Bradley v. Parkhurst, 20 Kan. 462 ; Pattie v. Wilson, 25 Kan. 326. The record shows a trial and finding in favor of Metzger, and this finding was confirmed by the judg- ment of foreclosure of the mortgage as to the other tracts of land described in the plaintiff's petition, which ex- cepted this land so found to belong to him. This decree, we think, neces- sarily afiirmed the finding that Metz- ger had a valid tax-deed, that he was the owner and in the actual possession of the land in controversy, and that no other parties to the foreclosure suit had any liens upon the same. The rule of res judicata applies as well to facts settled and adjudicated as to causes of action. Counsel for plaint- iff in error relies upon the case of Auld V.Smith, 23 Kan. 65, in which this court said: 'A thing contained in the findings or verdict, but not in- cluded in nor confirmed by the judg- ment, can not be considered as an ad- judication, nor used as evidence, unless some other ground can be found for its use than merely that it is contained in the findings or verdict.' Our view of this case does not conflict with the principle there decided. We think the judgment rendered in the fore- closure suit in Leavenworth county was in accordance with the special finding in favor of Metzger ; and the fact that the record affirmatively shows that the land to which he set up a title in his answer was not included in the decree of foreclosure is evi- dence that the special finding must have entered into and become a part of the decree." 1. Jessup V. Spears, 38 Ark. 457; Board of Commissioners v. Apple- white, 62 Ind. 464 ; Platner v. Best, 11 Johns. 530; Gibson v. Hale, 57 Tex. 405 ; Proudfoot v. Lawrence, 9 U. C. Q. B. 269. 2. Wittick V. Traun, 25 Ala. 317. 3. Wetmoret*. San Francisco, 44 Cal. 294, 303 ; Hall v. Edrington, 8 B. Men. (47 Ky.) 47; Wickersham v. Whedon, 33 Mo. 561 — interest omitted; Baker V. Baker, 28 N. J. Law (4 Dutcher) 13, 19 — interest omitted ; Corbet ??. Evans, 25 Pa. St. 310; McKay v. Fee, 20 U. C. Q. B. 268 — interest omitted by mis- take of law. 4. Thompson r. McKay, 41 Cal. 221, 227 — one parcel omitted; Roby v. Eg- gers, 130 Ind. 415, 422 (29 N. E. R. 365) — part of a tract recovered ; Schive V. Fausold, 137 Pa. St. 82 (20 Atl. R. 403) — an undivided part recovered. 5. Goodrich v. Yale, 8 Allen (90 Mass.) 454. 336 THE MERITS. marked at the corners A B C D, is not found for plaintiff," a judgment for him for the land within the blue lines bars a new action by him to recover that within the red lines. ^ A sued B in Wisconsin to quiet title to certain lots and a road- way and raceway adjoining. His title to the lots was quieted, but it was adjudged that he had no title to the roadway and raceway. In a subsequent litigation between privies to A and B concerning the title to the roadway and raceway, it was held, at first, that the record in the former suit showed that the validity of a tax title held by A was the only matter adju- dicated, and that another title which he then held was not affected.^ But, upon a rehearing, it was decided that the de- cree barred all his rights and titles, whether brought forward or not ; ^ and this is undoubtedly correct. In a proceeding in an assignment for the benefit of creditors, if a homestead is set off to the debtor, that will bar a proceeding by a creditor to set it aside.* A decree awarding a portion of land to the de- fendants in a partition suit bars an action by the plaintiffs in that suit against the defendants to recover the land so awarded.* 1. Dyson v. Leek, 5 Strobhart's Law ion in Gray v. Tyler, 40 Wis. 579, con- 141. flicts with this view, we can not fol- 2. Smith V. Chicago, M. and St. F, low it." Ry. Co., 50 N. W. R. 497. 4. Hasty v. Berry (Ky.), 1 S. W. 2. Smith V. Chicago, M. and St. P. R. 8. Ry. Co.,83Wis.271 (53N. W. R. 550). 5. Pearce v. Jackson, 84 Tex. 515 The court said : "The plaintiff alleged (19 S. W. R. 690). The court said: title to the roadway and raceway; the " As the interest of A. C. Pearce in defendant denied it; and, upon trial the land was subject to the homestead of the issue, the court found and ad- rights of his widow and minor chil- judged that the plaintiff had title to dren, it was not subject to the parti- the lots, but had no title to the road tion had in the county court, and we or raceway. That judgment was af- do not undertake to say that the rights firmed in this court, whether rightly of plaintiffs, as heirs of their father, or wrongly, is immaterial. It was a are affected by it. But their interest fact in issue essential to the plaintiff's in the land acquired from their mother cause of action, adjudged against him was subject to that partition, and it is by a court of competent jurisdiction, evident that the plaintiffs instituted and must be considered as finally de- the partition proceedings to have set termined between the parties and their apart to them their interest so ac- privies. Any other rule would emas- quired. It was necessary to ascertain culate judgments and render litigation what that interest was before the par- utterly fruitless. So far as the decis- tition could be ordered. It was de- THE DOCTRINE OF SPLITTING CAUSES. 337 A person sued to recover $3,000 in coin and $5,000 in jewelry- deposited with defendant in a box ; on the trial it was shown that deposits were made in two boxes, a tin and a paper one, and a witness valued the contents of the tin box at $800 and those of the other at $250. There was a verdict for $2,181 for the coin sued for, and $250 for the contents of a box, on which judgment was rendered. A new suit was brought to re- cover the contents of the tin box, and it was held maintainable because it was evident that the jury did not take it into con- sideration.' It seems to me that there was simply a ground for a new trial, not for a new suit. Trover. — A hired B to carry rice from New York to St. Louis, and for the failure to carry and deliver a portion of it, he sued B in trover and recovered its value in New York. B now sued A for the carrying of the remainder of the rice, and A set up, by way of counter-claim, the same facts alleged in his complaint in trover, with the additional allegation that the rice was higher in price in St. Louis than in New York, and souglit to recover that difference, but the former suit was held to be a bar.^ Indian cases. — Chand on Res Judicata, sections 67-69, says: "67. A considerable extension has been made in the scope of the word 'decision' by explanation 3, constituting, as it does, an omission by a court to grant any relief claimed in the plaint, tantamount to a dismissal of that claim. Even under the code of 1859 the Allahabad high court held that, in a suit for money, if a lien on the property hypothecated for that money was claimed, the grant of merely a money-decree would bar a subsequent suit for the lien. Thus in Muluk Fuqeer termined to be one-half, and the di- ceeding and maintain a separate suit vision was made on that basis. If upon the same title against their co- there was error in the judgment against tenants for the interest set apart to the plaintiffs, they should have caused them in that suit." it to be revised. They did not do so, I.Lewis v. New Orleans Savings and hence are bound by the judgment Institution, 33 La. Ann. 1463, 1465. rendered. They can not hold the land 2. Union R. R. andT. Co. ^;.Traube, decreed to them in the partition pro- 59 Mo. 355. 22 338 THE MERITS. Buksh V. Manohur Doss/ the high court observed that if the plaintiff, having preferred that portion of the claim which sought to charge the land, 'was content'to accept an imperfect adjudication, or one which awarded him only a part of the re- lief claimed, he can not now bring forward in a fresh suit matter which ought well have been thus disposed of.' In a later case,^ a majority of the full bench of the high court held the same, but Sir Robert Stuart, C. J., and Pearson, J., dis- sented from the opinion of the majority on the ground that 'the determination of a suit is not necessarily the same thing as the determination of the cause of action on which the suit is brought. A decree which ignores and fails to dispose of a cause of action alleged, can hardly be said to determine it, without violence to the natural and ordinary acceptation of the terms. Such a negative determination as an omission to deter- mine can scarcely be called a determination at all.' In Baks- hiram v. Darku,^ it was contended that a decree for the re- demption of a certain land would bar a suit for the trees stand- ing on that land, but the contention was overruled by the Bom- bay high court, Mr. Justice West observing in the judgment of the court that 'the claim in that suit might reasonably have been, and ought to have been, construed to include them, and that the court having failed to adjudicate upon this portion of the claim, a fresh suit based on it is competent to the plaintiff.' "68. Only a relief independently claimed is refused. — The first essential to the application of explanation 3 is, that the relief claimed in the subsequent suit must have been asked for in the former suit. In Umrao Lai v. Behari Singh,* the explanation was held not to bar a suit for enforcing a lien as to certain installments of a bond, because they accrued due subsequent to the former suit, in which only a dec- laration of the plaintiff's right to recover them was asked, and the lien was unsuccessfully prayed for only in regard to the in- stallments already due. It is further necessary that the relief asked in the former suit should have been asked for independ- 1. 2 Allahabad H. C. R. 29. 3. 10 Bombay H. C. R. 369. 2. Bhao Singh v. Het Ram, 7 Alia- 4. Indian L. R. 3 Allahabad 297. habad H. C. R. 17. THE DOCTRINE OF SPLITTING CAUSES. 339 ently, and not merely as ancillary to the main relief claimed. In Fatmabai v. Aishabai/ the plaintiff had, in a prior suit for money improperly withheld, asked for a declaration as to her be- ing the wife of a certain person, and the decree did not make that declaration. The explanation 3 was held not to apply, on the ground, as observed by Sir Charles Sargent, in deliver- ing the judgment of a division bench, that ' the declaration was not sought for by way of specific relief, but simply as the ground for the real and substantial relief, to obtain which the suit was instituted.' In the original court also, Scott, J., had said that the explanation * refers to the case wherein several heads of relief independent of each other are claimed, put in issue, and duly controverted, and one of them is neither granted nor refused.'^ In Thyila Kandi Ummatha v. Kunhamed,^ the plaintiff had previously sued for a paramba, alleging that it was his and that he had let it to the defendant. The court dismissed the suit on the ground that the letting was not proved, and in a subsequent suit by plaintiff for the same paramba, it was contended that, as its possession was asked for in the plaint, and not decreed, it must be regarded as having been refused, within the meaning of explanation 3; but the judges said, 'that explanation must be read with the section, and clearly applies to relief applied for, which the court is bound to grant with reference to the matters directly and sub- stantially in issue. The causa petendi in the former suit was the existence of the relation of landlord and tenant, and the omission to pay rent which entitled the plaintiff to recover the property. The title, no doubt, was in issue, but not directly and substantially, only incidentally, and that relief is now prayed for on wholly different grounds.' " " 69. It was often held under the code of 1859 that a claim for mesne profits in a suit for possession of land, in which there was no inquiry and order about them, would not bar a subsequent suit for them.* Even under the present code it has 1. Indian L. R. 13 Bombay 242. W. R. 78; Pratap Chandra v. Swarna- 2. Indian L. R. 12 Bombay 465. mayi, 4 Bengal L. R. 113 F. B. ; Doona 3. Indian L. R. 4 Madras 308. v. Kashmiri Mai, 11 Punjab R. 131. 4. Bahum Bhutt v. Bhoobunlal, 6 340 THE MERITS. been held, in Jiban Das v. Durga Persad/ that if mesne profits from date of dispossession up to the date of the suit were claimed in a former suit, and there was no inquiry nor mention as to them in the judgment, a claim for them in a subsequent suit would be barred. It was argued that explana- tion 3 ' is meant only to bar so much of the claim as is ex- pressly dealt with in the judgment, but is not referred to ex- pressly in the decree.' Banerjee, J., however, in delivering the judgment of the Calcutta high court, said: * We find neither reason nor authority for such a contention. If any matter is expressly dealt with in the judgment, the principle of res judi- cata would apply to it, notwithstanding that the decree does not refer to it expressly, by reason of the express words in the enacting part of section 13; and if the object of explanation 3 was merely to prohibit the trial in a second suit of an issue already tried and determined in a former suit, notwithstanding the absence of any allusion in the decree to the matter so dealt with, explanation 3 might as well have not been given.' It has even been held in Mon Mohun Sirkar v. Secretary of State for India, ^ that if, in a suit for land, mesne profits are claimed from the date of dispossession to the date of the restoration of possession, and the court awards them up to the date of the suit only, a fresh suit for them from the date of the suit will not be barred. Mr. Justice Amir Ali, in delivering the de- cision of Mr. Justice O'Kinealy and himself, said: 'The defendants contend that it is barred under the provisions of explanation 3. It is urged on plaintiffs' behalf that, as it was discretionary with the court in the former suit to assess the mesne profits subsequent to the date of the suit, the mere fact that the court abstained from exercising that discretion does not constitute the present suit a res judicata. We think this con- tention to be sound. No authority has been cited for the de- fendants in support of their contention that the plaintiffs are precluded from maintaining the present action. They have re- lied simply on the words of the section, but as the question is res integra we are at liberty to construe the section reason- 1. Indian L. R. 21 Calcutta 252. 2. Indian L. R. 17 Calcutta 968. THE DOCTRINE OF SPLITTING CAUSES. 341 ably by a comparison of the other sections of the code. It is admitted that at the time the plaintiffs instituted their former suit they had no cause of action with respect to mesne profits accruing due after date of suit ; and they would not have been entitled to ask any relief thereof, but for the provisions of section 211. * * * g^t the section is not imper- ative or obligatory. * * * There is nothing in principle nor law to lead to the conclusion that the mere abstention of the court to award to the plaintiff mesne profits after date of suit would be a bar to any suit in respect thereof. * * * The cause of action in respect of the continuing trespass after in- stitution of suit arises from day to day, and it is only by ex- press enactment, and in order to avoid a multiplicity of suits, that the courts have been vested with the discretion of award- ing damages during the continuance of the trespass and until its cessation. It does not follow that because plaintiff prayed for assessment of damages until he was restored to his prop- erty, and the court in its discretion was satisfied with decree- ing his claim for damages so far as they had accrued due, his claim for damages for trespass continued after suit would be barred by his rule of res judicata. Were we to uphold the con- tention urged by the defendant's pleader, the result would be, as pointed out by Phear, J., in the case of Haramohini v. Dhanmani,^ ' that an unsuccessful defendant directed by the court to give up possession of the property held by him to the plaintiff, might, with impunity, withhold possession from the plaintiff, notwithstanding the decree in which possession of the property is directed to be delivered over, keeping the plaintiff out by main force under every circumstance of aggra- vation, without the slightest apprehension or risk of having damages assessed against him.' This decision is hardly ten- able in the face of the clear language of explanation 3; and the contrary has been held in Ramabhadra v. Jagannatha,^ in which the plaint in the former suit prayed for future mesne profits of the plaintiff 's share of the property sued for, and the decree did not say anything about them; and it was held that 1. I. B. L. R. A. C. 138. 2. Indian L. R. 14 Madras 328. 342 THE MERITS. a separate suit would not lie for them. Muttusami Ayyar and Weir, JJ., said: 'The legal effect of explanation 3 is that of treating the omission to grant the relief asked for in the plaint as equivalent to an express refusal, and the claim thereto in a fresh suit as res judicata. * * * n may be that they were not bound to claim an adjudication in their plaint, but if they once elect to claim an adjudication under section 211, and by such election make it a part of the subject-matter of the suit, they must "either withdraw the claim with the express permission of the court to institute a fresh suit, or be bound by the result of that suit.' " § 122. Partition. — If a petition for partition only describes a part of the land held in common, the decree does not bar the plaintiff from bringing a new suit to have partition of the re- mainder, although he ought to have included it all in the former suit.^ A decree denying a partition bars a new bill, because it was the duty of the complainant to bring forward all his rights and titles.^ In a partition suit, if the trustee under the will of the ancestor files a petition to charge one of the heirs with an advancement and is defeated, he can not maintain a suit against the heir to recover the advancement upon the ground of a special agreement which was not set up in the former suit.' A daughter had possession of a note pay- able to her father at the time of his death, and afterwards delivered it to the administrator. In a subsequent suit between all the heirs and the administrator for a partition and distribu- tion of assets, in which the advancements were considered, if this note was not claimed nor considered, the decree will bar any claim of the daughter to it, as she ought to have made it then and had it taken into account in determining her advance- ments.* Partition suits in India. — Chand on Res Judicata, section 250, says: "250. In certain cases, a suit is based on one's title 1. Ihmsen^?. Ormsby, 32Pa. St. 198. Y. Supreme) 649 (22 N. Y. Supple- 2. Bailey v. Bailey, 115 111. 551 (4 ment24; 51 N. Y. State Reporter 373) . N. E. R. 394). 4. Watson v. Carman, Ky. (6 S. W. 3. Wright V. Miller, 67 Hun (74 N. R. 450). THE DOCTRINE OF SPLITTING CAUSES. 343 only, and such a suit must embrace all the property to which the plaintiff has a claim on account of that title. As an im- portant illustration of this principle, reference may be made to suits brought by co-parceners or co-partners for their share in the joint property. Thus, a suit for the partition only of debts due to the family, will bar a subsequent suit for the plaintiff's share of the family lands, the plaintiff having been, in such a case, bound to claim in the former suit a partition of the whole property which was then undivided.^ "On the same principle, in Ganes Chandra -y. Ram Kumar, ^ a suit for certain moneys, said to have been misappropriated by the defendant during the time he was acting as the man- ager of a joint family, was held to bar a subsequent suit for the plaintiff 's share of certain joint paddy held by the defendant at the time of the first suit. In explaining the grounds of this decision, Mitter, J., said 'that the causes of action in both the cases originated in the refusal of the defendant to give to the plaintiffs their share of the properties realized by him as manager of the joint family. * * * The manager of a joint Hindu family holds possession of various items of property, both real and personal, on behalf of the family. Can it be contended for a moment that each member of the family has a separate cause of action for his share in each item of those properties ? If that were the case, the manager would be harassed by as many different suits as there were different items of property under his management during the time the family remained joint.' "A suit for a general partition will, however, not bar a suit for a particular property which ought to have been included in the former suit and was not included because held in mort- gage by a third person. This was held in Narayan v. Pan- durang' in which Kemball, J., in delivering the judgment of the high court, said : ' The true question for consideration in cases of this kind appears to be whether the former suit was one in which the plaintiff might have recovered precisely that 1. Ukha V. Daga, Indian L. R. 7 2. 3 Bengal L. R. A. C. 265. Bombay 182. 3. 12 Bengal H. T. R. 148. 344 THE MERITS. which he seeks to recover in the second suit, and, in order to apply that test to the present case, it is necessary to bear in mind the two-fold application of the word "partition." There may be a division of right in joint property, and there may be a division of the property itself, that is, by metes and bounds. * * * The plaintiff, in his former suit, could not have re- covered precisely that which he now seeks to recover, for the reason that, in that suit, he sought a division of property, whereas this particular thikan, being then in the possession of a mortgagee, was not available for an actual partition. It has been pressed upon us that the plaintiff might have asked f or a ' ' division of right ' ' in respect of this property in the former suit, but that is not the question. He sought for a di- vision of property as against P, and, in respect of this prop- erty, he had then no such cause of action against him. Section 7 of the civil procedure code did not render it obligatory upon the plaintiff either to include this division of right in his suit for division of property or to abandon for the future all hope of establishing it by an action.' The Madras high court has also held that in a suit by a karnawan against andrawans for property in their possession, the cause of action is the right of the karnawan to demand the restoration of any of such properties at any time, he not being entitled to demand them at once or in one suit.'" §123. Partnership agreement. — An agreement between A and B for the dissolution of a partnership provided for a di- vision of the assets, and that "the differences in values shall be settled by cash, or notes satisfactory to both parties." A sued B on this agreement, alleging that there was a division of the assets and an agreement as to the values, and that those taken by B exceeded in value those taken by him- self in a certain sum, which he asked to recover. The answer admitted the division and difference in value, but alleged a payment, to which A replied, "that by some mistake, oversight or error, a proper computation in dif- ferences in value was not made, although the values were fully 1. Kannan v. Tenju, Indian L. R. 5 Madras 1. THE DOCTRINE OF SPLITTING CAUSES. 345 agreed upon." Upon these issues the case was decided. Afterwards A sued B again upon another clause in the same agreement by which he, A, took certain accounts at their face, but B was to make up any shortages in collection, which he alleged had occurred, and he also alleged that through fraud, accident or mistake there were omissions or undervaluations of property specified, to his damage, to which B answered by a denial. It was decided that these matters constituted different causes of action, and that the first suit was no bar to the second.^ Partnership and contract to pay debts. — A and B, being mercantile partners, sold their goods, and placed their accounts in the hands of C to collect and pay their debts. Afterwards A wrote to C proposing that B should take the assets of the firm and pay all the debts, except a Judgment in favor of D, which he, A, would pay. B accepted this proposition, took the assets and paid the debts. A having failed to pay D's judgment, B brought a suit in equity against him to settle the partnership business, praying for a dissolution and an adjust- ment of their affairs, and for a decree of $4,350 on account of various items set forth in a schedule attached. The case was heard by a referee who reported in favor of a decree for B for the amount of D's judgment, and also reported that the prop- osition of A and acceptance of B constituted a contract, "and, as between themselves, submerged the previous liabilities of the two parties to each other in matters appertaining to the partnership," and that "all the remaining assets of the firm shall be the property of" B, "who shall pay all the outstanding debts and liabilities of the firm." A decree was entered upon this report, and all the accounts were ordered to be turned over to B, who was authorized to sue upon them in his own name. A had a large individual account with the firm, and B brought an action to collect it, and A contended that the action was barred by the suit in equity. On the trial of the second action, it appeared from the record in the equity suit that this account was involved, and that it was investigated by the referee. But 1. Donahue v. McCosh, 81 Iowa 296 (46 N. W. R. 1008). 346 THE MERITS. it also appeared by his testimony that, though the contract be- tween the parties was brought to his attention, he did not de- termine this account, but reported that it was merged in their contract, the validity of which he did not pass upon. Hence, the court held that the suit' in equity was no bar to the later action at law. The case is an authority that the rights of the parties under the contract and under the law constituted at least two causes of action.^ § 124. Patent, royalties for use of. — A, in 1872, being the owner of a patent having seventeen years to run, agreed with B, orally, that he might use it on his mowing and reaping ma- chines, for which a reasonable compensation was to be paid. No time was fixed as the expiration of the contract, nor for the payment of royalties. In 1884, A sued B for royalties accrued to that time and recovered. After the expiration of the patent he sued B for royalties accruing since 1884, and the defense was that the contract was entire and that the suit was barred by the former recovery. But the court held this contention unreasonable, and said that manifestly that was not the intent of the parties; that the royalty was due at reasonable periods.^ A decree enjoining further infringement of a patent and award- ing damages will bar a new suit for prior damages which were omitted.^ 1. Carl V. Knott, 16 Iowa 379. cover damages and profits arising 2. Skinner v. Walter A. Wood M. & from other acts of infringement, com- R. M. Co., 65 Hun (72 N. Y. Supr.) mitted during the same period, but of 622 (20 N. Y. Suppl. 251; 47 N. Y. St. which no evidence was given in the Reporter 506) . former suit, and no recovery asked. 3. Horton v. New York Central R. I am aware of no principle which R. Co., 63 Fed. R. 897. The court authorizes a second recovery against said: " This cause presents the ques- the defendant upon such a state of tion whether or not the owner of a pat- facts. For aught that appears, the com- ent, who, in a former suit in this court plainant deliberately withheld a\i against the defendant, obtained a proof in respect to acts of infringe- decree for a perpetual injunction ment which he knew the defendant against infringement, and awarding had committed, and in respect to him damages and profits for the in- which he might, if he had chosen, fringements occurring prior to Janu- have recovered full compensation, ary 11, 1892, can maintain a second His cause of action in the former suit suit against the same defendant to re- has passed into judgment." THE DOCTRINE OF SPLITTING CAUSES. 347 Pauper brought into a town. — If town A wrongfully takes a pauper to town B and leaves him there, a recovery by B from A, for his support, bars a new action for subsequent sup- port, as all the damages caused by the wrongful act ought to have been recovered in the first suit.^ § 125. Payment in advance — Total failure to perform. — If a person agrees to furnish another with goods and receives a payment in advance, and then wholly fails to furnish, the per- son injured has but one cause of action to recover back his money and damages for non-performance, and if he recovers the latter he can not sue for the former.^ Payment of claims. — If one covenants to pa}- the debts of a decedent included in a schedule, and also one-seventh of any other debts not included on account of error or ignorance, a decree compelling a specific execution of the agreement in re- spect to the debts named in the instrument, is no bar to a suit to compel him to pay the one-seventh of a debt afterwards dis- covered.^ A agreed to give B a note payable by installments, and also agreed to pay it all at once, provided the money due from B on a mortgage to a stranger should be called for. After a breach of both parts of the agreement, B sued A for the non-delivery of the note. His recovery in that action was decided to be no bar to a new action for a breach of the second part of the agreement.* So, if a person agrees to pay a sum of money at once, and to convey land in the future, a recovery for the money is no bar to a subsequent suit for breach of the contract.^ Payment before judgment. — If A sues B upon a part of an account, which he pays before judgment, he can not raise the question that A split his cause of action when he sues for the balance. As the first suit did not go into judgment, it was the same as if he had paid without suit.® 1. Town of Marlborough v. Sisson, o. Reynolds v. Franklin, 47 Minn. 31 Conn. 332, 338. ^ 145 (49 "x. W. E. 648). 2. Dalton v. Bentley, 15 111. 420. 6. Cashman v. Bean, 2 Hilton 340. 3. Horry r. Frost, 10 Rich. Eq. 109. 4. Bristowe v. Fairclough, 1 M. & G. J43 (39 E. C. L. 687). 348 THE MERITS. ** Per day." — A boat having been hired " for the sum of ten dollars per day," until delivered back to the owner, it was decided that a cause of action did not arise at the end of each day, but that the contract was entire ; and that a recovery for a part of the hire barred a suit for the remainder.^ § 126. Penalties. — In an action for a penalty, which any person may recover, one prosecution which the defendant de- feats bars another by another person.^ Breach of contract. — A recovery of the statutory penalty from a telegraph company for a failure to deliver a message within a reasonable time, is no bar to a new suit to recover for an error in its transmission.' Divid^end unpaid. — A statute of Missouri provides that if any assignee fails to make payment of any dividend out of the funds in his hands, " for more than three days after the same has become due and has been demanded by the person entitled thereto, he shall for every such neglect or refusal forfeit and pay to the person aggrieved five per centum per month interest on such sum as such person was entitled to at the time of such demand, to be recovered by motion in the court having juris- diction of said assignment ; and any judgment rendered by such court, on the hearing of such motion, shall be against such assignee and his securities on their trust, provided for in this chapter." Under this statute it was decided that a re- covery, on motion, of the penalty of " five per centum per monih interest," for a failure to pay over a dividend, barred a new motion for a subsequent failure. This was based upon the idea that the dividend itself, and all penalties accrued up to the time of trial, ought to have been recovered on the first mo- tion.* Railway. — The recovery of a statutory penalty from a rail- road company for a wrongful ejection from a train is no bar to an action for damages for the same wrong. ^ 1. Stein V. Steamboat Prairie Rose, 4. Epright^j. Kaufman, 35 Mo. App. 17 O. St. 471 (93 Am. D. 631). 455, 459. 2. Crosby v. Gipps, 16 111. 352. 5. St. Louis & S. F. Ry. Co. v. Trim> 3. Wilkins v. Western Union Tel. ble, 54 Ark. 354 (15 S. W. R. 899). Co., 68 Miss. 6 (8 S. R. 678). THE DOCTRINE OF SPLITTING CAUSES. 349 Tenant holds over. — If a tenant unlawfully holds over, for which the landlord recovers the penalty of double rent, this is a bar to an action for damages from loss of a sale of the land caused by the same holding over, because the act for which the redress is sought, namely, the unlawful holding over, is the same in both cases. It is the wrong done, and not the character or quantum of damages sustained, which con- stitutes the identity.' § 127. Pending suit^ — Damages accruing. — As a general proposition, the damages which accrue in relation to the sub- ject-matter of the litigation can not be made to support a new suit but must be brought forward with the other parts of the case. Thus, if the defendant in a foreclosure suit, after serv- ice of process, but before the decree, purchases the land at a tax-sale, he must set up his rights or the decree will bar them.' So, in trespass to try titles in Alabama, the plaintiff is entitled to recover damages for the mesne profits up to the time of the verdict, and if he fails to do so, he can not maintain a new ac- tion for them.* 1. Crips V. Talvande, 4 McCord's Law 20. 2. See sections 145-147, i7ifra. 3. Davis V. Barton, 130 Ind. 399 (30 N. E. R. 512). The court said: " When Grubbs was made a party to the action of foreclosure, to answer to his interest in the premises, he was called upon to assert his claims, if any, to the property ; and, if he failed to assert all his claims, he was neverthe- less barred by the decree. The pur- pose of making all persons having or claiming interests in mortgaged prop- erty parties to the action, is to settle in one comprehensive suit all conflict- ing claims. The purchaser of property pending a suit to foreclose a mort- gage on it, is bound by the decree subsequently rendered. A case very much in point is Christy v. Water- Works,84 Cal. 541 (24 Pac. Rep. 307, 68 Cal. 73, 8 Pac. Rep. 849), in which, pending a suit in partition, the defend- ant acquired, after answering, but be- fore decree, an independent title by deed. It was held that it was his duty to disclose his adverse after- acquired title, and that, failing to do so, the judgment of the court establish- ing the title was conclusive on all the parties as to title or claim held by them at the time the interlocutory decree was entered. We are there- fore of the opinion that, treating Grubbs as a purchaser of the tax-title in his own right, its lien would have been barred by the decree of foreclos- ure." 4, Shumake v. Nelms, 25 Ala. 126, 133. 350 THE MERITS. Rents. — In a suit in equity by a tenant in common to recover his share of the land, he is entitled to recover the rents and profits down to the time of the decree, and if he recovers them simply to the commencement of the suit, he can not maintain a new suit for those accruing between that time and the date of the decree.* A bill having been filed charging that the defendant held the legal title to land to secure the repay- ment of money, a decree that the allegations of the bill are true, and ascertaining the amount of the debt with interest to the time of the adjudication, and ordering a conveyance of the legal title to the plaintiff upon the payment of the sum due, will bar a new suit by the plaintiff, showing that, during the pendency of the first suit, the defendant had entered under his legal title and enjoyed the rents and profits until the final decree was made, and had also committed waste, because all these matters ought to have been brought into the first suit by supplemental bill.^ Waste. — Likewise, a decree compelling and completing a specific performance for the sale of land, bars an action at law for damages done to it pending the former suit, as that ought to have been brought forward by a supplemental bill.^ Exceptions — Accounting. — But in a suit in equity for an accounting, although moneys received after the commencement of the suit may be included in the account taken, yet the fail- ure to do this does not bar a new suit to recover them.* Trust matter. — If a bill is filed to establish a trust in land against the holder of the legal title and his mortgagee, and the land is sold pending the litigation, by virtue of a power in the mortgage, and bought in by the mortgagee, the plaintiff is not compelled to bring these matters in by way of supplemental bill, but may await the result of the suit; and if the decree es- tablished the trust subject to the mortgage, a new suit to set aside the mortgage sale on account of fraud and grossly inade- quate price, is maintainable.^ 1. Berry v.Whidden,62 N.H.473,476. 4. Tyler v. Willis, 35 Barb. 213. 2. Kites V. Irvine, 13 0. St. 283. 5. Hubbard v. Flynt, 58 Miss. 266, 3. Head v. Meloney, 111 Pa. St. 99 270. (3 Atl. R. 195). THE DOCTRINE OF SPLITTING CAUSES. 351 § 128. Pleadings, matters omitted from. — If the plaintiff is defeated because of a material defect in his pleading, a new ac- tion upon good pleadings will not be barred. But if he obtains a trial on the merits notwithstanding his defective pleadings, he can not maintain a new action. Thus, but one suit can be maintained upon one cause, and making additional allegations as to new evidence or facts to help out the original cause does not remove the bar.^ So, if the causes of action are identical, the first judgment is a bar, although the grounds urged to sus- tain it are different.^ The cases that would properly come within this section are considered in other sections of this chapter, especially in section 70 in respect to Cancellation SUITS. § 129. Quieting title — Eelease of claim according to con- tract. — The possessor of land in Oregon filed a bill in a state court, which alleged, as one cause of action, that the defendant held a patent for the land which was void, and prayed that he be enjoined from asserting title under it — being a suit to quiet title; as a second cause of action, the bill alleged that the de- fendant had agreed to convey to him the title as soon as he, defendant, should receive a patent, and also a demand and re- fusal — being a suit to compel a release of claim of title. The court being of the opinion that the causes could not be joined, compelled the plaintiff to elect upon which he would proceed, and he chose the first ground named, and set it up as the sole cause of action in an amended bill, and obtained a decree quieting his title, which was affirmed by the supreme court of the state. But this was reversed by the supreme court of the United States, which ordered the bill to be dismissed for want of merits, which was done. The plaintiff afterwards brought a new suit upon the second cause set forth in the bill in the first suit, and the defendant contended that the first decree was a bar because the plaintiff had split his cause of action; but this, contention was denied for the reason that the bill to quiet title 1. Darragh v. Kaofman, 2 Texas 2. Girardin v. Dean, 49 Texas 243, Unreported Cases 97. 246. 352 THE MERITS. and the bill to compel a release of a claim of title by virtue of a contract, constituted two causes of action.* § 130. Railway crossing. — If a railway company, in consid- eration of a right of way, agrees to construct and maintain fences and a crossing, a recovery for failure to do the latter bars an action for neglecting to construct the former.* The court said : " The question for determination is, was the judg- ment rendered in the prior action a bar, notwithstanding the dismissal of so much of the complaint as related to the claim for damages for the failure to build fences? It was alleged in the complaint in the first action, that the railway company had built its railroad over the right of way conveyed to it by the plaintiff, and that it had been running its cars since the first day of February, 1882. The railway company having, upon a consideration received by it, contracted to build fences, and having taken possession of the land, it became its duty, within a reasonable time, to comply with its contract. The duty to build the fences, and to construct the crossing and cattle-guards, arose out of the same contract. The obligation of the railroad company was to discharge both stipulations within a reason- able time. Failing to comply with its contract within a rea- sonable time, the plaintiff was entitled to maintain an action for a breach of the contract, and to recover as damages the rea- sonable cost of erecting the fences and constructing the cross- ing. It is not necessary that he should have first done the work which it was the duty of the railroad company to do, before he could maintain the action. Having a right to recover for the failure to construct the crossing, the plaintiff had at the same time the right to recover on the same contract for the failure to build the fences. This being so, it was not competent for him, after recovering, in one suit, part of the damages accrued to maintain another suit on the same contract, to recover other damages which had accrued when the first judgment was ren- dered. A party will not be permitted to present, by piecemeal, 1. Stark V. Starr, 94 U. S. 477, 485. 510 (5 N. E. R.549). Accord, Smith u. 2. Indiana, Bloomington and Wes- Great Western Ry. Co., 6 U. C. C. P. tern Ry. Co. v. Koons, 105 Ind. 507, 151 — a covenant to build a crossing. THE DOCTRINE OF SPLITTING CAUSES. 353 in successive suits, claims which grow out of an indivisible, entire contract, and which might have been litigated and determined in the first suit. In such a case, the judgment by the first suit will be a conclusive merger of all the plaintiff's rights under the contract. This rule is applicable to all con- tracts which are entire and indivisible in their nature. Whether a contract is entire or not, is to be determined by consider- ing whether or not the obligation which it imposes is to be discharged at different times or to different persons. If par- ties have stipulated, in the same contract, that a debt shall fall due in installments, or that several distinct obligations which it imposes shall be performed at different times, at stipulated periods, to different persons, the consideration for each separate act being expressly or impliedly apportioned, they have thereby made the contract divisible, in such sense that an action may be maintained on the contract to recover upon each separate in- dependent stipulation as it matures or is broken. In such a case, the presumption would be that all such claims under the contract as were matured, and which might have been in- cluded in the action at the time it was commenced, were merged in the judgment. Whether or not it might be shown, in such a case, that one or more of such claims as might have been in- cluded were withdrawn before judgment, we need not deter- mine. If, however, a contract upon an entire considera- tion stipulates for the performance of several acts, in favor of the same person, at the same time, it is entire, and separate suits can not be maintained to recover for its breach in respect to each several act stipulated to be performed." Reconveyance, suit to compel. — A, having conveyed land to B by a deed absolute on its face, brought a suit to compel a reconveyance, upon the ground that the sole consideration was that the defendant should hold it in trust for him, and should apply the rents, issues and profits for his support during life, which had not been done. A judgment for the defendant was held to be a bar to a new suit to compel a reconveyance because the original deed was upon the consideration and condition 23 354 THE MERITS. that the defendant would apply a sufficient portion of the rents to the support of tlie plaintiff during life, which he had failed to do/ The court said: ''The question presented for deter- mination on this appeal is, whether or not the plaintiff is estopped by the former judgment. In the former action, the plaintiff sought a judgment that she was the owner of the lands and premises, as against the defendants, and that they be directed to reconvey them to her. In her complaint she set up the same conveyance that is averred in the present action, and alleged that it had been made by her upon the sole con- sideration that the defendant should hold it in trust for her, and that the rents, issues, and profits should be applied in providing for and maintaining her during her natural life, and alleged that the defendant had not in any manner, nor at all, provided for nor maintained her. Upon the trial of the issues therein, the court rendered its judgment that the plaintiff was not the owner of the lands, but that the defend- ants, as against the plaintiff, were the owners in fee simple, free and clear of any and all trusts, exceptions, limitations, and conditions set forth and alleged in the complaint. By that action the plaintiff brought into judicature the title to the land as between herself and the defendants, so far as the same depended upon the conveyance made by her to Erastus J. Baker. She challenged their title by impeaching the transac- tion out of which the conveyance had been made, and the judg- ment which she sought was the cancellation of her deed, and the destruction thereby of the title claimed thereunder by the defendants. Whether she averred as the ground of the relief sought that the consideration for the conveyance was the agree- ment of the defendant that he would hold the land upon a trust for her, which he had violated, or that the conveyance was made by her and accepted by him upon the condition, sub- sequently broken by him, that he would thereafter support her, and would apply the whole or a portion of the rents to her sup- port, was immaterial. The real issue which she brought be- fore the court for its judgment was the sufficiency of the 1. Woolverton v. Baker, 98 Cal. 628 (33 Pac. R. 731). THE DOCTRINE OF SPLITTING CAUSES. 355 defendants* title to the land, under the deed which she had executed to Erastus J. Baker. Her cause of action was the breach of the agreement under which she alleged that this con- veyance had been made, and involved the determination of the rights of the parties flowing from that transaction, and it was incumbent upon her to set out in her complaint all the facts which constituted this cause of action. She is estopped by the judgment therein rendered from thereafter asserting any cause of action depending upon the facts so omitted, as fully as she would be if, at the trial, she had omitted to introduce evidence in support of her averments or present argument to satisfy the court of the justice of her claim. A party can not litigate his cause of action by piecemeal, and, after a judgment against him, seek in another action to obtain relief dependent upon the transaction therein adjudged, by bringing forward claims and demands properly belonging to the first action. The judgment against him is conclusive, not onl}'' of what was in fact deter- mined, but also of all matters which might have been presented in support of his cause of action, and litigated therein." § 131 . Redemption suit and breach of contract. — The plaint- iff declared upon an oral agreement by which, as he alleged, the defendants took the title to certain premises as security for a loan, and undertook to pay him a further sum to enable him to obtain the immediate possession of the property, and to leave him in its full possession and control, and to furnish him so much money as might be needed for laying out streets upon it, and to convey, at any time, the portions he might sell, upon payment to them of the avails of the sales to be applied on the mortgage debt. The breaches assigned were their failure to perform these stipulations. The defend- ants pleaded that he had heretofore brought against them a bill in equity, in which he set forth the same loan and conveyance and the undertakings now declared upon, and prayed that the conveyance be decreed a mortgage, and that an account be taken of the money paid out by them, and that they be decreed to convey the premises to him upon payment of the sum found 356 THE MERITS. due ; that a decree was made accordingly, with which he failed to comply, whereby all his interest in the property became barred. The defendants contended that this decree settled all matters concerning that transaction ; or, in other words, that he had split his cause of action, and ought to have brought it all forward in that suit. But the court did not agree with them, saying that the former suit was simply a bill to redeem, and that he did not seek to have his damages for the breach of these stipulations ascertained and applied in reduction of the loan, and was not compelled to do so because they were not so connected with the loan as to make but one cause of action ; that if they had brought a suit to foreclose against him, these matters would have constituted a matter of recoupment in his favor, to be set up or not at his pleasure, and that his bill to redeem only necessarily raised the same issues as their bill to foreclose would have done.^ Redemption and contribution. — A, being the life tenant of land, joined with the reversioners in mortgaging it to B. After- wards the reversioners sold their interest in the land to C, and B foreclosed his mortgage. After the time for redemption had expired, and the title had become absolute in B, he conveyed to C for the amount of his claim. A now brought a suit in equity to redeem from C, alleging that he had had no notice of the foreclosure proceedings, and a decree was made giving him that right upon payment of the amount paid by C to B. A paid that amount to C, and then brought a bill to compel C to contribute the reversioners' share of the mortgage debt. C claimed that that matter ought to have been settled in the suit to redeem, and that it was now barred, but the court held that, while it might have been set up and adjudicated in that suit, yet there was no inflexible rule requiring it — the objects of the two bills being different, although based largely on the same facts.^ Redemption and damages. — If the mortgagee of land takes possession and conveys to another, and the mortgagor files a 1. Mussey v. Bates, 65 Vt. 449 (27 2. Lyon v. Robbins, 45 Conn. 513, Atl. R.167). 523. THE DOCTRINE OF SPLITTING CAUSES. 357 bill against the mortgagee and his grantee to redeem and for an accounting and damages, the decree will bar a new action by the mortgagor against the grantee for damages caused to the land, notwithstanding the fact that the court ignored his claim for damages and rents and profits in the first suit.* The court said: "The first question is whether or not there was error in sus- taining the plea of res judicata. The object of the action brought by Steen against Murphy and Mark was primarily to have the deed to Murphy, absolute in form, declared a mortgage ; and that being done, to be allowed to redeem ; and in that action Steen demanded 'an accounting between the parties,' besides the prayer for general relief. Regarding that action, then, as substantially an action to redeem, the inquiry is whether or not an accounting for rents and profits, or for damages done to the mortgaged premises, while the same are in possession of the mortgagee, or his grantee with notice, is properly and neces- sarily incident to such an action. On that subject, it is said in 3 Pomeroy's Equity Jurisprudence, § 1216 : ' The general duty of the mortgagee in possession toward the premises is that of the ordinary prudent owner. He must account in general for their rents and profits, or for their occupation value. When the land is in the occupation of tenants, he is chargeable with the gross actual rents and profits received, and with no more, unless he has been guilty of a willful default. ' And in section 1218 of the same w^ork it is said : * This accounting belongs exclusively to the equitable jurisdiction, and can be enforced only in a suit to redeem,' etc. Upon the principles thus laid down by this high authority, there can be no doubt that if the mortgagee, Murphy, had been in possession after an action to redeem brought against him alone had been heard and deter- mined, the claim of the mortgagor for rents and profits, or for damages done to the mortgaged premises while in his posses- sion could only have been heard and determined in that ac- tion, and hence no subsequent action against him could have been sustained for rents and profits or damages, for the matter would be regarded as res judicata by the judgment in the ac- 1. Steen v. Mark, 32 S. C. 286 (11 S. E. R. 93). 358 THE MERITS. tion to redeem, if the claim for rents and profits or damages should have been enforced. But in this case it appears that the action to redeem was not brought against Murphy, the mortgagee, alone, — his grantee, Mark, being also a party ; and the question is, how does that affect the principle above laid down? If, as we have seen, the duty of the mortgagee who goes into possession of the mortgaged premises is that of a pru- dent owner, bound to take care of them, and make them jdeld a proper rent, and is liable to account, under an action to re- deem, for all rents he may receive from persons whom he may have placed in possession as his tenants, it would seem to fol- low that he would be equally liable in case he has undertaken to sell the premises without lawful authority, and place his grantee in possession ; for the possession of his grantee is, in fact, his possession, and for such possession he would be liable to account under the action to redeem. If he received the pro- ceeds of land, which in equity and good conscience did not belong to him, but to the mortgagor, he should account for the same, whether such proceeds were received in the shape of purchase money and interest thereon, or in the form of rent ; and in ad- justing the amount of the mortgage debt, under the action to redeem, the amount so received by the mortgagee should be deducted, and no subsequent action therefor could be sustained, because it will be regarded as already adjudicated by the de- cree in the action to redeem, in which alone the amount of the mortgaged debt could be ascertained and determined. In ad- dition to this it appears that Steen, in the former action, not only demanded an accounting between the parties, but at the reference before the master offered some evidence, slight it is true, as to the rents ; and if the master ignored the claim for rents, as he seems to have done, Steen should have excepted to the report on that ground, which he does not appear to have done, and it is too late now to set up the claim in another ac- tion. It seems to us, therefore, that there was no error upon the part of the circuit judge, in sustaining the plea of res ju- dicata." § 132. Rent ignored. — If the plaintiff sues for land and THE DOCTRINE OF SPLITTING CAUSES. 359 rents, and recovers the land only/ or the land and nominal damages,^ he can not bring a new action for the rents. And in Tennessee, in case a tenant appeals from a judgment of a justice awarding possession to the landlord, and gives a super- sedeas bond, the statute requires the court, on appeal, if the landlord recovers, to render a judgment for the value of the rents against the tenant and the sureties on his bond; and a judgment in favor of the landlord for possession and costs bars a new suit on the bond.^ Rent and attorney's fees. — In an action to recover rent, if the plaintiff has the right to recover his attorney's fees, his failure to include them is no bar to a new suit to recover them because their amount could not be determined until after the case was terminated.'* Rent in advance. — If A guarantees to B the sum of $200 per month rent ' ' payable in advance ' ' for a period of twenty- five months, a recovery on this guaranty for a part of the period is no bar to an action for the remainder.^ § 133. Replevin — Damages for deteiition. — A recovery in replevin of the goods and costs, and the return of the goods and payment of the costs, bars an action against the defendant for the unlawful taking and detention, as those matters ought to have been recovered in the first action.® The court said : ' ' The only question involved is whether or not the former ad- judication in the replevin action against Growl is a bar to this action brought by the same plaintiffs against him and the sure- ties on his official bond. This question the district court an- swered in the affirmative, and we think correctl3^ The plaint- iffs had the choice of several remedies for the wrong that had been committed. They were entitled to damages for the wrongful taking and detention, and among other remedies 1. Villars v. Faivre, 36 La. Ann. 5. Weiler v. Henarie, 15 Oregon 28 398. (13Pac. R.614). 2. Stewart V. Dent, 24 Mo. 111. 6. Ellis v. Crowl, 46 Kan. 100 (26 3. Simmons v. Taylor, 91 Tenn. 363 Pac. R. 454). (18 S. W. R. 867). 4. Quinn v. Ohlerking, 37 111. App. 315. 360 THE MERITS. had their action against the sheriff on his bond for the conver- sion of the property, and also the action of replevin to recover the property or its value, and all damages sustained for its wrongful seizure and detention; and they chose the latter. In that action, according to the allegations of the answer, they not only asked for the recovery of the property attached, but they asked for the damages which they had sustained by reason of the seizure and detention. It is true they did not recover damages in that action, but the right to damages was an issue in the case, and was necessarily tried and determined. The judgment in that case was satisfied before the commencement of this proceeding, and is conclusive upon the parties and their privies upon every question which under the pleadings was or might have been litigated and determined. In the former ac- tion the plaintiffs could have recovered full compensation for the loss sustained by the taking and detention of their prop- erty, and to as full a measure of damages as if they had first chosen the present remedy." The statute of New York de- clares that, in replevin, "the verdict, report or decision must fix the damages, if any, of the prevailing party." Under this statute, if goods are taken and detained from the defendant, and he finally recovers, he must have his damages for the de- tention assessed, and he can not maintain a new action for their recovery.* Interest ON bonds. — If A, as the agent of B, has bonds in his possession and collects the interest, and afterwards refuses to deliver the bonds to B upon demand, thereby converting them to his own use, a recovery of the bonds by B, in replevin, is no bar to an action by him for the interest received before the conversion, as it formed no part of the claim for damages for wrongful detention.^ Return not awarded. — In replevin by A against B for five chattels which were taken and delivered to A, B answered claiming title to one, a hearse, and asked judgment for its 1. Ritchie v. Talcott, 31 N. Y. Sup- N. Y. Supreme) 329 (29 N. Y. Supple- plement 196. ment 347 ; 60 N.Y. State Reporter 586) . 2. Govinv. De Miranda, 79 Hun (86 THE DOCTRINE OF SPLITTING CAUSES. 361 return, and then made an offer to allow judgment to be taken against him for the other four and costs — saying nothing about the fifth chattel claimed in his answer. The offer was accepted and judgment entered in favor of A for the four chattels and costs. Afterwards, B sued A to recover the possession of the fifth chattel, and contended that the former judgment was con- clusive in his, B's favor. But this contention was denied. The court said: "We are of opinion, after careful examina- tion, that B can not claim successfully that the judgment is an adjudication in his favor, because, if it was, he should have procured a return of the hearse by the judgment, and neglected to do so." In this case, it was ruled on the trial that the former proceedings did not adjudicate the title to the hearse, and the verdict was in favor of A. Subsequently B obtained a new trial upon the theory that the first judgment settled the title in his favor, and A took an appeal. The appellate court simply held that the former judgment did not settle the title in B's favor, but did not pass upon its effect as to A's title.' Return not demanded. — In New York if the defendant in replevin does not demand a return of the property, a judgment in his favor, not awarding a return, does not preclude him from bringing a subsequent action for its recovery.^ Rescission and rents. — A decree rescinding a sale of land is a defense to a new suit against the vendee to recover rents.' § 134. Reservation in decree of right to bring: new suit. — If a decree which adjudicates a part of the matters in contro- versy reserves the right of a party to proceed anew upon the other part, he may do so, and the reservation, however erroneous, will prevent his adversary from using the first pro- ceedings as a bar. Thus, a township paid money into the county treasury to be paid to a railway company on certain conditions. Afterwards the township, in an action to which the railway company was not a party, recovered a judgment 1. Shepherd v. Moodhe, 29 N. Y. lowing Yates v. Fassett, 5 Denio 21, Supplement 392 (8 Miscellaneous R. and Angel v. Hollister, 38 N. Y. 378. 607; 61 N. Y. State Reporter 52). 3. Patrick v. Roach, 21 Tex. 251, 2. Shepherd v. Moodhe, supra — fol- 254. 362 THE MERITS. against the county for the money so i^aid, and a part of it was repaid. At this stage of the proceedings, the township brought a new action against the county and the railway company to settle their respective rights, and the company filed a cross- complaint, alleging that the fund was in the county treasury and that the township had no interest in it. To this cross- complaint an answer of general denial was filed, with an agree- ment that all matters of defense or counter-claim might be given in evidence under the issue so made. A trial was had and a special finding of facts made, upon which a judgment was rendered against the township for costs, and against the county for the full amount of the funds ; but, upon motion of the county, this judgment was modified by deducting the amount which it had paid to the township before the suit was commenced, with a reservation of the right of the railway com- pany, if any, to recover that sum from the township. The railway company then sued the township to recover this amount, and the defense was that it ought to have been in- cluded in the former judgment, and that the township could not be vexed with a new suit. But it was decided that the reservation in the former judgment gave the right to a new suit.^ A executed a first, and then a second, mortgage to B upon land, and afterwards a third one to C, and a fourth one to D, and subsequently E recovered a judgment against A which became a fifth lien. C, the holder of the third mort- gage, sued to foreclose, making all the others parties. B filed an answer in denial, and also a cross-complaint to foreclose his first and second mortgages. D, the fourth mortgagee, answered that he had assigned his mortgage to F, but he was not made 1. Indianapolis, D. and "W. Ry. Co. perhaps, have been indulged in, if the i;. Center Township, 130 Ind. 89, 95 judgment were silent upon the subject. (28 N. E. R. 439). The court said: But the record must be looked to as a "The contention that we should pre- whole, and when we so look at it we sume that the cause of action set up in find that the cause of action now in the complaint in this cause was liti- suit was expressly reserved, and was gated and settled under the agreement not settled in this action. This exi'ep- between the parties meets with an in- tion and reservation is binding of> the surmountable difficulty in the judg- parties." ment itself. That presumption might. THE DOCTRINE OF SPLITTING CAUSES. 363 a party. The j^reface to the decree rendered recited that D's mortgage and E's judgment were unpaid, and had been as- signed to B, the cross-complainant, before the action was insti- tuted, but in its adjudicating part this mortgage and judgment were not mentioned. It was adjudged that the two first mort- gages held by B, and the third one held by C, be foreclosed, the premises sold, and the proceeds applied, first, to the pay- ment of costs; second, to the payment of B's first and second mortgages; third, to the payment of C's mortgage. After the sale, A, the owner and debtor, conveyed the land to G, who, as owner, redeemed from the sale. B now sued to foreclose the mortgage executed to D [the fourth lien], alleging that it had been assigned by him to F, and by F to the plaintiff, B. This attempt to foreclose was contested by G, the present owner of the land, uj)on the ground that all the rights of B were set- tled in the prior suit ; or, in other words, that he was then called upon to bring forward and have adjudicated all the claims he had against the mortgage premises, and that he could not bring them on by piecemeal. The court said that, in considering the question, these important facts were to be kept in mind : " 1st. The complaint in the former action did not aver that B claimed any rights under the present mortgage, but averred that he held the two mortgages executed to him and gave the order of priorit}^ of all of the liens. 2d. B, in the former suit, did not set up this mortgage, nor did any other party. 3d. The introductory part of the decree in the former suit recites that the mortgage here sued on is a subsisting and unpaid lien. 4th. The adjudicating part of the decree foreclosed the liens as- serted in the complaint and cross-complaint, but made no men- tion of the mortgage here sued on. 5th. The former suit was brought to foreclose a mortgage, to reach and subject to sale real property which stood to several lienors as common security for several debts of different order of priority. 6th. The sub- ject-matter of that action was land, and adequate relief required the full adjustment of conflicting rights and equities." The court also said * ' that the general rule is that if a party is chal- 364 THE MERITS. lenged to assert his interest in mortgaged property, and he ap- pears and answers, and also pleads by way of cross-complaint, asserting title by mortgage, and obtains a decree upon his cross-complaint establishing the seniority of his lien, and di- recting payment to be made, first of his lien, second of the plaintiff 's lien, and, third, payment of the surplus to the mortgagor, the decree concludes him from afterwards asserting title under another mortgage held by him at the time of the fil- ing of the cross-complaint, as against one who has bought from the mortgagor and redeemed from the sales made on the decree of foreclosure." But it held that the present case was an exception to the general rule, because the recital in the preface to the decree showed that this mortgage was owned by B and unpaid, and the decree provided specifically for the en- forcement of all the valid and unpaid liens, except this, which, in the opinion of the court, showed that it was reserved from the decree; and, therefore, it was decided that B could fore- close, subject to the right of G (who was not personally liable for the debts), to be subrogated to the prior liens redeemed by him.^ § 135. Eight of property and damages. — In a proceeding in Alabama by a person whose goods have been seized on an execution against another, to try the right of property, the damages caused by the illegal seizure can not be adjudicated, and, therefore, a judgment in his favor is no bar to a suit for the illegal taking and detention.^ § 136. Salary, services and wages. — A recovery for services bars a new suit for other services of the same character ren- dered within the same period of time upon the same employ- ment.' Thus, if a person serves another for twenty months with no agreement as to term of employment, rate of wages nor time of payment, he can not bring two suits for his demand.* A city employed A as an engineer, and afterwards made an 1. TJlrich V. Drischell, 88 Ind. 354 4. Pittman v. Chrisman, 59 Miss. 2. Lenoir v. Wilson, 36 Ala. 600. 124. 3. Green v. Vonder Ahe, 36 Mo. App. 394, 398. THE DOCTRINE OF SPLITTING CAUSES. 365 order placing him in a less lucrative position as a machinist, at which he worked about two years, when he was discharged. Three years afterwards he sued the city to recover damages sus- tained since the discharge, alleging that he had always been ready to perform his duties as an engineer but was not allowed to do so, and recovered. He then sued the city to recover the difference between the salary he received as a machinist and the salary of an engineer, and sought to use the former recov- ery as conclusive proof that the order relieving him from his duties as engineer and appointing him as machinist was wrong- ful, and that he had not acquiesced in it. But the court held that, if his contention was correct, the former judgment would bar his present action upon the ground that he had split his cause of action.* So, if wages are due from time to time, cases in Illinois and Ontario hold that a suit for and recovery of an installment will bar a new suit for any prior installment.^ But these cases seem to me to be unsound. I can see no difference, in principle, between such cases and notes or accounts maturing at different times. The statute of limitations begins to run against each as it matures and bars each at a different time. Of course, if a salary is payable weekly, a recovery for one week is no bar to an action to recover for the other installments coming due after the first suit was commenced.* Special deposit and wages. — A agreed to work for B for fourteen dollars per week, nine dollars of which was to be paid to him, and the other five to remain in the hands of B, upon interest, until A should want it. Two years later, A made a special deposit of one hundred dollars with B. This had no connection with their contract concerning the labor. Seven years after that, A sued B and recovered this special deposit, and then sued him for the five dollars per week left in his hands, and B claimed that the former recovery was a bar; but this 1. O'Brien v. Mayor, 28 Hun (35 N. ville and North Hastings Ry. Co., 5 Y. Supr.) 250. Ontario Appeal Reports 315. 2. Rosenmueller v. Lampe, 89 111. 3. McEvoy v. Bock, 37 Minn. 402 212 (81 Am. R. 74) ; Davidson v. Belle- (34 N. W. R. 740). 366 THE MERITS. claim was denied upon the ground that he had two distinct causes of action.* § 137. Salary, services and wages — Wrongful discharge and recovery of damages for. — If one is wrongfully dis- charged from the service of another, and elects to sue for damages instead of wages, he thereby acquiesces in consider- ing the contract terminated, and he must recover all his dam- ages, both present and prospective, as this suit will bar all others.^ Thus, in the Maryland case cited,^ a person having 1. Byrnes v. Byrnes, 102 N. Y. 4 (5 N. E. R. 776). The court said : "The claim is, that the one hundred dollars specially deposited with the defend- ant, and so much of the plaintiff's wages as were left with him under the agreement made in 1872, consti- tuted but one cause of action, and hence that the plaintiff was bound to include all his claims in one action ; and that, having sued and had judg- ment for a portion of his cause of action, the whole was merged in that judgment, which is a bar to the maintenance of this action, upon prin- ciples decided in Guernsey v. Carver, 8 Wend. 492 ; Bendernagle v. Cocks, 19 Wend. 207 ; Jex v. Jacob, 7 Abb. N. C. 452, and other cases. But we think the plaintiff's claim for the money specially deposited with the defendant was a separate and in- dependent cause of action, and that therefore a recovery in the first action was not a bar to this, within the prin- ciples laid down in the case of Secor V. Sturgis, 16 N. Y. 648. The money was deposited under a separate agree- ment. It had no connection whatever with the contract for the rendition of services by the plaintiff for the defendant, under which the latter was permitted to retain the five dol- lars per week from his wages. In Secor V. Sturgis the rule was laid down thus : ' The true distinction between demands or rights of action which are single and entire and those which are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or con- tracts ; ' and that ' there must be either an express contract, or the cir- cumstances must be such as to raise an implied one embracing all the items, to make them, if they arise at different times, a single or entire demand or cause of action.' There was nothing here to bring the claims embraced in this action and the claims embraced in the prior one within this rule." 2. Keedy v. Long, 71 Md. 385 (18 Atl. R. 704) ; Soursin v. Salorgne, 14 Mo. App. 486 ; Parry v. American Op- era Co., 19 Abb. New Cases 269; Tar- box u.Hartenstein,4 Baxter (63 Tenn.) 78; Routledge v. Hislop, 2 E. & E. 549 — approved in Flitters v. AUfrey, L. R. 10 C. P. 29, 41. 3. Keedy v. Long, 71 Md. 385 (18 Atl. R. 704) — following English cases and denying Howard v. Daly, 61 N. Y. 362. The court said : " We are not to be understood as questioning the well-settled law that if the contract is divisible, a judgment recovered for the breach of one separate and THE DOCTRINE OF SPLITTING CAUSES. 367 been employed for a year at a salary payable monthly, and having been wrongfully discharged at the end of two months, and, there being twenty days' salary unpaid, a recovery of it upon a quantum meruit bars a new action for a breach of the contract, upon the ground that a suit upon a quantum Tneruit implies a rescission of the contract, in which case the entire damage must be recovered in one action.' The English case of Routledge v. Hislop cited holds that if a servant is hired for a quarter and discharged before the end of the time, and sues the master for discharging her without reasonable cause, a judgment for the defendant bars a suit for the quarter's wages after it has expired. Prior wages. — If a person sues and recovers damages for a wrongful dismissal from employment, that does not bar an ac- independent provision does not bar a subsequent suit for a distinct breach of a different condition. But the case at bar does not fall within this principle. The consideration for the appellee's agreement to teach was not only the promise to pay the salary named, but also the promise to pay it in monthly installments. The promise to pay in such installments was not a distinct and independent term of the contract. What we mean to decide and do de- cide is this : If the master wrongfully discharges the servant, the latter has two alternative remedies for this breach of the contract, and for the recovery of compensation for the serv- ices actually rendered, whether rend- ered up to a date or time fixed in the contract for the payment of a stated installment of the salary, or whether rendered for a longer or shorter period ; and that the pursuit of one of these remedies will prevent the other from being invoked. Inasmuch, therefore, as these pleas allege that the appellee, after having been discharged, brought suit before a justice of the peace on a quantum meruit, and recovered a judgment, which had been paid, she must be treated as having elected to pursue one of the two remedies then open to her, and she is, in con- sequence, precluded or barred from resorting to the other. She chose that remedy which implied that the contract had been rescinded, and she carried it to a final judgment. She can not subsequently institute and pur- sue the other remedy, which is found- ed on the assumption that the contract is not rescinded, but continuing. We are fully sensible of the possible hard- ship which may result to the appellee from the conclusions we have reached ; but, in the language of Lord Camp- bell, in Goodman v. Pocock (15 Q. B. 576) , I am ' extremely sorry if the plaintiff has sustained any hardship in consequence of the course which this litigation has taken ; but we must decide this case according to the prin- ciples of law, and, according to those principles, I have not the slightest doubt that this action must fail as to the claim now in question.' " 1. Goodman v. Pocock, 15 Q. B. 576. 368 THE MERITS. tion for wages due him on the contract at the time he com- menced the first suit, although they might have been included, because they constituted two separate causes.^ So, on the con- trary, if he first sues for and recover his wages, that will be no defense to an action for his damages.^ § 138. Salary, services and wa^es — Wrongful discharge, and subsequent recovery of wages. — If one is wrongfully dis- charged from service, and sues for wages subsequently accru- ing under the contract, it is held in Illinois,^ Indiana,* Mary- land,® Missouri,® Nebraska' and New York,® that a recovery is a bar to a new suit for other wages, while the contrary rule is adopted in Georgia^ and Mississippi." The former cases seem to me to be better considered. The breach is complete and entire, and upon the principle that one wrongful act gives but one cause of action, I think he should recover all his daniages in the first suit. I know of no reason why one who breaks a con- tract should stand with less favor before the courts than one who commits a tort. In the Maryland case there are two opinions, and as they clearly present the opposing views, I give abstracts of both, namely: The plaintiff alleged that the defendants, by a contract in writing, agreed to pay him ' ' a salary of fifty dol- lars per week, payable weekly, as a compensation for services as a cutter," which contract was " to continue in full force and virtue for one year, from February 1, 1892, to February 1, 1893," and that he performed service until April 5, 1892, when they refused to permit him to perform further, or to pay him his salary after April 9, 1892 ; that he was and always had been ready and willing, and had offered and still offers to 1. Perry v. Dickerson, 85 N. Y. 345 6. Booge v. Pacific Eailroad, 33 Mo. (39 Am. R. 663) . 212 (82 Am. D. 160) . 2. Levin v. Standard Fashion Co., 7. Kahn v. Kahn, 24 Neb. 709 (40 N. 16 Daly 404 (11 N. Y. Supplement W. R. 135). 706). 8. Brodar v. Lord, 14 Jones & Spen- 3. Weill V. Fontanel, 31 111. App. cer (46 N. Y. Sup'r) 205. 615. 9. Blun v. Holitzer, 53 Ga. 82— de- 4. Richardson v. Eagle Machine cided under a statute. Works, 78 Ind. 422 (41 Am. R. 584). iQ. Armfield v. Nash, 31 Miss. 361, 5. Olmstead v. Bach, 78 Md. — (27 364. Atl. R. 501). THE DOCTRINE OF SPLITTING CAUSES. 369 perform his part of tlie contract, but the defendants have re- fused and still refuse to permit him to do so, or to pay him any salary since April 9, 1892. The answer was, that, after the dismissal of the plaintiff and before the bringing of the present action, he sued them before a justice of the peace upon the same contract, " for one week's pay as cutter, as per writ- ten contract, week ending 16th April, 1892," upon which he recovered judgment, which had been paid. The reply was, that he "presented and offered himself to the defendants, as ready and willing to perform his part of the contract, " and " contin- uously " so offered ; that he " did not quit the service of the defendants, by reason of the pretended dismissal," but had always been " ready and willing to perform his part, and that the suit mentioned in the plea was to recover his salary for one week under the contract." This reply was held good upon the ground that the contract was ' ' a weekly hiring, payable weekly," and that each week's work was to be paid for as earned ; and that the stipulation that the contract was to con- tinue a year was an independent one ; that the plaintiff, when wrongfully dismissed, had the option to treat the contract as rescinded, and to sue at once upon a quantum meruit for all his damages, or to treat it as continuing, as he did, and sue for his salary from week to week.^ In the second opinion the court said: ''The contract is one of hiring. Under it the plaintiff was employed as a cutter at fifty dollars per week, payable weekly, and it was expressly provided that this em- ployment and this weekly payment of wages should continue for one year. The duration of the employment was as much an integral part of the agreement as the stipulation relating to the amount of the compensation and the stated periods for its payment. It was not a hiring by the week, payable weekly, because it was explicitly declared that it should continue for a year. It was not fifty-two separate, independent contracts, but one indivisible agreement, covering the period of a year, and mak- ing provision for the weekly payment of wages . The consideration 1. Olmstead v. Bach, 78 Md. — (25 Atl. R. 343). 24 370 THE MERITS. for the plaintiff's undertaking was the defendant's agreement to pay him fifty dollars a week and to employ him as cutter for one year. The latter was as much a part of the consideration promised him for entering the service of the defendants as the former, for it would be wholly unreasonable to assume, as any other construction must, that it was the intention of the parties that the hiring should be for a week, determinable by notice, or else merely a hiring at will, as it undoubtedly would have been had there been no stipulation as to its duration.'" A case in the court of appeals of New York is peculiar. It was this: A person was hired for a year, as a bookkeeper, at a salary payable monthly. He was discharged during the first month. He afterwards sued for a month's wages, as a part of a term of hiring for a year. The defense was a denial of the hiring, other than a permission to remain temporarily to close up his work on the books, and he recovered. He subsequently brought another suit for wages. As he had been discharged and had gone to work for another person, he could not main- tain that kind of an action. He claimed that the former judg- ment in his favor precluded the defendant from now showing that he had been discharged upon the ground that it might have been set up as a defense in that action, but his contention was denied. The court said that his complaint in the later ac- tion showed a state of facts, namely, that he had gone to work for another, which did not exist when he brought his first ac- tion.^ § 139. Salary and supplies. — If a person is employed as a superintendent of a stone quarry at a monthly salary, and afterwards the employer engages him to board the hands and to furnish supplies, a recovery by him of the salary due is no bar to a suit for the board and supplies then due.^ The court said: "If the defendants agreed to pay the plaintiff $100 per month for his services as superintendent of their quarry, — he had an undoubted right to bring suit for that as a distinct and 1. Olmstead v. Bach, 78 Md. — (27 3. Terrerri v. Jutte, 159 Pa. St. 244 Atl. R. 501) . (28 Atl. R. 225) . 2. Weed v. Burt, 78 N. Y. 191. THE DOCTRINE OF SPLITTING CAUSES. 371 independent claim, which had no necessary connection with either of the items of claim embraced in this suit. lie was not bound, under penalty of forfeiting his right to the latter items, to include them in his suit for services as superintendent. Authority for so plain a proposition as that is unnecessary." § 140. Sequestration bond — Title. — If A sues B to deter- mine the title to land, and B also sues A, claiming title to the same land and obtains possession by means of a writ of sequestration, a recovery by A in his suit is no bar to a suit by him for damages on the sequestration bond, as he could not recover them in his first proceeding/ A and B brought tres- pass to try titles in Texas against C, obtained the immediate possession of the land by means of a sequestration bond, then sold it to D and dismissed their action without a trial. Subse- quently C brought trespass to try titles against A, B and D, and recovered the property and four hundred and fifty dollars for rents. C then sued A and the sureties on the sequestration bond ( B not being made a party because no service could be had on him) for both actual and exemplary damages, and re- covered two hundred and fifty dollars actual damages against all, and five hundred dollars exemplary damages against A. The defendants in the latter case contended that the first one was a bar, but the supreme court decided that the causes were different, and their contention was denied.^ § 141. Several obligations for same debt. — If A executes his note to B and agrees to procure C to indorse it, and B sues A in separate actions upon the note and the agreement, a recov- ery upon the latter for the amount of the note is no bar to the further prosecution of the action upon it, because if a person gives two obligations for the same debt, judgment may be taken on both, although one satisfaction discharges both.* 1. Thorns V. Sewell, 30 La. Ann. 359. only defense is that, in another action 2. Blum V. Gaines, 57 Tex. 135, 140. upon a contract to procure the defend- 3. Vanuxem v. Burr, 151 Mass. 386 ant's mother's indorsement to this (24 N. E. R, 773). The court said: note and to two others, the plaintiffs, " This is an action upon a promissory since the present suit was brought, note made by the defendant. The have recovered judgment against the 372 THE MERITS. GuAEANTY TO LEASE. — If a guaranty is written at the end of a lease and executed by the tenant and a stranger, a recovery against the tenant upon the lease is no bar to an action on the guaranty against the tenant and his guarantor.^ A judgment against the principal for goods sold, is no bar to an action against him and his sureties on a bond to secure their payment.^ § 142. Several persons damaged by one breach of warranty. — A conveyed land to B with a covenant of general warranty. B entered into a contract with C to convey to him by deed of general warranty, but, by fraud or mistake, executed to him one of special warranty. D had an adverse claim to a part of the land, and $500 of the price to be paid to B by C was con- ditional on the defeat of this claim. D sued B and C and re- covered, and C had to pay the costs. This released C from his obligation to pay B the $500, and he, B, sued A on the cove- nants in his deed and recovered that sum. C then sued B to compel him to execute a deed of general warranty according to contract, and succeeded, and B executed such a deed to him in obedience to an order of the court. C then sued A on the covenants in his deed to B, and A contended that the judg- ment recovered by B of $500 on the same covenant was a bar; defendant for damages assessed, by or breach affected the plaintiff's power agreement, at a sum equal to the to discount the note before it was due, amount due on the three notes. If and the probability of their getting this judgment is not a bar, it is ad- payment from another whom the de- mitted that the plaintiffs are entitled fendant might be able to persuade to- to recover. The tv.o contracts were indorse, when he could not or would both in existence at the same time, not induce her to pay if she had not They were distinct from each other indorsed. As the contracts were both in form, as appears from the state- in existence and were different, and ments of them. They were also dis- as they were both broken, it is plain tinct in substance. Supposing that that the plaintiffs have had two differ- the defendant could do no more to ent causes of ''action, and there is no bind himself personally to pay the need to refer to the tests of difference money to the plaintiffs than he did which have been laid down in books." by making the note, still his promise I.White v. Smith, 33 Pa. St. 186 to get the security of an indorser (75 Am. D. 589). affected other consequences besides 2. Fischer v. Quigley, 8 Wash, 327 his personal payment, or his personal (35 Pac. R. 1071). obligation to pay. Its performance THE DOCTRINE OF SPLITTING CAUSES. 373 and also that, as the first deed from B to him, C, was a special warranty which gave no right to maintain the present suit, the second deed was of no force as to him, A, and did not bind him because he was not a party to that suit. But it was held that he had no interest in, and could not raise, the latter question; and that, in respect to the former, B had actually been dam- aged $500 by breach of the covenant in his deed, and had the right to recover it; but that if he had not, and had recovered it wrongfully, that could not affect C's right to recover his dam- ages, as he was no party to that suit.' § 143. Slander and libel, — The bringing of one action for slanderous words, and a recovery by the defendant, does not bar another action for other words spoken previously to the commencement of the first action, although the plaintiff then had knowledge of those facts. ^ A single libelous pamphlet, however, gives but one cause of action ; and, if the plaintiff is defeated upon one part, he can not sue again for other libelous parts.* A recovery by partners for injury done to their busi- ness by slander, is no bar to an action by one of them for the use of the same words.* § 144. Specific performance. — If one sues to compel a specific performance of a contract to conve}^ land, he is bound to bring forward all his reasons and causes why he ought to have that relief; and a decree denying it is conclusive that he has no cause whatever, either by virtue of the contract sued upon, or any modification of it, or any other. He can not vex the de- fendant more than once in respect to the transferring of his title to that particular land. Damages. — If B agrees to convey land to A, and afterwards conveys a part of it to an innocent purchaser, A may either sue B at law for damages for the entire breach, or in equity for a specific performance in respect to the land yet retained ; and, 1. Malette v. Arnold, 83 Iowa 55 3. Macdougall v. Knight, L. R. 25 (48 N. W. R. 1060). Q. B. Div. 1, 10. 2. Henson v. Veatch, 1 Blackford 4. Duffy v. Gray, 52 Mo. 528. 369. 374 THE MERITS. in that case, he may have, not only a decree for a specific per- formance, so far as the portion retained is concerned, but also damages for that conveyed away ; and his failure to ask for or to obtain those damages in that suit bars a new action for their recovery.' Securities. — If a chattel mortgage is given by A to B to se- cure the fulfillment of a contract to convey land, a decree for a specific performance in favor of B, which also finds that he holds the chattel mortgage as collateral security, is no bar to an action of replevin by him based on the chattel mortgage to recover the goods covered by it.^ § 145. Subsequently-acquired rights and titles.' — An adjudi- cation, with a few exceptions, does not operate as a warranty, but simply determines which party has the right or title at the time the suit w^as commenced, or, at furthest, at the time of the final judgment, thus not preventing either party from asserting any right or title which he may afterwards acquire.* Divorce. — A decree for the defendant in a suit for a divorce is no bar to a new suit for the same purpose based on his convic- tion of a felony after the first suit was tried. ^ So, a sentence com- pelling a husband, upon the ground of aba-ndonment, to pay a fixed sum per week towards the support of his wife so long as they should live separate, does not preclude him from showing that, subsequently, he offered to provide a home for her, which she refused, thereby abandoning him, for which he was entitled to a divorce.® And a decree granting a divorce and awarding 1. Thompson t;. Myrick, 24 Minn. 4. point, but they are cited elsewhere 2. Dulin V. Prince, 29 111. App. 209. upon other points. 3. See § 127 supra — Pending suits. 5. Rivers v. Rivers, 65 Iowa 568 (22 4. Flandreau v. Downey, 23 Cal. 354 ; N. W. 679) . Mahoney v. Van Winkle, 33 Cal. 448; 6. Bander's Appeal, 115 Pa. St. 480 Mann v. Rogers, 35 Cal. 316. In these (10 Atl. R. 41). The court said : "The cases the defendant in ejectment ac- libelant applied for a divorce from his quired another title. Peyton v. Spiers, wife on the ground of alleged deser- 16 La. Ann. 135 ; Brown v. Roberts, 24 tion. The desertion being denied, an N. H. 131, 138; Bank of the State v. issue was found and tried. On that Bridges, 11 Rich. Law 87 ; McKissick, issue the jury returned a verdict, in V. McKissick, 6 Humph. (25 Tenn.) May, 1885, finding that the respond- 74. There are many other cases to this ent, the appellant, willfully and ma- THE DOCTRINE OF SPLITTING CAUSES. 375 the custody of the children to the mother is no bar, after her death, to the appointment of the father as guardian.* If a husband accuses his wife in California of being pregnant with a bastard child when he married her, that is such cruel treatment as will justify a divorce. And if she sues him for a divorce upon other grounds, and he sets up by way of cross- bill that she was thus pregnant when he married her, and asks for a divorce, and the court dismisses both bill and cross-bill on the merits, she may maintain a new bill based on the libel- ous charge contained in his cross-bill.^ The court said: "The judgment made and entered in a former action between these same parties was not such an adjudication of the matters set up by the cross-complaint in the present action as would bar the plaintiff's right of recovery; for, although his charges against her of a want of chastity had been previously passed upon by the trial court in the former action, yet that court found adversely to him on the {)oint, and repudiated the charge as being untrue. Therefore it would be a vio- liciously deserted and absented herself from the habitation of the libelant without any just or reasonable cause, and that such desertion had been per- sisted in for two years and upwards. This finding of facts, if correct, sus- tains the decree. The counsel for the appellant contends that the verdict is wrong by reason of a decree in the quarter sessions of the county in No- vember, 1882. It appears that, by rea- son of the desertion of his wife by the appellee, the court of quarter sessions, after hearing the parties, on the 13th of November, 1882, sentenced the ap- pellee to pay $1.50 per week towards the support of his wife and his child, so long as they should live separate and apart. This sentence of the quarter sessions was admitted in evidence on the trial of the present issue ; but the learned judge held it to be no legal bar to the divorce prayed for by the libelant. In this there was no error. Two and a half years had elapsed between this sentence and the decree of divorce. The evidence is, that, after the sentence was pronounced, the libelant visited his wife 'nearly every week, and every two weeks, and later every month,' and proposed to her to keep house with him. He leased a house, and repeatedly asked her to come and live with him. She answerexi him evasively, never ex- pressed a willingness to do so, and did not return to him, nor to his house. The evidence is ample to justify the jury in finding that he offered to re- ceive and provide for her, and that she refused all his offers ; and that with- out any just or reasonable cause, she persisted in that desertion for two years and more previous to the trial of the issue." 1. Grifiin v. Sarsfield, 2 Demarest 4,9. 2. Haley v. Haley, Cal. (14 Pac. R. 92). 376 THE MERITS. lation of her legal right to say that, because her husband had, in the first action, made groundless and cruel charges against her, on which the court had fixed the seal of disbelief, she may not, by her complaint in this action, make those charges so made the proper basis of present judicial inquiry, with a view to determine whether such conduct on his part did or did not entitle her to seek for and obtain a divorce from him." Ejectment.* — In Wisconsin, the plaintiff in ejectment re- covers upon his title as it existed when the action was com- menced; and the defendant can not show a subsequently- acquired title unless set up by supplemental answer by leave of court; and if that is not done, a judgment for the plaintiff is no bar to an action by the defendant upon his new title.* A per- son having purchased land from an agent who made him a deed by virtue of a power of attorney from the executors of the deceased owner, and having brought ejectment to recover it and having been defeated upon the ground that the power of attorney was void, he may afterwards, without any new con- sideration, take a deed from the executors themselves and maintain a new action of ejectment upon it; and the former judgment will be no bar.^ If a certificate of entry of land from the United States gives a person the same right to recover the land as a patent would, his failure to recover upon his certificate will bar a new action by him after he receives a patent.* § 146. Subsequently-acquired rights and titles — Equitable rights. — A sued B alleging that the latter had sold certain land to C for two thousand dollars in cash paid, and had executed a bond to convey by warranty deed upon reasonable request; that C assigned this bond to him. A, to secure the payment of a note of two thousand dollars; that he afterwards sued C on this note, and sought to foreclose his interest in the land re- 1. See note 4, p. 374, supra. 3. Barrows v. Kindred, 4 Wall. (71 2. McLane v. Bovee, 35 Wis. 27, 34. U. S.) 399. Accord, Murray v. Green, 64 Cal. 363 4. Broussard v. Broussard, 43 La. (28 Pac. R. 118) ; Burns v. Hodgdon, Ann. 921 (9 S. R. 910). 64 Cal. 72 (28 Pac. R. 61). THE DOCTRINE OF SPLITTING CAUSES. 377 ceived from B, evidenced by the bond, making B a party; that he recovered a judgment against C on the note, and a decree for the sale of his interest in the land; that the land was sold on this decree, and purchased by him, A, and that he had re- ceived a sheriff 's deed; that he afterwards demanded a deed from B [in accordance with his bond to C] , which he refused to execute. The prayer was for specific performance, and for damages. B answered, setting up the same proceedings men- tioned in the complaint with a little more particularity, and alleging that the decree was that he, B, had been fully paid for the land and had no right in nor lien upon it, and that A re- cover of C $2,278 on the note and a foreclosure of his interest in the land. A demurrer being overruled to this answer, B contended that the former suit was a bar, because A thereby chose his remedy and relief, and that the matters now sued upon ought to have been included in that suit. But the court de- cided that, as there was no allegation in the complaint in the former suit which would have authorized a decree for specific performance or damages as to B, those matters could not have been determined, and that the answer was bad. Evidently, the object of the first suit was to collect C's note, and as an in- cident to foreclose and sell his interest in the land evidenced by the bond made by B, who was made a party to have the fact of payment settled, and after the decree of foreclosure was entered, A did not obtain C's equitable right in the land until the time fo^ redemption had expired and the sheriff 's deed was executed; that gave him C's equitable title, as evidenced by the bond, the same as if C had sold it to him outright, and not until then did he have any right to call upon B for a deed, which makes it quite plain that the first suit was no bar to the second,* § 147. Subsequently-acquired rights and titles — Failure of consideration. — If a judgment has been recovered for an in- stallment due on a contract for the purchase of land, and has been paid, and the buildings are afterwards burned, by reason of which 1. Wilson t'. Fatout, 42 Ind. 52. 378 THE MERITS. the consideration for the contract fails, the defendant may re- cover back the money paid. This does not impeach tlie judg- ment, but is in the nature of a defense subsequently arising.* And, in all cases, money collected on a judgment may be re- covered back, if, from subsequent events, the right to retain it has ceased.^ Income of fund. — A decree ordering an executor to pay the income of a fund to the widow for life, and then to distribute it to the persons designated in the will, is no bar to a suit by the administrator of the widow to recover so much of the in- come as was not paid to her during her life.^ The court said : " By the will of Edmond Hodges, who died in 1864, the use of all of his property remaining after the payment of certain bequests was given to his wife, Polly Hodges, during her life ; and provision was made that at her decease the remainder should be divided in certain proportions among the testator's children. Smith Hodges, a son of the testator, was named ex- ecutor, and upon the probate of the will received letters testa- mentary, and entered upon the settlement of the estate. In 1867 he rendered an account of his administration, and a bal- ance of about $3,600 was found in his hands. The probate court thereupon made a decree that the executor should pay the income of this sum to Polly Hodges during her life, and that at her decease it should be distributed to persons named in the decree. No further proceedings relating to this fund were had in the probate court in the lifetime of Mrs. Hodges. She died in 1888, and this proceeding is presented by her ad- ministrator to compel an accounting as to the disbursement of the income. It is first objected, that the decree made in 1867 was a complete and final one, and that nothing is left for the further action of the probate court. If the scope of the petition were such as to call in question the proceedings of that court, it might be necessary to inquire into the validity of so much of its de- cree as was destined to fix the distribution of the principal sum 1. Smith V. McCluskey, 45 Barb. 3. In re Hodges' Estate, 63 Vt. 661 610, 617. (22 Atl. R. 725). 2. Lazell v. Miller, 15 Mass. 207. THE DOCTRINE OF SPLITTING CAUSES. 379 in advance of the time when an actual distribution could be had ; but this part of the decree, if treated as valid, does not bar the action which the petition calls for. The petition touches merely the earnings of the fund while the petitionee held it in trust. The distribution of the fund in pursuance of the decree did not discharge the executor from his obligation to account to the probate court for its use; nor is he excused from accounting for the income by the direction contained in the decree as to its payment. He is still liable to such an ac- counting as will determine whether or not the income has been paid as directed, and will furnish the basis for a further decree concerning the part that may still remain in his hands. An order to pay over an income which is subsequently to accrue does not exhaust the jurisdiction of the probate court, nor complete the liability of the person charged with the trust. It remains for the court to determine, at the proper time, what the income has been, or should have been, the expenses properly charge- able upon it, and the balance for which the trustee is account- able." Partition. — A final judgment in partition of real estate bars any party from disputing the title of another to the part set off to him, even upon a title subsequently acquired from a stranger.^ But if a woman, claiming an interest in land as widow and as the heir of her two deceased children, brings a suit for a partition, and is defeated because she and her hus- band had conveyed the land away in his lifetime with intent to defraud his creditors, she may afterwards purchase the title from one who was not a party to the first suit and who held an independent title founded on a sheriff's deed, and she may maintain an action upon it.^ 1. Den ex dera. Mills v. "Withering- bar were adjudicated in the former ton, 2 Dev. & Bat. Law 433. Contra, case. With this contention we can not Woodbridge v. Banning, 14 O. St. 328, agree. In that case the issues were not 330 — a decree in equity. the same as in this, nor was appellant 2. Kitts V. Willson, Ind. (39 N. E. R. a party in the same right as she is here. 313 i. The court said: "It is earn- There appellant sued for partition as estly contended by appellees that the widow, and as heir of her own chil- facts disclosed in the seventh finding dren ; here she sues for possession as show that the questions in the case at grantee of one Duncan. Her rights 380 THE MERITS. Patent for invention. — A suit by A against B in a federal court for the infringement of a patent right, which was de- feated because tlie patent had not been issued, signed and sealed by the proper officer, is no bar to a suit by B, after a proper patent has issued, to compel A to transfer to him a right to use it, by virtue of a contract made prior to the suit in the federal court, if that right was not there put in issue/ Payment for homestead. — If a homestead is wrongfully refused to a widow because her husband simply held by con- tract of purchase which was unpaid, the payment of the pur- chase-money makes a new condition of things, so that the first decree is no bar to a new application.^ But this seems to be wrong, as the court admits that the right was just as perfect before as after payment, and the decision disregards the first decree because made by a mistake of law. Promise, new. — A judgment in favor of the defendant, if he afterwards admits the justness of the claim and promises to pay it, is no defense to a suit on the new promise.' Railroad. — A decree in equity granting a railroad company permission to occupy a street in a city is no bar to an action by an adjacent property owner for damages caused by throw- ing smoke and cinders into his building.* in this case, if any there be, had not at the time of the institution of the accrued at the time of bringing the suit. But, before the rule of * former suit in partition, and would have been adjudication ' can be invoked, it must hostile to her rights in that case. In appear that the thing demanded was this case she steps into the shoes of founded upon the same cause of Duncan, who was not a party to the action ; that it was between the same former suit. Whatever rights he parties, and found for one of them would have, if appellant here, such against the other in the same quality, rights, and no other, she has. The The party must not only be the same fact that she is the widow of Kitts person, but he must also be suing in neither adds to nor takes from her the same right.' " right to recover in the case at bar. 1. Nichols v. Marsh, 61 Mich. 509 There is no doubt that the decree in (28 N. W. R. 699). the partition suit was conclusive 2. Munro v. Jeter, 24 S. C. 29. against appellant, as to any interest 3. Cook v. Vimont, 6 T. B. Mon. she might claim in the land at the (22 Ky.) 284 (17 Am. D. 157). bringing of that suit; and by it the 4. Louisville and Nashville Ry. Co. v. property was freed from all claims of Orr, 91 Ky. 109 (15 S. W. R. 8). hers, of whatsoever nature, existing THE DOCTRINE OF SPLITTING CAUSES. 381 Ratification. — An action having been brought on a note by the state of Wisconsin, the consideration of which was logs sold to the defendant, a judgment in his favor because the agent who made the sale had no authority to take the note is no bar to a new action upon it after the legislature of the state has ratified his act in taking it/ Reassignment. — A, being the owner of a legacy, assigned it to B. An action was then brought to construe the will, to which A, but not B, was made a party, and it was adjudged that this legacy was not a charge upon the real estate. B then reas- signed the legacy to A, and it was held that he was not bound by the former adjudication.^ , Substitued plaintiff. — If, during the pendency of an action of ejectment, a new plaintiff is substituted, his failure to re- cover will not bar him from suing upon a title which he held before the substitution, which he did not derive from the orig- inal plaintiff.' § 148. Sureties on replevin bond ignored. — A sued B on a note secured by a lien on sheep, and made C, D and E parties defendant, alleging they were in the possession of and claimed some interest in the sheep. A sequestered the sheep, and C, D and E replevied them by giving a bond. After the evidence had closed, A abandoned all claims and liens upon the sheep as to D and E, and took a judgment by default against B for the amount of the note, and it was further adjudged that he "do have and recover of and from the defendants, C, D and E, nothing by reason of the premises ; and that D and E do have and recover of A, on his sequestration bond, all their costs ex- pended and incurred by them by reason of the sequestration herein issued and levied on their one-half interest in the sheep. ' ' A appealed, and the judgment was reversed as to C and affirmed as to D and E. Afterwards, on a new trial, A recovered anew judgment against B on the notes and a decree foreclosing a lien on C's half of the sheep, and a judgment for their value against 1. State of Wisconsin v. Torinus, 2. Scott v. Stebbins, 91 N. Y. 605, 28 Minn. 175 (9 N. W. R. 725). 615. 3. Barrett v. Birge, 50 Cal. 655, 659. 382 THE MEKITS. C, D and E as principals, and three others as sureties on the replevin bond. C, D and E appealed, and the judgment was affirmed as to C, and reversed and dismissed as to D and E upon the ground that, after tlie suit was abandoned as to them, they had never been brought back into the case, and that, tlierefore, no judgment could be rendered against them on the replevin bond. This bond being joint and several, A now sued D and E upon it without joining C or the sureties, alleging that the liability of D and E had never been judicially deter- mined ; that only a nonsuit or dismissal was taken as to them, and that they were bound, as obligors for the value of C's one- half of the sheep, as adjudged against him in the former case. The defense of D and E was former recovery, to which A re- plied that they were interested and employed counsel, and made defense in the name of C for themselves, and that their liabil- ity on the bond for C's one-half of the sheep had never been adjudicated. But the court held that their liability on the bond ought to have been adjudicated in the first action, and that the judgment in their favor, whether rightful or wrongful, was a bar to a new action.^ § 149. Taxes. — A recovery of taxes for certain years bars a new suit to collect an alleged balance.^ Title to land. — In an action to determine the title to land, the plaintiff must bring forward all his titles.^ The court said: "That was a trial of the title of the land, and we will dispose of much that is founa in the record in this case by the single remark that the adjudication in the former action disposed of all claim of title which E. F. BuUard had in the land. He was the plaintiff in the action, and neither he, nor those claim- ing under him, had a right to commence an action upon one claim of title, and pursue it to final adjudication, as that case was pursued, and then set up other causes of action in an- other suit, or by way of defense to an action brought by the 1, Overstreet v. Root, 84 Tex. 26 Co. v. Douglass, 12 Bush (75 Ky.) 673, (19 S. W. R. 298). 716. 2. Newport and Cincinnati Bridge 3. Des Moines and Fort D. R. Co. v. Bullard, — Iowa — (56 N. W, R, 498). THE DOCTRINE OF SPLITTING CAUSES. 383 defendant in the former action; in other words, it was incum- bent on E. F. Bullard to assert all the claim he had to the land in the former action. This rule is fundamental, and we have neither the time nor inclination to elaborate it." § 150. Tort connected with contract. — A recovery in an ac- tion for the hire of a horse, buggy and harness, is no bar to an action for injuries to the buggy and harness.* So, if A holds B's sheep under a contract to return them at a stated time, a recovery of nominal damages for a breach of the contract in fail- ing to return is no defense to a subsequent action for their conversion.^ But a slave having been drowned while in the possession of another under a contract of hiring, a recovery and satisfaction in an action of trover for his value, vests the title in the defendant from the time of the conversion, and bars an action for the hiring for the unexpired part of the term.^ So, a recovery upon a contract is no bar to an action of deceit for fraudulently inducing the plaintiff to enter into it.* If, by the fraud of two persons, one of them procures a loan of money for which he executes a note and mortgage, a recov- ery of a judgment on the note and a decree of foreclosure is no ■ bar to an action against the other for the fraud.® The court said : "The appellee contends that, if it be conceded that he was liable for the money fraudulently obtained by his son, the facts which created the liability constituted a single cause of action, for the enforcement of which the appellant had several reme- dies. That it had the right to repudiate the transaction and recover back its money as upon a rescission of the contract, or it had the right to affirm the contract and bring an action in tort against the father and son jointly, or against either sever- ally ; or, upon the failure of the son to pay the debt, to bring an action against him upon his contract. That the appellant having affirmed the contract, its remedy was either to recover 1. Shaw V. Beers, 25 Ala. 449. 4. Wanzer v. De Baun, 1 E. D. 2. Gates v. Goreham, 5 Vt. 317 (26 Smith 261. Am. D. 303). S.Union Central Life Ins. Co. v. 3. Smith V. Hooks, 19 Ala. 101, 103. Scbidler, 130 Ind. 214, 216 (29 N. E. R. 1071), 384 THE MERITS. its damages in an action upon the contract or in tort ; but that it could not do both. We are unable to agree with the appellee in this contention. We know of no rule of law that would prevent the application, to this transaction, of the ordinary rule that a defrauded party may affirm the contract by retain- ing that which he has received, and also sue for the damages he has sustained by reason of the fraud. If the appellant had the right to retain the note and mortgage, the right to collect them by suit or otherwise is implied as an ordinary and necessary incident to his ownership. It follows, that an action on the contract and one predicated on the fraud, are not inconsistent, and that both may be prosecuted concurrently, and a recovery in the one will not bar a recovery in the other. When the fraud charged in the complaint was perpetrated, and the tort-feasors had thereby procured the loan, a cause of action was imme- diately created in favor of the defrauded party, and he was entitled to a recovery on account of the money for some amount, the damages being unliquidated and dependent upon the extent of the injury. Afterwards, when default was made in the payment of the note, a cause of action was created in favor of the holder of the note, for a recovery against the maker for damages for its nonpayment ; the amount of the recovery being fixed by the terms of the contract. These two causes of action neither accrued at the same time nor were predicated upon the same defalcation or wrong. In the case of Wanzer v. De Baun, (1 E. D. Smith 261), the plaintiff had recovered a judgment against the defendant as indorser of a promissory note given in payment for goeds sold by the plaintiff to a third person. Afterwards an order of arrest was granted on account of fraudu- lent and deceitful misrepresentations made by the defendant at the time the goods were sold. In the opinion of the court it is said : ' Recovery of judgment on the contract is no bar to an action for the deceit practiced to induce the plaintiff to make it. Were the plaintiffs now seeking to recover the specific goods in repudiation of the title of the vendee, it might be a good answer that they had affirmed the sale by suing upon the note given for the goods. But here is no repudiation of the THE DOCTRINE OF SPLITTING CAUSES. 385 sale. It was effectual. The plaintiffs lost their property by it. They were induced, by the defendant's fraud, to make it, and he is justly liable for the damages which they have sustained. ' And at another place, speaking of the defendant, the court says : * I do not think he can be permitted to say : True, I defrauded the plaintiffs, but they have recovered a judgment against me, and purged my fraud by proving, through the return of their execution unsatisfied, the very cheat by which I deceived them.' In Morgan v. Skidmore (55 Barb. 263), it was held that an action of tort could be maintained against a person, or his personal representative, for deceit in making false representations as to the solvency of a mercantile firm of which he was a member, although a judgment had been recovered against the firm for the price of the goods sold on credit to the firm in consequence of those misrepresentations. This case was affirmed, on appeal, by the court of appeals, the case of Wanzer v. De Baun, supra, being cited and approved. Morgan v. Skidmore (3 Abb. N. C. 92). These cases have been cited and followed in Goldberg v. Dougherty (39 N. Y. Super. Ct. 190); Johnsons. Luxton (41 N. Y. Super. Ct. 481); Bowen V. Mandeville (95 N. Y. 237). In Whittier v. Collins (15 R. I. 90), the court arrived at the same conclusion, citing and follow- ing Wanzer v. De Baun, supra. We do not regard the case of Caylus V. Railroad Co. (76 N. Y. 609), as being in confiict with these cases. In that case the judgment for fraud, if rendered, would have been against the same party, and it was held that the judgment which had been entered gave as full and com- plete a remedy as the judgment for damages on account of the fraud would afford. We are not of the opinion that the state- ment in the pleading that an execution had been issued on the judgment against the son added anything to the sufficiency of the defense interposed. The judgment taken against the son of the appellee was upon contract, and not in tort, and we know of no authorities holding that the mere issuing of an execution in such an action works a satisfaction of the judg- ment. Authorities on the effect of executions issued upon judg- 25 •V. 386 THE MERITS. ments founded in actions for torts are not in point. It is con- tended, with much force and earnestness, that the appellant can not retain the personal judgment which he has obtained, and then take a judgment against the appellee for the amount of the money loaned, less the value of the land, for the reason that this would give two judgments for the same thing. The fal- lacy of this argument is the assumption that both judgments would be for the same thing, which the decisions above cited hold is not the case ; and for the additional reason that the appellee is not the person against whom the judgment has been taken. The effect of payment of one of two judgments rendered, respectively, on contract and for tort, is not now before us, and we do not pass upon the question. But see Bowen v. Mande- ville, supra." So, if one loans money to another on the faith of his repre- sentations that he has property, and afterwards recovers a judgment in assumpsit for failing to repay, this judgment, un- satisfied, is no bar to an action for obtaining the loan by fraud and deceit.^ If A has a lien on the goods of B in Wisconsin, 1. Whittier v. Collins, 15 R. I. 90 the contract, claiming that the goods (23 Atl. R. 47). The court said : "The were not sold, but fraudulently ob- two actions are neither identical nor tained, the sale being void, and that inconsistent. The plaintiff, when he he is still the owner; and this, after sues in assumpsit, affirms the con- he has prosecuted the contract to tract, and sues to recover for its judgment, the law will not permit breach. The plaintiff , when he sues in him to do, because the judgment in case for deceit, also affirms the con- ass?. Cunningham, 9 Rich. 3. Donahue v. Drexler, 82 Ky. 157 Eq. 475. (56 Am. R. 886). See § 119, supra. 2. Sigmon v. Hawn, 86 N. C. 310, 312. CHAPTER VL DEFENSES OMITTED WHAT IS OR IS NOT A DEFENSE. §159. Principle involved in Chapter §171. VI: (Exception by excusable neglect — Indian rale) . 160. Accounting: (Administrators 172. and executors). 161. Accounting: (Consideration of mortgage). 162. Accounting: (Partnership af- fairs — Report of referee on trustee). 163. Administrator's petition to sell land — Assault, excessive. 173. 164. Bankrupt's discharge: (Judg- ment afterwards rendered on provable demand). 165. Bankrupt's discharge: (Judg- ment previously rendered 174. during the pendency of the bankruptcy proceedings). 175. 166. Cancellation suit: (Will can- celed). 176. 167. Compromise and indemnity agreements — Contempt i n civil suits. 168. Contract sued upon, damages caused by negligence or non- performance not set up: 177. (Landlord or tenant). 169. Section 168, continued: (Mai- 178. practice, recovery for serv- ices). 170. Section 168, continued: (Serv- 179. ices, price or wages). 171. Counter-claims, cross-demands or set-offs not set up, or set 180. up and not used: (Principle 181. involved — Set up, but no evi- (398) dence offered — Withdrawn by leave of court — Indian cases). Section 171, continued: (Breach of warranty not set up — For- cible entry ^— Fraud — I nsur- ance policy and premium note — Rejected as a defense — Reversed and abandoned — Set-off in New Jersey — What is not a counter-claim) . Counter-claims, cross-demands or set-offs set up and used: (Principle involved — Attach- ment, wrongful — Breach of contract) . Section 173, continued : (Breach of warranty set up and used) . Section 173, continued: (Con- sideration fails or is wanting) . Section 173, continued: (Court rejects as bad in law — Injunc- tion and damages — Joint ownership of stock — Mali- cious prosecution, counter- claim for — Set-off) . Declaring lien — Deed and will construed — Detention . Distribution: (Corporation as- sets — Estate of decedent — Pai-tnership assets). Divorce : (Alimony — Criminal conversation — Curtesy and dower) . Divorce: (Deed reformed). Divorce: (Homestead — Hus- band's rights — Partition of DEFENSES OMITTED. 399 §181 property — Second §192. 182. 183. 184. 185. 186. common divorce). Dower: (Fraudulent convey- ance — Heirs barred — Part- nership land — Unassigned dower — Wife of legatee). Ejectment — Ejectment, equit- able defenses in: (Deed re- formed — Indian cases.) Ejectment, equitable defenses in: (Fraudulant conveyance — Specific performance — Title-bond) — (Improvements ignored— Subsequent title by tenant) . Equity and law. Exemption of homestead : (E j e c t m ent — Foreclosure — Fraudulent conveyance set asid e — Partition — Probate court, in — Subsequent mat- ters) . 187. Exemption of personal property and wages. Fee-bill. Forcible entry and detainer, or tenant holding over„ Foreclosures: (Accounting by mortgagee in possession — Claim omitted). Foreclosures: (Dower rights). Foreclosures : (Equitable rights of junior mortgagee — Equita- ble title — Fraudulent convey- 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. ance — Husband and wife, wife ignored — Infants — Ju- nior mortgage covers two tracts) = Foreclosures : (Prior and supe- rior rights, how affected) . Fraud and deceit : (Trust deed) . Garnishment — Illegality — Im- plied trust — Mandamus and quo warranto — Money paid and damages. Partition : (Advancements — Titles). Partition : (Will construed in — Will or no will) . Payment: (Attorney of plaint- iff may be sued — Goods sold to be credited) — Priorities. Quieting title: (Pending suit, new title — Subsequent title) . Replevin : (Return awarded and value fixed without deducting lien of adverse party) . Replevin : (Return awarded, but no damage given for injury to property). Revivor. Summary proceedings — Sure- ties released. Trespass to try titles. Trustee's report, exceptions to : (Reservation in deed). Usury. § 159. Principle involved in Chapter VI. — ^The sole purpose in view in serving notice upon a person that a judicial proceed- ing has been commenced against him is to afford him an op- portunity to show his causes of defense or reasons why the plaintiff should not recover ; and a recovery by the plaintiff necessarily adjudicates that there is no defense. Hence, the cases all agree that a judgment bars all defenses which the de- fendant had an opportunity to make.* Thus, a decree compell- 1. Greenlee v. Gaines, 13 Ala. 198 Mervine v. Parker, 18 Ala. 241 Hutchinson v. Dearing, 20 Ala. 798 McCalley v. Wilburn, 77 Ala. 549, 552 ; Ellis v. Clarke, 19 Ark. 420 ; Mor- ris ». Curry, 41 Ark. 75, 78; Mattair v. 400 THE MERITS. ing the defendant to make a conveyance, bars all his causes of defense or reasons why he ought not to do so, whether brought forward or not.' So, the judgment of a police board ordering Card, 19 Fla. 455 ; Harris v. Colquit, 44 Ga. 663 ; Henderson v. Hill, 64 Ga. 292; Waters v. Perkins, 65 Ga. 32; Hightower v. Beall, 66 Ga. 102; Spinks v. Glenn, 67 Ga. 744; Harbig V. Freund, 69 Ga. 180; Dozier v. Wilkerson, 76 Ga. 835; McWilliams V. Walthall, 77 Ga. 7; Shears v. Dusenbury, 13 Gray (79 Mass.) 292— a writ of entry to foreclose a mort- gage; Caldwell v. Micheau, 1 Spears' Law 276; Maxwell v. Connor, 1 Hill's Ch. 16; Earle v. Hinton, 2 Strange 732 — by Eyre, C. J. There are many other cases which announce this ab- stract proposition. ]. Church's Appeal (Pa.), 7 Atl. R. 751, 754. The court said: "The only serious question is whether the former suit settled all the matters at issue between these parties in regard to the title to these lands, or whether the defendants may still set up and con- test the title under their deed from Letta Griffin. Whether or not the learned master is right in holding that the defendants were bound to set up that title in the former suit, and that they are precluded from doing so now, I do not need to consider. There is a more certain ground upon which to base the conclusiveness of the former decree. As the master well says, that suit proceeded, not for the purpose of declaring the trust in favor of the Stevens children, but also of compelling a conveyance. The only object of Mrs. Ruland in joining in the suit was for the latter purpose. Her rights had been settled by her ejectment. When, therefore, the plaintiffs obtained a decree for a con- veyance in fee, it bound whatever title Mrs. Church and her husband had. They could not have conveyed a fee, and still have a fee in reserve. If it was intended to reserve for further litigation the title derived by the deed from Letta Griffin (admit- ting that that could be done), the withdrawal was incomplete. They ought to have had that title excepted out of the decree, and any convey- ance which was ordered limited sim- ply to the estate which Mrs. Church acquired by the devise from her Aunt Letta. This was not done, and the decree must now have effect as it stands. It is of no importance that the court decided the case merely on Mrs. Church's position as a volunteer, as devisee under Letta Griffin's will. A former decision must be regarded, though it may have proceeded upon an erroneous principle. Bower v. Tallman (5 Watts & S. 556). We can only look at the decree, which is for a conveyance in fee absolute. We can not disturb it, nor refuse to give it effect. In Peterman v. Huling (31 Pa. St. 432, 433), in which there was a plea of former recovery, it was said by Strong, J. : ' The former action, though in form an ejectment, was in substance a bill by a cestui que trust against his trustee to enforce the ex- ecution of the trust. The title of Huling, the plaintiff in that case, was purely an equitable one. It rested upon the assertion that Coder and Peterman held the legal title to two tracts of land, one-half of which was purchased with his money, and that they held it under an agreement that it should be for the joint use of Coder and Huling. In a court of law, there- fore, Huling would have had no case. In England he must have gone into DEFENSES OMITTED. 401 county warrants to issue is not void for any error of fact ; and in a proceeding by mandamus to compel the levy of a tax to pay such an order, "no fact which could have influenced the action of tlie board, or been considered by them at the time they pronounced the judgment, can be considered."* On a motion to enter satisfaction of a probate decree, no mat- ter can be inquired into M'hich existed before the decree.* That the plaintiff is not the real party in interest or does not own the claim,' or that a receiver has no right to a fund,* are de- fenses that must be made. In a suit to reinstate a canceled mortgage, a decree for the plaintiff bars the defendant from making the same defenses in a suit to foreclose the reinstated mortgage. The court said : "All the defenses set up accrued before the decree was rendered in the former case, and were adjudicated in that ; and, in the ab- sence of fraud or mistake, will not be again considered."^ So, a judgment declaring a vote fixing the salary of a president of a corporation to be void concludes all defenses.® Exception by excusable neglect. — A shipped goods to B, which he refused to receive, because deficient in quantity, and reshipped them to A. A refused to receive them, and notified B that he had reshipped them. A then sued B for the price, and recovered, which B paid. It seems that B, relying upon the statement of A that the goods had been reshipped, suffered equity, and prayed a chancellor to de- 1. Carroll v. Board of Police, 28 cree a conveyance by the trustee to Miss. 38, 49. him. The ejectment which he brought 2. Shackleford v. Cunningham, 41 was a substitute for a bill in chan- Ala. 203. eery. But if a chancellor had de- 3. Mervine v. Parker, 18 Ala. 241 ; creed such a conve^'ance by the trus- Peale v. Routh, 13 La. Ann. 254; tee to the cestui que trust, and en- Gunn v. Wades, 62 Ga. 20. forced his decree, it would have for- 4. United States Express Co. v. ever estopped Coder and Peterman Smith, 35 111. App. 90. from denying that Huling was the 5. Nelson v. Bevins, 19 Neb. 715 (28 owner, both legal and equitable, of N. W. R. 331). the one-half of the land. Such a de- 6. Atlanta Kid Mining Co. v. An- cree would have been conclusive upon drews, 55 N. Y. Superior (23 Jones & tliem in any subsequent suit, or in Spencer) 93. any other court.' " 26 402 THE MERITS. the judgment to go by default. Upon afterwards discovering that the goods had not been reshipped to him, he was allowed to recover back the sum paid.^ In a foreclosure suit, the j)laint- iff and defendant agreed that a foreclosure and sale should go, and that the plaintiff should bid in the property for the full amount of the judgment, by reason of which the defendant did not plead nor prove the payments made. But the plaintiff failed to comply with this agreement, and the defendant paid the entire judgment. He then sued the plaintiff for the pay- ments made on the mortgage and was allowed to recover.^ In a partition suit, if one of the heirs is entitled to a compensation in money because of a prior transaction between his trustee and ancestor, and the other heirs falsely lead him to believe that he will be compensated without litigation until it is too late to file a cross-petition, the decree for a partition will not bar a new suit by him for compensation.' But a recovery for an over- flow caused by a dam, over a plea of license, bars the same plea in a new action for a continuance of the injury, although the defendant, by newly discovered evidence, is now prepared to prove his plea.* Indian rule. — Chand on Res Judicata, section 37, says : " 37. All matters of defense are directly in issue. — As regards the grounds of defense, the leading case here is that of Moottoo Vijaya v. Katama Natchiar.® Lord Westbury, in de- livering the decision of their lordships of the privy council in that case, observed, that 'when a plaintiff claims an estate, and the defendant, being in possession, resists that claim, he is bound to resist it upon all the grounds that it is possible for him, according to his knowledge, then to bring forward;' and that if he fails to do so, he is estopped from asserting any of them hereafter. This observation was cited and reaffirmed by their lordships in other cases ^ even before the civil procedure 1. Purcell V. Jaycox, 59 N. Y. 288. 5. 11 M. I. A. 73. 2. Savery v. Sypher, 39 Iowa 675. 6. Woomatra Debia v. Uunopoorna 3. Benton v. Ragan (Ky.), 11 S. W. Dasi, 11 Bombay L. R. 169; Doorga R. 430 and 12 S. W. R. 155. Persad v. Doorga Konwari, Indian 4. Lilheffer v. Heir, 17 Serg. & L. R. 4 Calcutta 190. Rawle 319 (17 Am. D. 658). DEFENSES OMITTED. 403 code of 1877. So also, Plowden, J., in delivering the judg- ment of the Punjab chief court in Kesar Singh v. Jawand Singh/ said: 'The rule that a defendant resisting a claim is bound to resist it upon all the grounds that it is possible for him, according to his knowledge, then to bring forward, had been recognized as applicable before act 8 of 1859 was super- seded by the later codes with the fuller exposition of the gen- eral doctrine of res judicata. * * * ^ j^^g already been held, in the case No. 96, P. R. 1881,^ that the non-tender of compensation by a landlord before serving notice of ejectment under the tenancy act is a matter which may and ought to be made ground of attack by a tenant contesting the notice, and that the omission so to advance it estops him from suing for compensation after his first suit has failed.' In Deokee Nun- dun V. Kalee Pershad,' a coparcener, as a mortgagee of an- other coparcener's share in the joint estate, claimed a lien on the surplus sale proceeds of that share in the hands of the col- lector who had sold it for arrears of revenue, and though merely a ' precautionary ' dependent in the former suit brought by a person who had purchased it in execution of a decree against that other coparcener, he was held estopped from put- ting forward his mortgage, by the decree in tlie former suit in which he had not pleaded it. *If the claim,' said Phear, J., in delivering the judgment of the court 'which the present plaint- iff now makes against K. (auction purchaser) be well founded, it would have constituted a good defense to the action which he formerly brought against him and others » It is his own fault that he did not set up that defense at that time. The necessity of putting some term to litigation is the foundation of the rule that any issue which is material to the rights of the parties in the matter of suit between them, whether actually contested or not, shall not afterwards be raised in a subsequent suit between* the same parties.' Similarly in Maktum v. Imam,* a certain person, alleging that he had Rs. 1,000, sued for Rs. 5,000, as 1. 1884 Punjab R. No. 142. 3. 8 W. R. 366. 2. Kaka v. Bhola, No. 96, Punjab 4, 10 Bengal H. C. R. 293. R. 1381. 404 THE MERITS. the residue of his share in his deceased father's estate, and ob- tained a decree for Rs. 700 worth of property; and the decree was held to bar a subsequent suit by that brother for a moiety of the Rs. 1,000, on the ground that the decision on which the decree was based implied that the excess of the whole of the father's property was in his hands; and, therefore, he could not afterwards come forward and say that instead of an excess he had only a deficiency; that he had an opportunity of bringing the question of the moiety of Rs. 1,000 before the court, and having lost that opportunity could not rest a suit upon it again. ** So also in Hari Narayan v. Ganpatrav,* a decree in favor of the defendants in a former suit by them against the plaintiff's father for a partition of certain joint lands, in which they admitted having a certain village as their separate property, was held to bar a suit by the plaintiff for his share of that vil- lage, on the ground that the plaintiff's father was bound to ad- vance the plea of that village being joint in reply to the de- fendant's claim for partition; Kembal, J., observing that * if a plaintiff seeks to recover a share of property in the hands of the defendant, it is necessary for the court to decide whether or not, under the circumstances of the case, he is entitled to that par- tition ; and no court would decide that a plaintiff who withheld property which he might, and, therefore, ought to bring into hotchpot, had a right to the partition of the property in the possession of the defendant.' Similarly in Dinomoyi Debia v. Anungo Moyi,' a suit for rent and ejectment, Prinsep, J., in delivering the judgment of the Calcutta high court, after re- ferring to a previous suit by the plaintiff against the same de- leiidant for rent for prior years, said: ' The defendant setup only one plea in bar of ejectment, namely: That his tenure was an istimrari one, and, failing to prove this, a decree was passed against him. lie now raises the further plea that his tenure is both permanent and transferable. * * * If there was any force in the contention that his tenure is transferable as well as istimrari, he should have urged it in the former suit. As it is, 1. Indian L. R. 7 Bombay 272. 2. 4 Calcutta L. R. 600. DEFENSES OMITTED. 405 he was content to rest his defense simply on the allegation that his tenure was istimrari, and, having done so, he can not be allowed to take up this new ground of defense. This is the law as now set forth in the second explanation. * * * It is true that that code does not apply to the present case, but the law which it enacts is not new law.' So also^ in Baldeo Sahai v. Bateshar Singh,* the defendants having purchased an estate in the plaintiff's possession, sued to recover possession, and the plaintiff resisted the suit only on the ground that he was the auction-purchaser of it, and the defendants got a decree, and the plaintiff then sued, claiming a right of pre-emption in re- spect of the property, but he was held by a division bench of the Allahabad high court to be debarred from enforcing that claim on the ground that he should have asserted it in reply to the former suit. And that decision has been followed, though re- luctantly, under the code of 1877 in the case of Narain Dat v. Bhairo Bukhsh,^ in which case Straight and Pearson, JJ., said : * It is not without doubt that we feel ourselves constrained by prior decisions of this court,^ and by the terms of section 13, to hold that the view of the lower appellate court is correct. It is true that the former suit was for the redemption of a single mortgage on the entire eight annas, but the present defendants were parties to it, and came into court asserting their right to participate in the redemption by virtue of purchase of the four annas made by them from P. It would, therefore, seem that their status to figure in the proceeding at all should have been made the subject of attack by the new plaintiff, then defendant, setting up by plea his right of pre-emption. Moreover, to make such a defense the more effective, he might have applied to have P joined as a party to the suit. Neither of these courses, however, did he adopt; and upon the authority of the cases quoted it would appear that, by not having done so, he has de- feated his present claim. When the former suit was brought, the full cause of action, now made the ground of his present suit by the plaintiff-appellant, had accrued to him, and, we 1. Indian L. R. 1 Allahabad 75. 3. Jadu Lai v. Ram Gholam, Indian 2. Indian L. R. 3 Allahabad 189. L. R. 1 Allahabad 76 and 316. 406 THE MERITS. think, it was incumbent upon liim, in the former proceeding, to assert his right, which, if established, to the extent of such a plea as we have already indicated, must, so far as the defend- ants-respondents, then plaintiffs, were concerned, have proved fatal to their title to redeem.' " § 160. Accounting. — A suit for an accounting in reference to any business, matter or transaction, calls upon the defendant to bring forward all causes of defense, whether total or partial, and a judgment for the plaintiff bars them all. Administrators and executors. — Thus, an accounting with an administrator taken in an insolvent cause, and an ad- judication on the claims of creditors, and a sale of lands ordered to pay debts, bars the heirs from suing the administrator for a devastavit, as they ought to have made those defenses.' And a decree that an administrator is under no liability to account to heirs, although founded on a void decree of the probate court, precludes a new suit for the same purpose.^ If excej)tions to an administrator's accounts, upon the ground of payments made to unpref erred creditors, are overruled and the account con- firmed, the person excepting can not maintain a devastavit against the administrator for the same cause, although the de- cree was affirmed on appeal without passing on that question.^ 1. Hodsden v. Caldwell, 1 Lea (69 report of the commissioner allowing Tenn.) 48. the administrator credit for those 2. Tankersly v. Pettis, 71 Ala. 179, payments, and to which the excep- 186. tions were filed, was confirmed by 3. Findlay v. Trigg, 83 Va. 539 (3 S. the circuit court by the two decrees E. R. 142). The court said: "One from which the former appeal was of the grounds upon which the bill taken ; and this court affirmed those charges a devastavit is the payment decrees, except as to the Robertson and by the administrator of certain un- Gait debts, and the bond of Robert- preferred claims against the estate, son. It is true it does not appear that If this were the only ground upon any question as to the validity of which relief is prayed, it is clear that those payments was raised in this the claim of the appellant could not court, but that does not at all affect be sustained ; for substantially the the finality or conclusiveness of the same objection was embodied in the decree which was entered. In other exceptions of the appellant, as ex- words, the matter is res judicata, and ecutor of Alexander Findlay, filed on that without regard to the soundness the 12th of October, 1875 ; and the of the objection, had it been insisted DEFENSES OMITTED. 407 So a judgment homologating (confirming) an executor's ac- count after opposition is a defense to a new suit to charge him with penalties before incurred.* And an administrator's final settlement in the probate court is conclusive against all de- fenses.^ Thus, an administrator in Alabama made a final set- tlement of his trust in chief, in which he presented a list of ''notes on hand and herewith returned," and he was continued as administrator de bonis non of the estate as insolvent. On a partial settlement and distribution of the insolvent estate, ho asked to be allowed a credit for a note included in the list of notes on hand in his former report, upon the ground that it was given for wood sold with which he had charged himself, thus giving credit to the estate twice, but, upon objection by the creditors, his former report was held conclusive.^ If a probate court in Pennsylvania passes upon and settles the accounts of an executor in which he has charged himself with moneys received by virtue of a power of attorney executed by the decedent, that will not bar a suit in equity to cancel the power of attorney upon the ground that it was obtained by fraud, as the probate court has no jurisdiction over that matter.* on at the proper time. The cases in rected without the necessity of a support of the proposition that a de- cross-appeal in any case. If a part)^ cree of this court affirming a decree fail to complain of any such error, of a lower court is a final determination and a decree be made upon the ap- between the parties and their privies peal, without correcting or noticing of all questions which were, or might it, he will be concluded by the decree have been, raised on the appeal, are from appealing afterwards.' See, also, numerous and familiar. In Price v. New York Ins. Co. v. Clemmitt (77 Campbell, 5 Call 115, it was held that Va. 366) ; Effinger v. Kenney (79 Va. the law in such case supposes ever}'- 551); Stuart v. Preston (80 Va. 625)." thing contained in the record to have 1. Succession of Mann, 4 La. Ann. been decided on, and that a contrary 28. doctrine would violate the wisely- 2. Waring v. Lewis, 53 Ala. 615, established ru\e, that interest 7-eip2tbUcce 623; Eo Bards v. Lamb, 89 Mo. 303 res judicatas non rescindi.^ Following (1 S. W. R. 222) ; Collins v. Smith, 109 this and other previous decisions, the N. C. 468 (14 S. E. R. 88). court in Campbell's Ex'rs v. Camp- 3. McDonald v. McDonald, 50 Ala. bell's Ex'r, 22 Grat. 649, used this 26. See Van Fleet Coll. Att., §721, language: ' An appeal from a decree p. 775, for other cases, brings up the whole proceedings in 4. Fidelity Insurance, Trust and Safe the case prior to the decree ; and Deposit Co. v. Gazzam, 161 Pa. St. 536 either party can have any error (29 Alt, R. 264) . against him in those proceedings cor- 408 THE MERITS. The court said: "The purpose of the bill is to set aside a written agreement on the ground that it was fraudulently pro- cured by defendant while in a confidential position to a dece- dent of impaired strength of mind; and, further, for an account of investments made and moneys collected and retained by the defendant. This is a subject of general equity juris- diction which resides in the common pleas, and not in the orphans', court. Under ordinary circumstances, therefore, the orphans' court would have no control over the money in the hands of the attorney in fact; but, as the attorney was made also executor, it became his duty, in this capacity, to put into his account the balance in his hands as attorney, and only thereby did the orphans' court acquire any jurisdiction over that balance. To the extent that that matter was passed upon by the orphans' court, a plea of res judicata is a good defense. This, however, is not ground for a plea to the jurisdiction of the court, but goes only to the rights of the parties; and in no case would it sustain a dismissal of the bill for want of juris- diction. The dismissal was erroneous under any view of the facts. To reach the real question in the case, we must consider the exact extent of what was before the orphans' court, for it was dealing with a subject not within its general jurisdiction, but only brought wdthin it by special circumsta-nces, and to the extent made clearly necessary by those circumstances. That court was not the proper tribunal to order the surrender and cancellation of the agreement, and was in no wise prompted to the consideration of that subject. As a fact, the attorney to account and the executor to ask the accounting, were the same person, and the latter's duty prima facie would appear to have been fulfilled by assuming that the agreement was valid, and receiving the balance becoming due on that assumption. That was all that was before the court, and that is the utmost extent of the conclusiveness of its decree. On the other hand, the gravamen of the present bill is the fraudulent character of the agreement, and the relief asked is to set it aside. That, as al- ready said, is the subject of general equity jurisdiction, and belongs to the common pleas. The further relief by account- DEFENSES OMITTED. 409 ing for what was done under it is subordinate and incidental. Whether any such relief is to be given at all depends first and solely on the determination of the main question. If it is to be given, then the amount of it will depend on general prin- ciples applied to the evidence, and in such application the de- cree of the orphans' court, and its extent as a conclusive settle-" ment, will receive due consideration. It may well be that this unfortunate controversy is, as the learned court below seems to have viewed it, an after-thought, growing out of the changed relations of the parties interested; but the matters charged in the bill have not been adjudicated, and are therefore before the court for determination." Matters omitted from the final settlement of an administra- tion in Missouri are not concluded, and he may afterwards be sued upon his bond for them.* The court said : **A judgment of a probate court on a final settlement of an administrator is, of course, conclusive only as to matters therein embraced. In order that any matter can be said to have passed in rern judi- catam, it must have been tried and adjudicated by the court. And it has been determined in this state, that parol evidence may be introduced to show that certain matters, as to which the record is silent, were not passed on in a judgment of allow- ance in a probate court. In this case it seems there are matters which were not embraced in the final settlement. If this is true, then, of course, the matters thus non-includ^, not hav- ing been tried and adjudicated, are still open for trial and ad- judication, and as to them the final settlement constitutes no adjudicatory barrier." § 161. Accounting — Consideration of mortgage. — A execu- ted a note, and a mortgage securing it, to B, and C sued them to restrain A from paying the debt and B from transferring it, and for an accounting between himself and A, and also be- tween himself and A and B. He alleged that B and he were in fact partners in a contract for the repairing and running of a mill belonging to A, although the contract was, in form, be- 1. Nelson v. Barnett, — Mo. — (27 S. W. R. 520). 410 THE MERITS. tween A and B alone ; that A was aware of the partnership, and had recognized hiS, C's, rights ; that he had put a large amount of repairs on the mill, which A and B well knew, and yet that B, for the purpose of cheating him, had induced A to execute this note and mortgage in full satisfaction for the en- tire amount of repairs on the mill, and had released him for the balance, and had taken the note and mortgage directly to him- self, and that their amount was greatly in excess of what was actually due from A to B, all of which A well knew. The an- swer of A denied all fraud, and denied that he knew of the part- nership between B and C, and alleged that he had settled with B in good faith, and that theamount stated in the note and mortgage was actually due to B ; and the answer of B was substantially the same. There was a trial and finding that the original con- tract between A and B was not assignable, and that B was not obliged to recognize C's rights, and had not done so ; that C had put a specified amount of repairs on the mill, and was a partner with B, but that he, C, had no claim on A, and was obliged to claim through B; but that, as between B and C, they each were entitled to a specified interest in the mortgage, and a receiver was appointed to collect it, with orders to divide the proceeds between B and C, according to their respective inter- ests. The receiver afterwards sued A to foreclose the mortgage, and his answer was that it was without consideration ; but the decree in the first suit was held to be conclusive that it was valid for its full amount, because the suit was for an account- ing between B and C, to which A was a party ; that it was nec- essary to determine the amount of the mortgage, in order to settle the rights between B and C, and that A had the oppor- tunity then to show any want of consideration.* § 162. Accounting — Partnership affairs. — A, being in part- nership with his sons B and C, died and left his estate in their hands. Afterwards B died and the assets were all left in the hands of C. The widow and children of B, as next of kin, brought a suit against C, alleging that he had received all the 1. Strong V. Hooe, 41 Wis. 659, 672. DEFENSES OMITTED. 411 estate of A at his death, and all the estate of B at his death, as well as the partnership books, and had carried on trade there- with and prayed for an accounting in respect to all these matters. The bill was taken pro confesso against C, and there was a reference to a master who reported that a certain sum was due the complainants on account of the estate of A, but that no account between B and C had been laid before him. Upon this report there was a decree that C should pay to the complainants the sum found due, which he failed to do. All this occurred in Newfoundland. C then sued the former com- plainants in England, alleging that B died largely indebted to him on their partnership accounts and on private transactions, praying that B's estate might be administered, the partnership accounts taken, and the amount due him from the estate of B ascertained and paid. The former proceedings in Newfound- land were held, by Vice-chancellor Shad well, to be a complete bar. He said that the matters now set up by C might have been and ought to have been brought forward by him in the former suit, and that it was negligence not to do so ; and that the former decree was a bar ** to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. "* When A died the partnership assets all went to B and C as survivors ; and the suit by the next of kin of B against C was the same in principle as if B himself had sued C for a dissolu- tion and an accounting. In that case, the question would be whether or not either owed the other anything in regard to the partnership business ; and, of course, a decree that C was owing B would necessarily determine that B did not owe C. Report of referee or trustee. — A confirmation of a referee's report is a bar to any claim that ought to have been set up in the reference.^ And a judgment homologating or confirming the final report or tableau of a syndic or trustee of an insolvent is a bar to all further proceedings by a creditor who was represented.' 1. Henderson v. Henderson, 3 Hare 3. Coiron v. Millaudon, 3 La. Ann. (25 Eng. Ch.) 100, 115. 664. 2. Williams r.Batchelor, 90 N. C.364. 412 THE MERITS. § 163. Administrator's petition to sell land. — An adminis- trator's petition to sell land calls on the heirs to bring forward all defenses.^ The court said: "The proceedings in the pro- bate court being in due and regular form, the judgment of that tribunal, granting the order of sale of the lands, was conclusive of all issues involved; including as well the fact that debts were due by the estate, as well as of the insufficiency of personal property to pay those debts. The questions sought to be raised, therefore, in this cause, are res judicata, and can not be litigated in a court of chancery. The complainants be- ing represented in the probate court by a guardian ad litem, although minors, were bound by the judgment as fully as if they had been adults. If the probate court erred in deciding that the claims were debts of the decedent, for the payment of which the lands could be properly sold, this error would not render the judgment void, but voidable only. The remedy by appeal was complete and adequate." In a proceeding by an administrator to obtain an order to sell land to pay debts because of the insufficiency of the per- sonal property, to which the heirs are parties, an order grant- ing that relief necessarily adjudicates that a note given by the administrator to the decedent in his lifetime for the purchase- price of land, has been applied by the former as cash in his hands, and bars an action against him by the heirs to recover it.^ The court said: "We think the doctrine of res judicata is applicable, and is therefore fatal to the action. The same parties now before the court were before it in the action above referred to ; and, although it does not appear positively that the question of the liability of the defendant for the amount of his note was therein raised and adjudged, yet that question was necessarily involved. The claim of the adminis- trator was that the personal assets were not sufficient to pay the debts of his intestate, and that real estate should be sold. This claim certainly involved an ascertainment of the amount of personal assets, and an accounting therefor, before there 1. Chardavoyne v. Lynch, 82 Ala. 2. Earle v. Earle, 33 S. C. 498 (12 S. 376 (3 S. R. 98). E. R. 164). DEFENSES OMITTED. 413 could be a judgment of sale, which was granted. We do not see how the court could have reached the conclusion that it was necessary to sell real estate in aid of the personalty, with- out first determining that the debts of the estate would exhaust the personalty, including w^hatever amount the administrator had in his hands as cash from his own note to the intestate." In a chancery suit to sell lands of a decedent to pay debts, if the land which belongs to one of the heirs individually, and not to the estate, is included in the bill, a decree for its sale will bar his title. ^ So, if one who holds a lien on the land of a de- cedent is made a party to the administrator's proceeding to sell the land to pay debts, the order of sale will bar his lien, even though he did not set it up, as he had the opportunity to do so.* Assault, excessive. — If A makes a trivial assault on B, who in return gives A an excessive beating, each has a cause of action against the other; and a recovery by B for the first assault is no bar to an action by A for the excessive beating.' § 164. Bankrupt's discharge — Judgment afterwards ren- dered on a provable demand. — If the defendant has paid or satisfied a demand, or has obtained its release or discharge, during the pendency of a suit upon it, he must bring that fact to the attention of the court, or it will render a judgment against him which will be conclusive that he had no such defense. It would seem quite clear that the kind of a release held by him, for instance, a discharge by a bankruptcy court, could not vary the conclusive effect of the judgment. Thus, a case in the Supreme Court of the United States holds, that, if proceedings in bankruptcy are commenced and a discharge granted pend- ing a suit on a provable demand, the discharge must be used as a defense, as it will not bar proceedings on the judgment rendered on such demand.* In other words, a discharge in bankruptcy, like any other defense, must be used to prevent a 1. Lee V. Thompson, 99 Ala. 95 (11 3. Cade v. 3>IcFarlaud, 48 Vt. 47. S. E. 672). 4. Dimock v. Revere Copper Co., 2. Vail V. Rinehart, 105 Ind. 6, 15 117 IT. S. 559, 564. Accord, Paschall v. (4 N. E. R. 218). See Van Fleet Bullock, 80 N. C. 329. See Van Fleet Coll. Att., § 721, p. 775. Coll. Att., § 580, p. 605. 414 THE MKRITS. demand being put into judgment. And the same court, in an earlier case, rules that if, during the pendency of foreclosure proceedings, the mortgagor is adjudged to be a bankrupt and an assignee appointed, a foreclosure and sale are not void, as the court can not judicially notice the bankruptcy proceedings.* So, a discharge in bankruptcy obtained before a judgment, but not pleaded, is no bar to a suit to revive/ § 165. Bankrupt's discharge — Judgment previously ren- dered during the pendency of the bankruptcy proceedings. — If proceedings in bankruptcy are instituted pending a suit on demand, upon which a judgment is rendered, a subsequent dis- charge in bankruptcy bars the judgment, and can be used to prevent the issuing of an execution to enforce it.* The con- trary cases* must all be considered as overturned. A judg- ment, although founded on a fiduciary debt which the bank- ruptcy proceedings do not affect, becomes a new demand which will be barred by a subsequent discharge in bankruptcy.* This case seems to me to be wrong. Why putting a claim into judg- ment should merge its character, or make it less sacred to the creditor, or less odious to the debtor, I am unable to under- stand. § 166. Cancellation suit. — A decree canceling a deed in favor of an heir, upon the ground that his ancestor was of un- 1. Eyster v. Gaff, 91 U. S. 521. Harrington v. McNaughton, 20 Vt. 2. Robert v. Weiler, 55 Miss. 249; 293; Leonard v. Yohn, 68 Wis. 587 Marsh v. Mandeville, 28 Miss. 122, (32 N. W, R. 702). 128 — no bar to a suit to revive in 4. Wells«.Edmison,4Dak.46 (22N. order to hold a lien. W. R. 497) ; Steadman v. Lee, 61 Ga. 3. Boynton v. Ball, 121 U. S. 457, 58; Finney v. Maj'er, 61 Ga. 500; 462, reversing Boynton v. Ball, 105 Adams v. Dickson, 72 Ga. 846; Bowen 111. 627. Accord, Rogers v. Western, v. Eichel, 91 Ind. 22 (46 Am. R. 574) ; etc., Fire Ins. Co., 1 La. Ann. 161 ; Pike v. McDonald, 32 Me. 418 (54 Dresser v. Brooks, 3 Barb. 429; Fox Am. D. 597); Uran v. Houdlette, 36 V. Woodruff, 9 Barb. 498; Clark v. Me. 15; Woodbury v. Perkins, 5 Rowling, 3 N. Y. 216 (53 Am. D. Cush. (59 Mass.) 86 (51 Am. D. 51) ; 290, 296 n.); McDonald v. Davis, 105 Bradford v. Rice, 102 Mass. 472 (3 N. Y. 508 (12 N. E. R. 40) ; Dawson Am. R. 483) ; McCarthy v. Goodwin, V. Hartsfield, 79 N. C. 334 ; Dick v. 8 Mo. App. 380. Powell, 2 Swan (32 Tenn.) 632; 5. Wolcott v. Hodge, 15 Gray (81 Stratton v. Perry, 2 Tenn. Ch. 633; Mass.) 547 (77 Am. D. 381). DEFENSES OMITTED. 415 sound mind wlien it was executed, is no bar to a suit by the defendant to enforce a specific performance of a contract to convey, made by the ancestor when he was of sound mind.* If a person is made a defendant, both as the trustee and individ- ually, to a suit to cancel a deed of trust, a decree of cancella- tion bars all his individual rights, even though they are not brought forward.* Will canceled. — The children of a deceased woman having brought a suit to annul her will, in which she had made her husband, their step-father, the universal legatee, a recovery by them bars a suit by him to annul the judgment, and to re- cover the estate, as her legal heir, upon the ground that the children were bastards, as that was a defense for him in the first suit.' § 167. Compromise and indemnity agreements. — If A has a claim against B, and they make a compromise by which A agrees to take a part in full, according to the opinion of the su- preme court of Massachusetts, this compromise is not a matter of defense which must be used to defeat an action on the orig- inal claim, but is an independent cause of action upon which B may sue A after the latter has recovered upon the original cause by default. The court thought that it did not extinguish any part of the demand held by A, but was similar to a breach of warranty, fraud or set-off.* It said: "The plaintiff made three notes to Russell, the defendant's intestate. After- wards, according to the plaintiff's evidence in the present case, Russell promised that if the plaintiff would assent to a compromise by the executors of the plaintiff's father's will of a claim in their hands against third persons, by which compro- mise the plaintiff 's share of his father's estate would be dimin- ished, Russell would accept in full settlement of the balance due upon the notes whatever percentage the executors should take in settlement of their claims. The executors then settled 1. Fishburne v. Ferguson, 85 Va. 3. Succession of Lebrew, 31 La. 321 (7S. E. R. 361). Ann. 212. 2. Simpson v. Dugger, 88 Va. 963 4. Hunt v. Brown, 146 Mass. 253 (15 (14 S. E. R. 760). N. E. R. 587). 416 THE MERITS. the claim for sixty-two per cent, of the amount, with the plaint- iff 's assent; then Russell died and suit was brought by his admin- istrator, the present defendant, upon the notes, against the present plaintiff. The latter pleaded a general denial, and pay- ment, and afterwards made an offer of judgment for the full amount of the notes, interest, and costs, which was accepted, and the sum was paid. The present suit is upon Russell's al- leged agreement. The defendant asked a ruling that the agreement was without consideration, and also that the judg- ment in the former case was a bar. Both rulings were refused, and he excepted. If Russell had received the sixty-two per cent, as agreed, and the suit had been brought for the residue, the ques- tion would arise whether the acceptance of less than the sum due, upon a collateral consideration, could be distinguished from an acceptance of less, before the notes fell due, or, like that, constituted an accord and satisfaction; and if it was tech- nically a satisfaction, whether, like a payment, it must not have been pleaded in the suit upon the notes, if it was to be relied on at all; or whether there remained any contract un- executed by the party satisfied, which he would break if he afterwards brought suit. But Russell did not accept sixty-two per cent., so that the only question is, whether his agreement in any other way extinguished the notes in whole or in part; since in that case the judgment might be a bar. The agreement was not itself a satisfaction. It was not a new contract substituted for the notes, and entitling the plaintiff to demand their surren- der. Neither could it operate as a release of thirty-eight per cent, of the notes, when the percentage was fixed by the compromise referred to. The suggestion which we are considering, if stated in technical form, would have to be that Russell ac- cepted the plaintiff 's assent to the compromise which he desired in satisfaction of thirty-eight per cent, of the notes. But this is plainly a distortion of the evidence, according to which the assent was accepted, not as partial satisfaction of a debt, but as the consideration for a promise. If, however, the jury might have been warranted in finding that the agreement and what was done under it had released or satisfied thirty-eight per cent. , they were DEFENSES OMITTED. 417 warranted at least equally in finding that it was purely execu- tory, in purport as well as in form, namely, to accept a percentage in satisfaction when it was paid. The court could not rule, as matter of law, that the opposite construction was the true one, nor assume the opposite construction as a foundation for its rul- ings. But it may be said that the contract must have been found to embrace the element that Russell would not sue for more than sixty-two per cent., and it may be argued that, if not technically a release, it ought to have been available in defense pro tanto, by way of estoppel or otherwise, in order to avoid circuity of action, upon the same principle that a covenant not to sue is allowed to inure as a release. The answer is that, whether available in this way or not, whether or not such a defense would escape the objection that in substance it was ac- cord without satisfaction, the plaintiff was not bound to use the agreement in defense. For if, as we have tried to show, and as the suggestion under consideration assumes, Russell's agree- ment did not extinguish the whole or any part of the notes, but left them in full force, it also necessarily retained its inde- pendent character as a collateral contract. A breach of it was a substantive cause of action, upon which the present plaintiff might bring his own suit in his own way, and he was no more bound to plead it than he would have been bound to plead a set-off, fraud, or a breach of warranty." But in Iowa, A, having agreed to save B harmless from a note he had executed to C, purchased it and sued B upon it and re- covered judgment by default. He afterwards sued B on this judgment, and B sought to interpose the agreement to save him harmless as a counter-claim ; but he was not allowed to do so because it was a matter of defense to the original suit on the note.* I think the former case right and the latter wrong. It is held in Indiana that, if a wife joins with her husband in a mortgage of his land upon the express agreement with the mortgagee that he will foreclose, by default, and sell the prem- ises, and pay the one-third of the proceeds to her, the decree of 1. Lawrence Savings Bank v. Stevens, 46 Iowa 429, 432. 27 418 THE MERITS. foreclosure against her, upon default, will not bar an action b}'- her against him to recover upon the agreement.' The court said : ** The plea of res judicata, to which a demurrer was sus- tained, was clearly insufficient. The gist of it is that the ap- pellee was duly served with process in the foreclosure proceed- ings, but failed to appear, and that judgment was rendered against her by default. This, however, was one of the very things she contracted to do, according to the averments of the complaint, and it was partly this agreement not to appear which constituted the consideration of the trust. It is doubtless true, as a general rule, that if the wife of a mortgagor of real estate, in which she has an inchoate interest, is brought into court by summons in a foreclosure proceeding, and fails to set up any claim or interest, she is concluded by the decree. But this rule can have no application to the facts in the present case. We apprehend that no court would bar a -litigant, who, by spe- cial agreement, suffered default and judgment to be taken against him in consideration of some benefit inuring to him, from show- ing that fact." Contempt in civil suits. — In a remedial proceeding for con- tempt of court, all defenses and excuses must be presented or they will be barred.* § 168. Contract sued upon, damages caused by negligence or non-performance not set up. — The adjudications in respect to the question, whether or not a recovery ui^on a contract, ex- press or implied, will bar an action by defendant for damages caused by negligence in its performance, or by its non-perform- ance, are in much confusion. The principle involved seems quite plain. If A enters into a contract with B and fails to perform it, a cause of action arises at once in favor of B to re- cover damages which A can not destroy nor impair by any judicial proceeding. That cause of action is the property of B with which he may do as he pleases. He may select the time when and the court in which he will sue. If A sues him upon l.Talbott V. Barber, Ind. App. (38 2. Ryan v. Kingabery, 89 Ga. 228 N. E. R. 487). (15 S. E. R. 302). DEFENSES OMITTED. 419 the contract, it is optional with him whether or not he will set it up as a counter-claim, or cross-demand. This cause of action in favor of B may arise either from the negligent performance or the non -performance of A, or from his misfeasance or mal- feasance. In either case, the princij^le is the same. B has a cause of action to recover so much damages as the law provides for that default, which may be greater or less than the agreed or implied price or value which he was to pay to A. But any- thing outside of, above or beyond those damages, is a defense to an action by A upon the contract which will be barred by a judgment in favor of the latter whether set up and litigated or not. In other words, if A sues him upon the contract, he must bring forward all his defenses, but he need not set up his counter-claims or cross-demands unless he pleases. Thus, in an action for the stipulated price of a kitchen range constructed by the plaintiff for the defendant, the fact that he pays the full price into court which the plaintiff takes out in full satisfaction, does not bar him from suing for damages caused by negligence and want of skill in its construction.* So, the answer to a suit to recover for two plows sold, having alleged that the agree- ment was that the defendant might try them and return either or both if not constructed of good material, and that, upon a trial, with ordinary and careful use, one of them broke on ac- count of the brash and cross-grained timber of which it was constructed, by reason of which he returned it, a judgment for the defendant as to it bars a new action against him for in- juring it by willfulness or gross carelessness.^ And the pur- chaser of a hearse having retained ten dollars from the agreed price on account of alleged defects, and the vendor having sued him, a recovery of this balance after a contest bars an action by him to recover back the ten dollars.' It will be noticed that, in the last two cases, the identical issue tendered in the second suit was made and decided in the first. A sold cranberries to B by sample and promised that they 1. Rigge V. Burbidge, 15 Meeson & 2. Xewbv v. Caldwell, 54 Iowa '102 Wellsby 598. (6 N. W. R. 154) . 3. Gilson V. Bingham, 43 Vt. 410. 420 THE MERITS. should be mercliantable, and B advanced him one hundred dollars. When the cranberries arrived, they were found to be greatly inferior to the sample, and A was notified of the defect but returned no satisfactory answer. After holding them for some time subject to A's order, B advertised to sell them at auction, and sold one barrel at a small price, but could not sell the others and had to throw them away as worthless. B then sued A for the breach of his contract and to recover the one hundred dollars advanced, less the amount received for the one barrel sold, which was credited up, and recovered a judgment for one hundred and twenty-nine dollars and thirty-three cents. This was held to be no bar to a recovery of the contract price of the berries by A.' It will be noticed that the goods sent were not those ordered, and when A was notified of that fact, it became his duty to take them away and to send others that did fill the order. As he did not do that, the attempt by B to save something for him by selling them at auction, and the small amount realized for one barrel was a special favor to A of which he could not complain. This breach of contract by A, gave B a cause of action to recover the money advanced and the damages sustained by a total failure to perform, which he recovered. This simply made B whole. But he had no ber- ries, and never had had any, and upon what theory he could be made to pay for them, I am at a loss to understand. A case in New York was this: A agreed to manufacture and put up in B's mill machinery of a specified kind and quality for nine hundred dollars. He afterwards sued B upon this con- tract, alleging that he had performed it, and that B refused to pay. The answer denied that A had performed the contract, and asked to recoup the damages sustained. On the trial, B withdrew his claim for recoupment and admitted the validity of A's claim, and judgment was rendered upon it. B then sued A upon the contract to furnish and put up the machinery, al- leging a breach and seeking to recover the same damages set up by way of recoupment in the first case. But the court held that it was necessarily adjudicated in the first suit that A had 1. Barker v. Cleveland. 19 Mich. 230, 235. DEFENSES OMITTED. 421 performed the contract fully, and that the present suit could not be maintained.* For the reasons above given, namely, that B held a counter-claim which A could not control, I think this case unsound. Landlord and tenant. — A, being in the possession of premises under a written lease from B, the latter brought summary proceedings to recover them for non-payment of rent, to which A ' ' appeared and stated that he did not propose to offer any opposition to the proceedings, but asked for a stay of the warrant for a few days, whereupon the usual judgment was then entered by default." Subsecpiently A sued B, alleging that after the execution of the written lease, the latter had agreed orally to remodel the premises and fit them for a school, and then to execute a new lease for them for a term of ten years, which he had failed to do ; for which failure damages were asked. It was decided that the judgment in favor of B in the summary proceedings was a bar to the action. The court said : "Although it may be conceded that the plaintiff would not be bound to recoup the claims which are the subject of this action, if an action had been brought by the defendant to re- cover rent for the demised premises against the plaintiff, and a judgment for the rent would be no bar to the plaintiff's action for damages, yet it can not be denied, we think, that the ad- judication in the summary proceedings was a final determina- tion as to the rights of the parties to the premises under the lease or contract existing between them. Either the plaintiff or the defendant had a right to the possession of the premises. If, under any agreement, the plaintiff had such a right, he could not be deposed nor removed. Any agreement which au- thorized him to keep possession was a perfect defense to the summary proceedings for his removal, and if such an agree- ment existed no judgment of removal was authorized. Such an agreement not having been set up, nor proved, the plaintiff is not in a position to claim he had a right to the possession of the premises. He has had his day in court with full oppor- 1. Davis V. Tallcot, 12 N. Y. 184 — This case reverses Davis v, Talcott, 14 Buggies and Parker, JJ., dissenting. Barb. 611. 422 THE MERITS. tunity to be heard and to assert and protect his rights, and, having failed to do so at the proper time, tlie record of the pro- ceedings, upon wliich lie might have done so, is a bar to his right to recover in this action. The judgment is conclusive that no other tenancy existed than that which was claimed in the proceedings had, and also as to the rent due and unpaid and the holding over after default in its payment."^ It seems quite clear that the court applied the rules of collateral attack to a case of res judicata. When B broke his contract to remodel and to make a new lease, a cause of action arose in favor of A. He could have lawfully abandoned the premises, and then maintained an action for his damages ; and because he allowed a judgment for possession and alleged rents to go by default, that did not bar an independent cause of action in his favor, although he might have used it to defeat the action. It was held in Nova Scotia that a recovery for goods sold and delivered bars an action for their non-delivery.^ Of course, the mere non-delivery was a defense to be made. But any dam- ages suffered by reason of that fact constituted a counter-claim, which was not a defense. A person subscribed for stock in a bridge company, and agreed to pay upon the completion of the bridge and the deliv- ery of the stock. The company sued him and recovered the amount of the subscription, which he paid. He afterwards sued to recover the money so paid upon the ground that the company had not and could not issue to him the stock, but it was held that this was a defense to the first case, and he was defeated.^ This case seems to me to be sound. He simply tried to show that the first judgment was wrong. He did not sue for damages sustained on account of the non-delivery of the stock, which would have been nominal unless the stock was worth more than he agreed to pay for it. A sued B upon a written contract to build gas works, alleging 1. Nemetty v. Navlor, 100 N. Y. 3. Covington and Cincinnati Bridge 562, 567 (3 N. E. R. 497) . Co. v. Sargent, 27 O. St. 233, 237. 2. Marmaud v. McCready, 3 Russell & Chesley (12 Nova Scotia) 66. DEFENSES OMITTED. 423 that he, B, had entered upon the performance of the work, and furnished a part of the materials, but had then abandoned it and refused to complete it, and that what work had been done was im- l)roperly done, and that he, A, had been delayed and put to great expense, and that he had paid B about $700 on account of the material and work done. An answer in denial being filed, a verdict and judgment for A for damages bars an action by B to recover upon the same contract, and precludes him from showing that the only issue submitted to the jury in the first case was whether or not A had paid the money advanced to B at his request. The court said that B's mistake was in "suppos- ing that, because damages were recovered against him in the former action for the non-performance of his contract, that placed him in substantially the same situation as if he had 23erformed it ; whereas the damages recovered must have been computed in view of the fact that A was released, by the failure of B to perform, from the further performance of his under- takings in the contract. The whole subject-matter of the rights of the parties growing out of the contract sued on was neces- sarily considered and adjudicated in the former action, if, as we must assume, the true rule of damages was there adopted."^ § 169. Section 168 continued — Malpractice — Recovery for services. — It is held in New York, that a recovery upon default by a surgeon for his services bars an action against him for mal- practice in the same transaction,^ but that doctrine is denied in West Virginia and Wisconsin,^ and there is a dictum in Indiana to the same effect.* The New York courts are consistent on this question, and hold that a judgment against the surgeon for mal- practice is a defense to an action by him for the value of his services.^ The case from 31 Barbour was one in which a surgeon sued 1. Butler V. Suffolk Glass Co., 126 3. Lawson v. Conaway, 37 W. Va. Mass. 512, 515. 159 (16 S. E. R. 564) ; Ressequie v. 2. Bellinger v. Craigue, 31 Barb. Byers, 52 Wis. 650 (38 Am. R. 775, 534— Mullin, J., dissenting; Gates v. 9 N. W. R. 779). Preston, 41 N. Y. 113, 115— Daniels, 4. Goble v. Dillon, 86 Ind. 327 (44 J., di-ssenting ; Blair v. Bartlett, 75" Am. R. 308). N. Y. 16C CM Am. R. 455). 6. Edwards v. Stewart, 15 Barb. 67. 424 THE MERITS. for services rendered in treating a broken leg, and the defend- ant answered by the general denial, and waived all claim for damages founded upon any want of care on the part of the plaintiff ; and a judgment for the surgeon was decided to be a bar to an action for malpractice because that was neither a counter-claim nor new matter, but was a part of the cause of ac- tion necessarily involved in the original case. In the case from 41 New York, an action was brought against a surgeon to recover damages for malpractice in treating a frac- tured arm, and during its pendency the surgeon sued the patient before a justice of the peace for the value of his services in that matter, alleged to be six dollars and fifty-eight cents. On the return day tlie patient appeared and presented a written confession for the amount claimed, upon which judgment was rendered. This judgment was then set up by way of supple- mental answer in the malpractice case, and it was held to be a complete bar upon the ground that "no averment is to be ad- mitted to contradict a judgment nor to dispute any legitimate in- ference deducible therefrom." This is the rule in a collateral attack. In the 75 New York case, the court said that whatever must have been proved by the surgeon before the justice of the peace in order to obtain the judgment was res judicata. The Indiana case (86 Ind. 327) was this: A surgeon, after a suit against him for malpractice was begun in the circuit court, brought an action before a justice of the peace for the value of his services, to which there was an answer that the services were of no value ; and a recovery, after a trial on the merits, was held a bar to further proceedings in the malpractice case. It seems to me that the New York cases are wrong. The first move made by the surgeon may be one of malpractice and cause damage to the patient, which gives him a cause of action at once. The services rendered by the surgeon may be con- tinued for a long time and create a cause of action in his favor when terminated. What connection there is between the two causes, one of which might not arise until after a recovery in the other, and why one should bar the other, has never been DEFENSES OMITTED. 425 made very clear. There was an old rule at law, that, if a person engaged to work for a year, and fell a day short ; or failed to perform any other contract or duty completely, he could recover nothing. But the courts do not now tolerate such injustice. And if a surgeon should perform an operation worth a hundred dollars, and, by a negligent slip of the knife, should cause damage of a dollar, I do not suppose the New York courts would turn him away with nothing. § 170. Section 168 continued — Services, price or wages. — A recovery by default for the price of work done under a con- tract, does not bar the defendant from suing the plaintiff for the improper performance of the work.^ So, if a person agrees to cut and cure certain hay for fifteen dollars, a recovery against him of twenty dollars damages for negligence in doing the work, is no defense to an action by him for his pay.^ The court said : "It is true the defendant might have recouped the damages he recovered in his suit against Mimnaugh, but he was not obliged to do so, or lose his claim. In case a party neglects to set off a claim when he has an opportunity to do so, he does not thereby preclude himself from recovering his de- mand, but he will not be allowed any costs in a suit to enforce such claim. A cross-action has always been allowed, both at common law and under the statute, in cases wherein recoup- ment may be proper; and if the defendant refuses to recoup, he may bring his action, and will be allowed his costs if he prevails. The plaintiff is not estojjped from prosecuting his suit by reason of submitting to the judgment recovered against him, and its payment. The claim he makes is not res judicata. It is true his suit arises out of the same transac- tion as did the defendant's, but the damages arising are not of the same character. In one case they sound in tort, and in the other in assumpsit.'* And if a person agrees to do a job of work in a specified manner within a certain time for a definite price, and after its 1. Davis V. Hedges, L, R. 6 Q. B. 2. Mimnaugh v. Partlin, 67 Mich. 687. 391 (34N. W. R. 717). 426 THE MEKITS. completion sues for the price, a recovery of its full amount, by default, is no bar to an action by the employer to recover dam- ages for failure to do the work according to the contract, be- cause the breach of contract comiilained of by him is inde- pendent of the one relied upon in the first action, and may ex- ceed the amount due on the contract price. ^ A employed B to feed and superintend his sheep in a speci- fied manner, for an agreed price, with a reservation of the right to remove them if he became dissatisfied. After the sheep had been in the keeping of B about four months, A became dissatis- fied, removed them, sued B for damages, and recovered. B then sued A for the price of keeping the sheep according to contract, and it was decided that the judgment in favor of A was not a conclusive bar, because the gist of the two actions was not the same ; that each was founded upon the stipulations contained in the contract in his favor, and that the damages A was entitled to recover was the difference between the value of the flock as it was, and as it should have been, while B was en- titled to recover according to the contract, and that this could not have been legally deducted in the first suit.^ So, a decree foreclosing a mechanic's lien for work done on a building is no bar to an action by the owner to recover damages because the work was not done according to contract, although they might have been recouped in the lien suit.' But the cases in New York are contrary to these, and wrong in my opinion. Thus, A delivered a horse to B, to be boarded. B used him and foundered him, for which A, on May 22, brought an ac- tion for his conversion. During the pendency of that action, 1. Davenport v. Hubbard, 46 Vt. they might have offered evidence in 200. the Hen suit to recoup the damages 2. Robinson v. Crowninshield, 1 N. sustained, they were not bound to do H. 76, 78. so, but were at liberty to reserve 3. PhilHps V. Lloyd, R. I. (25 Atl. their claim, and to bring suit on it as R. 909) ; Dewsnap v. Davidson, R. I. they have done. Ives v. Van Epps, (26 Atl. R. 902). The court said: 22 Wend. 155,157; Gillespie v. Tor- "The plaintiffs were not barred by ranee, 25 N. Y. 306, 310; Britton v. the decree in the lien suit from bring- Turner, 6 N. H. 481, 495; Austin v. ing an action for the damages sus- Foster, 9 Pick. 341, 346; Ward v. Fel- tained by the failure of the defendant lers, 3 Mich. 281, 291; Van Epps v. to comply with his contract. While Harrison, 40 Am. D. 314, 326, note." DEFENSES OMITTED. 427 on June 20, B sued A before a justice of the peace for the board of the horse up to June 14, and A sought to interpose in bar the pendency of his action, and also the violation of the con- tract, but the justice sustained a demurrer to his answer, and B recovered for the board. He then set that judgment up in bar of A's action, and it was held to be a good answer, not because the justice had adjudicated the issue in respect to the conver- sion, but because the recovery for board was inconsistent with a conversion.* So, goods having been delivered to a carrier by water, to be taken to New York city, and his boat having been stopped by ice before reaching that point, a recovery b}' him for freight from the shipping point to the place of stoppage precludes an action against him for damages for failure to carry to New York, because it necessarily adjudicates that he had completed his contract.^ And a recovery in that state upon a quantum meruit for the reasonable value of services rendered bars a suit for defective work.' The dictum in the Vermont case cited says, that, in a suit upon a quantum meridt for work done, damages caused by unskillfulness are purely a defense. I do not agree with this. I think they constitute an inde- pendent cause of action, which arises as soon as the injury occurs. A case in Wisconsin was this : A sued B for breach of a contract in failing to tow logs, and B answered that he had performed, but A recovered damages. B then sued A upon the contract, alleging a performance and non-payment, and also alleged that A was indebted to him for " holding onto and waiting for a raft of logs for the space of forty-eight hours with a tug, which service was reasonably worth two and one-half dollars per hour. " The former suit was held to be a bar to the suit upon the contract, but not to the part in quotation marks, because that was not connected with the contract, and was not litigated in that suit.* 1. Collins V. Bennett, 46 N. Y. 490, Y. Siipr.) 555 (12 N. Y. Suppl. 903). 495. Accord, dictum in Davenport v. Hub- 2. Dunham v. Bower, 77 N. Y. 76 bard, 46 Vt. 200, 205. (33 Am. R. 570) . 4. Boutin v. Lindsley, 84 Wis. 644 3. Deane v. Loucks, 58 Hun (65 N. (54 N. W. R. 1017). 428 THE MERITS. So, if an employe by his negligence injures the material of his employer, for which the latter discharges him without the statutory notice, a recovery by him for the unlawful discharge is no defense to an action against him by his employer for the injury to his material. The issue in the first action was whether or not the negligence of the employe was so gross as to justify his discharge without notice, and in the second whether or not his negligence was so great as to give a cause of action to the employer.^ It was decided in New York, that, if A has a claim against B for storage of goods which he assigns to C, after which B sues A for a breach of the contract of storage, a recovery by him is no bar to a suit by C against B to recover for the stor- age.^ The court said : " The plaintiff was not a party to the action brought by the defendant Stout against Linde for dam- ages for the breach of the contract of storage. This action, though growing out of the same contract, is for a different cause. The plaintiff is the assignee of Linde, and, as such, claims to recover storage charges under the contract. A recovery by Stout in the action against Linde would not con- clude the plaintiff in this action, nor would it be evidence against him of a breach of the contract by Linde. The defend- ant in this action may allege and prove the non-performance by Linde, of his contract, and counter-claim any damages he may have sustained to the extent necessary to defeat a recovery by the plaintiff. But a judgment in the other action in favor of the plaintiff therein against Linde would be res inter alios acta. It would not operate as an estoppel upon the plaintiff, nor would he be bound by any adjudication of fact or law in that action. Judgments are binding upon parties or privies, but the plaintiff in this action would be neither a party nor privy to any judgment rendered in the other action. The legal and equitable rights of the defendant are fully protected by his being permitted to set up and establish his claim for damages in answer to the claim for storage." 1. Hindley v. Haslam, L. R. 3 Q. 2. Dolbeer v. Stout, 139 N. Y. 486 B. Div. 481. (34N. E. R. 1102). DEFENSES OMITTED. 429 § 171. Counter-claims, cross-demands or set-o2s not set up, or set up and not used — Principle involved. — If A sues B, and the latter has a demand upon which he can maintain an action against the former, the law permits him, within prescribed limits, to plead it by way of a counter-claim, cross-demand or set-off. This pleading is not a defense. It neither denies nor confesses and avoids the plaintiff's cause of action. It is sim- ply a cause of action in favor of the defendant, ind the court deducts the less from the greater and renders judgment for the remainder. But as the plaintiff has an option in respect to the time and place of suing upon his cause of action, and as the defendant possesses the same option, he is not obliged thus to use his cause. Hence, all the cases agree, that, if he exer- cises his option, and does not use it as a counter-claim,* cross- demand^ nor set-off,^ he can maintain an independent action upon it. Set up, but no evidence offered. — In an action for goods sold, the defendant pleaded a counter-claim for damages, but suffered a judgment to go against him by default. In an ac- tion for other goods, the defendant set up the same counter- claim, but the trial court decided that the former judgment barred it. This was held to be wrong. The court of civil ap- peals, after quoting from Freeman on Judgments sustaining 1. Axtel V. Chase, 83 Ind. 646, 553 ; cosurety can be used as a defense, and Folsom V. Winch, 63 Iowa 477 (19 N. is therefore barred by a judgment, if W. R. 305) ; Hoggatt v. Thomas, 35 I understand it, is wrong; Litch v. La. Ann. 298^gnored by the court CHnch, 35 111. App. 654 — set - off because irrelevant ; Baker v. More- pleaded but no evidence offered upon house, 48 Mich. 334 (12 N. W. R. it; Fairfield r. McNany, 37 Iowa 75— 170) ; Potter v. Gates, 56 Hun (63 N. by virtue of a statute ; Seventh Day Y. Supr.) 639 (9 N. Y. Suppl. 87) ; Adventist Pub. Assn. v. Fisher, 95 Weston V. Turner, 22 N. Y. Suppl. Mich. 274 (54 N. W. R. 759) ; Carver 141; Brown v. Gallaudet, 80 N. Y. v. Adams, 38 Vt. 500; Kezar v. 413. Elkins, 52 Vt. 119; Matter of Peo- ' 2. Nims V. Vaughn, 40 Mich. 356. pies' Safe Deposit and Savings Insti- 3. Robbins v. Harrison, 31 Ala. 160, tution, 10 Benedict 38 — set-off pleaded 163 ; Roach v. Privett, 90 Ala, 391 but no evidence offered upon it ; Rob- (24 Am. St. R. 819; 7 S. R. 808). The inson v. Wiley, Hempstead 38— set-off early case of Crawford v. Simonton, 7 pleaded but withdrawn during the Porter (Ala.) 110, 127, which holds trial. that a set-off for money paid as a 430 THE MERITS. the trial court, and from Black on Judgments to the contrary, adopted the views of the latter.* Withdrawn by leave of court. — In a special proceeding in North Carolina for the partition of land, the defendants set up an equitable counter-claim to have their deed reformed so that it would vest in them a fee-simple instead of a life estate, upon which issue they succeeded, bvit this was reversed by the supreme court. The following entry was then made below : * ' The plaintiffs are permitted to withdraw their action or special proceeding because the same was prematurely begun, and leave is given the defendants to withdraw their counter- claim." It was decided that this did not prevent the defend- ants from maintaining a new action to have their deed reformed as prayed for in their former counter-claim.^ Indian cases. — Chand on Res Judicata, section 38, " says : "38. Independent claim held by defendant. — While a defendant is bound to bring forward and establish any defense to the plaintiff's cause of action which he may have, or be de- barred from pleading it in any subsequent suit, this does not hold good with respect to an independent claim against the plaintiff, or one which, though connected with the same transaction, is of such a nature that it may be made the basis of a separate 1. Anderson v. Rogge, Texas Civil "W. 107), the effect of the decision Appeals (28 S. W. R. 106) . The court seems to be that if a plaintiff, in said: "We are not aware that the trespass to try title, who is present, identical question has been decided refuses to introduce any evidence to in this state, but a full discussion of sustain his alleged cause of action, it the effect of a judgment as res judicata is equivalent to his taking a nonsuit, wherein the pleading presents the is- and a judgment upon the merits sue, but the evidence shows it was not should not be rendered against him. in fact litigated, will be found in the As to this counter-claim, appellant case of Freeman v. McAninch (Tex. was the plaintiff; and inasmuch as Sup.) 27 S. W. 97. This cause, how- the record shows affirmatively that ever, differs from that, in that here he was not present, prosecuting his the record itself shows no evidence suit, the only effect that should be was offered to sustain the counter- given to that judgment, in reference claim, while in that the judgment thereto, is a dismissal for want of rendered imported a finding upon prosecution." the issue. Pishaway v. Runnels, 71 2. Stewart v. Register, 108 '.<. C. 588 Tex. 352 (9 S.W. 260). In^thecaseof (13 S. E. R. 234). Burger v. Young, 78 Tex. 656 (15 S. DEFENSES OMITTED. 431 suit or authorize affirmative relief to the defendant. In some of the American states, the defendant is, under special legisla- tion, bound to plead his demand, if it arises out of the trans- action set forth in the plaint as the foundation of the suit or is connected with the subject of the suit. But there is no such law in British India; and section 111 of the civil procedure code, which provides for a claim of set-off, is strictly permis- sive in its provisions. The corresponding rule 3, order 19, under the supreme judicature act, is also permissive ; nor has the equitable rule of set-off recognized in this country^ and England ever been held to be imperative. The decision in !Mahabir Pershad v. Macnaghten^ is not against that view. In that case, the former suit was by a mortgagee for the amount of the mortgage, and the mortgagor only pleaded that there was a specific agreement to the effect that the rents of the mortgaged property due by the mortgagee should be set off against the mortgage-debt, and added that he would sue separately for the rents. The agreement not being proved, the mortgagee got a decree, and himself purchased the mortgaged property at the auction sale in execution. The mortgagor also got a decree for rent due to him, apparently without any objection on the ground of res judicata. He then sued to have the sale of the mortgaged property set aside as null, to have the mortgage-debt extinguished by setting against it the rents which had already accrued or might afterwards accrue. Their lordships of the privy council held that the proper occasion for enforcing this equity was in the suit for the mortgage-money, and that as, if the equity existed on the ground of the mortgage and the lease being parts of one com- plex transaction, it ought to have been pleaded in that suit, the mortgagor was barred from bringing a suit afterwards on its basis." § 172. Section 171 continued — Breach of warranty not set up. — All the cases agree that a breach of warranty, made upou 1. Brojondra Nath v. Budge-Budge 2. L. R. 16 Indian Appeals 107. Jute Mill Co., Indian L. R. 20 Cal- cutta 527. 432 THE MERITS. the sale of property, gives the purchaser a cause of action which is not barred because not used as a counter-claim to the suit of the vendor for the price.' Thus, in a suit upon a note given for chattels, a judgment by agreement for its full amount, and its payment, does not prevent the defendant from recovering damages for a breach of warranty in the sale.^ 1. Bodurtha v. Phelon, 13 Gray (79 Mass.) 413 — breach of warranty pleaded but no evidence offered upon it; Barker v. Cleveland, 19 Mich. 230, 237; Thoreson v. MinneapoUs Har- vester Works, 29 Minn. 341 (13 N. W. E. 156); D. M. Osborne & Co. v. Williams, 39 Minn. 353 (40 N. W. R. 165). The court said: "The matter alleged in the reply was no bar to the counter-claim set forth in the answer. This action is to recover upon the promissory notes made by defendant to plaintiff. The counter-claim was based on an alleged warranty by plaintiff to defendant of a harvesting machine, which formed the consider- ation for the notes, and which war- ranty failed. The reply sets up that a chattel mortgage was given by de- fendant to plaintiff to secure the notes ; that this plaintiff brought an action against the defendant to recover possession of the property covered by the mortgage ; that in the answer in that action, defendant alleged the same matters as in this action as the consideration for the notes and mort- gage, and the failure of the warranty; claiming that by reason thereof there was a total failure of consideration for the chattel mortgage, and that in that action the defendant had judgment. The counter-claim was not, and, under the pleading in the former action, could not, be litigated. That action was in replevin. The plaintiff's claim to the possession of the property was based on a chattel mortgage. The matters showing a want of considera- tion were pleaded for the purpose of showing that the mortgage was void, and that therefore the plaintiff was not entitled to the possession of the property, merely as a defense, and not for the purpose of recovering af- firmative relief by reason of the breach of warranty. So that, con- ceding, what is not entirely clear, that the counter-claim might have been set up and litigated in that action, it is enough to say it was not." Parker v. Roberts, 63 N. H. 431, 434; Cook v. Moseley, 13 Wend. 277; Earth v. Burt, 43 Barb. 628. 2. Gilmore v. Williams, Mass. (38 N. E. R. 976). The court said: "This is an action to recover damages for a breach of a warranty in regard to the condition and qualities of three cows bought by the plaintiff of the defend- ant on February 13, 1891. At the time of the purchase, the plaintiff paid $100 in cash, and gave his note for $125, payable in two equal annual installments, with interest, which made up the agreed price — $225. At the time of the trial, there was evi- dence tending to show the warranty alleged, and that the plaintiff was damaged by its breach. The de- fendant then offei'ed evidence that in September, 1893, a suit was brought by him against the plaint- iff on the note, and that a judg- ment was subsequently rendered by agreement of parties, without a trial, for the full amount of the note, which was afterwards paid by the present plaintiff. After the payment DEFENSES OMITTED. 433 So, if a note is given for a chattel sold with warranty, a recov- ery for a breach of the warranty is no bar to a suit on the note.^ Forcible entry. — A recovery by the landlord, in an action of forcible entry and detainer, is no bar to an action by the tenant for damages occasioned by a breach of the covenants in the lease. ^ of the judgment, this suit was com- menced. The plaintiff knew of the breach of the warranty long before he paid the judgment. The court ruled that the judgment by agreement upon the note, without a trial, and its voluntary payment, were a bar to this suit, and directed a ver- dict for the defendant. When the plaintiff discovered the breach of war- ranty, he could avail himself of his rights in either of three ways: He might rescind the contract, return the property, and recover back his money (Bryant v. Isburgh, 13 Gray, 607) ; he might set up the breach of war- ranty as a defense in whole or in part to a claim upon the note, and have his damages allowed by way of re- coupment ; or he might pay the whole amount of the note, and bring a suit for his damages. It is clear that he was not obliged to set up the breach of warranty in answer to the claim on the note, and that payment of the note is not in itself a bar to an action for the breach of the warranty. Smith v.Palmer, 6 Gush. 513,521 ; Cookr.Gast- ner, 9 Gush. 266-277 ; Star Glass Go. v. Morey, 108 Mass. 570 ; Hunt v. Brown, 146 Mass. 253, 254 (15 N. E. 587) ; Fiske V. Steele, 152 Mass. 260 (25 N. E. 291) ; Riley v. Hale, 158 Mass. 240-246 (33 N. E. 491). If he chose to plead the breach of warranty in answer to the claim on the note, and if a judgment was entered against him for the whole amount due on the note, or a 28 part of it, on the issue thus raised, the judgment would be a bar to any further claim under the warranty. This would be so whether the judg- ment was entered by consent of par- ties, or upon default after answer, or upon a verdict after a trial on the facts. His election to claim his dam- ages by way of recoupment in that suit would be conclusive on him. Bradley v. Bradley, 160 Mass. 258." 1. Trautwein v. Twin Gity Iron Works, 55 Minn. 264 (56 N. W. R. 750) . 2. Keating v. Springer, 146 111. 481 (34 N. E. R. 805). The court said: "It is furthermore claimed bj^ the ap- pellant that all the matters set up in defense or as ground of recovery by the defendant in the present consoli- dated suits were extinguished by the judgment in the forcible detainer suit, and that that judgment operates as res judicata, so as to bar all appellant's rights of recovery or recoupment. We are unable to yield our assent to this view. The judgment in forcible entry and detainer is conclusive only as to the right of possession, and, in a certain class of cases, as to the ex- istence of the relation of landlord and tenant between the parties, and as to the tenant's wrongful holding over. Doty V. Burdick, 83 111. 473; Norwood V. Kirby, 70 Ala. 397; Hodgkins v. Price, 132 Mass. 196; 8 Am. & Eng. Enc. Law, p. 176. It was said, in Robinson v. Grummer, 5 Gilman 218, that 'damages are not recoverable in 434 THE MERITS. Fraud. — A decree against one as administrator compelling him to deliver up slaves on the ground of a previous executed gift by the decedent, does not prevent a suit by him, as a cred- itor of the estate, to set aside the gift as fraudulent, although that matter could have been set up as a bar to the original de- cree, by way of cross-bill.^ Insurance policy and premium note. — A judgment upon an insurance policy is no bar to an action upon a note given for the premium on the policy.^ The court said : " It is contend- ed by counsel that the company, as defendant in the suit on the policy, was not compelled to set up its cross-demand on the note ; and that, having failed to do so, it is not barred from afterwards bringing an action upon it. In this con- tention we are convinced the counsel are supported by the authorities. A defendant in such an action is not bound to set up in a cross-action even a counter-claim, but may bring a sep- arate suit upon it afterwards. As to a set-off which was not presented in the former action, it is well settled that a fail- ure to plead it will not bar a subsequent action upon it." A policy in a mutual fire insurance company provided that, in case of a loss, the company should have a lien on the pre- mium note for an amount sufficient to pay all assessments of the assured until the expiration of his policy. A loss having occurred on the policy, the assured sued upon it and the company defended upon the ground that it was void, but was defeated and the money was paid into court. It was held that this did not destroy the lien of the company on the fund for sufl&cient to pay the assessments for which the assured was liable.' A set-off may be pleaded to a suit on a judgment, al- though the defendant held it before the action in which the judg- ment was rendered was commenced.* this action, but the only judgment for 3. Appeal of Susquehanna Mutual the plaintiff is that he have restitution Fire Ins. Co., 105 Pa. St. 615. of the premises.' " 4. Roach v. Privett, 90 Ala. 391 (7 1. Jones V. Blake, 2 Hill's Ch. 629, S. R. 808; 24 Am. St. R. 819). The 635. court said : "Our opinion is that the 2. Indiana Farmers' Live Stock Ins. circuit court erred in excluding from Co. V. Stratton, 4 Ind. App. 566 (31 the jury the evidence offered by the N. E. R. 380). defendant in support of the set-ofis DEFENSES OMITTED. 435 Rejected as a defense. — A indorsed notes and delivered railway bonds to the indorsee as collateral security, and then induced B to purchase them upon his promise to execute his own notes directly to B, which he failed to do. For this fail- ure, B sued him, and, in the meantime, B having misappro- priated the bonds, A pleaded that as a defense, but not as a counter-claim. As a defense, being a tort, it was not admissi- ble, and its rejection was no bar to a new action upon it, al- though B recovered the full amount of the notes in his action.* The court said: "The defendant sought to bar the plaintiff from a recovery in this action for the reason that the claim in this action was substantially the plaintiff's defense in that ac- tion, upon the well-established principle that that matter was, or might have been, litigated in that action. The answer to that contention is, that that matter was put forward as a de- fense, and not as a counter-claim. As a defense to that action, which was for a breach of contract, this matter, which was for misappropriating securities, would be totally unavailable; and when the plaintiff, Wyckoff, objected to it, it was ruled out as a defense, and that ruling must have been approved by this court in affirming the judgment Wyckoff obtained upon that trial. The matter was not in fact, and could not, in law, have been presented as a counter-claim; for it was pleaded simply as a defense, and was not even offered upon the trial as a counter-claim. Hence, the record in the Wyckoff action against the plaintiff could not create an estoppel to that matter forming the subject of this action." claimed by him against the judgment The settled doctrine of this court now debt. This ruling appears to have is that a set-off may or may not be proceeded on the theoiy that, as the pleaded, at the election of the defend- alleged counter-claims or items of set- ant, and that unless it is pleaded the off antedated the Tennessee judgment, right to sue upon it as an independent and could have been pleaded in that cause of action, or to rely upon it in action, the rendition of that judgment defense of another action b}' the same forecloses and precludes them. This plaintiff, is in no wise affected or im- view finds some support in some of paired by a judgment against the de- our earlier cases (Crawford v. Simon- fendant." ton's Ex'rs, 7 Port. Ala. 110) ; but it 1. DeGraaf v. Wyckoff, 118 N. Y. 1 is unsound in principle, and can not (22 N. E. R. 1118). be reconciled with later adjudications. 436 THE MERITS. Reversed and abandoned. — If A sues B to remove a cloud upon his title cast by a tax deed, and obtains a decree which is reversed because of an omission from his bill of an offer to pay the taxes actually due, with leave given to insert such an offer, his failure to take further steps does not bar B from suing to foreclose a lien for the taxes paid.^ Set-off in New Jersey. — A statute o! New Jersey provides that the failure to bring forward a set-off shall bar an action upon it. But if the plaintiff is nonsuited by order of the court, which leaves him in a position to bring a new suit, and the defendant, although he has pleaded his set-off, simply has judgment for costs, "this will not bar him from a new suit upon his set-off.^ The court said : " But the defendant insists that the plaintiff is barred of his action by our statute concern- ing set-off. Its provisions are, in substance, that, when two parties are mutually indebted, their debts may be set off against each other ; that, if one sues the other, it shall be lawful for the defendant at the trial (after proper pleading) to set off the debt due him, and any defendant failing to set off his debt shall thereafter be precluded from bringing any action for it; that if on the trial a balance appears to be due to the plaintiff he shall have a verdict and judgment therefor, but, if the debt due the defendant equals or exceeds the plaintiff's debt, the defendant shall have a verdict and judgment, which in case of excess, shall be for the balance due him. The object of the statute is to prevent two actions between the same parties, by compelling them to do justice to each other in a single suit, with regard to all matters capable of adjustment therein. The procedure contemplated is one in which there shall be a verdict ( or some- thing equivalent) and a judgment upon it. Such a procedure would, at common law, be conclusive upon the plaintiff as to the claims for which he sued. The statute makes it conclusive upon the defendant as to claims which he might have set off. 1. Merriam v. Dovey, 25 Neb. 618 rymple, 53 N. J. Law 267 (21 Atl. R. (41N. W. R. 550). 949). 2. Chapin Hall Lumber Co. v. Dal- DEFENSES OMITTED. 437 "But if the course of the litigation be such that the plaintiff is not concluded by it, the object of the statute is not attained ; and in that case it is impossible, consistently with justice, to give effect to the clause precluding the defendant from bringing an action on his claim ; for if by the operation of the statute the defendant's claim be rendered incapable of supporting an action, it will also be incapable of legal use by way of set-off. Thus, while the plaintiff might maintain a second suit upon his claim, that of the defendant would be nullified without satisfaction, and without the accomplishment of the statu- tory purpose of preventing double litigation. We deem it rea- sonable, and for the sake of justice necessary, to hold that if in the original action the demand of the plaintiff is not legally determined, neither is the demand of the defendant. The ter- mination of the suit, without a result conclusive upon both parties, leaves them both as they were before its institution." A statute in Pennsylvania requires the defendant, before a justice of the peace, to bring forward all set-offs.^ So, if the payment of usury gives a cause of action to the payee, a recov- ery upon the debt is no bar to an action based on the usury. ^ What is not a counter-claim. — If the payee of a note se- cured by a chattel mortgage on a planing-mill and lumber, takes possession under the mortgage, works up the lumber and sells the product, this constitutes a cause of defense, and not a counter-claim ; and the maker, if sued on the note, must use it as a defense. If he fails to do so, he can not afterwards sue the payee for an accounting.' The court said: "The facts relied upon to defeat a recovery upon the former judgment were available to prevent the recovery of that judgment. This is admitted, but the contention is that those facts constituted a counter-claim, and that the defendant had the option of setting them up to defeat a recovery in the former action, or of making them the subject of an independent suit. Such a course is open to a defendant in all cases of counter-claim, which is always a separate and independent cause of action. The property mort- 1. Shoup V. Shoup, 15 Pa. St. 361. 3. Warner v. George, 58 Fed. R. •2. Grow V. Albee, 19 Vt. 540, 543. 435. 438 THE MERITS. gaged and delivered to the mortgagee, as averred in the plea, was, in effect, a payment on the debt secured. From its character and use, there was an implied power of sale in the mortgage. The property consisted of a business in operation, and the stock used in the conduct of that business. The net product of the business, necessarily, went to satisfy the debt. The mortgagee's obligation was to pay the debt with the proceeds of the property, and to account for any residue there might be. The defendant could no more maintain an independent suit on account of this property than he could, if, instead of the chattels pledged, the property had been money paid to be applied on the debt ; and, when he was being proceeded against in the former action, he was as much bound to make the defense of payment by means of the mortgaged property, as he would have been if the payment had been in money. In the latter case, he could, with as much reason, excuse himself for not making the defense of payment as he attempts to do now, by saying that he hoped the mortgagee would use or dispose of the property so as to satisfy fully the judgment, and that he would never claim anything more than the property he had received. A de- fendant who relies on that kind of a hope, has no standing in equity to escape the judgment which he might have prevented. As already stated, if he had paid the debt in money, but omitted to make the defense of payment in the hope that his creditor would apply the money in satisfaction of the judg- ment, and would never claim anything more, his case would not be different from what it is." § 173. Counter-claims, cross-demands or set-offs set up and used — Principle involved. — If a counter-claim, cross-demand or set-off is pleaded by the defendant and evidence given to sustain it, he becomes the actor or plaintiff in regard to that matter, and is not allowed to split or divide it, except upon the penalty of losing the remainder. If his damages exceed those of the plaintiff, he must see to it that they are recovered, or they will be lost.* Thus, in a suit for work and labor in building a 1. Inslee v. Hampton, 11 Hun (18 N. Y. Supr.) 156. DEFENSES OMITTED. 439 house, if the defendant relies upon the imperfect performance of the work and thereby defeats the action, he can not then sue for the damages sustained over and above the contract price, as he has split his cause. ^ If a counter-claim is set up, and the prayer for affirmative relief is afterwards withdrawn and the matter is permitted to stand as an answer, its disallowance will bar a new suit upon it.^ Attachment, W'rongful. — In attachment proceedings, a judgment rendered for the defendants on a counter-claim, and for all costs, concludes the plaintiffs from afterwards maintain- ing that the attachment was rightful.^ Breach of contract. — In an action to recover the first and second installments, the defendants set up a counter-claim for damages for an alleged breach of the contract by the plaintiff, and, after a trial, the plaintiff recovered a sum much less than the installments sued for. In a subsequent action upon other installments, it was held that the defendant was concluded from setting up another counter-claim for damages, because he ought to have brought it all forward in the first suit.* So, if an agree- ment is set up as a counter-claim, a judgment for the plaintiff precludes the defendant from maintaining a suit upon the agreement.* § 174. Section 173, continued — Breach of warranty set up and used. — If the purchaser of goods in Kansas gives a mort- gage on them to secure the purchase-money, the seller may maintain replevin for a breach of the conditions of the mort- gage ; and, in that case, the purchaser may claim damages for a breach of warranty made on the sale of the goods ; and, if they are thus claimed, an allowance will bar an action by him to recover them again.® In a suit before a justice of the peace on a note given for the 1. O'Connor ;;. Varney, 10 Gray (67 4. DeWolf v. Crandall, 2 Jones & Mass.) 231. Spencer (34 N. Y. Superior) 14. 2. Bierer v. Fretz, 37 Kan. 27 (14 5. Campbell v. Holmes, 21 U. C. Q. Pac. R. 558). B. 465. 3. Hamlet v. Fletcher, 36 La. Ann. 6. Clement v. Field, 147 U. S. 467. 551, 553. 440 THE MERITS. price of a horse, if the defendant sets up a breach of warranty and is defeated on the merits, he can not maintain a new action for the same breach.^ So, if a breach of warranty is pleaded to an action on one of several notes given for a chattel, and is submitted to the jury, the judgment will bar further considera- tion of the same breach in an action upon another of the notes, because it constituted but one cause of action, whether used by way of complaint or counter-claim.^ Likewise, if the defendant, in a suit on a note given for prop- erty, pleads a counter-claim for a breach of the covenant of war- ranty, and not only defeats the action but recovers damages, he is barred from using the same counter-claim as a defense to a suit on another note given for the same property.^ And if three notes are given for a threshing machine sold with a warranty, a judgment defeating the first note on account of a breach of the warranty bars its use to defeat an action on the other notes, because the defendant's cause of action thus accruing can not be split.* To a complaint upon two notes, the answer alleged that they and another one described, not yet due, were given for a warranted reaper. It then alleged facts showing damages for a breach of the warranty exceeding the amount of the three notes, and demanded judgment for the excess and a cancellation of the unmatured note. There was a trial and verdict and judgment in favor of the plaintiff for a sum which was less than the face of the notes sued upon. In an action on the third note, it was decided that the former action was no bar because nothing was said in the verdict or judgment about it, and it could not be presumed that the jury took it into consideration in assessing damages.* A special finding of facts showed that A, by warranty deed, conveyed land to B for $1,000 and took his three notes, that when two of the notes became due, he brought suit upon them and that B's defense was that the consideration of the three notes had failed in that he had been evicted from the west 1. Timmons v. Dunn, 4 O. St. 680. Farmer, 27 Minn. 428 (8 N. W. R. 2. Foster v. Konkright, 70 Ind. 123. 141). 3. Clark v. Sammons, 12 Towa 368. 5. Gammon v. Cottrell, 87 Ind. 213. 4. Geiser Threshing INIachine Co. v. DEFENSES OMITTED. 441 half of the land, and that upon the east half he had been com- pelled to pay prior liens of $352.06, and that he had also paid to A $20 in cash, and that after a trial, B recovered a judgment — [for costs, I presume] ; that when the third note became due the present suit was brought upon it, and that the same defense, substantially as before, was pleaded; that this defense was true; that the value of the west half from which he was evicted was, at the time of the purchase, $640, and that of the remainder $325. Upon this special finding, the trial court rendered a judgment for the defendant, which the supreme court reversed upon the ground that B had exhausted his entire defense in the first case, and that in that case he ought to have had the first note canceled.* 1. Hoover v. FJlander, 135 Ind. 600 (34 N. E. R. 697). The court said: "The only question raised by counsel is that upon the appellant's reply of former adjudication, and the findings of the court, it should have been held, as a conclusion of law, that the appellee was precluded by the former adjudication, and that he could not again plead the facts which defeated the first two notes for the purpose of showing the failure of the considera- tion of the note in suit, notwithstand- ing the failure of consideration was to the extent of the full value of the land, and the full amount of the prin- cipal of the three notes. The briefs of counsel but suggest, on the one side, and deny on the other, the force of the proposition involved, and are destitute of citations supporting either view. If the sei'ies of three notes had been so tainted with fraud or other vice that, when established as to two of them, it would have affected all of the series, the former adjudication would have been effective in ap- pellee's behalf. But the notes were not attacked in the former proceeding for fraud or other reason necessarily af- fecting all of the series. Under the plea of failure of consideration, a par- tial failure might have been sustained, so as to affect but one of them or two of them, and as not reaching the third. This is fully illustrated by the case of Kilander v. Hoover, 111 Ind. 10 (11 N. E. Rep. 796). In considering the effect of the former adjudication as exhausting the appellee's defense, so far as the particular elements of failure of consideration pleaded in both cases are concerned, it is not necessary that we should decide whether the appellee could have so divided the elements of failure of consideration as to have pleaded them in part to the tvv'o notes first sued upon, and withheld them in part for the remaining note. Neither is it essential to our conclusion that we should hold that, having pleaded his entire defense to the two notes, he should have reserved the excess of his defense by special verdict and judgment from which the excess could be pleaded to the third note. But it is very clear that he had a remedy by seeking the cancellation of the three notes in the first suit. Such is the effect of the holding in Kilander V. Hoover, supra. In Foster v. Konk- 442 THE MERITS. A and B made a contract by which A agreed to manufacture certain machines for B at a stipulated price, and the latter also agreed to make a new contract with the former for a specified number of other like machines within an agreed time, or in lieu thereof to pay him. A, the value of certain patterns and tools used in the construction of the first machines. After the delivery of the first machines, and after the time agreed upon for making a contract for other machines had expired, B sued A for alleged defects in the machines delivered, and also to re- right, 70 Ind. 123, several notes were given for a threshing machine, with a warranty. In a suit on one of the notes the payor pleaded a breach of warranty, and succeeded. In a suit on another, the same defense was interposed, to which the former adjudication was replied, and the reply was held sufficient. This court there held that the breach could be asserted but once as a defense. We are unable to discover any differ- ence in principle between that case {ind the present. It is true that in Clark V. Sammons, 12 Iowa 368, a dis- tinction was claimed, but was not sat- isfactorily stated; and where that case has been cited, notably in the American and English Encyclopedia of Law, and in Wells on Res Judicata, it has been criticised for maintaining such a distinction. In French v. Howard, 14 Ind. 455, the suit was upon the second of a series of notes for the purchase-price of real estate, and it was answered that the consid- eration had failed. A reply that the same defense had been pleaded to the first note of the series, and that upon it the defendant had failed, was held sufficient. It is true that the adjudi- cation in the first suit in that case was different from the adjudication here, in that the defense failed in that, and succeeded in this ; but estoppels are reciprocal, and no one can take the benefit of an adjudication who would not have been prejudiced by it if it had gone contrary. Herm. Estop., p. 37. If, in the French Case, the answer had succeeded, it would have been no less an adjudication binding alike upon both parties; so, in this case, if the answer, when first pleaded, had failed, it would have been no less an adjudication affecting the parties mu- tually. The first reason of the rule that one adjudication undisturbed shall be final is that the welfare of society is disturbed by much liti- gation. It is said that the rule is ' founded in wisdom, and' sanctified by age.' If the adjudication in the suit upon the two notes did not put at rest the questions as to whether one- half of the land had been lost by eviction, whether $50 had been paid in taxes, whether $240.15 had been paid to protect the title against a ven- dor's lien, etc., then each item of the alleged failure of consideration would be the subject of retrial. The evi- dence would be heard as to each item, and the conflict would be as thick and as furious as before. If such course were permitted a second time, why not as many times as there might be notes in a series? We do not believe the law subject to any such reproach. The subject of litiga- tion has been once adjudged, and must not be again." DEFENSES OMITTED. 443 cover back payments made upon the ground that the contract had been rescinded. On the trial he gave evidence to prove the amount of these payments, but the court instructed the jury to disregard that evidence because there had been no rescission, and B recovered damages for defects in the ma- chines. Afterwards A sued B to recover the value of the pat- terns and tools used in the construction of the machines made and delivered, and B contended that the former proceedings were a bar. But this contention was denied upon the ground that the causes of action were separate and not dependent upon each other. In the same case A also sued to recover for extra work done in the construction of the machines under a subsequent contract, and a majority of the court held that the former recovery was no bar to this.' The court said: "In the prior action no attempt was made on the part of the plaintiff to avail itself of the claims which form the subject of the present action, either by way of set-off, recoupment, or otherwise. It was, however, ruled by the audi- tor, which ruling was approved by the superior court, that the verdict in the former action was a bar to the plaintiff's recovery upon the first count (that for the specified tools), which we are now considering. It is the contention of the defendants that the completion of the machines originally contracted for, in strict compliance with all the contract requirements, was a con- dition precedent to the obligation to pay for the tools, and that, if in the first action it had recovered but a single dollar, it would be released from any further performance under the contract. It is evident from the character of the contract that it required from the plaintiff, in order to make the machines designed by the defendants, expensive preparations in the way of peculiar tools, comparatively valueless for any other purpose than the construction of these machines ; that it was seen by both that it would not be compensated unless more than a hundred machines should be made, and that, therefore, the defendants agreed to pay for the tools, unless a new con- tract should be made for at least a hundred more at a price « 1. Boston Blower Co. v. Brown, 1-19 Mass. 421 (21 N. E. R. 883, 886). 444 THE MERITS. which should be satisfactory to the plaintiff. Of course, it would not be expected that such a contract would be entered into unless in some form the plaintiff could obtain payment for the tools, as it would by making the new contract at such a rate that it could afford to disregard the expenditure bestowed upon them. It is said that if in any respect the plaintiff failed to perform his original contract, it could not be expected that defendants would be ready to make a new contract with the party thus failing. An agreement to make a new contract mutually satisfactory is evidently one which could never be enforced, as it depends on the will or caprice of either. Brown V. Foster, 113 Mass. 136. The intent of the original contract was obviously to provide for the payment for the tools (although a new contract might be substituted for this), and such is its effect. The inquiry is therefore whether this agreement is available only upon the exact completion of the machines as they are described in the contract, and whether, if they failed in any detail to meet its requirements, the obligations of the defendants were discharged. There is certainly no express con- dition that this shall be so, and a provision so onerous in its character should appear in clear terms. The defendants de- duce an argument from the fact that, as they agree to make a new contract, or failing to do so, * to pay for the tools * * * within ninety days after the delivery of the last machines of the number hereby contracted for,' the word 'delivery' must be delivery in strict accordance with the terms of the contract, and, there having been no such delivery, no obligation exists to pay for the tools. But they received the machines, and accepted them, under the contract, have never rescinded it, but have obtained their damages therefor so far as there was a fail- ure in the performance of any details in the work upon them. Nor can we concur with defendants that, even if the contract is not expressly conditional, it must be implied in law as a condition precedent that all particulars of the original contract were to be complied with before they were bound to make a new one or to pay for the tools. That a stipu- DEFENSES OMITTED. 445 lation when it is not so made in express terms should be construed as a condition precedent must result from the nature of the act to be done, and the order in which they must pre- cede and follow each other in the progress of performance. If one stipulates to build a house, or manufacture an arti- cle, from material to be furnished by another, the failure to furnish such materials will release the party thus stipulat- ing. If the non-performance on one side goes to the entire substance of the contract, so that it may fairly be inferred that, if the act to be performed on one side is not done, there is no consideration for the stipulations on the other, the party making them will be released. That would not be the case when the injury was but partial. ' Though there be a breach of an express or implied covenant on one side, attended with some loss and damage to the other, yet if it does not go to the whole consideration, and the loss can be compensated in damages, the stipulation must be construed to be independent, for breach of which the party sustaining the loss has his remedy by action ; but it is not a condition prece- dent upon the non-performance of which the other party is ab- solved from the performance of the stipulation on his part.' Shaw, C. J., Foundery v. Hovey, 21 Pick. 417-439 ; Cadwell V. Blake, 6 Gray 402. ''Applying these principles to the case at bar, the considera- tion of the defendants' promise was not merely the construc- tion of the machines, but involved the making of the tools required therefor by the plaintiff. These machines the defend- ants have accepted, and, so far as they were defective in con- struction, compensation has been made; and when it is found that the tools are fit for the special work for which they were intended, the defendants ought not to be relieved from their obli- gation to pay for them. Even if the completion of the machines, in all respects, according to the contract, could have been treated as a condition precedent to their liability to pay for the tools, it is not easy to see how the defendants can now rely upon it as such. Assuming that, at the time they discovered the defects in the construction of the machines, the}^ could 446 THE MERITS. then have withdrawn their acceptance of them and re- scinded the contract, they did not do so, but, relying on the contract, recovered damages to the extent to which it was found to have been broken. The defendants stand pecuniarily in the same position that they would be in all re- spects if the machines had corresponded with those called for by the contract. Having had full compensation for the injury occasioned by these defects, they can not claim, in addition, to be released from the obligations they have assumed. Ken- worthy 'w. Stevens, 132 Mass. 123; Snow v. Alley, 144 Mass. 546, 556, 11 N. E. Rep. 764. The defendants rely on Gates v. Ryan, 115 Mass. 596, and Butler v. Glass Co., 126 Mass. 512, as establishing the proposition that, having recovered in the action heretofore brought, it must have been thus considered that they were released from the further performance of their stipulations to the plaintiff. But, in the cases referred to, the stipulations of the parties were not independent, but dependent, the one upon the other. In order to ascertain what damages one had sustained, it was necessary to consider that he would be released from his own stipulations by the failure of the other to perform, and that, therefore, in the previous cases brought against the parties therein, the plaintiff's damages must have been computed on the ground that the contract was wholly broken, and that the party then suing was not bound further to perform. The parties originally suing in those cases received no benefit, and in the one case, that of Gates v. Ryan, the de- fendant, in a former action, had recovered damages because Gates was wholly unable to perform any part of his contract, which would necessarily release Ryan, and the measure of his damages was held to be the fair value of the contract made by Gates over that which Ryan had still to pay or perform in con- sideration for it. See Butler v. Glass Co., 126 Mass. 512. A prior action had been brought against the plaintiff for an entire failure to perform his contract, in which the defendant had re- covered substantial damages, and in which the judgment was for the damages sustained by the defendant in consequence of the non-performance, which must have been computed in view DEFENSES OMITTED. 447 of the fact that the defendant had been released, by the failure of the plaintiff to perform, from the further performance of its undertakings under the contract. The defendant had therefore been permitted to recover back all that it had paid under the contract. Such a case was there presented as would here exist if, in the former action, it had appeared that the plaintiff had wholl}'' failed to perform its contract, so that no benefit had ac- crued to the defendants, and the latter had brought an action for damages by reason of the breach of the contract. "In the prior action, as actually brought, the defendants had not sought, by reason of the entire non-performance of the con- tract, to recover damages, nor had they treated the contract as rightfully rescinded. The computation by the jury could not have been made on the ground that the defendants were wholly released from the contract, but upon the theory that they were bound, and were entitled to appropriate damages ; be- cause, while defendants had received and retained the machines constructed by the plaintiff, the performance of his contract had not been as thorough and complete as it should have been, but had, in certain particulars, been defective. It is expressly found that, as a matter of law, it was ruled by the court in the prior action that there had been no rescission of the contract, and that the machines, as constructed, belonged to the defendants. It appears, also, that the verdict was rendered solely on the count in that suit, which was for damages sustained by the defendants by reason of the faulty construction of the machines. In that action the plaintiff did not in any manner seek to diminish the damages of defendants, on account of their claim for the value of the patterns, jigs and special tools, described in schedule B, heretofore quoted. For the reasons heretofore stated we are of opinion that it was erroneously ruled in the case at bar, that because the first one hundred machines were not in all respects made according to the contract, the defendants were not obliged to make any further contract nor to pay for the special tools made or purchased for the construction of those machines." A firm sold goods with a warranty of quality, and afterwards 448 THE MERITS. sued to recover their price. The complaint contained two counts, one upon a special contract, and one for goods sold and delivered. The answer denied the making of the contract, and denied generally the other allegations of the complaint. It was admitted, however, that a contract, differing from that mentioned in the complaint, had been entered into between the parties, and it was set out in the answer, which alleged that the quality of the goods was not according to the warranty, and that this question of quality had been submitted to arbitra- tion and an award made in favor of the defendant; and this breach of warranty and award were relied upon as a defense, -and no recoupment in mitigation of damages was sought. Evidence was given upon all the issues, but the jury were in- structed that "if the plaintiffs, on the day the contract matured, presented their account and offered to deliver the goods, they fulfilled the contract on their part; and if the defendants did not within a reasonable time, and within the custom of trade, make their objection to the articles sold, and offer to rescind the contract, they are bound by it, and the plaintiffs should recover." There was a verdict and judgment for the full amount of the plaintiffs' demand. The purchasers then sued to recover damages for the breach of warranty, and the former adjudication was pleaded in bar. The court said: *'It is well settled that the doctrine of res judicata only applies to matters put in issue upon the record, and directly determined by the court or jury. It is not sufficient that the point in dispute was raised by the pleadings in a former action ; it must have been passed upon and determined, or the judgment can not be relied upon as a bar. In the present case, we have no doubt that the breach of the warranty might have been relied upon, by way of recoupment, to mitigate the recov- ery in the former suit; but we are equally clear that it was not available as a complete defense, for which purpose alone it seems to have been set up in the answer, and relied upon at the trial. It is unnecessary to determine whether or not the answer was sufficient in order to recoup the damages resulting from DEFENSES OMITTED. 449 the breach of warranty, as we are clearly of the opinion that the instruction excluded this matter from the jury."* § 175. Section 173, continued — Consideration fails or is want- ing. — If the purchaser of logs, in a suit by the payee of the first note given therefor, pleads that they were damaged and gets a reduction, he can not plead the same damages in answer to a suit by an assignee on the second note. They are res judi- cata.^ If several notes are executed for a harvester, and, in a suit upon the first one, the defendant pleads that the considera- tion has failed because the machine would not work, and is defeated on the merits, he can not make the same defense to a suit on the second note.^ The court said: "If a party makes a defense to an action on a note that was given in part pay- ment of the purchase price of machinery, and other notes were given as a part of the same transaction and for the same con- sideration, a defense to one of these notes must be conclusive as to all. As long as the judgment stands unreversed, a party can not be heard again to urge that defense. He has had his day in court, has had his grievances passed upon by a tribunal, and such decision is final." In a suit on a note given for goods, if the defendant pleads want of consideration by reason of false representations con- cerning their value, and obtains a reduction, that will bar him from afterwards sluing for those representations.* But if the defendant, in a suit on a note given for property, defeats the action upon a plea of failure of consideration, he is not con- cluded from making the same defense to a suit on another note given for the same property.' If goods are sold and two notes taken for them, and, in a suit on the first note a counter-claim for defects in the entire lot of goods is set up, a recovery by the plaintiff will bar a counter-claim to an action on the second note.® 1. Earl V. Bull, 15 Cal. 421, 425. 5. Clark v. Sammons, 12 Iowa 368. 2. Taylor v. Chambers, 1 Iowa 124. 6. Matthews v. Green, 12 Philadel- 3. Furneaux v. First National Bank, phia341. 39 Kan. 144 (17 Pac. R. 854). 4. Burnett v. Smith, 4 Gray (70 Mass.) 50. 29 450 THE MERITS. § 1 7G . Section 1 73, continued — Court rejects as bad in law. — If the defendant sets up a breach of a contract by way of counter-claim, and the court refuses to allow it to go to the jury because it has no merits, that will bar a new action upon it.* So, if a note and a bond are executed as a part of one trans- action, and in a suit, on the bond, a counter-claim for damages is pleaded and held insufficient in law, it can not be pleaded again to a suit upon the note.^ Injunction and damages. — If the defendant in an injunc- 1. Glenn v. Savage, 14 Oregon 567 (13 Pac. E. 442), The court said: "Counsel insist that the former judg- ment was not upon the merits as to the matter relied upon in this action ; that the same was not considered; and they cite Savage v. Glenn, 10 Or. 440, which is the same case in which the judgment was afterwards rendered now relied upon as a bar. It is there said : ' The case comes up on excep- tions to certain instructions given to the jury, and on refusal to give cer- tain instructions asked by appellant. The court instructed the jury, in ef- fect, that the agreement could not be considered by them in estimating the damages. This view of that agree- ment was correct.' And why could it not be considered ? It was properly pleaded, and between the same par- ties, and the reason it could not be considered is not stated ; but it must have been upon the ground that the contract remained wholly executory, that neither party had done anything under it, and that it had ceased to be binding between them. But, upon whatever ground this decision is placed, its effect was to conclude the parties. It decided that Glenn was not entitled to recover damages against Savage for the breaches of that agreement. If the jury had no right to consider that agreement in es- timating damages in that case, it could never be considered in any case ; and the decision of the court in that case, refusing to allow the jury to consider it in assessing damages, followed by a final judgment, and the pleadings remaining unchanged, in my opinion operated as a final and conclusive bar between the same par- ties on the same subject. And such seems to have been the ruling of the supreme court of Maryland in Beall V. Pearre, 12 Md. 550. It is there said: 'Under these circumstances Beall's counsel insists that in the ren- dition of the former verdict it not only does not appear that the jury passed upon the merits of this present claim, but it appears that they did not. Admitting (without deciding) this to be true, why was it so ? The answer is that the decision of the court necessarily withdrew the considera- tion of this claim from the jury. If, therefore, the jury did not, the court did decide upon it. And we can see no good reason why a decision of a court upon a claim in a former action is not as effectual a bar to recovery in another suit, upon the same cause of action, as that of a jury.' It follows that there was error in excluding the record offered by the appellant." 2. Reid v. Huston, 55 Ind. 173. DEFENSES OMITTED. 451 tion suit in Louisiana prays for damages in his answer against the plaintiff and his sureties, and the judgment dissolving the injunction is silent as to damages, that is a rejection of them, and bars a suit for them.' And the same is true if the injunc- tion is sustained and no damages awarded. A new suit is barred.* So in Texas, if an execution has been enjoined temporarily, the defendant may plead and recover his damages on the trial if the injunction suit fails, without being driven to a suit on the bond. Hence, in such a suit, if the defendant pleads his dama- ges, and the plaintiff dismisses, and the defendant simply takes a judgment for costs, he can not sue on the bond for damages.' Joint ownership of stock. — A sued B in assumpsit for $4,000, and B filed a counter-claim for $5,000, being the one- half of the proceeds of certain corporate stock which he alleged belonged to them jointly. On the trial there was no dispute concerning A's claim, but it appeared that the parties had been engaged in a transaction in respect to certain stock, a part of which A had sold, being the same that was set forth in the counter-claim, and A testified that it belonged to him indi- vidually, while B produced evidence to show that they owned it jointly, which was the only point of contest in the case. A recovery by B of four hundred dollars was held to be a bar to a new suit by A to compel B to transfer to him the unsold balance of the stock upon an allegation that it was held by B in trust for him, as the verdict necessarily decided that they held it jointly.* 1. Rice V. Garrett, 12 La. Ann. 755. in his original bill. Ordinarily, the 2. Spencer v. Banister, 12 La. Ann. pleadings in the former suit, when in- 766. troduced, will show what was within 3. Bridges v. Wilson, 2 Tex. App. the issue tried and determined there- Civil Cases, § § 625, 627. in. A fact or question is no less at 4. Wright V. Griffey, 147 111. 496 issue or within the conclusive effect (35 N. E. R. 732). Tlae court said: of the verdict and judgment because "It remains to be seen, whether any the averment of the declaration and matter material to the issue in the traverse are general. The difference common-law suit was necessarily de- between cases in which the issue is thus termined in that action which, as evi- general, and those in which it is limited dence, is conclusive of the right to by the pleading to a single point, is, the relief sought by the complainant that the matter which appears by the 452 THE MERITS. Malicious prosecution, counter-claim for. — A sued B on a debt before maturity and caused his goods to be attached and his business to be closed up, and was defeated. After the debt mere inspection of the record in the latter must, in the former, be estab- Ushed by evidence. Parol evidence of what occurred upon the former trial, and what was actually decided, is always admitted in such cases. It appeared from the transcript of the proceedings in the common-law suit that the declaration consisted of the common counts, with which was filed an account of various items, aggre- gating $4,317.67. Defendant filed the general issue with notice of set-off, and asking for judgment over. The matter of set-off consisted of $5,000 received by the plaintiff from one Lamson for the use of the defendant arising from the sale of 6,000 shares of Silver Islet Mining and Milling Company stock by plaintiff and de- fendant, jointly, to Lamson'. That plaintiff had received in cash $10,000 from Lamson, one-half of which, — that is, said sum of $5,000, — was due and owing by plaintiff to defendant, and the further sum of one-half of $8,333.33, being the balance of the purchase-money for the capital stock received by plaintiff from Lamson, etc. It also appeared that the cause was submitted to a jury, who, after hearing the evidence, returned a verdict for defendant, and assessing his damages at $418.70; that a motion for a new trial by plaintiff was over- ruled, and a judgment rendered upon the verdict in favor of the defendant for $418.70 and costs. Upon looking into the stenographic report of the evidence introduced, and admitted here without objection, it appears that it was conceded by both parties that, upon the organization of the Silver Islet Mining and Milling Com- pany, certain properties were trans- ferred to it, standing in the name of the plaintiff, Wright, in payment for its stock; a one-half interest had been bargained to what was known as the ' Iowa Syndicate ' and John Cudahy ; and that certain other shares had been disposed of to other parties, and the residue of the stock of the company belonged, as claimed by Wright, to him (Wright), and, as claimed by defendant Griffey, to Wright and himself jointly and equally. Six thousand shares of the stock thus owned by one or both was sold to Lamson for $18,333.33, of which $10,000 was paid in cash to Wright, the plaintiff, and the residue was to be paid out of profits, etc. There is no controversy as to the residue, and no evidence was offered tending to show liability of Wright to account for it, and that item, in the notice of set-off, dropped out of the case. The items of plaintiff's ac- count, filed with his declaration, were practically undisputed ; the only con- tention of the defendant being that, instead of being credits in favor of plaintiff, a part of them were pay- ments made to him by Wright out of and on account of the one-half of the cash received from Lamson. The only contest was as to the ownership of the stock of the mining company remaining after the admitted sales to others. Griffey, in support of his no- tice, testified that he was an equal owner with the plaintiff in the prop- erties transferred to the mining com- pany, and by its transfer became the owner and was entitled to one-half its stock. He was permitted by the court to detail in that case the circum- DEFENSES OMITTED. 453 became due, he sued B upon it, who pleaded as a counter-claim the damages caused by the attachment, and it was held that a recovery of them was a bar to an action by him for a malicious stances showing in what manner he became the owner, jointly with the plaintiff, of that property and the stock of the company. A large num- ber of lettera of the plaintiff and evi- dence of other witnesses was intro- duced, tending to corroborate Griffey, and show that he was the owner of one-half of the properties before the transfer, and afterwards of one-half of the stock of the company. The de- fendants neither claimed nor set up any claim to the $5,000 moiety of the cash paid by Lamson on the purchase of the 6,000 shares, other than that be was the equal owner with Wright in the properties and stock. The plaintiff, Wright, testified in his own behalf that the mining properties transferred to the company were his individually, and that Griffey had no right nor interest in them what- ever, and accounted for jjortions of the stock haAnng been issued in the name of the defendant by explantion inconsistent with Griffey's ownership of the stock ; and in that trial claimed that 3,400 shares, being the same now sought to be recovered by the bill iu this case, was held by Griffey for his benefit only. It is clear, therefore, that, unless it was found by the jury in that cause that Griffey was entitled to one-half of the f!10,000 received by the plaintiff from Lamson, the plaint- iff must have recovered practically the full amount of the items of his ac- count ; and that Griffey had no set- off, unless it was one-half of the sum of $580, which he claimed to have ad- vanced on joint account of himself and Wright. It is absolutely clear that that case turned upon the ques- tion whether Griffey was joint owner with Wright in the capital stock of the Silver Islet Mining and Milling Com- l^any, as claimed by him, or whether Wright was the exclusive owner of that stock, as he claimed. That that was the issue submitted, appears also from the instruction of the court. The jury were told ' that all the evidence intro- duced as to the ownership of the property and stock of the Silver Islet Mining Company, and con- cerning the proceeds of the stock claimed by defendant to have been owned jointly, together with all of the other evidence, is to be taken into consideration in arriving at the state of accounts between the parties ;' and by another instruction they were told that 'the defendant Griffey is entitled to have credited against the plaintiff 's claim anything that may be due him from plaintiff on account of the Silver Islet Mining and Milling Company or its properties, and if, on all the evidence before the jurj', a balance is found in favor of the defendant,' they should so find, and fix the amount in their verdict. The jury therefore necessarily found that appellee Griffey was jointly and equally interested with Wright in the properties transferred to the mining company and in its stocks ; otherwise, as we have seen, the ver- dict must have been for the plaintiff for over §4,000, instead of for $418.70 for the defendant. By the allowance of the $5,000 and the other claim of Griffey, the jury reached a correct re- sult. If the same result was reached upon the trial of this cause — that is, if it was found that Griffey was the joint and equal owner with Wright in the properties and stock of the companj' 454 THE MERITS. prosecution on account of the same wrongs/ The court said: "The plaintiffs having set up their cause of action as a counter- claim in the former suit, they were bound to exhibit all their damages there." Set-off. — If A delivers goods to B to secure a debt, and afterwards A, on being sued for the debt, defends upon the ground that B has sold the goods, a judgment in A's favor bars him from suing B for the goods, or any part of them.^ If a claim is presented to the commissioners of a decedent's estate in Vermont, the statute requires the administrator to present all matters of set-off existing in favor of the estate ; and, in such a case, if a claim has been presented as a set-off, a partial allowance, although caused by the negligence of the administrator, bars a suit for the balance.* — it needs no argument to show that it would be absolutely conclusive against all right to the relief sought by the original bill. To determine the issue in that case, it became necessary to find the fact as to whether Griffey was, or was not, the joint and equal owner •with Wright of the stock of the com- pany, and that is the controlling issue in this case. By the bill, Wright seeks to compel Griffey to assign and trans- fer to him 100 shares of the capital stock of the company, issued in Griffey's name, claiming that Griffey has no interest in them; that he (Wright) was the owner of the prop- erties transferred to the mining com- pany, and the owner of its stocks. Griffey sets up and insists by his an- swer that he was the joint and equal owner with Wright in the properties transferred to the company, and in its stock, and that these stocks were issued in his name on divi- sion of the residue of the stocks re- maining after the Lamson and other sales of stock had been made. It ap- pears, therefore, that the fact of ownership of the stock of the Silver Islet Mining and Milling Company has been adjudicated in a suit between these same parties, and that the judg- ment remains in full force. This be- ing so, under the rules before an- nounced, the complainant is estopped from relitigating the same question in this suit." 1. Thompson v. Schuster, 4 Dak. 163 (28 N. W. R. 858). 2. Simes v. Zane, 24 Pa. St. 242. 3. Spaulding v. Warner, 59 Vt. 646 (11 Atl. E. 186). The court said: "Section 2127, E. L., requires that when a creditor, against whom the deceased had claims, presents a claim to the commissioners, the executor or administrator shall exhibit the claims of the deceased in off-set to the claims of the creditor, and the commissioners shall ascertain and allow the balance for or against the estate as they find the same to be. In Probate Court v. Gale, 47 Vt. 473, it is said that it seems to have been the intention of the statutes to require all claims be- tween estates and claimants to be adjusted by the commissioners, and claims not presented to and acted upon by the commissioners are by the omission barred from being claims DEFENSES OMITTED. 455 § 177. Declaring lien. — In a suit by one lienholder against all the others to convene and declare their liens, the decree deter- mining their various amounts and priorities is binding as between themselves.^ Deed and will construed. — In a suit to construe a will and deeds executed in a family settlement, an infant defendant will be bound by the decree, although all the matters in its favor were not brought to the attention of the court. ^ Detention. — In an action for the wrongful detention of property, it is a defense to show that it was taken from the cus- tody of the defendant by an order of court, in a case in which the plaintiff was a party .^ § 178. Distribution — Corporation assets. — A decree distrib- uting the assets of a dissolved corporation, and discharging the trustee, bars a creditor who was a party from suing the trus- tees to reach unpaid stock subscriptions.* The court said : that are enforceable for or against the estate afterwards. The claim set out in the defendant's pleas has once before been before a court of compe- tent jurisdiction, wherein it might and should have been adjudicated, and it appears that the claim made in those pleas has been in part satisfied by the previous judgment. The defendant is estopped by her neglect from insist- ing that the claim described in the pleas can be set up as an off-set in this suit. It is never allowable thus to divide up an entire claim, to suit the convenience or necessity of the party asking it." 1. Bensimer v. Fell, 35 W. Va. 15 (12 S. E. R. 1078). 2. Robinson v. Boyd, — Tenn. — (23 S. W. R. 72, 79) . The court said : "Annie D. Robinson was a party to the proceedings, not only as heir, but also as child of John D. Robinson by apt designation, if that be ma- terial, which it is not necessary to de- termine. She, however, was described before the court for all the purposes essential to determine her interest and dispose of the property in contro- versy. Even if the court's attention was not actually called to the partic- ular points now made in argument on behalf of the minor Annie D., still that would not prevent the decree rendered from being conclusive as to the parties in the consolidated causes. The rule is that the pleading of 7-es judicata applies, except in spe- cial cases, not only to the points upon which the court was required by the parties to form an opinion and pro- nounce judgment, but to every point which properly belongs to the subject of litigation, and which the parties exercising a reasonable diligence might have brought forward at the time." 3. Cole V. Connolly, 16 Ala. 271, 274. 4. Chavent v. Schefer, 59 Fed. R. 231. 456 THE MERITS. ** The validity of the plea depends upon whether or not what is sought to be reached now should have been carried into that decree, and is merged in what was decreed there, so as not to have been left to become the subject of another decree. What- ever was a part of and belonged with what was adjudicated upon as a subject of recovery there, should have been brought in and made a part of the decree, and, whether actually brought in or not, became merged in the decree as passed upon, or waived. The parties here were all before a court of compe- tent jurisdiction there. The subscriptions for stock really un- paid were assets of the corporation for the payment of debts at the suit of creditors, or those standing in their right, although the corporation itself might not have been in a plight to re- cover them. These subscriptions were a part of, and belonged with, the assets which the orator had a right to have, and did have, marshaled for the payment of his debt, and, if his claim had been maintained, would have, by so much, increased the amount to be distributed to him. Whether then brought in or not, they appear to have been so merged or waived as not to be proper subjects for another decree elsewhere." Estate of decedent. — If the property of an estate is dis- tributed by an order of court as the property of a grandfather, a distributee is precluded from afterwards showing that it be- longed to her grandmother, as that defense ought to have been made to the first suit.' An heir filed a bill against the admin- istratrix and the other heirs to settle the estate, and by agree- ment the matter was referred to arbitrators with full powers, who divided the real estate among the heirs, determined the advancements made and the amounts to be paid to others to equalize them, and then proceeded to distribute the surplus as- sets in the hands of the administratrix, and found that they consisted, among other things, of ''an account for advances and crop liens on same against W. A. and Lou Pryor, $1,283." This award was made the judgment of the court without objec- tion. Lou Pryor was one of the heirs and W. A. Pryor was her husband, and both were defendants, and to secure this ac- 1. Gillett V. Lee, 2 Texas Unreported Cases 743. DEFENSES OMITTED. 457 count, as awarded, less her distributive share, she and her husband executed to the estate a mortgage on her separate real estate. In a suit to foreclose this mortgage, she pleaded that the claim secured was not the joint debt of herself and hus- band (if it was the mortgage was valid), but the individual debt of her husband (in which case the mortgage was void). The mortgagee relied upon the award and judgment confirm- ing it as a bar to her right to show that fact. But the court, after commenting on several authorities, concluded that she was not barred because the causes of action in the two suits were not the same — one being to distribute the estate, and the other to collect a debt claimed to be due on the distribution ; and it held, also, that she was not barred because the question made had not been contested in the first suit.* The court applied the rules of res judicata to a case of collateral attack. She had the opportunity to contest the question in the first suit, and if she did not do it, no one was to blame but herself. The other par- ties could not make the contest for her. Of course, the causes of action were not the same, but the second one grew out of and depended upon the judgment rendered in the first, as is always the case in a collateral attack. If an executor, for the fraudulent purpose of obtaining a tract of land, sells it to his wife, a decree afterwards made dis- tributing it to her, is no bar to a suit by the devisees to set the sale aside. The court said that that question was not con- sidered in the proceedings for distribution, and that one "having an equitable defense may let judgment go at law, and proceed inequity."^ But surely the probate court had power to determine to whom the assets of the estate should be distrib- uted; and if there was any reason- why that particular dis- tributee should have received nothing, then was the time for the heirs to show it. That was what they were in court for. Partnership assets. — If the members of a firm are all dead and the widow of one of them brings a suit for administration and distribution, to which all the creditors are parties, a decree 1. Brady v. Pryor, 69 Ga. 691, 697. 2. Golson v. Dunlap, 73 Cal. 157 (14 Pac. R. 576). 458 THE MERITS. determining the amounts of their respective claims is conclu- sive upon them.* § 179. Divorce^ — (See §§ 98 and 99, supra) — Alimony. — Pub- lic policy seems to demand that there shall be as little litiga- tion as possible between husband and wife. Hence, a decree granting a divorce bars a new suit for alimony,* even out of land in another state.* But if the divorce is granted to the wife upon constructive service, she can go into another state and obtain alimony, because she could not do so in the origi- nal case.® So, if a divorce and alimony be granted to the wife, that will bar a subsequent suit for more alimony on the ground that, at the time of the first decree, she was pregnant, of which she was then ignorant, and that the child has since been born and is alive.® 1. Humphreys v. Stafford, — Miss. — (13 S. R. 865). 2. Some of the cases in §§179-181 be- long in §§ 98 and 99, supra — a discov- ery made too late to make the change. S.Wilde i;. Wilde, 36 Iowa 319; Lawson v. Shotwell, 27 Miss. 630, 635. 4. Fischli V. Fischli, 1 Blackford 360. This was put upon the ground that she might have obtained all her relief in the original case. 5. Woods V. Waddle, 44 O. St. 449 (8 N. E. R. 297). The court said: "The words of the statute are: 'The wife may file her petition for alimony alone.' May the word ' wife,' as used in the statute, include a woman di- vorced, as was this defendant in eri-or? In the case of Cox v. Cox, 19 Ohio St. 502, this court applied the benefits of this statute to a woman whose husband had been divorced from her by a court in Indiana while she remained domiciled in Ohio. In that case, on page 512, White, J., said : ' It is not essential to the al- lowance of alimony that the marriage relation should subsist up to the time it is allowed. On appeal, alimony may be decreed by the district court, notwithstanding the subsisting di- vorce pronounced by the court of common pleas. It is true, the statute speaks of the allowance as being made to the wife. But the term "wife" may be regarded as used to designate the person, and not the actual existing relation ; or the peti- tioner may still be regarded as hold- ing the relation of wife for. the pur- pose of enforcing her claim to ali- mony.' He thus shows that the word ' wife ' designates the person divorced after the divorce is granted. He further considers the questions at length, and sustains with citations, and the court there held 'that the de- cree of divorce was no defense to her petition for alimony.' The principles there stated and held sustain this judgment. Here there is no showing of fraud on the part of the defendant in error, nor any claim that the plaintiff in error has been wronged by having the alimony suit tried in a separate action." 6. Petersine v. Thomas, 28 O. St. 596, 600. DEFENSES OMITTED. 459 Ante-nuptial contract. — The recovery of a divorce by the wife bars a suit by her upon an ante-nuptial contract.* Criminal conversation. — A wife having recovered a di- vorce by default on the ground of cruel treatment, this was de- cided to be a bar to an action by him against a third person for criminal conversation occurring, to his knowledge, before the divorce suit was begun, because it was a defense to that suit.^ No case was cited. The defendant had married the di- vorced wife, but it was not held that that gave him any new right. Curtesy and dower. — A divorce defeats both curtesy' and dower.* In the Kentucky case, there was a statute which pro- vided that a divorce should bar dower, and this was held to embrace one granted to the husband, upon constructive ser- vice, after he had removed to another state. So, in Nebraska, a divorce granted to the wife with permanent alimony, bars her dower, although the statute provides that she shall have dower in such cases, " in the same manner as if he were dead."' § 180. Divorce — Deed reformed. — Although a decree of di- vorce settles all the property rights between the husband and wife, yet it is no bar to a suit by her to reform a deed of his land to their children, executed before the divorce, in which she joined, upon the agreement that the rents for life were to be reserved to her, which agreement was omitted from the deed by his fraud. ^ So, if the husband compels his wife to join 1. Behrley v. Behrley, 93 Ind. 255. after the execution of the deed, the 2. Gleason v. Knapp, 56 Mich. 291 appellee was divorced from her hus- (22 N. W. R. 865; 56 Am. R. 388). band, and recovered a judgment for 3. Starr v. Pease, 8 Conn. 541 ; $800 aUmony. As this decree settled "Wheeler v. Hotchkiss, 10 Conn. 225. all property rights between the hus- 4. Whitsell v. Mills, 6 Ind. 229; band and wife, appellants urge that the Hawkins v. Ragsdale, 80 Ky. 353 (44 judgment for alimony bars this action. Am. R. 483) ; Stilphen v. Houdlette, There is here no question of property 60 Me. 447 ; Tatro v. Tatro, 18 Neb. rights. She affirms the deed made by 395(25 N. W. R. 571); Reynolds v. them, and insists upon that which she Reynolds, 24 Wend. 193. says the deed equitably gives her. We 5. Tatro v. Tatro, in last note. conclude that the court did not err in 6. Koons V. Blanton, 129 Ind. 383, sustaining the demurrer to the an- 392 (27 N. E. R. 334, 337). The court swer." said: "The answer alleged that. 460 THE MERITS. with him in the execution of a deed for her land to a stranger without consideration, an action at once accrues to her to set it aside ; and a divorce afterwards granted to her does not affect her right to that action, although, after the divorce, the grantee conveys it to her former husband, and she may sue them both.^ 1. Thompson v. Thompson, 132 Ind. 288 (31 N. E. R. 529). The court said: "It is insisted by counsel for the ap- pellee that the questions in this case were involved in the suit for divorce, and that all the property rights be- tween the husband and wife were settled by the decree in that case, and that not only what was in fact liti- gated, but what might have been litigated, is settled by that adjudica- tion. We are fully aware of the rule stated by counsel, but we do think this case comes within the broadest doctrine of the rule. The facts found show that the appellant was, by coer- cion and duress, compelled by her husband to execute a deed for her in- dividual real estate, conveying the same to the son of the husband by a former marriage ; that the conveyance was without any consideration what- ever ; that the appellant did not know the contents of the deed, nor who was named as grantee, until after the dis- position of the divorce case. The title to the land convej^ed remained in the grantee, Charles J. Thompson, until some, time after the divorce was granted. From the time of the mak- ing of the deed to the time the land was reconveyed, the wife might at any time have brought an action against Charles J. Thompson, the grantee, to have canceled the deed and quieted her title. This right of action existed in the wife against the grantee at the time of the divorce proceedings. Those proceedings settled all property rights between her and her husband, but not between her and third parties. The husband did not, at the time of the divorce, nor at any other prior time, own the land. The wife by coercion had been compelled to part with the legal title, but she still owned the equitable title. It is found as a fact that it was intended by the appellee to create a trust in his favor, but such conveyance did not create any trust, and the wife's rights could not be affected by the secret intention on the part of the husband, who compelled her to sign the deed against her will. Nor was there any ratification of the deed. The husband compelled the wife to make it. All she did afterwards was to live with him as a dutiful wife for some three years. The fact that she said or did nothing about the matter for that length of time, can not be said to be a ratification. It is quite probable that the very reason she kept quiet was to have peace in the household for the comfort and benefit of herself and family. All that it appears she did was to keep silent about a wrong and an injury done to her by her husband in compell- ing her to part with her property. Certainly he ought not to profit by such kindness on her part. Koons v. Blanton. [See last preceding note.] The action is not barred by limi- tation, and no rights of innocent parties have intervened. The right of action existed against Charles J. Thompson at the time of the di- vorce proceedings, arid since that DEFENSES OMITTED. 461 § 181. Divorce — Homestead. — The Illinois statute having provided that upon granting a divorce the court might '' dis- pose of the homestead estate, according to the equities of the case," its failure to do so, if the title is in the husband, bars the rights of the wife in respect to it.^ Husband's rights. — A decree for a divorce and alimony in favor of a wife bars the husband from afterwards claiming that she was indebted to him for any cause, and also prevents him from suing a third person for advising the wife to sell his prop- erty and take the proceeds.^ Partition of common property. — Although property held in community in Texas may be divided in a divorce suit, yet if it is not done, the wife will not be barred from recovering her share from the husband's vendee of the whole.® Nor does such a decree bar any appropriate suit concerning those rights.* time he has conveyed the land to his father, the appellee. When the latter received title to the land, he having full knowledge of the facts, and himself being the person com- pelling the conveyance, the appel- lant then had a right of action against him. It is suggested that the second paragraph of the answer in the divorce case put the question here in- volved in issue. The answer in the divorce suit amounted to nothing. The parties had no power to make any valid contract relating to alimony. It answered no allegation of the com- plaint. The things therein stated may have been proper for the court to consider in fixing the amount of ali- mony, but this the court could do as well without such an answer as with it. As we have said, the decree set- tled the property rights of the parties to the suit existing at the time, but it did not cancel any right of action ex- isting in favor of the wife against third parties. Suppose Charles J. Thompson had not reconverted the land to his father after the granting of the divorce, under such a state of facts there can be no doubt but that the appellant could have maintained an action against him to set aside the deed and quiet her title to the land. This right could not be taken from her by a conveyance of the land to her divorced husband." 1. Stahl V. Stahl, 114111. 375, 379. 2. Patton V. Loughridge, 49 Iowa 218. 3. Whetstone v. Coffey, 48 Tex. 269, 276. 4. Gray v. Thomas, 83 Tex. 246 (18 S. W. R. 721). The court said: "The rule now established in this court is, that a decree of divorce which does not purport to make a partition of the property between the husband and wife, nor to settle their rights to prop- erty claimed by either, does not pre- clude a suit by either party for such partition, or for the establishment of such rights (Whetstone v. Coffey, 48 Tex. 269), and we see no reason why, when the decree is confined to certain specific property, the same rule should not apply to other propert}^ not 462 THE MERITS. Second divorce. — In Maine, if a divorce is granted to the husband on his libel, one may be granted to the wife on her cross-libel.^ § 182. Dower — Fraudulent conveyance — (See §§ 179, 191, infra ) . — A husband and wife having conveyed his land to a stranger who reconveyed to her, and a receiver of the husband having brought a suit against all the parties to cancel the deeds as fraudulent, the wife might have set up her inchoate right of dower and had the judgment so entered as to protect it ; but the fact that she did not do so, and that the judgment simply canceled the deeds and subjected the land to sale, does not bar her dower after the death of the husband.^ Heirs barred. — Dower set off to the widow in a proceeding to which the heirs were parties prevents them from recovering the land from her in a new action, whether they defended or not.' Partnership land. — In a proceeding to sell partnership land to which the wife is a party, she must set up her dower rights, or the decree ordering a sale will bar them.* The court said : * ' She was made a party to the former suit. If she claimed any interest in the land it was then her duty to assert it, and have it determined. The sole object in making her a party was to ascertain her rights therein, if she claimed any. The court expressly determined and decreed that the land was a part of the firm assets. The purchaser, therefore, had the right to assume that she neither claimed nor had any interest in the property except that arising from brought within the scope of the adju- anticipation of a divorce, has fraud- dication. To hold that such a judg- ulently conveyed the property to a ment would be conclusive as to prop- third party to hold for him, is quite erty not included, it would have to be clear." held that because the property had 1. Stilphen v. Stilphen, 58 Me. 508; not been claimed in the divorce suit Stilphen v. Houdlette, 60 Me. 447. the right had been waived. This doc- 2. Malloney v. Horan, 49 N. Y. Ill trine was announced in Hardin v. (10 Am. R. 335). Hardin, 38 Tex. 616, but was expressly 3. Gay v. Stancell, 76 N. C. 369. repudiated in Whetstone v. Coffey, 4. Free v. Beatley, 95 Mich 426 (54 supra. That it would be unjust to ap- N. W. R. 910). ply it in a case where the husband, in DEFENSES OMITTED. 463 partnership relations. Even had she then been possessed of any right of dower independent of the partnership, she must be held estopped from now asserting it, because she did not assert it when she had the opportunity to do so. She was a proper party to the suit, because she had a contingent right of dower in the property. The vendee was an innocent purchaser, and he and his grantees will be protected. He purchased in re- liance upon a decree rendered in a suit wherein all persons interested in the property were parties, and which was brought for the express purpose of adjudicating and determining all their rights." Unassigned dower. — If A sues B in trespass to try titles, and, pending the action, B procures the widow of a former owner to convey to him her unassigned dower rights, a recovery by A does not bar B from suing him in the name of the widow to recover the dower interest for his own benefit, because unas- signed dower is no estate in the land.' Wife of legatee. — If dower is set off to the wife of a lega- tee, that does not prevent the defendants from afterwards con- testing the wdll, which covers other property.^ The court said: "The record of the special proceeding, in which dower was allotted to the wife of the legatee, and to which the caveators were parties and answered by their guardian ad litem, does not estop caveators from contesting the validity of this will. If it were conceded that they are estopped from denying her right to dowser, that fact would not preclude them from contesting the execution of the will, both for the purpose of claiming the personal property, which passed into the possession of the legatee, and of disputing the title of the heirs or devisees of the legatee to the reversion after the life estate, as they were not parties to the pro- ceeding, nor entitled as privies to hold caveators bound by any admissions or adjudications made therein. The question whether or not the caveators, heirs at law of the testator, are estopped from denying the right of the wife of the legatee to dower may be raised hereafter in another action ; but in this 1. Lamar v. Scott, 4 Rich. Law 516, 2. In re Thomas' Will, 111 N. C. 519. 409 (10 S. E. R. 226). 464 THE MERITS. proceeding the will would not be admitted to probate on fatally defective proof, and made operative for all purposes, if it were conceded that the heirs would be estopped in an action for pos- session against the tenant of the wife during her life." § 183. Ejectment. — A recovery in ejectment bars all the de- fendant's legal rights and titles, whether brought forward or not, in Arkansas,^ California,^ Georgia,^ Illinois,* Kansas,^ Lou- isiana,^ Minnesota,' New York,* North Carolina^ and Vermont;^" but in Missouri" one action does not bar another, even if the titles and defenses are the same. In Pennsylvania, if a second trial is a matter of right, the first judgment is not conclusive on any point." But as ejectment on an equitable title in that state is a substitute for a bill in equity, the first judgment is conclusive." In an action of ejectment in Indiana, the defeat- ed party, by giving a bond to pay costs and damages, can have one new trial as a matter of right. But if the plaintiff obtains an order for a new trial in that manner, and then dismisses his case, the first judgment will be a bar to a new action." 1. Sturdy v. Jackaway, 4 Wall. (71 10. Edwards v. Roys, 18 Vt. 473. U. S.) 174. 11. Kimmel v. Benna, 70 Mo. 52, 2. Caperton v. Schmidt, 26 Cal. 479 62 ; Ekey v. Inge, 87 Mo. 493. See § 8, (85 Am. D. 187) ; Byers v. Neal, 43 supra, for other cases. Cal. 210— plaintiff 's deed made by the 12. Gehr v. Miller (Pa.) ,8 Atl. R. 926 ; sheriff after his term of office had ex- Eichert v. Schaffer, 161 Pa. St. 519 pired; Thrift v. Delaney, 69 Cal. 188 (29 Atl. R. 393). (10 Pac. R. 475). 13. Seitzinger v. Ridgway, 9 "Watts 3. Lamar v. Knott, 74 Ga. 379. 496 ; Peterman v. Ruling, 31 Pa. St. 4. Oetgen v. Ross, 54 111. 79. 432; Taylor v. Abbott, 41 Pa. St. 352; 5. Hentig v. Redden, 46 Kan. 231 Meyers v. Hill, 46 Pa. St. 9, 11 ; Treftz (26 Am. St. R. 91; 26 Pac. R. 701). Pitts, 74 Pa. St. 343; Winpenny v. 6. Shaffer v. Scuddy, 14 La. Ann. "Winpenny, 92 Pa. St. 440. 575. ' 14. Ferris y. Berkshire Life Ins. Co., 7. Doyle v. Hallam, 21 Minn. 515; — Ind.— (38 N. E. R. 609). The court Bazille v. Murray, 40 Minn. 48 (41 N. said: " After the rendition of judg- "W. R. 238). ment, the appellant moved the court 8. Ainslie v. Mayor, 1 Barb. 168; for a new trial as of right, but his Beebe u. Elliott, 4 Barb. 457; Sheri- motion was overruled, and he ex- dan V. Andrews, 3 Lans. (3 N. Y. cepted. The bill of exceptions states Supr.) 129; Cagger v. Lansing, 64 N. that the motion was overruled, 'for Y. 417. the reason that there has been already 9. Bickett v. Nash, 101 N. C. 579 two trials upon the merits of this (8 S. E. R. 350). cause as to the same property.' It DEFENSES OMITTED. 465 Equitable defenses. — A recovery by the plaintiff in eject- ment in Alabama does not prevent the defendant from main- taining a suit to enforce a vendor's lien.* So, a judgment in ejectment for plaintiff in California does not bar an equitable defense which was not used.^ And a recovery upon a writ of entry in which the legal title only can be considered, is no bar to an equitable suit for a deed, in Massachusetts.^ A went into the possession of land under a contract to purchase from B, who afterwards obtained a deed. This gave A the right to pay the balance due on the purchase to B, and to compel him to execute a deed. B brought ejectment, and A filed an answer of general denial, under which he could defeat the action by showing a right to the possession under a superior equit}^ but appears from the finding of facts be- fore us that the appellant and Robert Browning commenced an action in Marion county against the appellee and others to quiet title to the same land now in dispute, which action was tried in the Morgan circuit court, to which it had gone on change of venue, on the 1st day of June, 1888. The trial resulted in a finding and judgment against the appellant and Browning. On the 25th day of May, 1889, the plaintiffs in that action ap- plied for and obtained a new trial as of right, under the statute. They failed to enter upon another trial of the cause, but subsequently dismissed it, and the appellant commenced this action. The judgment rendered in ]\Iorgan circuit court was a bar to this action. The appellant and Sloan were entitled to a retrial of the issues ten- dered in the case pending in the Mor- gan circuit court, but they could not abandon that right and commence a new action. If they were permitted to do so, and then obtain a new trial in an action subsequently brought for the same cause in another court, there would be no end to litigation in an 30 action involving title to real estate. Our statute giving the losing party one new trial, as of right, in this kind of action, was not intended to secure the result contended for by the appel- lant in this suit. In our opinion, the court below did not err in refusing to grant the appellant a new trial of this cause as of right." 1. Harper v. Campbell, Ala. (14 S. E. 650). See § 185, in/m. The court said : " The verdict and judgment in the ejectment suit were not conclusive as to the equitable rights and relations of the parties. That suit could be maintained or defended only on a legal right to the possession, without regard to the equities of the parties. The verdict and judgment are conclu- sive only that the appellee had not, at the commencement of the suit, the legal right to the possession." 2. Hough V. Waters, 30 Cal. 309; McCreary v. Casey, 45 Cal. 128. An equitable defense need not be used in Arkansas. Hawkins v. Wills, 49 Fed. R. 506 (1 C. C. A. 339) (4 U. S. App. 274). 3. Ryder v. Loomis, 161 Mass. 161 (36 N. E. R. 836). 466 THE MERITS. he could not obtain a specific performance without setting up his contract by way of counter-claim, which he did not do. On the trial, he gave evidence in respect to his prior equities and improvements, but the plaintiff recovered. This was de- cided to be no bar to a suit by him on his contract for a specific performance, upon the ground that a judgment on any cause of action- does not bar a counter-claim not pleaded.* This case seems to me to be unsound. The court did have power to hear the evidence in respect to his equities, and to defeat the case if they were proved. The fact that it heard him and decided against him was conclusive that he had none. Deed reformed. — The Ohio code, in a case of ejectment, authorized the defendant to plead equitable counter-claims, and provided that if he omitted to do so he should not recover costs in any subsequent action. Under this statute, a recovery in ejectment by the holder of the legal title does not bar a suit by the defendant to reform a deed so as to give him the legal title, and to enjoin the enforcement of the judgment of eject- ment.^ Indian cases. — Chand on Res Judicata, section 41, says: *'41. Equities in ejectment. — The same rule is applicable also to decisions by default or on confession, the points abso- lutely necessary for decision in the former suit being held to have been in issue in that suit. In Param Singh v. Lalji Mai,' the plaintiff sued, in 1875, to recover possession of immovable property which the defendant had obtained in 1873, in execu- tion of a decree passed in 1861 on the basis of a deed of condi- tional sale executed by the plaintiff in 1853 in favor of the defendant. The plaintiff alleged that the deed was executed in order to protect the property against the claims of his son, and sought to set it aside on account of the defend- ant's breach of an agreement whereby the latter, in 1856, stipulated that the plaintiff's possession would not be disturbed. The defendant pleaded estoppel, but the plea was rejected. 1. Uppfalt V. Woermann, 30 Neb. 2. Witte v. Lockwood, 39 O. St. 189 (46 N. W. R. 419). 141— Mcllvaine, J., dissenting. 3. Indian L. R. 1 Allahabad 403. DEFENSES OMITTED. 467 Turner, J., in delivering the judgment of the court said, *Nor is the decree of 1861 a bar to the suit. The question now raised is, whether or not the respondent suffered judgment to go by default in that suit on the understanding that the decree would not be executed without his consent, or, if executed, that the property would be restored to him. This neither was, nor could have been, determined in the former suit; consequently, the respondent is not estopped by the de- cree of 1861. But, if it be held that he is so far bound by the decree that he can not contend that the appellant was not entitled to possession, in virtue of the mortgage and foreclosure, the respondent is, in our judgment, entitled to insist upon the agreement, and, on the strength of it, to recover back possession from the appellant. ' This decision was dissented from in Chen- virappa-u. Puttappa,^ in which West, J., in delivering the judg- ment of the court, said that it 'is not supported by any corres- ponding judgment, nor are we aware of any that supports it. It seems opposed to section 13 of the code of civil procedure and to the general principles partly embodied in that enactment. The uniform concurrence of the authorities, as indeed of the positive law of procedure also, in the doctrine that as between the parties res judicata pro veritate accipitur, forces us to decline to yield to the particular precedent that we have last discussed.' In this case, the plaintiff, having purchased a house in 1874, with a view to save it from his creditors, procured the sale-deed to be execut- ed in favor of C, his son-in-law, and took possession of the house ostensibly as C's tenant for a nominal rent of Rs. 5 per annum, but no rent was paid. C got an ex parte decree for the posses- sion of the house against the plaintiff, and when he applied for execution, the plaintiff sued for the declaration of his title to the house, alleging that the deed and the decree were sham and collusive; but the suit was held barred by the ex parte decree. West, J., in delivering the judgment of the court, said: 'It would be opposed, it seems, to this final effect of a decree, and it would certainly afford a wide opening to fraud, if a judgment-debtor in ejectment could come forward, with a 1. Indian L. E. 11 Bombaj' 708. 468 THE MERITS. fresh suit, to establish his right on equitable grounds to the very property which by the decree he has been ordered to deliver to another. Even under the double system of courts in England, it was recognized that a decree of one superior court could not be set aside by another. Nor could relief be given, in equity, against a judgment of a common-law court on a ground equally available as a defense in the latter.^ Here, however, the ground taken by Puttappa was equally available to him as a defendant in Chenvirappa's suit. Supposing, therefore, that we could divide the subordinate judge's court into two, the new suit by Puttappa ought to have been re- jected.' " § 184. Ejectment — Fraudulent conveyance. — A father had conveyed land to his son and put him in possession, and a creditor of the father, who had a judgment which was a lien on the land if the conveyance was fraudulent, ousted the son (by some means not shown in the report) and obtained possession. The son, by virtue of the deed from his father, sued to recover the possession, and was successful, but no question as to the mala fides of his deed was made. The creditor then assigned his judgment to his wife, who brought a suit to set aside the deed as fraudulent, and it was held that she was not in privity with her husband, and that as the mala fides of the deed had not been contested in the first action, it could be done then. It seems to me that the decision was put on the wrong ground. The suit for possession called on the creditor to show any cause of defense that existed why the plaintiff should not recover ; and the judgment in his favor necessarily adjudged that no cause existed ; but, conceding that the deed was fraudulent, it was good between the parties and entitled the son to the pos- session, and in' such case, although the judgment against the father would be a lien, it would give no right to the possession, and therefore the creditor had no defense to make to that action. In other words, he could not use his judgment lien as a defense, and for that reason it remained as a cause of action in his favor, and of course his wife, as assignee, stood in his shoes. ^ 1. Story's Eq. PI. 481, 2. Hart v. Bates, 17 S. C. 35. DEFENSES OMITTED. 469 Specific performance in ejectment. — A debtor executed several mortgages to his creditors in which his wife joined. Afterwards they conveyed to the creditors all the mortgaged property, except their residence lot, in trust, to sell and apply the proceeds upon the mortgages which were to remain unim- paired by the trust deed. Failing to sell under the deed, the creditors foreclosed their mortgages on all the property, includ- ing the residence lot, against both the husband and wife, and purchased it all and obtained a sheriff's deed. They then brought an action against the husband to recover the residence lot, and the wife, upon her application, was made a defendant, and filed a cross-complaint alleging that the plaintiffs had made an oral agreement with her, that, if she would join her husband in the trust deed and thereby release her inchoate interest in all the land except the residence lot, they would foreclose upon the whole, get a deed, and then convey that lot to her. She prayed for a specific performance, or, in lieu thereof, for dam- ages. To this cross-complaint the plaintiffs filed an answer, and judgment was rendered in their favor for want of a reply. This was decided to be a bar to an action brought by her to recover the value of her interest in the lot, upon the ground that she had the opportunity to litigate the same matter in the first action. This case is an authority that, in Indiana, a recovery in ejectment bars the equitable as well as legal rights of the defendant even if not litigated.^ Title-bond. — In Oregon, if a person is in possession of land under a contract of purchase, he can use it as a defense to an action of ejectment, but he can not set it up as a counter-claim and ask for a specific performance. Hence, if he does not use it as a defense, he will not be precluded from suing upon it to obtain a specific performance.^ A judgment in ejectment for 1. Jarboe v. Severin, 112 Ind. 572 for adjudication ; and, after a careful (14 N. E. R. 490). examination of the point, it was held 2. Spaur v. McBee, 19 Oregon 76 that, under the statute, which allowed (23 Pac. R. 818). The court said: an equitable defense by cross-bill in "'In Hill V. Cooper, 6 Or, 181, the actions at law, a party might rely precise question involved here came upon a legal defense in an action before this court, for the first time, without being thereby precluded from 470 THE MERITS. defendant, in Missouri, based on his equitable title, bars a new- suit in equity to remove his claim as a cloud on plaintiff's title.* The court said: "While the judgment in one action of eject- afterwards asserting his equitable title in an original suit. That is what this plaintiff is endeavoring to do by this suit, after having suffered defeat in a trial in an action at law; and, under the authority of Hill v. Cooper, supra, his equities were not concluded by the judgment. But counsel for the respondent contend that the jurisdiction of a court of law was so enlarged by the amendment to sec- tion 378 (now section 382) of Hill's Code in 1878 as necessarily to enlarge and extend the effect of a judgment at law in such a case ; and they claim, in effect, that Hill v. Cooper, snpra, is no longer an authority, under this stat- ute, for the principle therein an- nounced. The amendment was in the form of a proviso to the original sec- tion, and added these words: 'Pro- vided, this section shall not be con- strued so as to bar an equitable owner in possession of real property, from defending his possession by means of his equitable title ; and, in any action for the recovery of any real property, or the possession thereof, by any per- son or persons claiming or holding the legal title to the same, under such patent, against any person or persons in possession of such real property under any equitable title, or having in equity the right to the possession thereof as against the plaintiff in such action, such equitable right of posses- sion may be pleaded by answer in such action, or set up by bill in equity to enjoin such [action] or exe- cution upon any judgment rendered therein ; and the right of such equit- able owner to defend his possession in such action, or by bill for injunc- tion, shall not be barred by lapse of time while an action for the posses- sion of such real property is not, by the [provisions] of title 2 of chapter 1 of this code.' No doubt these pro- visions do greatly extend the juris- diction of courts of law in such cases, but such jurisdiction is not compre- hensive enough to enable the court to act finally upon the rights set up by the plaintiff in this suit. A de- fendant sued in ejectment might use his equitable title defensively in an action at law, but he could use it for no other purpose. That amendment of the code did not confer upon a court of law jurisdiction over the en- tire equities of the defendant, and en- able it to grant full and complete relief by decreeing specific perform- ance when proper. Besides, under our practice, the machinery of a court of law is not adapted to work out such results. A court of law might, for some one of the reasons named in this section, refuse to turn a defend- ant out of possession ; but it would be utterly powerless to clothe him with the legal title, which in this case the defendant holds as trustee for the plaintiff, or to adjust the equities which might grow out of the relations of the parties, or be presented by the facts of the particular case. We must, therefore, hold that the judgment at law did not estop or preclude the plaintiff from demanding of the de- fendant a conveyance of the legal title to the land in controversy, which the defendant acquired with notice of the plaintiff's equities." 1. Emmel v. Hayes, 102 Mo. 186 (12 S. W. R. 521). DEFENSES OMITTED. 471 ment is not necessarily a bar to a second action between the same parties for the same property, yet, when, in an action of ejectment, an equitable title is set up and tried, the issues upon that title between the same parties become res judicata, and may not, by them, be inquired into again." Improvements ignored. — If the claim of defendant for per- manent improvements is ignored in ejectment, he can not maintain a new action for them.' The court said: "The effect of a final judgment concludes every matter in controversy in the pleadings, in which legal and equitable remedies are blend- ed, unless, as in this case by statute, a future opportunity is allowed to assert a claim, and it is not put forward to be passed on at the trial. But in fact it was asserted in the answer, and refused by the court ; and, being an adjudged matter, whether correctly or erroneously, and no appeal having been taken to review the ruling, the judgment must stand as conclusive of ihe claim." Subsequent title. — A recovery in ejectment by a landlord against a tenant, does not bar the latter from suing the former in ejectment upon a title acquired during the tenancy, as he could not use it as a defense to the former action.^ § 185. Equity and law.' — In California* and Kentucky® an equitable defense may be set up in an action at law, but the omission to do so does not bar the defendant from suing upon it, while the reverse is true in Indiana.® But if a court of law is competent to determine all matters of defense, and the de- fendant pleads a part of them (with knowledge of all) and is defeated, he can not bring the remainder of his defenses into equity and obtain relief.' Of course, if the law-court has no 1. Casey v. Cooper, 99 N. C. 395 equitable set-off excluded at law; (6 S. E. R. 653). Bosquett v. Crane, 51 Cal. 505. 2. Arnold v. Woodward, 14 Colo. 5. Dorsey v. Reese, 14 B. Mon. (53 164 (23 Pac. R. 444)— Elliott, J., dis- Ky.) 157. senting. 6. See Jarboe v. Severin, 112 Ind. 3. See § 183, supra. 572 (14 N. E. R. 490), page 469, supra. 4. Lorraine v. Long, 6 Cal. 452; 7. Hempstead v. Watkins, 6 Ark. Hobbs V. Duff, 23 Cal. 596, 626— an (1 Eng.) 317,362, relying upon LeGuen 472 THE MERITS. power to hear an equitable defense, the failure to present it can not bar it.' So, if it is presented and decided, the result is the same. Thus, A sold land to B and received the consideration and made him a deed, and then the parties agreed to rescind and the consideration was repaid, but the deed was not rede- livered. A then sold and conveyed to C, after which B record- ed his deed and recovered the land from C in ejectment. C was then permitted to proceed in equity to cancel B's deed, al- though the question in respect to the rescission was litigated at law, because that court had no power to decide the ques- tion.^ § 186. Exemption of homestead — Ejectment. — The right to a homestead is destroyed by a recovery upon a superior title.' Foreclosure. — As a general proposition, a suit to foreclose a mortgage or lien calls upon the defendant to set up all his de- fenses, including that of homestead ; and an absolute decree will bar it.* V. Gouvemeur, 1 Johnson's Cases 436 (1 Am. D. 121, 126) which is precisely in point. AVilliams v. Jones, 10 Sm. & M. (18 Miss.) 108 holds that if a matter can be used as a defense at law it can not be used in equity to en- join the judgment. 1. Parker v. Shannon, 137 111. 376 (27 N. E. R. 525)— equitable defense in ejectment; Terrettv. Cowenhoven, 11 Hun (18 N. Y. Supr.) 320— equit- able defense by person holding over; Lowder v. Noding, 8 Ired. Eq. 208— principal at law became surety in equity. Numerous other cases are to the same effect. 2. Love V. Belk, 1 Ired. Eq. 163, 173. 3. Nichols V. Dibrell, 61 Tex. 539, 542. 4. Dodd V. Scott, 81 Iowa 319 (46 N. W. R. 1057; 25 Am. St. R. 492). The court said: "A point urged in argu- ment by appellant is, that the hus- band, who was a party to the fore- closure proceeding, can not, in this case, set up the homestead right of the wife as a defense, and it seems difficult to gainsay the proposition. With the amendment, the plea ap- pears to be one personal to the de- fendant ; that is, he does not seek to defend for his wife, but for himself, because of a 'right and possession' acquired ' through the homestead right of the wife.' Being a party to the foreclosure suit, if he had a home- stead right available to him as a de- fense, he was bound to interpose it, or lose it. Now the wife was not a party to that proceeding, and any rights he had available to him be- cause of the wife's homestead right (if there could be any) was just as available for defense in that suit as in this, and just as available then as any other right he had. We must assume, then, that all rights personal to the defendant have been adjudicated or waived, and that under the claim of the demurrer, because of the wife not DEFENSES OMITTED. 473 Fraudulent conveyance set aside. — A decree setting aside a conveyance as a fraud on creditors and directing its sale bars homestead rights, as they should be used as a defense/ But if A, who has a judgment against B, which is a lien on his land, sues B and C, alleging that C has a mortgage on the land given to defraud creditors, and praying that the land be subjected to the payment of his judgment, free from all claims of C, a de- fault as to B, and a decree granting the relief prayed for in re- spect to C, does not affect B's homestead rights.^ Partition. — If the heirs sue for partition and make the widow a party, and she claims dower but no homestead right, a decree selling the land bars her homestead, and she can not recover it from the purchaser.' Probate court, in. — If the probate court has no power to set off a homestead to the widow and children, an order of sale will not bar that right.* Subsequent matters. — In order to have a homestead ad- judged to a person, he must own the property, occupy it as a residence, and have a family dependent upon him for support. If any of these things cease, the homestead adjudication is terminated.® being a party tc this suit, no claims Ann. 1019 (10 S. E. 365)— a removal based on her homestead rights are from the premises. The court said: available as a defense." Honaker v. "The plea of res judicata, based on Cecil; 84 Ky, 202 (1 S. W. R. 392) ; the former judgment, was rightly Baxter v. Dear, 24 Tex. 17, 21 ; Chil- overruled. The issues in the two son v. Reeves, 29 Tex. 275, 281; Ham- cases are radically different. In the nier v. Woods, 6 Tex. Civil App. 179 first, Walker claimed a homestead (24 S. W. R. 942)— foreclosure of a exemption based upon the allegations, landlord's lien on chattels. among others, that he was the bona 1. Snapp V. Snapp, 87 Ky. 554 (9 S. fide owner and occupant of the prt-;- W. R. 705) ; Hill v. Lancaster, 88 Ky. erty claimed as his homestead; and 338 (11 S. W. R. 74). under that state of facts the judgment 2. Shirland V. Union National Bank, decreed the exemption. Now IMartin 65 Iowa 96 (21 N. W. R. 200). alleges that he has since parted with 3. Wright V. Dunning, 46 111. 271 both ownership and occupancy, and (92 Am. D. 257). the issue is whether the homestead 4. McMaster v. Arthur, 33 S. C. 512 exemption continues or has been lost. (12 S. E. R. 308). We have so recently considered the 5. Denis v. Gayle, 40 La. Ann. 286 nature and effect of such a judgment (4 S. R. 3) ; Martin v. Walker, 43 La. that nothing more is necessary than 474 THE MERITS. § 187. Exemption of personal property and wages. — An or- der in Indiana to sell property attached bars all exemption rights.* If exempt property is seized in Iowa on a writ of attachment issued by a justice of the peace, the defendant may have his exemption in that action. But if he suffers a judgment and order of sale to go by default, the court decides that he can then maintain replevin for the property against the constable, by proving the exemption, upon the ground that that issue was not made in the original case.^ The Indiana case seems to me to be more in harmony with sound principle. If A has wages which are exempt, and B assigns a claim against him to a resident of another state, who there collects the wages by garnishment, A can sue B and recover their amount in the home state, and B can not shelter himself behind the foreign judgment.^ This case seems to me to be sound. The defendant is to quote our former language: 'Plaint- 3. O'Connor r. Walter, 37 Neb. 267 iff does not in any manner question (55 N. W. R. 867). The court said: "It the correctness of the judgment in its disposition of the issues then tendered to the court for solution ; hence he does not put at issue the right of Gayle to his homestead, as therein recognized, under the conditions and circumstances then existing. His contention is simply that, the reasons on which the judgment was founded, and from which it derived its vitality, having ceased to exist, the judgment itself has become extinct, without force or effect or life. The issues which he now tenders had no being or existence at the time the judgment was rendered; hence they were no elements in the consideration of the cause, and therefore the judgment could not be res judicata as to his pres- ent cause of action.' Denis v. Gayle, 40 La. Ann. 286, 4 South. Rep. 3; Calvit r. Wilhams, 35 La. Ann. 322; Lcm- unier v. McCearly, 37 La. Ann. 133." 1. Perkins v. Bragg, 29 Ind. 507. 2. W^ilson V. Stripe, 4 G. Greene 551 (61 Am. D. 138). is true the court in which suit was brought by West had jurisdiction of the garnishee, which operated its line of railroad as well in Iowa as Nebras- ka, and that, therefore, the amount was lost to Walter beyond recov- ery, as against the garnishee. But why should this operate in favor of O'Connor, who v/as the prime mover in this garnishment proceeding ? In all respects the deprivation of this ex- emption was harsh and effectual. Let us suppose the exemption was of a specific article of personal prop- erty. It would be unquestioned that, if he appropriated it to his own use in this state, O'Connor would be liable to Walter for its value. Instead of its being appropriated in this state, let us suppose that this property was found and appropriated by O'Connor in Iowa. V/ould his liability for its value in the courts of Nebraska be in any way modified by that fact ? Would it at all relieve of liability for him to show that his duly-authorized DEFENSES OMITTED. 475 not bound to go into a foreign jurisdiction to make defense. Suing the plaintiff in the home state was not a collateral attack on the foreign judgment. See Van Fleet Coll. Attack, section 547. § 188. Fee-bill. — If a motion to quash a fee-bill is passed upon and it is corrected and a new one ordered, that will bar a new motion, as the party ought to have had all the correc- tions made on the first motion „' § 189. Forcible entry and detainer, or tenant holding: over. — As the title can not be put in issue in actions of forcible en- try and detainer, the judgment does not affect it.^ Thus, the statute of Illinois havr.ng authorized the purchaser, under a power of sale in a mortgage or deed of trust, to recover pos- session by an action of forcible detainer before a justice of the peace, the recovery is no bar to a suit in equity to cancel the purchase on account of deviations from the power, because the juSitice had no jurisdiction to consider those questions.^ And fop the same reason, the person dispossessed may afterwards recover the possession as owner.* A mortgagee, having adver- tised and sold the mortgaged premises and obtained a sheriff's deed, brought suit before a justice of the peace to obtain pos- session, and recovered o This judgment was first removed to the district court upon certiorari, where it was affirmed, and then agent in Iowa converted the property other, nature, requires mutuality be- to the use of O'Connor? Certainly tween the parties to render it effective, not; and there is no appreciable dif- If O'Connor is entitled to the benefit ference, in princjplc, '.jetween the of the judgment pleaded it must ap- . Ames, 6. Fowler v. Shearer, 7 Mass-. 14, 2 Cowen 428; Binck v. Wood, 43 22 ; Nettleton w. Beach, 107 Mass. 499. Barb. 315; Swensen v. Cresop, 28 O. 7. Snow v. Prescott, 12 N. H. 535, St. 668; Davis v. Murphy, 2 Rich. 539— overruling Tilton v. Gordon, 1 Law 560 (45 Am. Dec. 749) ; Wilson v. N. H. 33; Dudley v. Stiles, 32 Wis. Cameron, 1 Kerr (N. B.) 542; Soren- 371, 375. son V. Smart 5 Ontario 678. DEFENSES OMITTED. 491 Priorities. — In a suit to foreclose the liens of those who have furnished materials for the erection of a building, if there is any reason why a party should have a priorit3'- over another, he must bring it forward, or he will be concluded.* §199. Quieting title. — A suit to quiet title calls upon the defendant to bring forward all his rights and titles, and they are all barred by a decree in favor of the plaintiff, even if ren- dered upon default.^ Thus, if the owner of an adjoining par- 1. Potvin V. Denny Hotel Co., 9 Wash. 316 (37 Pac. E. 320) . 2. Green v. Glynn, 71 Ind. 336— a tax lien ; Farrar v. Clark, 97 Ind. 447, 450; Smith tJ. Baldwin, — Iowa — (52 N. W. R. 495)— a right of way. The court said : "The plaintiff insists that the decree imposing a burden by way of an easement on lot 12, which operates to the advantage of the de- fendant by conferring upon him an interest in the lot, is wrong, because the rights of the parties in lot 12 were fully and completely adjudicated by the former suit, in which Baldwin was the plaintiff, and Smith the de- fendant. It appears to us that this position must be sustained. That part of the decree in the former case which appears to us to be a final ad- judication of the rights of the parties to each and every part of lot 12, and to any and all claim thereto, is as fol- lows : 'It is therefore considered, ad- judged, and decreed by the court that plaintiff's petition, in so far as it re- lates to lot twelve (12) aforesaid, and seeks a conveyance of an interest therein from defendant, and account- ing as to the profits therefrom for its rents and net income be, and the same is hereby, dismissed, and said relief prayed be, and the same is hereby, denied, and the title to lot twelve ( 12) ,in block four (4), in the city of Clinton, Clinton county, Iowa, be and the same is hereby confirmed and quieted in said defendant free from any and all claims, legal or equitable, thereto, or any part thereof, of said plaintiff, his heirs or assigns, to which the plaintiff at this time duly ex- cepts.' Surely the right to the use of the stairway and nearly the whole of the second story of that part of the building which stands on lot 12 is a most important interest therein ; and the adjudication thus made was squarely within the issues as raised by the pleadings. It is true the plaint- iff in that action did not claim that he w^as entitled to an easement in lot 12, and the defendant did not deny that fact; but each party claimed to be the owner of the lot. This included the full ownership, as well as all claims of any interest in the property. It is needless to cite authority in sup- port of the fundamental rule that, if rights of property are once ad- judicated in an action between the same parties, it is the end of all legal controversy touching the same ques- tion, and the matter must be con- sidered as forever at rest. In the case at bar the adjudication was, in a sense, direct and express. But if this were not so the law is well settled that a party can not relitigate matters which he might have had determined in the former case. Hackworth v. Zollars, 30 Iowa 433 ; Ebersole v. Lattimer, 65 492 THE MERITS. eel is made a defendant to answer to his interest, a decree, by default, fixing the boundary and quieting the plaintiff's title up to it, bars the defendant from claiming beyond it.^ So, if the plaintiff claims title by virtue of a sheriff's deed, a decree quieting his title prevents the defendant from showing, in a new suit concerning the land, that the deed is void on account of a misdescription.^ Pending suit, new title. — And if the defendant receives a deed from a third person pending the suit, but fails to plead it by supplemental answer, his rights under it will be barred by the decree in favor of plaintiff.^ Subsequent title. — A, having sued B to quiet title to land, alleging that an Indian had become the owner by virtue of complying with the stipulations of a treaty with the United Iowa 164 (21 N. W. Rep. 500) ; Willard V. Calhcun, 70 Iowa 650 (28 N. W. Rep. 22) ; Bates v. Spooner, 45 Ind. 489, 493 ; EwingtJ. McNairy , 20 Ohio St. 315, 322. There are probably cases in which, although the question was within the pleadings, yet as the decree or judg- ment affirmatively shows that the mat- ter was not adjudicated, it has been held that there is no adjudication. But we think that if the matter in con- troversy is fairly in issue, and is em- braced in the judgment and decided, although the judgment may be gen- eral, and not specific upon the very question, the rule ia uniform that it is the end of all controversy on that matter. It is not a question to be determined whether that decree was right or wrong. When Baldwin made his claim to lot 12 in the former ac- tion, and when Smith, in his answer and cross petition, claimed that by reason of his title under the sheriff's deeds 'all the interest of said plaintiff (Baldwin) in said property became absolutely extinguished,' and prayed that his (Smith's) 'title thereto be by decree herein established and quieted in him as against any and all claims and pretenses to interest of plaintiff therein,' Baldwin was called upon to make any claim of any interest which he had ; and not having done so, and having permitted the decree to be en- tered as it was, he is forever estopped from questioning its validity. It is to be remembered that Baldwin claims an interest in the property. It is not a mere claim for reimbursement for payment of taxes on the land, as in Mer- rill V. Tobin, 82 Iowa 529 (48 N. W. Rep. 1044). It is an interest in the land itself, and not a mere lien to be worked out and established by the aid of a court of chancery. It should have been claimed when it was sought to quiet Smith's title and cut off all or any interest which Baldwin had in the lot." Board of Commissioners «. Welch, 40 Kan. 767 (20 Pac. R. 483) ; Burton v. Huma, 37 Fed. R. 738. 1. Satterwhite v. Sherley, 127 Ind. 59 (25 N. E. R. 1100). 2. Hackworth v. Zollars, 30 Iowa 433, 436. 3. Reed v. Douglas, 74 Iowa 244 (37 N. W. R. 181) . See § 127, supra. DEFENSES OMITTED. 493 States, and that he had purchased the Indian's title, and the defense having been that the Indian had not complied with the treaty, and that the defendant had located a "float" upon it, a decree for the plaintiff was held to be a bar to a subse- quent action by the defendant to recover the land upon the ground that, since the first suit, he had procured a patent from the United States, although, confessedly, they, the United States, were not bound by the decree.* As both parties claimed through the United States on the first trial, the decree was conclusive that the plaintiff then held their title. § 200. Replevin — Return awarded and value fixed without deducting lien of adverse party. — By the law of Indiana, although a chattel mortgage vested the legal title in the mort- gagee, yet the interest of the mortgagor, even after the mort- gagee had taken possession, was subject to be sold on execution, which gave the officer the right to take possession and hold it until he could sell. In such a case, in which the sheriff right- fully took the goods from the mortgagee, the latter brought replevin, alleging that he was the owner and entitled to their possession, and that the sheriff had wrongfully taken and unlawfully detained them, and prayed for their recovery and damages for their detention, and got possession at once by virtue of a bond. After a trial upon proper issues, a judg- ment was rendered that the defendant have a return of the goods, or that he recover their value, being two thousand nine hundred dollars, and costs. The plaintiff, having failed to return the goods, the sheriff sued him on his bond, for their value, and he sought to show that he had converted them into cash, that they were worth only eighteen hundred dollars, and that his mortgage was a lien on them superior to that of the sheriff's execution and sufficient to exhaust their entire pro- ceeds, but it was decided that he could not do so ; and a judg- ment in favor of the sheriff for fifteen hundred dollars, the amount due on his execution, was affirmed.^ In this case the 1. Land v. Keirn, 52 Miss. 341, 349. 2. Landers v. George, 49 Ind. 309— See §147, supra. Buskirk, C. J., dissenting. 494 THE MERITS. sheriff was entitled to a judgment for a return of the goods ; but if the mortgage was a superior lien, his damages, in case a return should not be made, would be the amount which the value of the goods exceeded the mortgage ;^ and the mortgagee ought to have seen to it that no larger judgment was rendered. But not having done so, his attempt to show that fact in defense to an action on the bond was a collateral attack on the former judgment, and could not succeed because jurisdiction was not wanting. In a later case in Indiana, a sheriff seized the goods of A by- virtue or a writ against him, and B replevied them and obtained their possession by virtue of a bond, and, after a trial, there was a judgment for their return, or for their value, fixed at $900. The goods not being returned, the sheriff brought suit upon the bond, and the answer was, as to the sum of $849, that B had a chattel mortgage on the goods for that sum, which was a lien prior to the sheriff's execution, and that this debt was unpaid and was greater than the value of the goods, and that the court rejected his mortgage, which was all the evidence he offered on the trial, and that, therefore, no matter was adjudicated except the admissibility of that evi- dence. This answer was held bad because the judgment was conclusive, not only as to the ownership of the property, but as to its value. This seems to be upon the ground that B ought to have had all his rights adjudicated in that action.* The federal court, sitting in Indiana and administering its law, holds that if there is a sale on condition that the title shall not pass until payment, and the vendee resells the property, after which the vendor replevies upon the ground that the goods were not paid for, and recovers their whole value, which the vendee pays, that will not bar a suit in equity by the latter for an ac- counting, because the money paid stands in lieu of the goods. The sole object of the replevin suit was to obtain possession of the goods in order to hold them until the balance due was paid.* It is held by the supreme court of Maine that the return of the 1. 1 Sedgwick on Dam., § 78. 3. Crawford v. Edgerton, 39 Fed. R. 2. Smith V. Mosby, 98 Ind. 445, 447. 523. DEFENSES OMITTED. 495 goods to the defendant pending the suit, should be used as a defense against a judgment for their value; and that if it is not, it can not be shown in defense to a suit on the bond for failure to pay the value as adjudged/ But it is ruled in Massachusetts that, in an action on the bond for a failure to return the goods according to the judgment, the defendants may show that the plaintiff was merely a joint owner, and may prove the value of his interest, if those matters were not contested in the original case.^ In Illinois, by statute, if the merits of a replevin suit are not tried, the plaintiff, if sued on his bond, may show title in mitigation of damages.^ § 201. Replevin — Eetiirn awarded but no damage given for injury to property. — If the plaintiff in replevin in Tennessee obtains the possession of the property, and is defeated, and a return is adjudged but no damages assessed, it is held that, al- though this may preclude an action for damages caused by the detention, it will not bar an action for injuries done to the property while in the plaintiff's possession. The court says that the property being in the possession of the plaintiff, the 1. Buck V. Collins, 69 Me. 445. and his title to the property in dis- 2. Leonard v. Whitney, 109 Mass. pute in said action of replevin.' The 265. appropriate pleas were filed by the 3. Hanchett v. Gardner, 138 111. 571 defendant, Gardner, setting up that (28 N. E. R. 788). The court said: the merits had not been determined "On the trial of the action of re- in the replevin suit in which the plevin, and after the evidence had bond sued on in this case had been been submitted to the court, sitting as given, and title in himself to the prop- a jury, by both parties, the plaintiff erty in dispute. By submitting to a elected to take a nonsuit, and judg- nonsuit in the replevin case the plaint- ment was thereupon entered against iff therein withdrew the cause from him for costs, and a return of the the consideration of the court, and property awarded. It is now in- the merits were not determined in a sisted that the title of the property 'trial of the action in which the bond can not be litigated in this action was given.' No question was deter- upon the replevin bond. Section 26, mined in that suit relating to the title c. 119, Rev. St., pro%'ides: 'When the to that property or the merits of the merits of the case have not been de- controversy, and the plaintiff therein termined in the trial of the action in might, when sued upon the replevin which the bond was given, the de- bond, plead and prove his own title fendant in the action upon the re- to the property in mitigation of the plevin bond may plead that fact damages to be recovered." 496 THE MERITS. defendant could not know that it was injured or be prepared to prove it.' § 202. Revivor. — In a suit in Louisiana to revive a judg- ment, the answers were that the defendant had never been legally cited to appear, and that she had never signed the obli- gations upon which the judgment was founded, but she was defeated, and this was affirmed on appeal. She then sought to restrain an execution issued upon the judgment because she had never been cited to appear. The supreme court said : "In the suit to revive, the question as to the want of citation this court deemed unnecessary to decide. The plea of res judicata, therefore, so far as it relates to the want of citation in the orig- inal suit, can not apply. "^ It seems to me that this case is wrong. I think the suit to revive called upon her to show all her causes and reasons why that relief should not be granted, and if she failed to do so it was her own fault. She was given two days in court, although entitled to but one. It is held in South Carolina that all defenses must be brought forward in a suit to revive or they will be barred . In this case the judgment had been confessed by a married woman and was void.' 1. Colby V. Yates, 12 Heisk. (59 Has it not already been adjudged — is Tenn.) 267. it not now res judicata ? It seem to 2. De St. Romes v. Carondelet, etc. us that it has been, and is now be- Co., 24 La. Ann. 331. yond our reach. When a question 3. Crenshaw v. Julian, 26 S. C. 283 has once been determined by a court (2 S. E. R. 133). The court said: of competent jurisdiction, in a proper "We agree with the circuit judge that proceeding for the purpose, with the the judgment was originally void as proper parties before it, that question to Sarah Julian, if that question were can not afterwards be mooted be- now open to our consideration. It tween the same parties, however er- was taken prior to the adoption of the roneous the determination may have constitution, when Mrs. Julian labored been. This doctrine is so well set- under all the disabilities incident to tied, both upon reason and authority, her condition as a married woman at that it is wholly unnecessary to cite common law, and she certainly had authority to sustain it. The practical no power then to bind herself or her inquiry then is, whether or not this estate by a confession of judgment, question has been so determined. We But, granting all this, the material in- think it has. When these defendants quiry still remains whether or not the were summoned to show cause why question of the validity of the judg- the judgment should not be revived, ment is now open for consideration, and a new execution issued, that DEFENSES OMITTED. 497 See Van Fleet's Collateral Attack on Judicial Proceedings, sec- tion 580, and title "Revivor," in index. § 203. Summary proceeding;. — A judgment against a tax collector on a summary proceeding conclusively fixes the amount due in a subsequent civil suit.^ Sureties RELEASED. — The sureties on a restitution bond in attachment, being called into court upon a motion for judgment against them on the bond, must bring forward all matters of defense, such as that the creditor has released property of the principal debtor, subject to be sold to apply on the debt, or they will be barred.^ § 204. Trespass to try titles. — It is held in Alabama that this action does not conclude the title,' while in South Carolina it is ruled that a recovery by the plaintiff bars all the defend- ant's titles.* A mortgage was executed to a firm in Alabama, and afterwards the land was sold on execution in favor of a third person, and one of the mortgagees bought and received a sheriff's deed. He then brought an action of trespass to try titles, and to recover possession, with damages, against the as- was the proper time to raise the judicated between these same par- question of the vahdity of the judg- ties, and is not now res judicata; and, ment ; and, though not in fact form- as we have said, we think it is, and ally raised, it must necessarily have therefore can not now be reopened, been then adjudged ; for, until it was even though the adjudication may determined there was a valid judg- have been wholly erroneous. In Chal- ment, of course there could properly mers v. Turnipseed, 21 S. C. 126, be no order that the plaintiff should it was held that an assignment of have execution thereof. It will be homestead, though clearly illegal and observed that this is not a question erroneous, not resisted and not ap- whether or not something that was ab- pealed from at the time, could not solutely void could afterwards be vali- afterwards be assailed as a nullity by dated. If it were, then the argument any of the parties to the proceeding." of the counsel for respondent would 1. State r. McBride, 76 Ala. 51, 58. have much force. That, however, was 2. Bedwell v. Gephart, 67 Iowa 44 a question which could and should (24 N. W. R. 585). have been made in response to the 3. Camp v. Forrest, 13 Ala. 114; summons to show cause whj^ the ex- Mitchell v. Robertson, 15 Ala. 412. ecution should not be renewed. But 4. Caston v. Perry, 1 Bailey's Law the inquiry here is whether that 533 (21 Am. D. 482). question has not already been ad- 32 498 THE MERITS. signee of the equity of redemption, and the record read: " This day came the parties by their attorneys ; and it appearing to the satisfaction of the court that the defendant has voluntarily abandoned the possession of, and all claim of title to, the prem- ises sued for, and that the plaintiff has taken possession," a jury was impaneled to assess damages, which they fixed, and the judgment rendered was, " that the plaintiff recover of the defendant the sum of two hundred dollars, his damages assessed by the jury, and also his costs of suit. " Afterwards the owner of the equity of redemption filed a bill to redeem from the mortgage, and the judgment in the trespass action was set up in bar, but it was decided that this judgment did not show that the damages recovered were based on a source independent of the mortgage ; and that the title acquired by the plaintiff in that action by virtue of the purchase at the sheriff's sale was void, and that the prior judgment was no bar.* § 205. Trustee's report — Exceptions to — Reservation in deed. — A trustee, upon a sale ordered by a court of equity, re- ported one subject to a certain reservation, and the purchaser filed exceptions upon the ground that no reservation was made, but on the hearing no evidence being offered to sustain the ex- ceptions, the report was confirmed. This was decided to be a bar to an action at law by the purchaser on the trustee's bond for making a false report in respect to the reservation. The counsel contended that the point was not adjudicated because no evidence was heard, confusing the doctrines of res judicata and collateral attack.^ § 206. Usury. — A judgment on a note by default bars an action to recover usury paid.' And in a suit for maliciously suing out attachment proceedings, the plaintiff can not show that the judgment recovered against him covered usurious interest, as that was a defense he had the opportunity to make.* 1. Barron v. Paulling, 38 Ala. 292, 3. Charles v. Davis, 62 N. H. 375. 296. 4. Jones v. Kirksey, 10 Ala. 839. 2. State V. Ramsburg, 43 Md. 325, 334. Accord, Bruner v. Ramsburg, 43 Md. 560. See Van Fleet Coll. Att., § 17. DEFENSES OMITTED. 499 So, if an action at law is brought on a bond secured by a mort- gage, a recovery bars the defense of usury in a suit to foreclose the mortgage, because the former action afforded an opportunity to make that defense.* 1. Morris v. Floyd, 5 Barb. 130, 132. CHAPTER VII. ESTOPPELS. § 207. Principle involved in Chapter § 212. Failure to deliver goods, es- VII. 208. Administrator's void sale — Averments of pleading in Louisiana — Benefits taken. 209. Breach of warranty. 210. Cause of action split — Corpo- ration or partners — Dower or no dower. 211. Entirety of land and ma- chinery — Estoppel against estoppel. topped to show — Foreclos- ure, void. 213. Lease — Eenewal of note. 214. Set-off credited in the com- plaint. 215. State court decision and fed- eral decision — Title — Waiver of res judicata — Witness, judgment does not prevent person from being. § 207. Principle involved in Chapter VII. — If one who is not bound by a judgment so conducts himself that his adver- sary will be defrauded unless he is bound, he will be estopped to claim that he is not. So also, he is estopped from main- taining inconsistent positions to the detriment of his adversary. Thus, a party who accepts and retains the money awarded him in condemnation proceedings, is estopped to deny their force, although the amount given exceeds the jurisdiction of the court.* § 208. Administrator's void sale. — An administrator filed a petition in Indiana to sell land to pay debts, and jurisdiction was obtained over the insane widow by an assent to the sale in writing filed by her guardian. After the sale, her guardian brought an action in partition to have her share set off, and described the land sold by the administrator, and asked to have its value considered in the division, and that her share 1. Denver City Irrigation and Water Pac. R. 565). See Van Fleet, CoU. Co. V. Middaugh, 12 Colo. 434 (21 Attack, §§860-867. (500) ESTOPPELS. 501 be set off in the remaining lands, all of which was done. The guardian afterwards, conceiving the administrator's sale to be void, brought a suit for partition of the land so sold, but he was held to be estopped by his former proceedings.^ Averments of pleading in Louisiana. — In Louisiana a party is estopped to contradict what he has judicially averred to be true in a previous action against the same person.^ Thus, if a debtor fraudulently places his property in the name of another and denies ownership, and his creditor obtains a decree setting aside the transfer, the debtor is estopped by the judicial declaration in his answer denying ownership, from claiming the property as his homestead.* The law in that state seems to be particularly discouraging to dishonest debtors. Benefits taken. — One who voluntarily acquiesces in a judg- ment, and receives money under it, is estopped to controvert it, although it would not be technically res judicata.* § 209. Breach of warranty. — If a person purchases a reaper and gives three notes, and is sued upon the first one and pleads a breach of warranty, upon which he recovers a judgment for the full amount of the three notes, upon the theory that the other two are outstanding and wall have to be paid, he is estopped to make the same defense when sued upon them. In other words, he can not keep the machine and recover its value without repaying it.^ So, if a vendee, in possession of land, 1. Smock V. Eeichwine, 117 Ind. 194 probable, under the authorities cited, (19 N. E. R. 776). that had the sole question presented 2. Bender v. Belknap, 23 La. Ann. in the other case been that of the 764. failure of the consideration of the 3. Gilmer v. O'Neal, 32 La. Ann. note it might have been treated in 979, 983. " this case as an adjudication in favor 4. Canal Bank v. Lizardi, 20 La. of plaintiff in error upon the merits of Ann. 285, 290. this case. But upon an examination 5. Knorr v. Peerless Reaper Co., 23 of the answer presented in that case. Neb. 636 (37 N. W. R. 465). The we find not only the allegations con- court said: "The only question pre- tained in the answer in this case, but sented by the record is as to the effect also a prayer for affirmative relief, of the adjudication in the former suit, which was granted. The amount of Each party seems to insist that the damages awarded by the court was result of that trial must be taken as equal to the purchase-price of the ma- final in his behalf. We think it quite chine. In that answer, we find the 502 THE MERITS. recovers the entire purchase-price and interest, that will bar a new action on another covenant in the deed after an eviction, because the first judgment is based on the theory that he re- ceived no title, and it was his own wrong to remain in posses- sion.^ The court said : "The contention of the counsel of the complainant is, that since the former suit he has been evicted, and put to expense, and that, although he can not again de- following allegation : 'The defendant says that two of said notes, to wit, one for $45 and one for $50, with interest on both notes from July 5, 1880, are negotiable notes, and are now out- standing, and that plaintiff has either sold the said notes and received the proceeds thereof, or the said plaintiff now holds the said notes against this defendant.' The action being upon a note for $50 it was of course canceled by that suit. If the verdict of the jury, to the extent of the amount for which judgment was allowed, was founded upon the matter of damages alone for the breach of warranty, the judgment, added to the amount of the note and its interest, would be a find- ing in favor of plaintiff in error to the extent of over $200, as he received an affirmative judgment for $145. But, in any event, the actual recovery in favor of plaintiff in error was the $145. While it is true that the testi- mony in that case is not all certified to this court in the case at bar, yet it can hardly be supposed that, under the rule stated in Aultman v. Stout, 15 Neb. 586, 19 N. W. Rep. 464, this amount of damages could have been allowed, without taking into consid- eration the fact that these notes were outstanding, and were to be paid by plaintiff in error. The defenses in both cases were not simply a failure of consideration, but they were based upon a breach of warranty in the sale of the reaper. Had plaintiff in error brought an independent action for damages growing out of the breach of warranty in the sale of the reaper, and recovered his damages, which he might have done, we think it could not be doubted but that that action would bar his right to plead such breach of warranty in this case. Mc- Donald V. Gregory, 41 Iowa 513. A careful examination of the answer filed in the suit upon the first note to mature, it seems to us, can result in no other conclusion than that it was a count for damages by reason of a breach of warranty, which incident- ally presented the defense of failure of consideration. The contract out of which the indebtedness arose was one and indivisible. It was entered into at one time, between the plaint- iff on the one hand, and defendant on the other, and upon one considera- tion. Plaintiff in error's right of ac- tion upon it was also indivisible. He could not maintain a cross-action in the former case for his damages by reason of the breach of warranty, plead the execution of the other notes and his indebtedness thereon, recover dam- ages to the full amount of his whole indebtedness upon the theory that the notes outstanding were negotiable and would have to be paid, and again, in this action, maintain the same defense. In this particular his rights were adjudicated by the former action." 1. Leggett V. Lippincott, 50 N. J. Law 462 (14 Atl. R. 577;. ESTOPPELS. 503 mand the purchase-money, he has a right to compensation for the injury and loss thus sustained. But this position, in view of plain legal principles, is entirely illogical. Its fallacy is that it takes no account of the force of the former judgment. By that judgment it was conclusively established that the plaintiff had no title to these premises, so that, if he afterwards retained them in possession, he committed a manifest wrong, the ill effects of which he can not now cast upon another. When he took a judgment against the defendant for the pur- chase-money, he admitted on the record that he had no title to these lands, and it was a tort in him to hold them against the real owner ; and, if he suffered the costs of being ousted, he has no one to complain of but himself. By taking his first judgment, and raising, under it, the consideration money and interest, the plaintiff parted with all interest in the premises ; so much so that afterwards the defendant could have main- tained an ejectment against him in the face of his own deed, for he could show, by a judgment of record, that it had been conclusively declared to be inoperative and void. With respect to the position that it is not clear upon the record that the plaintiff may not have the right to recover more than he has recovered, inasmuch as the warranty may have been made in fraud, the answer is twofold : In the first place, no fraud is alleged in the declaration; and, in the second place, if there was fraud found in the covenant now sued on, the other cove- nant was subject to the same taint, and if larger damages, on this account, were recoverable, they should have been em- braced in the first suit." § 210. Cause of action split. — A landlord, after four install- ments of rent were due, brought four separate suits before a justice of the peace, all of which the parties tried on their merits without objection. The defendant paid two of the judg- ments and appealed to the court of common pleas from the other two, and there sought to plead the paid judgments in bar ; but it was decided that it was too late for him to do so, as he was estopped by his conduct before the justice 1. Fox V. Althorp, 40 O. St. 322. 504 THE MERITS. Corporation or partners. — If a person procures a judgment in Louisiana against a company as a corporation, he is estopped to sue the members as partners.^ Dower or no dower. — If a widow owns land in her own right, but acquiesces in its sale as the land of her desceased husband, the purchaser can not defeat her right to dower by showing that her husband never was seized, as that question is res judicata.^ The court said: "It is urged that the purchaser is not estopped from denying seizin in the husband by reason of the previous adjudication in this case that the land did belong to him, and, as such, was liable to be sold for the benefit of his creditors, of whom the purchaser was one. It will be ob- served, however, that the estoppel here relied on is that the matter is res judicata, and does not arise from any privity of estate between the husband and the defendant in dower. Hence the authorities do not apply which hold that, if the defendant in dower holds under a conveyance from the husband, that is only prima facie evidence of his seizin, and that the defend- ant is not precluded from showing that that seizin was of such a character — for example, that of a trustee — as would not give rise to the right of dower. Here, however, the adjudication that the land in question was the husband's, and, as such, liable to be sold for the payment of his debts, one of which was held by the appellant, amounted to a judgment that his seizin was of such a character as would support the claim of dower ; and the appellant being a party to the case in which such adjudication was made, partly at least, in his interest, is estopped, under the doctrine of res judicata, from again raising the question, when it becomes important to him to obtain a different adjudication from that already made." § 211. Entirety of land and machinery. — Land was conveyed in trust to secure a debt, and the mortgagor afterwards erected upon it a paper manufactory, and obtained by lease a supply of 1. Pochelu V. Kemper, 14 La. Ann. 2. Jefferies v. Allen, 34 S. C. 189 (13 308. S. E. R. 365). ESTOPPELS. 505 water as a motive-power. The trustee, by virtue of the power in the deed, sold the premises, excepting the machinery and water-power, and the mortgagor brought a suit and obtained a decree setting aside the sale upon the ground that the land, fac- tory, machinery and water-power constituted an entirety. This decree estopped him, in a subsequent suit, from contending that they were not an entirety and not covered by the deed.* Estoppel against estoppel. — If there is a judgment in favor of the defendant, and a later one on the same cause of action in favor of the plaintiff, there is an estoppel against an estoppel, which '* setteth the matter at large. "^ This case seems to me to be unsound. It cites no authority in point, and is opposed to well-considered cases in Iowa and Michigan,^ which hold that the last judgment is the controlling one. This must be so, because .each action calls upon the adverse party to show all the causes he has why the relief demanded should not be granted. And if he has a judgment which is a defense, he must bring it forward, otherwise the adjudication against him will bar his right to claim under that judgment as well as under any other defense. In a transaction in Minnesota, thirty-four notes were exe- cuted to A, and he afterwards brought suit upon fourteen of them, in which B intervened and claimed the proceeds, but A obtained a verdict, from which B appealed. While this ap- peal was pending, A sued upon the other twenty notes, and B again intervened and obtained a verdict and judgment. Mat- ters stood thus until A's right to appeal from this judgment was barred by lapse of time, when the decision refusing B a new trial in the first case was affirmed. B then moved the court below for an order perpetually staying an entry of judg- ment on the verdict in favor of A, and for an order to vacate it, and also for the entry of judgment on the fourteen notes in his favor, on the ground that the adjudication in his favor on the twenty notes was conclusive that he was entitled to 1. Hill V. National Bank, 97 XJ. S. 3. Cooley v. Brayton, 16 Iowa 10, 450, 452. 18; Bateman v. Grand Rapids & I. R. 2. Shaw V. Broadbent, 129 N. Y. 114 Co., 96 Mich. 441 (56 N. W. R. 28). (29 N. E. R. 238, 241) . See § 9, supra. 506 THE MERITS. the other fourteen. He also moved to set aside the verdict, and for leave to file a supplemental complaint showing the judgment in his favor, but all these motions were denied.^ § 212. Failure to deliver goods — Estopped to show. — If A purchases goods on credit of B which are in the possession of C, and he afterwards sues B for a failure to deliver and recovers a judgment by default, which is not paid, and he then sues C for their conversion, a recovery of their full value and a satisfaction of that judgment estops him from making any defense to a suit by B for the contract price. ^ Foreclosure, void. — A man owning land subject to a mort- gage married, and afterwards died. His widow, claiming to own the undivided one-third by inheritance, brought a suit for partition. The mortgage had been foreclosed and the land sold to a stranger, who was in possession. The claim of the widow was, that the foreclosure was void, leaving the mort- gage still in force, and she asked to have her share set off; but in case that she was not entitled to that, then she asked to redeem and for an accounting. The court held that the fore- closure was void, and set off her share. The mortgagee then brought a suit to foreclose, and she contended that the former proceeding in partition was a bar. But as she had admitted the existence of the mortgage in her former suit, and con- tended that its foreclosure was void, which theory was adopted by the court, it was decided that the former suit was no bar.* § 213. Lease. — If a lessee of land, being also a tenant in common with others of the reversion, files a petition in parti- tion, setting forth the title of the tenants as a present estate in fee, without noticing the lease, he is estopped from claiming his rights as lessee against a purchaser at the partition sale.* Renewal of note. — One who defeats an action against him on a note upon the ground that he renewed it by another note, 1. Reilly v. Bader, 50 Minn. 199 (52 3. Quick v. Brenner, 120 Ind. 364 N. W. R.522). (22 N. E. E. 326). 2. Vann v. Bubb, 11 New South 4. Morton v. Outland, 18 0. St. 383- Wales S. C. R. 268. ESTOPPELS. 507 is estopped to defend against the latter note because he gave it upon a condition which was not fulfilled ; otherwise, as to any want or failure of consideration of the original note.* § 214. Set-ofi credited in the complaint. — If the plaintiff gives the defendant a credit for a set-off in his complaint/ and the defendant does not repudiate it/ a recovery of the balance estops the latter from suing upon his set-off, except for any excess over and above the sum credited.* So, if an adminis- trator sues a person for converting goods, and the person sued afterwards files a claim in the probate court against the admin- istrator in which he credits the value of the goods taken, the allowance of the balance of the claim will bar further prose- cution of the action for conversion.' 1. Hooker v. Hubbard, 102 Mass. 239, 245. 2. Hudelmeyer v. Hughes, 13 Mo. 87. See §§ 300, 301, 421, infra, and 25, supra. 3. Ebert v. Long, 43 Minn. 235 (45 N. W. R. 226.) The court said: " In the former action Long formally al- lowed $794 to be credited to Ebert in that action, with some other items of credit, in reduction of his demand against Ebert. No other construction could be put upon this than that Long intended, by allowing that sum to be credited to Ebert in the judicial ad- justment of their accounts, thus to satisfy his obligation to Ebert in re- spect to the interest of the latter in the matter of the Hodsdon judgment. It was not a mere gratuitous deduction of $794 from his account against Ebert. The credit given in that matter by Long, in the account sued on, would be treated by the jury as a matter of course, as a credit, and payment pro tanto, unless in some manner the other party should disclaim or reject this allowance, which, considering only the matters then in issue, was for the apparent good of the latter. Under such circumstances, for Ebert to go on with the trial, and submission to the jury without renouncing that credit, must be deemed an acceptance of it, — a consent that it be allowed in his favor. No such disclaimer appears to have been made, and we find nothing in the case to oppose the conclusion to which the facts we have stated naturally lead. Treating this credit of $794, on account of the plaintiff's interest in the matter of the Hodsdon judgment, as having been allowed and taken into account in the former action with his consent, the conclu- sion follows that the recovery in this action, embracing the same matter, can not be sustained. The plaintiff having once voluntarily realized the benefit of this claim, in a manner then presumably satisfactory to him, and the other party having for his pur- pose relinquished from his own de- mand the amount thus allowed to the plaintiff, the latter can not again re- cover upon the same cause of action." 4. Minor v. Walter, 17 Mass. 237. 5. Williams v. Robinson, 63 Tex. 576. Accord, as to action for con- version commenced after judgment, is McWhorter v. Andrews, 53 Ark. 307 (13 S. W. R. 1099) . See page 508, infra. 508 THE MERITS. Likewise, a judgment by default upon an account in which the defendant is credited with the full value of services, is a bar to an action for those services brought during the pend- ency of the first action with full knowledge of the credit.* And if A sues B upon a contract to deliver hay, alleging a failure to deliver the quantity agreed upon, and also that the quality of that delivered did not fill the warranty, and, in his complaint, gives B credit for the amount of hay received, and also for potatoes received, and claims judgment for the differ- ence, a recovery by him bars a suit by B for the hay and pota- toes.^ Opposed to all these cases is one in Alabama, which holds that if the plaintiff credits a set-off, it is his own folly and no defense to an action upon it.^ It seems to me that that distinguished court might have found some principle of law to thwart such dishonest conduct. 1. Briggs V. Richmond, 10 Pick. (27 Mass.) 391 (20 Am. D.526). 2. Long V. Webb, 24 Minn. 380. 3. Wharton v. King, 69 Ala. 365. In McWhorter v. Andrews, 53 Ark. 307 (13 S. W. R. 1099), p. 507, supra, the court said : "In proceeding to answer the third question we will first state what we understand to be the legal ef- fect of the original answer, as follows : That theretofore, in a court of compe- tent jurisdiction, McWhorter had sued Andrews on an open account for $179.- 70, itemized, and showing charges for $1,838.50, for goods sold, and bearing credits aggregating $16,558.80, leaving a balance due as above, for which he claimed judgment ; that Andrews answered , and denied that he owed the sum so claimed, but afterwards such proceedings were had that judgment went against him for that amount, and is in full force; that there was credited on the account the sum of $1,561, proceeds of forty -two bales of cotton received from Andrews, which was its full value and of which the cotton now sued for was a part ; that it had been legally adjudged in that controversy, between these parties, that Andrews owed Mc- Whorter the sum of $179.70, after al- lowing him certain credits, embracing one for the full value of the cotton now sued for. Thus interpreted, did the answer allege facts that constitute a defense? The answer to this must depend upon the legal extent of a judgment as an estoppel. It is said to cover the whole matter in dispute, in the cause in which it is rendered, and every point decided between the parties, in the course of the proceed- ings which led to the judgment. The judgment itself operates as a bar, and the decision of a particular issue as an estoppel, but their conclusive effect is the same. 1 Herm. Estop., § 111, and cases cited ; Hanna v. Read, 102 111. 596; Hall v. Zeller, 17 Or. 381, 21 Pac. Rep. 192. Applying this rule to the answer in this case, Andrews is estop- ped to deny, that after receiving the credits before mentioned, including the value of the cotton in controversy, he owed McWhorter a balance of ESTOPPELS. 509 § 215. State court decision and federal decision. — If a suit has been commenced and tried in a state court and carried to the supreme court of the state and reversed, and is tlien dismissed and brought in the federal court, the law, as laid down in the state supreme court, must govern.^ Title. — If one claims to be the owner of property in Louis- iana, and is defeated because his title is fraudulent, that bars a claim by him as mortgagee.^ Waiver of res judicata. — If one against whom a judgment has been rendered sues to recover back a portion of it, and the defendant, instead of pleading the former adjudication, relies upon his original account as a set-off, the plaintiff is estopped to use the judgment to defeat his set-off for a greater amount than the former judgment.^ This plaintiff went out after wool and came back shorn, as the defendant recovered $302.93 more against him than his first judgment. So, if one who is entitled to use a judgment as an estoppel introduces evidence to show the truth of the matters covered by it, the adverse party may pursue the inquiry without regard to the estoppel.* 1179.70. The value of the cotton was was unauthorized, McWhorter could not in controversy in that suit, and have protected himself, and obtained neither party was called to offer any judgment for the amount thereby re- evidence upon it. Andrews is there- mitted ; it is now too late for him to fore not estopped to show, either that meet that contingency, for he has the credit was for different cotton, or, taken the judgment thus reduced. If if for the same, that its full value was Andrews objected to the credit, he not credited. In the latter event, in- should have done so in his answer ; stead of the former judgment being a but not doing so, he should be held complete bar, Andrews will be en- to have assented to it; to hold titled to recover the amount of his otherwise would be a manifest wrong, damage less the sum credited. Freem. Then if the value of the cotton con- Judgm., §280; Minor v. Walter, 17 verted was applied in liquidation Mass. 237; McEwen v. Bigelow, 40 of Andrews's debt, with his assent, Mich. 215 ; Briggs v. Richmond, 10 that extinguished his right to recover Pick. 391. Although it be true that damages for its value." McWhorter wrongfully appropriated 1. Hazard v. Chicago, B. & Q. R. R. the cotton, so much of its value as Co., 4 Bissell 453. was credited on the account sued on 2. Gridley v. Conner, 4 La. Ann. went in liquidation of a debt of An- 416. drews, and in his answer in the suit 3. Tibbetts v. Shapleigh, 60 N. H. against him he made no objection to 487, 490. that application of it. If he had done 4. Megerle v. Ashe, 33 Gal. 74, 84. so, and it turned out that the credit 510 the merits. Witness, judgment does not prevent person from being. — If a judgment is recovered on a note against the maker and indorser, and a new trial is granted to the maker alone, the judgment against the indorser does not prohibit him from tes- tifying on behalf of the maker that he paid the note before the suit was brought.' 1. Whitney v. Butts, 91 Ga. 124 (16 S. E. R. 649). CHAPTER VIII. THE ISSUES CONTESTED OR NOT CONTESTED. §216. Theissue— Function of— What §223. makes an issue. 217. Contest or no contest over an issue : ( General observa- 224. tions). 218. Contest or no contest — Eng- lish cases : (Installments of rent — Patent or no patent — Usury) — Indian cases. 225. 219. Contest or no contest — United . States cases : (Bonds — Bonds and coupons, bona fides not contested — Indorsement, validity of — Priority of min- 226. ing claim — Rent due on lease) . 220. Contest or no contest — Geor- gia cases : (Exemption) . 221. Contest or no contest — Illinois case: (Payment) — Louis- 227. iana case. 222. Contest or no contest — Massa- 228. chusetts case : (Adult- ery). Contest or no contest — Mich- igan case : ( Lease or no lease). Contest or no contest — Minne- sota cases : (Consideration of notes — School district dis- solved) — Missouri case: (Lease or no lease) . Contest or no contest — New York cases : (Generally — Fraud — Insurance policies — Lease or no lease — Unsound- ness of mind — Usury). Contest or no contest — North Carolina case: (Debts) — Pennsjdvania case : (Confes- sion) — Tennessee case : (As- sets exhausted) — Vermont case: (Right of way). Contest or no contest — Wis- consin case : (Title to land) . Contest or no contest— Issue of law : (Statute unconstitu- tional). § 216. The issue — Function of — What makes an issue. — Al- though an adjudication in respect to an issue bars any further controversy in respect to it, even in another suit about a differ- ent subject-matter, yet just what it takes to make an issue is a question about which there is much conflict and many close distinctions, as the careful reader of this chapter will observe. Thus, it is said in Connecticut that "To constitute an estoppel by a former judgment, the precise point which is to create the estoppel must have been put in issue and decided.'" And the 1. Smith V. Sherwood, 4 Conn. 276 ; Abbe v. Goodwin, 7 Conn. 377, 383. (511) 512 THE MERITS. supreme court of Maine says: "To ascertain whether or not a former judgment is a bar to present litigation, the true crite- rion is found in the answer to the question: Was the same vi- tal point put directly in issue and determined?"* But the su- preme court of Texas, citing Professor Greenleaf for its author- ity,^ says: "It is not necessary to the conclusiveness of the former judgment that issue should have been taken upon the precise point which it is proposed to controvert in the collat- eral action. It is sufficient if that point was essential to the former judgment."^ Substantially the same language is used in a late case in Maryland.* The supreme court of Massachusetts, in speaking of a find- ing in equity which was outside of the issues, said that "a judgment is conclusive, by way of estoppel, only as to those facts which were necessarily within the issue presented, and with- out proof of which the judgment could not have been rendered. Facts in controversy, bearing such relation to the judgment rendered, are the only ones which can, in any legal sense, be said to have been * litigated' in any judicial proceeding."® My own definition, which is deduced from all the cases, is this: If a material issue,® which is not merely collaterally in question' nor incidentally cognizable,® is contested^ in a court of compe- tent jurisdiction and determined by a final judgment" on the merits," it will be at rest, as between the adverse parties and their respective privies,*^ in all other judicial proceedings. But the lawyer who attempts to apply this rule in a compli- cated matter without having made a special study of the cita- tions referred to, or of the cases there considered, will proba- bly receive information at the expense of his client. Indian rule. — Chand on Res Judicata, section 28, says : "In India, under the code of 1859, the Punjab chief court held 1. Howard v. Kimball, 65 Me. 308, 6. See §§ 229-251, infra. 330. 7. See §§ 2, 3 and 4, supra. 2. 1 Greenleaf s Evidence, § 534. 8. See § 5, supra. 3. Lee v. Kingsbury, 13 Tex. 68, 71. 9. See §§ 217-228, infra. 4. Trayhern v. Colburn, 66 Md. 277 10. See § 27, siipra. (7 Atl. R. 459). 11. See § 30, supra. 5. Eastman v. Symonds, 108 Mass. 12. See §§ 459-593, infra. 667, 569. THE ISSUES CONTESTED OR NOT CONTESTED. 513 in Azmat Ali v. Harnam/ that a decision in a former suit, as to the plaintiff's right to recover grazing dues, was res judicata as regards that right in a subsequent suit for the grazing dues for other animals and for other years. So also in Lachman v. Lahar,^ a decision as to a certain land not being connected with the gaddi of S. and not being alienable by the defendant, was held to be res judicata in a subsequent suit brought to set aside another alienation of the same land on the same ground.' "Under the present code, their lordships of the privy coun- cil held in Pittapur Raja v. Buchi Sitayya,* that a previous decision as to a certain person not having been adopted would be res judicata in a subsequent suit ; and Sir Barnes Peacock, in delivering their lordships' judgment, said: ' It was con- tended, on the part of the plaintiff, that the cases do not estab- lish that an estoppel is binding unless the suit relates to the same subject-matter, but it appears to their lordships that the cases which have been referred to do not establish that posi- tion. In the case of Outram v. Morewood,^ the second action was not for the same subject-matter for which the first action had been brought. The first action was for damages sustained by the plaintiff in consequence of the wife of IMorewood having entered upon certain mines and taken coal from them before she was married. The wife contended that she was entitled to those mines by virtue of a certain conveyance ; but it was found by the court that the wife was not entitled to the mines, and the court gave damages against her. Another action was brought subsequently against Morewood, who had afterwards married the lady, for a second trespass committed by them upon the same mines, and the question then arose whether the 1. 10 Punjab Record 157. in certain wells would not be res 2. 10 Punjab Record 178. judicata in regard to the right of pre- 3. The decision in Umar Ali v. eruption in respect of the sale of an- Shah Ali Mahomed (5 Punjab Record other share in those wells, Campbell, 164) is not against this view, as J., observing that it was only the though it turned on the difference in "principle at issue" that was the the thing, yet what was decided was same in both the cases. only that a decree for pre-emption in 4. L. R. 12 Indian Appeals 16. regard to the sale of a certain share 5. 3 East 346. 33 514 THE MERITS, finding in the first suit, with reference to the damages claimed in that suit, was binding upon the two defendants in respect to the damages claimed against them in the second suit. It was claimed that it was. There were two distinct claims. The damages claimed in the two actions were distinct ; the tres- passes were distinct, and yet it was held that the decision in the first case with regard to the damages claimed in the first case was binding in the second case as an estoppel, the matter having been conclusively tried between the plaintiff and the defendant's wife when a feme sole in the first case. The case of Barrs v. Jackson^ was also referred to, but there the subjects of the two suits were different. In that case it was held that a decision of an ecclesiastical court, holding that the plaintiff was next-of-kin for the purpose of obtaining letters of admin- istration, was binding in a suit brought in the court of chan- cery for the distribution of the estate. The ecclesiastical court decided that the plaintiff was a next-of-kin for the pur- pose of having administration and managing the property. Subsequently the question was raised in the court of chancery whether or not he was a next-of-kin for the purpose of taking a share of the property. These were perfectly distinct claims. Yet it was held that inasmuch as the ecclesiastical court would have had concurrent jurisdiction with the court of chancery to try the question with respect to distribution, the decision of the ecclesiastical court between the same parties with reference to ad- ministration was binding upon the court of chancery with refer- ence to distribution.' So also, the Calcutta high court held, in Sundhya Mala v. Dabi Churn, ^ that a suit for a certain portion of A, on the ground of A having been leased to the plaintiff, would be barred by a decision as to A having not been leased to the plaintiff, but to the defendant, in a previous suit by the plaintiff for another portion of A, with the same allegation as to its having been leased to him. Similarly, Birdwood, J., in delivering the judgment of the Bombay high, court in Ananta Balacharya v. Damodhar,' said: 'It is true that in those suits, 1. 1 Phil. 582. 3. Indian L. R. 13 Bombay 33. 2. 1 Indian L. R. 6 Calcutta 715. THE ISSUES CONTESTED OR NOT CONTESTED. 515 the dispute was as to a piece of land other than the land now in suit. The plaintiffs there, as now, merely alleged that there had been a partition and that they had a separate share ; the defendants there, as now, merely contended that there had been no partition. In the present case, it can not be held that the decision regarding the question of partition affected only the particular piece of land then in dispute, and left the defend- ants free to urge again, in any subsequent suit, that the family was joint in all other respects and as to alL other property.'* "In Dinkar Ballal v. Hari Shridhar,^ Mr. Justice Scott expressed a contrary opinion, observing that 'the land formerly in dispute may have been so small as not to justify further litigation. The land now in dispute is considerable in extent and value. Does acquiescence in the decision regarding the one preclude any question as regards the other ? Both the spirit and the letter of the section are against such an estoppel. Mr. Justice Jardine differed however from that view, and said : * If that judgment had been a final decision in a suit as distin- guished from this execution proceeding, it would, in my opin- ion, have created an estoppel hy res judicata , — the fact that the present suit relates to a different piece of land not being a cir- cumstance taking the decision out of that rule.' " Sir Arthur Collins, C. J., and Handley, J., appear to have held in Madhavi v. Kelu,^ that a decision in a former case was res judicata only in regard to the two parambas that were in dispute in that suit, but no reasons whatever were given for this decision, and no authorities were referred to ; and in a later case,* Sir Arthur Collins, C. J., and Wilkinson, J., cited 1. The decision in Moro Abaji v. attached to the village would not bar Narayan (Indian L. R. 11 Bombay the defendant from setting up, in a 355) is not opposed to this general subsequent suit, his proprietary title rule. West, J., in delivering the as against the plaintiff to the cultivated judgment of a division bench, no land in the village, as different con- doubt, observed "that the identity of siderations would apply to the deter- the question may be affected by a mination of the question of proprie- difference of the corpus or object of tary rights in the two sorts of lands." the litigation, but the point decided 2. Indian L. R. 14 Bombay 209. only was, that in a suit by an Inamdar, 3. Indian L. R. 15 Madras 264. a finding as to the plaintiff 's proprie- 4. Krenji Amma v. Raman Menon, tary right to the forest (waste) lands Indian L. R. 15 Madras 497. 516 THE MERITS. the case of Pahlwan Singh v. Risal Singh/ and observed that it was the matter in issue, which in that suit was the title of the tarwad that formed the essential test of res judicata. In Pahlwan Singh v. Risal Singh, both the suits were by the obligee for several installments of the amount of a bond and the interest thereon from the date of the bond. In the former suit, the defendant's contention as to the interest being payable only from the date of the default was overruled, and the interest from the date of the bond decreed, and that decree was held to be res judicata in regard to that contention in the second suit. It has been repeatedly said, on the authority of this decision, that it is the matter in issue, not the subject-matter of the suit, that forms the essential test of res judicata.^ In Balkishan v. Kishan Lai,' Mahmood, J. (with whom Sir John Edge, C. J., and Straight, J., concurred), said: 'There can be no doubt that for purposes of res judicata it is not essen- tial that the subject-matter of the litigation should be identical with the subject-matter of the previous suit of which the adju- dication is made the foundation of the plea, * * * ' The general rule of law may be briefly stated to be that if a recurring liability is the subject of a claim, a previous judg- ment dismissing the suit upon findings which fall short of going to the very root of the title upon which the claim rests can not operate as res judicata; but if the previous judgment does negative the title itself, the plaintiff can not reagitate the 1. Indian L. R. 4 Allahabad 55. only to a sum of £11-16-8 for interest 2. The contrary appears to have up to the date of the receiving order, been held in Ex parte Ador (2 Q. and the appellant is content to have B. 574), in which the trustee in that sum rejected. The point now be- bankruptcy rejected the creditor's fore the court is a totally different one proof as regards interest, on the and ought to be decided upon its ground that the debtors had guaran- merits, although that cause unques- teed the payment of the principal tionably renders it necessary to recon- only. On the case coming up before sider the construction of the letter in the court of appeals to determine for question." This decision was, how- what amount the creditor could prove, ever, under the bankruptcy law, and it was contended that a fresh decision the doctrine of res judicata was not as to the interest was barred; but expressly referred to in it. Lindly, L. J., said, "The order related 3. Indian L. R. 11 Allahabad 156. THE ISSUES CONTESTED OR NOT CONTESTED. 517 same question of title by suing to obtain relief for a subse- quent item of the obligation." § 217. Contest or no contest over an issue — General obser- vations. — The question now under consideration, namely, whether or not an issue which is tendered by one party, and suffered to go into judgment by default without a contest, is res judicata in respect to a different subject-matter, is of so much importance that it seems best to consider the cases some- what extensively, and by states, beginning with those from England, and following with those from the United States, and then from the states of the Union in alphabetical order. It is my opinion that if an issue is not contested it ought not to be concluded. This view obtains in Michigan,^ and in a late case in that state, in which the defendant had filed an answer which put the plaintiff upon proof of certain issues, it was decided that that made a contest, although the defendant offered no evi- dence to sustain his answer. The case was this : In a suit by the assignee of a written lease, the general issue being pleaded, it was said, in a subsequent suit for another installment, that the plaintiff was compelled to prove the execution of the instrument and its assignment whether the defendant intro- duced any evidence or not, and that therefore those questions were concluded in the second suit. ^ The court said: "The record does not show what points w^ere contested by the intro- duction of evidence, but it is patent that before the plaintiffs could recover they must have shown the execution of this in- strument by the parties to it, and its assignment to them by Mrs. Ford. Both of these were denied by the plea of the gen- eral issue. Being facts necessarily established upon a former trial, whether defendant offered evidence tending to disprove them or not, they were admissible. They were controverted by the plea, and it was shown that there was a trial and verdict, which necessarily involved these questions. The estoppel ex- tends to all steps involved in the judgment as necessary steps 1. See § 223, infra. " reasoning back," in order to deter- 2. Bond V. Markstrum, Mich. (60 N. mine what was in issue. See Van W. R. 282). I do not agree with the Fleet Coll. Att., § 17, page 20. 518 THE MERITS. or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis upon which it stands, upon the obvious principle that if a con- clusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion. Burlen v. Shannon, 99 Mass. 200 ; Duncan v. Bancroft, 110 Mass. 267 ; Dorris v. Erwin, 101 Pa. St. 239 ; Hayes v. Shuttuck, 21 Cal. 51 ; Perkins v. Walker, 19 Vt. 144; Tuska V. O'Brien, 68 N. Y. 446; School District v. Stocker, 42 N. J. Law 115. It was therefore proper to receive the record." § 218. Contest or no contest — English cases. — It was said by Lord Ellenborough that the parties and privies are "pre- cluded from contending to the contrary of that point or matter of fact which, having been once distinctly pi(^ in issue by them, * * * has been, on such issue joined, solemnly found against them."' Installments of rent — No contest. — To an action for rent under a written building agreement, the defendant pleaded that it had been canceled by mutual consent, and that, on a day named, he had quitted the premises, and that no rent ever afterwards became due. To this plea the plaintiff replied that, after the day named in the plea, he brought an action on the agreement for rent, and, for want of an issuable plea, he recov- ered judgment. This reply was decided to be bad. It will be seen that because the defendant allowed one judgment to go upon the canceled instrument without a contest, he was not barred from showing that it was canceled in a second suit upon it for another installment. The plea was one in confession and avoidance, and it did not deny any allegation contained in the former declaration. Williams, J., said : "I think it is quite clear upon the authorities to which our attention has been called, and upon principle, that if the defendant attempted to put upon the record a plea which was inconsistent with any traversable allegation in the former declaration, there would 1. Outram v. Morewood, 3 East 346. THE ISSUES CONTESTED OR NOT CONTESTED. 519 be an estoppel. But the defense set up here is quite consist- ent with every allegation in the former action. The plea admits the agreement, but shows by matter expost facto that it is not binding upon the defendant." Willes, J., said: "The alleged estoppel here comes within the exception stated in the note to the Duchess of Kingston's Case, namely, * where the thing averred is consistent with the allegations on the record.' The defense is good if true, * * * It is quite right that a defendant should be estopped from setting up in the same action a defense which he might have pleaded but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defense in a second action because he did not avail himself of the opportu- nity of setting it up in the first action." Byles, J., said : "It is plain that there is no authority for saying that the defendant is precluded from setting up this defense. It was hard enough, in actions at common law, in which the defendant could only plead one plea ; but, to extend the rule to the case of an alle- gation not upon the record would increase the hardship ten- fold. Suppose an action of covenant : the defendant had two defenses, — performance and release : he could not plead both : he elected to plead performance. Suppose that plea found against him. He could not in a subsequent action plead non est factum. But, what authority is there for saying that he could not plead the release ? Estoppels are not to be extended without authority." Keating, J., said : "This is an attempt on the part of the plaintiff to extend the doctrine of estoppel far beyond what any of the authorities warrant."* I have abstracted all the cases cited in this decision and can find no warrant in any of them for the dicta that the defendant, after a judgment by default, is precluded from controverting any direct allegation in the complaint. On the contrary, the case of Carter v. James, ^ cited, holds that, if one of the direct allegations of a plea is not controverted, but impliedly admitted, 1. Hewlett V. Tarte, 10 C. B. N. S. 2. Carter v. James, 13 M. & W. 137, (100 E. C. L.) 813, 826— decided by 147. the court of common pleas iu 1861. 520 THE MERITS. and the other is controverted, the judgment leaves the non- contested issue open for future controversy. Patent or no patent. — In an action at law for an infringe- ment of a patent, the defendants submitted to give judgment for forty shillings and costs without filing any pleadings. In a new suit in equity, the question was whether or not they were estopped by the judgment at law from contesting the validity of the patent. The vice-chancellor ( Wood ) said they were not, because no issue had been made; that they "might have sub- mitted, either to avoid litigation or because they thought it not worth their while to try the question."^ Usury. — A gave B a bond for £1,200 to secure a debt of £600 evidenced by an indenture. In a suit on the bond, the defendant pleaded that there was a corrupt and usurious agree- ment between him and the plaintiff concerning a debt of £124, which, with other debts, owing by him to the plaintiff, went to make up the £600, for which it was agreed that the £1,200 bond in suit should be given. The reply simply denied that the bond was given upon the corrupt and usurious agreement alleged — thus impliedly admitting the usury alleged in the plea by fail- ing to deny it. There was a trial and verdict and judgment for the defendant. B now sued A on the indenture for £600, and the former adjudication was set up in bar. Of course, if the former judgment decided that there was usury in this debt, it would be a bar. But as to the allegations of usury in the plea, they were impliedly admitted for the purpose of that suit by not being denied, while the only question contested was whether or not the bond was executed upon the usurious agree- ment alleged. And, because there was no contest about the actual usury in the first suit, it was held to be no bar, and that the plaintiff might now prove that there was no usury. ^ This case is an authority that a matter not contested is not res judi- cata in another action on a different subject-matter. Indian cases. — Chand on Res Judicata, section 42, says : " 42. A decision in undefended suits is, however, conclus- 1. Gaucher v. Clayton, 34 Law Jour- 2. Carter v. James, supra. nal, N. S. Eq. 239. THE ISSUES CONTESTED OR NOT CONTESTED. 521 ive only as to what it actually professes to decide as determined from the pleadings, and only as to the facts necessary to form the grounds of the decision, so far as they can be discovered from the decision itself. It appears to be generally agreed upon, that an ex parte decision estops the defendant only from setting up any matter in a subsequent suit which is inconsistent with any traversable allegation in the former suit necessary to sup- port the judgment. It concludes the defendant only from de- nying the averments of the declaration and contesting the facts actually put in issue ; and if he has omitted to plead a fact in confession and avoidance of the plaintiff's demand, he may afterwards plead it in another action by the same plaintiff in respect of the same subject-matter ; as for subsequently accru- ing rent under the same lease upon which the first action was brought. It does not estop the defendant as to any matter which is not inconsistent with such allegations, although that matter might have been pleaded as a good defense to the former suit, the defendant being at liberty in the subsequent suit to raise all such facts as were, not actually or necessarily in issue in the suit decided ex parte, ' while facts directly in bar, such as payment, or probably in bar pro tanto, such as part payment, can not, whether pleaded or not, be made use of by the de- fendant.' Thus an ex parte judgment for rent, under an agree- ment for a lease, was held not to bar the defendant in a subse- quent suit by the same plaintiff for another installment of rent, due under the same agreement, from setting up another one in its stead. ^ The rule of the Indian courts appears to be the same. It was held by Phear and Morris, JJ., in Goya Pershad v. Tarinee Kant,^ that an ex parte decree for rent would be evidence only of the amount of rent payable. On the other hand, Sir Richard Garth, C. J., and Birch, J., held in Birch- under V. Hurrish Chunder^ that an ex parte decree for rent for a particular year would be res judicata as to the rate of rent in a subsequent suit for another year's rent. In Puncharam v. Krishna Ravi,* the same was held, and the judges said — 'when 1. Hewlett V. Tarte, 10 C. B. N. S. 3. Indian L. R. 3 Calcutta 383. 813. 4. 2 Appeal No. 1271 of 1887, de- 2. 23 W. R. 149. cided March 22, 1888. 522 THE MERITS. an undefended suit goes to trial, the plaintiff is put in the same position that he would have been if the defendant had appeared and simply said, " I deny all your allegations," in which case the plaintiff would have to prove everything which would be necessary for him to prove in order to make out his case, and therefore every material allegation in his plaint may be said to be denied because he has to prove them. * * * The plaintiff had to prove that the rent which the defendant had to pay on account of this tenure was at the rate of Rs. 7 and odd annas a year, and he also had to prove the amount of the rent in arrear, so that, all of these allegations having to be proved, they are, within the meaning of section 13, impliedly denied by the defendant.' On a consideration of all these cases, it was held by a full bench in Modhusudun Shah v. Brae,^ that * the mere statement of an alleged rate of rent in the plaint in a rent suit in which an ex parte decree is made, is not a statement as to which it must be held that an issue with- in the meaning of the section was raised between the parties, and that neither a recital in the decree of the rate alleged by the plaintiff, nor a declaration in it as to the rate of rent which the court considers to have been proved, would operate in such a case so as to make that matter res jndicata; assum- ing, of course, that no such declaration was asked for in the plaint as part of the substantive relief claimed, the defendant having a proper opportunity of meeting the case.' " § 219. Contest or no contest — United States cases — Bonds. — A person having purchased certain town bonds, sued the town on some of them and recovered a judgment. Afterwards, he sued it upon the others, and the question arose in respect to the force of the former adjudication as a bar to defenses by the town. The court said: " On the 9th of January, 1861, the appellee recovered a judgment at law against the appellant, upon another portion of these securities — though not the same with those in question in this case. The parties were identical, and the title involved was the same. All the objections taken 1. Indian L. R. 16 Calcutta 300. THE ISSUES CONTESTED OR NOT CONTESTED. 523 in this case might have been taken in that. The judgment of the court could have been invoked upon each of them, and if it were adverse to the appellant, it might have brought the de- cision here by a writ of error for review. The court had full jurisdiction over the parties and the subject. Under such cir- cumstances, a judgment is conclusive, not only as to the res of that case, but as to all further litigation between the same par- ties touching the same subject-matter, though the res itself may be different.'" The case does not show whether or not the issue was contested in the first suit, but seems to imply that it was not. If so, I think it is unsound. Bonds and coupons, bona fides not contested. — ^The holder of the bonds of a county sued it upon the coupons, alleging that he received the bonds in good faith before maturity, and paid value for them at the time of the transfer, and that they were lawfully issued and were valid legal claims. There was a special finding of facts which showed that the bonds were ir- regularly issued, and that the plaintiff failed to prove that he paid value for them, as alleged, by reason of which he was defeated. He then sued the county upon the bonds themselves, making the same allegations as in the former declaration, and was allowed to recover upon proving that he was a bDna fide purchaser for value, upon the ground that the coupons and bonds constituted different causes of action and that there was no evidence offered in the first suit to prove that he paid value, and therefore no contest upon that point. Mr. Justice Clifford dissented for the reason that he had the opportunity to make that contest, which shows that he confounded the doctrines of collateral attack and res judicata. The first judgment barred further proceedings upon the coupons, because he had the op- portunity to show all his rights; but the bonds were a different cause of action, as much so as a series of notes maturing at dif- ferent times ; and in a suit on them, it was only matters con- tested in the first suit which could be used as a bar to the same contest in the second suit. The. court said: "There is a difference between the effect 1. Beloit V. Morgan, 7 Wall. (74 U. S.) 619, 621. 524 THE MERITS. of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Thus, for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subse- quently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action, and established by competent evidence, the subsequent allega- tion of their existence is of no legal consequence. The judg- ment is as conclusive, so far as future proceedings at law are concerned, as though the defenses never existed. The language, therefore, which is so often used, that a judgment estops not only aS to every ground of recovery or defense actually pre- sented in the action, but also as to every ground which might have been presented, is strictly accurate, when applied to the demand or claim in controversy. Such demand or claim, hav- ing passed into judgment, can not again be brought into litiga- tion between the parties in proceedings at law upon any ground whatever." * * * ''But if the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, there- fore, in which it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated THE ISSUES CONTESTED OR NOT CONTESTED. 525 and determined. Only upon such matters is the judgment conclusive in another action."^ * * * " On principle, a point not in litigation in one action can not be received as con- clusively settled in any subsequent action upon a different cause, because it might have been determined in the first action. Various considerations other than the actual merits may govern a party in bringing forward grounds of recovery or defense in one action which may not exist in another action upon a dif- ferent demand, such as the smallness of the amount or the value of the property in controversy, the difficulty of obtain- ing the necessary evidence, the expense of the litigation, and his own situation at the time. A party acting upon considera- tions like these ought not to be precluded from contesting, in a subsequent action, other demands arising out of the same transaction. A judgment by default only admits, for the pur- pose of the action, the legality of the demand or claim in suit ; it does not make the allegations of the declaration or complaint evidence in an action upon a different claim. The declaration may contain different statements of the cause of action in dif- ferent counts. ' It could hardly be pretended that a judgment by default in such a case would make the several statements evidence in any other proceeding." The constitution of Iowa prohibited municipal corporations from incurring an indebtedness exceeding five per centum of the value of their taxables, to be ascertained from the last tax list. Under this law, a school district, which was entitled to incur a debt of $2,071.30, had incurred one of $3,500, and then, in addition, had issued eighteen negotiable bonds of $500 each, and placed them on the market. A person having no knowl- edge of their invalidity, except such as the law implied from their face, purchased numbers 14, 15, 16, 17 and 18 of the se- ries, and sued the district on six coupons cut from numbers 14 and 15, to which it filed an answer alleging the facts in respect to its indebtedness, which showed the bonds to be illegal, and also alleging that no valid election was held to order their issue, 1. Cromwell v. County of Sac, 94 U. S. 351, 352, 353, 356, 361, 363— Clif- ford, J., dissenting. 526 THE MERITS. that it received no consideration for them, and that the plaint- iff was not a bona fide holder. On the trial, the plaintiff in- troduced in evidence the six coupons sued upon, and the bonds numbered 14 and 15, from which they were cut (but not the other three bonds ) , and then the defendant introduced evidence to show that its indebtedness, at the time of their issue, ex- ceeded the constitutional limit ; but as this evidence contra- dicted the recitals in the bonds, the court, for that reason, ex- cluded it, and rendered a judgment for the plaintiff. He afterwards brought a suit upon the five bonds, and the answers were the same as in the first action, to which there was a reply of former adjudication. The evidence introduced was the same as in the first suit, but a new fact now appeared from the plaint- iff's evidence, namely: His five bonds, being for $2,500, showed upon their face that they exceeded the constitutional limit of indebtedness, as shown by the public records, which all persons were bound to know. It w^illbe seen that, in the first suit, the evidence simply showed the fact that, at the time the bonds were issued, the indebtedness of the district exceeded the lawful limit ; and the decision was that the recitals in the two bonds shown in evidence barred that defense as against a bona fide holder ; but in the second suit the evidence went farther and showed notice to the plaintiff that the indebtedness of the dis- trict exceeded the constitutional limit, which made a different question from that involved in the first suit, and it was held that the first judgment was no bar to this defense, and the plaintiff was defeated.' A case on the federal circuit holds that a recovery without a contest, on coupons cut from bonds, does not bar a defense that the bonds are invalid when a suit is brought on other coupons.* The court said : "The appellant also claims to have recovered judgments against the county upon other coupons taken from the same bonds as the coupons in suit ; but the record shows an admission of the appellant, 'for the purpose of the trial, that, 1. Nesbit V. Riverside Independent bit v. Independent School District, 25 District, 144 U. S. 610, 617— Harlan, Fed. R. 635. J., dissenting. This case affirms Nes- 2. Skinner v. Franklin County 56 Fed. R. 783, 785 (6 C. C. A. 118). THE ISSUES CONTESTED OR NOT CONTESTED. 527 when the judgments were recovered against the county, upon other coupons from some of these bonds, the attorney of the county was present, but that no defense was made, and no evi- dence was offered by the county, and that the only evidence offered for the plaintiff in those suits was the coupons.' In view of that admission the county is not estopped by the judg- ments, if rendered, from making defense in this suit, which is brought upon coupons never before in issue." Indorsement, validity of. — A indorsed ten notes to B and took a separate written agreement that he should not be held as an indorsee, which had the effect of an indorsement without recourse. B afterwards sued A upon the indorsement of two of the notes, and his sole defense was, that his liability as an indorser had not been fixed by due prosecution of the maker, upon which he was defeated and a judgment recovered. B then sued him on his indorsement of the other eight notes, to which he pleaded in defense the written agreement that he should not be held as an indorser. B contended that the former recovery barred this defense because there was an op- portunity there to make it, but the court denied his contention upon the ground that the subject-matter of the suits was differ- ent, and that only matters actually contested in the first suit were res judicata in respect to the second.' Priority of mining claim. — A sued B to recover possession of a triangular piece of ground enclosed by the lines of their respective mining claims, upon the theory that his claim was the older. After two trials and disagreements of the jury, B withdrew his answer and A proved up his claim and took a judgment by default. In a subsequent litigation between them in reference to rights arising out of claims on land adjoining this triangular piece, it was held that the former judgment did not establish the fact that A's claim was older than B's. The court rested its decision upon the ground that, after B had abandoned his defense, the question of priority became imma- terial. It seems to me that the decision was put on the wrong ground. The question was material, but was not contested.* 1. Davis V. Brown, 94 U. S. 423, 2. Tyler Mining Co. v Sweeney, 64 428— Clifford, J., dissenting. Fed. R. 284 (4 C. C. A. 329). 528 THE MERITS. Rent due on lease. — It was held on the federal circuit that a judgment, for want of an answer, for rent alleged to be due upon a lease, estopped the defendant from denying, in a sub- sequent suit, any material allegation in the first complaint/ I think this decision is wrong. § 220. Contest or no contest — Georgia cases. — A foreclosure of a chattel mortgage by default is no bar to a defense of want of consideration to an action on the note secured. The court said that as that issue was not made in the foreclosure pro- ceedings, it was not res judicata.' Exemption. — In a suit by the wife of a debtor to have mules and a wagon seized upon an execution against him set off as a family exemption, there was a judgment in her favor after a trial. The creditor afterwards caused the execution to be levied on cotton, and she set up the same claim, and contended that the former adjudication was conclusive that any levy upon that writ was subject to the exemption rights of the family. But on the second trial, the creditor introduced in evidence the note upon which his judgment was based, which he failed to do on the first trial. This note showed that all exemption rights had been waived, and upon the ground that that issue had not been made in the first case, her contention was denied and she was defeated.' 1. Oregon Ey. Co. v. Oregon Ey. it is said, is supported by the case of & Nav. Co., 28 Fed. R, 505, 509. Johnson v. Lovelace, 61 Ga. 62; but 2. Craft V. Perkins, 83 Ga. 760 (10 that case, properly understood, is no S. E. R. 357). authority for the position. It holds 3. Sloan v. Price, 84 Ga. 171 (10 S. that, ' if the record shows that the E. R. 601). The court said: "It same matters might have been liti- further appeared that this note was gated in the former action, then the not put in evidence on the trial of fact that they were actually decided the former claim, and that its in- in that former action may be proved troduction upon the latter trial made by extrinsic evidence.' Here the the only difference there was in the waiver of the exemption might have evidence on the two trials. The been litigated in the former claim ; claimant contends that as this note and, if it had been, the judgment might have been introduced on the would have been conclusive upon that first trial, and was not, the judgment question on the trial of the latter finding the mules and wagon exempt claim. But the evidence shows that is conclusive, not only that they are the question was not litigated in the not subject to the^. fa., but that the trial of the first claim. Therefore it cotton is not subject. This position, remained open and at large." THE ISSUES CONTESTED OR NOT CONTESTED. 529 § 221. Contest or no contest — Illinois case — Payment. — A conveyed lands in Illinois and New York to B, who took pos- session. He afterwards sued A on a note in New York, and his answer was that the conveyance was intended as a mort- gage to secure the note, and that he, B, had sold and conveyed the New York land in payment and extinguishment of the debt, and that he had received the rents in full satisfaction, all of which was denied by B. When the case was called for trial, A was absent, no evidence was offered on his behalf, and B recovered a judgment. In a suit between them concerning the Illinois land, A sought by cross-bill to have the deed de- clared a mortgage and the mortgage canceled . In regard to the latter object, he claimed that B had received the rents of the New York land, and the proceeds of its sale in full payment of the debt, the same as set up in his answer in the New York case. But it was held that payment being strictly a matter of defense, the judgment in New York was conclusive that the note was not paid.* Louisiana. — The supreme court of Louisiana said : "The estoppel extends to every material allegation or statement which, having been made on one side and denied on the other, was at issue in the cause, and was determined therein."^ § 222. Contest or no contest — Massachusetts case — Adul- tery. — A husband discovered his wife in the act of adultery 1. Litch V. Clinch, 136 111. 410 (26 upon him to see to it that his rights N.E. R. 579). The court said : "The were properly protected in court, or defendant appeared and filed his an- suffer the consequences of his own swer, in which he pleaded his alleged neglect. It seems to us, therefore, to payments, and the plaintiffs filed be entirely clear that the judgment of their reply, in which they absolutely the marine court was a conclusive denied that any such payments had adjudication of the question of the been made. The defendant was thus payment of the mortgage indebted- put upon notice that his alleged de- ness, as alleged by Litch, and that he fense was repudiated and would be is now estopped to relitigate the same contested; and he was therefore question in this suit." placed, in the strictest sense of the 2. Heroman v. Louisiana Institute, word, at arms length with the plaint- etc., 34 La. Ann. 805, 815, quoting from iffs, and it was therefore incumbent Aurora City v. West, 7 Wall. 82, 103. 34 530 THE MERITS. for which he ejected her from his house. She brought a suit against him for separate maintenance, which he defended but offered no evidence of the adultery, and a decree was rendered in her behalf that she, " for justifiable cause, was actually living apart from her husband," and a separate maintenance was awarded her. Subsequently he sued her for a divorce on account of the adultery, and the trial court decided that the former proceedings were a bar. But this was reversed by the supreme court, which said: "The decree introduced at the trial, being between the same parties as those in the present action, is binding and conclusive on them in this suit in regard to all matters shown to have been put in issue, or to have been necessarily involved in the former suit, and actually tried and determined. In regard to matters, not then in controversy, and not heard and determined, although it is conclusive so far as the final disposition of that cause is concerned, it is not conclusive to prevent a determination of them according to the truth, if they are subsequently con- troverted in a different case. It would be a harsh and oppress- ive rule which should make it necessary for one sued on a trifling claim to resist it and engage in costly litigation in order to prevent the operation of a judgment which would be held conclusively to have established against him every material fact alleged in the declaration and not denied, so as to preclude him from showing the truth if another controversy should arise between him and his adversary. There might be various reasons why he would prefer to submit to a claim rather than defend against it. * * * The plaintiff can not justly com- plain that the defendant has not seen fit to set up defenses and raise issues for the purpose of enabling him to settle facts for future possible controversies. In subsequent proceedings which are independent of the original suit, the judgment in that suit is conclusive as evidence, or may be pleaded as an estoppel, only as to those matters which were put in issue and determined." * 1. Watts V. Watts. 160 Mass. 464 (36 N. E. R. 479). THE ISSUES CONTESTED OR NOT CONTESTED. 531 § 223. Contest or no contest — Michigan case — Lease or no lease. — A sued B and C to recover an installment of rent upon an alleged lease, to which they pleaded the general issue but no denial under oath of the execution of the lease. Upon this state of the pleadings, they had to assume that they did exe- cute the lease. On the trial, B attempted to show that C alone occupied the premises, but he was defeated, and A recovered a judgment. Afterwards A sued for another installment of rent, and B alone appeared and denied, under oath, the execution of the lease. To preclude proof of this answer, A gave in evi- dence the record in the former case, and the trial court held that it was a bar, but this was reversed on error. The supreme court held that, while B could not contradict the execution of the lease in a collateral attack on the former judgment, he could do so in a contest over a different subject-matter. It said: "The execution of the lease was not denied in the for- mer suit. No issue was made upon it, and the defendant, by not denying it, suffered a default in respect to it which left it wholly outside the issue made and actually passed upon. Con- sequently it was not and could not have been considered by the court as a point which in that suit was open to controver- sy. The defendants, by their pleadings, made the actual ex- istence of the lease an immaterial fact, and had the lease counted upon been a known forgery, the case must, neverthe- less, have proceeded with its existence and genuineness admit- ted. It is said, however, that the defendants in the first suit were at liberty to put the execution of the lease in issue, and that it was their duty to do so then if they proposed to contest it at all. This is upon the ground that public policy will not suffer the withholding of a defense with a view to further liti- gation, when a single suit might determine the whole contro- versy. This is no doubt true where the defense is sought to be made use of in the retrial of a dispute respecting the same subject-matter of the former litigation. The question now is, whether the proposition is applicable to a case in which the subject-matter of the second suit is different. In other words, if one is sued in respect to one subject-matter, must he 532 THE MERITS. bring forward all his defenses, at the peril, if he fails to do so, of being debarred of them in any subsequent litigation which may involve the same questions, though relating to a different subject-matter? We think not." The court then commented on Cromwell v. County of Sac (94 U. S. 351, 356) ; Howlett i;. Taste (10 C. B. N. S. 813) ; Kelsey v. Ward (38 N. Y. 83) ; Dickinson v. Hayes (31 Conn. 417 ) ; Peoria Ins. Co. v. Per- kins (16 Mich. 380, 384), and Collins v. Barnett (46 N. Y. 491), and said that, as the execution of the lease was a fact "with which neither court nor jury could concern itself in the former case, it must be one that the judgment does not con- clude, except so far as is necessary to uphold that judgment. It was admitted for the purposes of that controversy, but not for the purposes of any other."* § 224. Contest or no contest — Minnesota cases — Considera- tion of notes. — A series of notes having been executed in one transaction, and a recovery by default having been had on the first one, the counsel contended that that barred the defendant from making the defense of want of consideration to an action on the second ; but the court denied this contention, partly be- cause that question was not contested, and also because the complaint tendered no issue concerning the consideration. The case holds, apparently, that if such an issue had been tendered it would have concluded the question, even though no contest was made.^ School district dissolved. — Upon an application by man- damus to compel a county auditor to issue to the treasurer of an alleged school district an order upon the county treasurer, for a specified amount, being the share of that district in the public funds, a judgment by default granting the relief prayed for does not bar the auditor from showing, in answer to a sub- sequent application to compel him to issue another order to the same district, that it had been dissolved before the prior appli- cation was filed.* 1. Jacobson v. Miller, 41 Mich. 90 2. Adams v. Adams, 25 Minn. 72, 76. (1 N. W. R. 1013) — opinion by Cooley, 3. State, ex rel. Tracey, v. Cooley, — J. Minn. — (60 N. W. R. 338). The THE ISSUES CONTESTED OR NOT CONTESTED. 533 Missouri case — Lease or no lease. — A let a building to B for one year from July 1, 1886, at a specified rental, payable monthly in advance. B had the option, at the end of the first year, to continue the lease two years longer. B continued to use the building after the expiration of the year, but got behind court said : "In the case of Adams v. Adams, 25 Minn. 72, this court held that a judgment by default upon one of several negotiable promissory notes founded upon one and the same il- legal consideration, no issue upon the fact of consideration being ten- dered by the complaint, does not estop the defendant from setting up in a second action, upon another of the notes, the defense of illegality of consideration. If the illegality of the consideration could be set up in that case, we do not see why the dissolu- tion of the school district can not be pleaded in this action, and thus show the illegality of the plaintiff 's cause of action. There the illegal consider- ation for all of the notes existed when the action upon the first note was commenced, and when judgment was rendered. So here, the school district was not legally existing at the time of the issuance of the former writ, nor when the alternative writ was is- sued in this case, nor at the present time. In thatcase,one note constituted one cause of action and the other note another cause of action ; but there hav- ing been no issue tendered, nor adjudi- cation as to the illegal consideration for the first note, the proceeding did not constitute a bar to the action upon the second. We do not feel dis- posed to modify nor change the rule laid down in Adams v. Adams, for the practical application of that doc- trine frequently operates equitably, and prevents the failure of justice, and we concur in that decision. The application of the rule in this case is a good illustration of this doctrine. Here the public treasury is threatened by the demand for the payment of money for an illegal purpose. We say illegal, for we can hardly con- ceive of a purpose more so than one in which the common-school fund of the state is sought to be paid to the pretended treasurer of a dissolved school-district organization. The coun- ty auditor, in addition to the misun- derstanding referred to, may have had doubts about the propriety or necessity of paying the former sum of $75.05, and thus many have paid it to save the expense of litigation ; but, when a second attempt is thus made, he finds, and finds truly, that it is his olficial and imperative duty to interpose all the just and legal defenses known to the law. The consideration for not interposing grounds of defense in the first action may be various, as stated by Judge Field in the case of Crom- well V. Sac Co., 94 U. S., on page 356. In this case the county auditor might well have hesitated in the first in- stance as to the propriety or necessity of answering or making a return when he considered that the suit was brought by the highest law officer of the state, and against the defendant as a public ofiicer. Whether his neg- lect to answer in the prior proceeding was commendable or not, we are of the opinion that he should not be pre- cluded from setting up a defense in this action because he did not, under the circumstances, avail himself of the opportunity of setting it up in the prior action." 534 THE MERITS. with the rent, and, in the spring of 1888, A sued him for the April and May rent before a justice of the peace, and recovered judgment by default. His complaint did not profess to be based upon the written lease, but was in the form of an account for rent. He afterwards sued B on the lease for the rent of Decem- ber, 1888, and January and February, 1889. B now claimed that he had never extended the lease, but the trial court held that the justice's judgment was conclusive against him. This was reversed by the court of appeals because it did not appear, from the record of the justice, that the suit was upon the lease. ^ A better reason was, as it seems to me, that there was no contest before the justice. § 225. Contest or no contest — New York cases — Generally. — ^The earlier cases in New York lend support to the rule' that, in order to make an issue conclusive in respect to a different subject-matter, there must be a contest. But the later ones, if I comprehend them, apply the same rule in res judicata as in col- lateral attack, maintaining that an issue tendered is concluded by an opportunity to contest. Thus^, in a case in 3 New York, it is said : "The general rule is, that an allegation on record, upon which issue has been once taken and found, and a judg- ment has been rendered, is, between the parties and their priv- ies, conclusive, and estops them from again litigating that matter."^ A case in 4 New York was this : A held the title to certain goods by virtue of a bill of sale from B. In a suit between A and C concerning a portion of these goods, it was decided that the bill of sale was void and C recovered. In another suit between the same parties in respect to the title to the residue of the goods, it was held that the former adjudication was con- clusive in C's favor. The court said : *' The settled principle of law appears to be that the same point or question, if once litigated and settled by a verdict and judgment, shall not again be contested in any subsequent controversy between the same 1. Dickey v. Heim, 48 Mo. App. 2. Embury v. Conner, 3 N. Y. 511, 114,119. 522. THE ISSUES CONTESTED OR NOT CONTESTED. 535 parties depending on that point or question."^ This case relies upon three cases/ in each of which there was a contest. There is also a case in 34 Barbour, as follows : A person hired to another for a year, and was soon after discharged. He after- wards sued for two months' services, alleging the employment, and that he was discharged " without any legal excuse," and recovered a judgment by default. In a new action for a sub- sequent installment, the first judgment was held not to debar the defendant from showing that the contract was rescinded b}'^ mutual consent/ And a case in 63 Hun holds that a recovery by default, on a contract for the payment of royalties, is no bar to the defense of fraud in procuring the contract, in a new suit upon it for subsequent royalties.* The court said that the fraud was not in issue in the former suit and could not have been tried. A case in 79 New York, in speaking of an after- acquired title, says: ''It is not the former recovery which constitutes the estoppel. It is the decision of the question which was m coniesfa^^on between the parties."^ On the con- trary, a case in 64 Hun says that a judgment by default bars the defendant from contesting any material allegation of the complaint in a new action concerning a different cause. ^ And this seems to be the prevailing rule in that state, as will appear from the cases about to be cited. Fraud. — Goods covered by a chattel mortgage were sold upon execution against the mortgagor, and the purchaser took possession. The mortgagee having taken a part of them from the purchaser, the latter sued the former for their conversion, and the issue was wdiether or not the mortgagee was fraudulent as to creditors. But the plaintiff, having failed to prove the existence of the judgment on which his execution issued, was unable to show any title in himself, and hence could not and 1. Doty V. Brown, 4 N. Y. 71, 73. Co., 63 Hun (70 N. Y. Supr.) 176 (17 N. 2. Gardner V. Buckbee, 3Cowen Y.Suppl.6-16; 43 N.Y.St. Reporter 418). 120; Burt t?. Sternburgh,4Cowen659; 5. Dawley v. Brown, 79 N. Y. 390, Outram v. Morewood, 3 East 346. 398. 3. Van Alstyne v. Indiana P. & C. 6. Dickinson v. Price, 64 Hun (71 R. R. Co., 34 Barb. 28, 30. Supr.) 149. 4. Arnold v. Norfolk, etc.. Hosiery 536 THE MERITS. did not raise any question concerning the fraudulent character of the mortgage, and there was a judgment for the defendant, the mortgagee. In a new action between the parties in respect to the residue of the goods, it was held that the former judg- ment concluded the execution purchaser from showing that the mortgage was fraudulent, upon the ground that the issue as to the title was the same in both cases. ^ Insurance policies. — The owners of a vessel and its freight procured from the same company insurance on the freight and the vessel in different policies. The vessel and freight being lost at the same time, the owners sued upon the freight policy and recovered. They then sued on the vessel policy, and the first judgment was held to be a bar to any defense that would have been good against the first complaint. The court said : "We hold that judgment to be res judicata not only of all issues that were actually litigated, but of every question that might have been litigated under the pleadings."^ Lease or no lease. — A New York statute authorizes a land- lord to recover the possession of demised premises by sum- mary proceedings before a magistrate. But the latter has no power to determine the amount of rent due ; and in order to recover that, a separate action must be brought. In au action of the latter nature, it was decided that a recovery by default in the summary proceedings was conclusive in respect to all the material allegations made in the affidavit, namely, the ten- ancy, the occupation, the non-payment of, rent, and the hold- ing over after default in payment.^ One railroad company leased the right to use its tracks to another, rents to be paid quarterly in advance and to commence when the lessee should begin to use the tracks. The lessor sued the lessee for a quar- ter's rent, alleging that the lessee had taken possession on March 1, and recovered by default. In a suit to recover for a quarter beginning December 1, it was held that the prior judg- ment was conclusive that a quarter was due at that date, and 1. Castle w. Noyes, 14 N. Y. 329, 331. 3. Brown?;. Mayor, etc., 66 N. Y. 385, 2. McLaughlin v. Great Western Ins. 390. Accord, as to validity of lease, is Co., 20 N. Y. Supplement 536. Jarvis v. Driggs, 69 N. Y. 143, 146. THE ISSUES CONTESTED OR NOT CONTESTED. 537 that it mattered not that the first judgment was by default.* A sued B upon a written lease to recover the possession of premises on account of the non-payment of rent, and recovered possession by default. He then sued B upon the lease for the rent due at the time of the eviction in the former case. B at- tempted to show that the lease had been canceled and that an- other person had been accepted as tenant before the former suit was commenced, but it was held that he could not do so.^ Unsoundness of mind. — The plaintiff having sued for a par- tition, alleging that the ancestor left a will which was void on account of unsoundness of mind, a decree by default was held to bar a contest over the question of soundness of mind in a new action for partition of other property. The court said : "The inference to be drawn from a failure to prove a defense is that none exists. The plaintiff who brings a suit may rea- sonably expect to settle the facts in that action. If a defend- ant, by refusing to answer, could deprive the plaintiff of the benefits of the action, it would be apt to work injustice.'" Usury. — In an action to recover an installment of interest due upon a note, a recovery by default bars the defense of usury in an action upon the note itself.* So, a recovery by a landlord of the possession of premises by default for the non- payment of rent was held to bar a suit by the tenant to have the lease canceled and delivered up on the ground of usury. The court did not notice the fact that there was no contest con- cerning the usury, and it also decided that the new suit was a collateral attack on the first one ^ — which seems to me to be wrong. § 226. Contest or no contest — North Carolina case — Debts. — If an administrator's petition to sell land sets forth the debts 1. Dry Dock, etc., Co. v. North and Y. Supr.) 134 (21 N. Y. Suppl. 1114; East River Ry. Co., 22 N. Y. Suppl. 51 N. Y. St. Reporter 536)— no case 556 (3 Misc. R. 61 ; 51 N. Y. St. Re- cited. porter 771). 4. Newton v. Hook, 48 N. Y. 676 2. Grafton v. Brigham, 70 Hun (77 — Lott, Ch. C, dissenting. N. Y. Supr.) 131 (24 N. Y. Suppl. 54; 5. Reich v. Cochran, 74 Hun (81 54 N. Y. St. Reporter 103) . N. Y. Supr.) 551 (26 N. Y. Suppl. 443 ; 3. Ferris v. Fisher, 67 Hun (74 N. 57 N. Y. St. Reporter 159). 538 THE MERITS. of the estate, the order to sell, made upon default, is no evi- dence of those debts in a suit concerning another subject.^ Pennsylvania case — Confession. — A person holding a pol- icy in a mutual insurance company surrendered it, and paid his share of the losses up to that time. This released him from liability for future losses. Nevertheless, he was after- wards sued before a justice of the peace to recover an assess- ment for such a loss, and he pleaded the surrender and settle- ment in defense, and the case was brought up to the court of common pleas by appeal. He attended that court prepared to make his defense, but, under assurances from his counsel that if he would allow judgment to go against him it would end the matter forever, he made no defense, and allowed his counsel to confess judgment against him. He was afterwards sued to re- cover another assessment on the same policy, and it was de- cided that the former judgment was conclusive that the policy was, at that time, in force. The court conceded, that, if he had made no defense in the first action, the judgment would not have been a bar, but decided that his confession of judg- ment over his answer of a surrender and release had the same legal effect as a trial and defeat on the merits.^ Tennessee case — Assets exhausted. — An executor filed a petition to sell land, alleging that the personalty had been ex- hausted in paying debts and special legacies, to which a guard- ian ad litem for a minor heir "filed the usual formal answer, submitting his rights to the protection of the court," upon which the matter was referred to the clerk to report on the ex- haustion of assets as charged, which he did, reporting that they were exhausted, which was confirmed without objection. This was decided to preclude the minor from contesting that question on another petition to sell other land.^ Vermont case — Right of way. — In an action for trespass on land, the defense pleaded was a right of way and user as such, but, after the evidence was all in, the court ruled that 1. Latta V. Rusa, 8 Jones' Law 111, Ins. Co., 114Pa. St. 387 (6 Atl. R. 696). 114. 3. Thomson v. Blanchard, 2 Lea (70 2. Orr V. Mercer County Mat. Fire Tenn.) 528, 530. THE ISSUES CONTESTED OR NOT CONTESTED. 539 there was a variance between the plea and the evidence, the plea being too general, whereupon the defendant procured leave to amend the plea, which was granted upon conditions which he failed to perform, and a judgment was rendered against him. In a second action for trespass, this was held to be a bar to the use of the same defense.^ § 227. Contest or no contest — Wisconsin case — Title t-o land. — In a proceeding to assess benefits and damages to the land of A caused by establishing a public park, he proved his title to the land to be a fee simple, which was necessary in order to determine the questions involved, but the judgment in his favor was reversed on his appeal because of error in the rulings in respect to the dedication of a part of the land as a public street. On the second trial, the parties filed a written stipula- tion reciting that, on the first trial, he had proved his title in fee simple to the land involved to the satisfaction of the court and jury; that therefore "for the purpose of the trial of this action" it was agreed that he had such a title, and he recov- ered again. The city then, as authorized by statute, aban- doned the proceedings and paid up the costs. The city had taken possession of the property pending the proceedings, and he now brought an action to recover damages caused by its acts, to which it answered that he was not the owner in fee simple of the land; but it was held that 'the final judgment in the former proceedings, although founded on an agreement made for the purpose of that trial only, was conclusive in his favor. But the subject-matter in the two suits was not the same — being the right to damages for taking the fee for a park in the first, and 'an injury to the freehold in the second; and as the question of title in fee simple was not contested in the first case, it seems to me it was not res judicata in the second. The court applied the doctrine of collateral attack to the case, although it was not one of that kind.^ § 228. Contest or no contest — Issue of law — Statute uncon- 1. Atwood V. Bobbins, 35 Vt. 629, 2. Van Valkenburgh v. City of Mil- 532. waukee, 43 Wis. 574, 580. 540 THE MERITS. stitutional. — A statute of Pennsylvania having provided for the assessment of a railway by a city, and a difference concern- ing the construction of the statute having arisen, the mat- ter was taken into court and the city recovered a judg- ment. In that case, no question was made in respect to the constitutionality of the statute ; but it having been held unconstitutional in a later case, the city again sued the railway company to recover subsequent taxes upon the previous statute. The company contended that the for- mer recovery was conclusive that the statute was constitu- tional, and that, as it fixed a less tax than the previous statute, there could be no recovery in the present suit. But this contention was denied.* The court said: "The argu- ment of the company's counsel now is that, although in the case referred to the point does not appear to have been made nor decided, yet the constitutionality of the later act must be taken to have passed in rem judicatam; that the judgment in that case necessarily involved a decision that the statute im- posing the tax was to that extent valid, and that, although the cause of action is not the same, the city is estopped of record from relitigating that question. While this is the general rule, it does not extend to estop a person from setting up the consti- tutionality of a statute, when the cause of action is not the same. The former judgment is absolutely conclusive upon the parties, as to the cause of action involved in it, although the statute upon which the proceedings were taken was not constitutional ; that judgment can only be impeached collat- erally for fraud or want of jurisdiction. It is a matter of no consequence now that the later act, upon which judgment was entered for the amount of the tax, was unconstitutional and void ; judgment having been entered, and no appeal taken, the subject-matter at issue in that suit is res judicata. The former judgment, therefore, operates as a bar to any subse- quent action founded on the same demands. In the case at bar, however, while the point in issue may perhaps be the same, the cause of action is different, and, although the verdict, 1. City of Philadelphia v. Ridge Avenue Ry. Co., 142 Pa. St. 484 (21 Atl. R. 982). THE ISSUES CONTESTED OR NOT CONTESTED. 541 with the judgment, would furnish conclusive evidence of the matters in controversy upon which the verdict was rendered, and operate as a bar to their further litigation, it would not preclude the plaintiff in this suit from asserting the uncon- stitutionality of the act upon which the previous action pro- ceeded." The legislature of Alabama passed an act to aid the common- school system by means of a lottery to be conducted by persons named and their associates, and required them to deposit in the treasury of the state, to the credit of the school fund, a specified sum annually, for twenty years, or so long as they should do business under the act. The persons named organ- ized under the statute, paid the required sum into the state treasury, and commenced to do business under the act, when it was repealed. Notwithstanding that fact, they continued the business, and one of them, by name of Boyd, was in- dicted under the lottery statute, and was convicted. But the supreme court held that the act constituted a contract between the state and the defendant, which, by virtue of the constitu- tion, could not be impaired, and that the repealing act was void, and he was acquitted. The constitutionality of the orig- inal act was not questioned — the sole contest being whether or not the statute and its acceptance constituted a contract. Boyd was again indicted for a new offense under the lottery statute, upon the theory that the act under which he was doing busi- ness was unconstitutional, because the title embraced more than one subject, and the court, being of that opinion, he was convicted, and this was affirmed by the supreme court of the state. The defendant, contending that the former acquittal was a bar to the new prosecution, carried the case to the Su- preme Court of the United States, but that court denied his contention because the constitutionality of the act was not drawn in question nor passed upon in the first case.^ 1, Boyd V. Alabama, 94 U. S. 645, 648. CHAPTER IX. THE ISSUES IMMATERIAL, EFFECT OF ADJUDICATION UPON. \229. Principle involved in Chapter §240. IX: (Depends upon relief demanded — Indian cases) . 230. Administrator, suit to remove : 241. (Accounts) — Agreement to pay : (Payment) . 231. Bona fide holder or no — Can- cellation suit, amount due. 242. 232. Commissions: (Construction of will— Trade-mark). 243. 233. Construction of deed of trust in a suit to determine its validity — Construction of 244. will as to personalty, rights in land determined. 234. Contract, execution of, deter- 245. mined in suit dismissed for want of jurisdiction. 235. Deed, in ejectment, held to be 246. a mortgage, and amount due determined — Deed, validity of, determined in action for breach of contract to convey. 236. Domicile determined in pro- 247. ceeding to probate will — Ejectment, time of ouster — False imprisonment, fact of, 248. determined in breach of promise suit. 237. "Fraudulent" alteration of 249. note adjudicated in suit upon it — Fraudulent representa- 250. tions, no representations — Freehold. 238. Heirship adjudged in granting letters of administration — 251. Knowledge of possession, immaterial. 239. Mistake in stranger's deed. (542) Mortgage of chattels, validity of, determined in suit against officer for levying writ. Number of owners of a vessel determined, wherein agency or no agency was the issue — Partner, general or special. Payment, by whom made, de- termined in a partition suit. Payment of one claim, deter- mined in suit upon another — Payment to stranger. Possession of chattels, right to, determined in suit to estab- lish a right of remainder. Quantity of interest in estate, determined in suit to con- strue will. Quantity of water to which party is entitled, determined in trespass — Quantity of wheat, determined in action concerning title solely. Redemption suit, amount due, determined in — Service of process in partition. Street, use and visibility of, determined in suit to enjoin its obstruction. Tenancy, determined in suit to declare deed a mortgage. Title, determined in posses- sory action : (Vested or con- tingent interest, determined in suit to construe will). Unborn colt, title to, deter- mined in suit concerning the mother — Water supply for city. IMMATERIAL ISSUES. 543 § 229. Principle involved in Chapter IX. — Issues which are not material to the controversy, although determined, do not become res judicata. The court of appeals of New York said : ''Although a decree in express terms professes to affirm a par- ticular fact, yet if that fact was immaterial, and the controversy did not turn upon it, the decree will not conclude the parties in reference to it."^ Depends upon relief demanded. — Several persons, includ- ing A, B and C, purchased some old vessels of the government, and entered into a written contract defining their rights, and providing, among other things, that the vessels should be stripped of all the materials, so that nothing but the bare hulls should remain, the same to be sold for cash, at the best market prices, when ready for delivery ; and that A and B should pay C fifteen hundred dollars as a bonus for taking charge of the work. Afterwards A and B filed a complaint against all the other joint owners to restrain them from selling the hulls under the written contract, upon the ground that it had been abro- gated by a new verbal one, which was set forth in detail, and which provided that the hulls also should be broken up and the materials sold. This new verbal contract, as set forth, contained no clause like the old one that A and B should pay C for his work. The defendants denied that any new contract was made, and alleged that the original written one ' ' still remains in full force and effect, and has never been canceled nor modified in any respect. " There was a trial and finding that no new agreement had been made as alleged in the complaint, and a judgment that the plaintiffs were entitled to no relief. In a controversy between A and B and C concerning the fifteen hundred dollars of com- pensation, A and B contended that it had been abrogated by a verbal agreement made before the first suit, while C contended that the adjudication in that suit that the original contract had not been abrogated was conclusive in his favor. But his con- tention was denied, the court saying that the former suit was brought for a specific and distinct purpose, namely, to procure a judgment directing that the hulls of the vessels should be 1. People V. Johnson, 38 N. Y. 63 (97 Am. D. 770, 772). 544 THE MERITS. broken up and the materials sold, and not sold whole, as pro- vided for in the original contract, and that this was the relief demanded ; and that the only issue necessary to be determined in order to render a final judgment on the merits was whether or not the written contract had been so far abrogated as to pro- vide for the breaking up of the hulls and the sale of the ma- terials in lieu of selling them whole, and that it was wholly immaterial to the determination of this crucial question whether the written contract had or had not been abrogated in respect to its other provisions; that, while those questions, in a certain sense, were in issue by the pleadings, it was unnecessary for the plaintiffs, in order to obtain the relief demanded, to prove the allegation that the written contract was wholly abrogated ; that proof that it had been changed in the one particular in re- spect to the hulls, without proof of the broader allegation, would have sustained their complaint, and that such failure of proof would have been an immaterial variance.* been made, which provided for a dif- ferent disposition from that before agreed upon ; and, on inspection of the terms of the alleged new contract, nothing appears therein relating to any compensation to Stannard. It may be said, therefore, that the plaintiffs impliedly alleged that the provision for compensation in the original contract had been canceled, although there was no express refer- ence to that provision. But it was unnecessary for the plaintiffs, in or- der to establish their right to the relief claimed, to prove the aver- ment to its full extent, as to the abro- gation of the original contract. The substantial issue, as has been stated, was whether or not that contract had been abrogated as to the mode of disposing of the vessels, and a new mode substituted. It can not be doubted that, under the present rules of pleading, proof that the con- tract had been altered in that respect alone, would have sustained the com- 1. Stannard v. Hubbell, 123 N. Y. 620 (25 N. E. R. 1084). The court said: "It is obvious from an in- spection of the record in the former action, that the only issue necessary to be determined in order to render a final judgment on the merits was whether or not the prior contract had been abrogated so far as to pro- vide for a breaking up of the vessels, and a sale of the materials, in lieu and place of the disposition of the vessels by sale, as therein provided. It was wholly immaterial to the de- termination of the crucial question in the case whether the prior contract in respect of its other provisions, had been abrogated or not. It is true that, by the pleadings, that question was, in a certain sense, in issue. But this was only for the reason that the plaintiffs, in presenting their claim that a new mode of disposing of the vessels had been agreed upon, alleged that a new and complete contract, in substitution for the original one, had IMMATERIAL ISSUES. 545 It will be seen that the original case was a suit in equity to restrain the selling of the hulls of the vessels without breaking them up, as provided in the written contract, which the plaint- iffs alleged had been wholly abrogated, while the defendants asserted that it remained in full force and effect. As the issue in respect to the question of abrogation or no abrogation was squarely presented b}' the pleadings, and as the finding was specific that there was no abrogation, the decision is an author- ity that the question adjudicated depends entirely on the relief demanded. Indian cases. — Chand on Res Judicata, section 66, says : "66. Issue not material, unless it forms the basis of THE judgment. — An issue can not be said to be finally decided, unless the decision forms the basis of the judgment.* Thus, in Run Bahadur Singh v. Lucho Koer,^ the Calcutta high court found that the plaintiff had been joint with his deceased brother whose estate he, on that account, claimed from his widow, but the claim was dismissed on the ground that the issue as to their being joint had been decided against the plaintiff in a former suit. On appeal by plaintiff, Sir R. P. Collier, in delivering their lordships' judgment, ob- serv^ed as to the widow's appeal against the finding in regard to the brothers having been undivided, that it could not be conclusive against her hereafter, 'as the decree was not based upon it, but was made in spite of it.' In Nundo Lall v. Bid- hoo,^ the plaintiff's claim in the former suit for the defendant's ejectment was dismissed, but the judgment contained a decis- ion as to the nature of the defendant's holding ; and in the subsequent suit for possession after notice to quit, O'Kinealy and Macpherson, JJ., held that that decision was not res judi- cata, as ' the decree dismissing the suit was not based on the plaint. The failure to prove the 1. Narasamma v. Kanaya, Indian broader allegation, that the contract L. R. 4 Madras 134; Gama w. Amira, hadbeen wholly canceled, would have 1884, Punjab R. No. 29. been an immaterial variance. The 2. L. R. 12 Indian Appeals 23. compensation clause had no bearing 3. Indian L. R. 13 Calcutta 17. upon the point then in controversy." 35 546 THE MERITS. finding adverse to tlie defendant in that case, but in spite of it.' In Magundeo v. Maliadeo Singh/ the facts were the same, and Tottenham and Ghose, JJ., held that the decision as to tlie oc- cupancy riglit in the former suit, was not res judicata, observ- ing * that the finding of tlie court in the previous suit was not final, inasmuch as the decree was not based upon it.' "In Anusuyabai v. Sakharam,Mt was urged that 'though the decision was in the appellant's favor, one of the grounds on which it was based had been decided unfavorably to his title, and might thus, as res judicata, greatly preju- dice him in a future suit between him and the respondent.' But West, J., in delivering the judgment of the Bombay high court, said : * This fear, though there are some decisions and dicta which support it, does not appear to be well grounded. The judgment is not, and can not really be, based on a ground unfavorable to the successful party, though an opinion unfav- orable to him may be expressed on some incidental point. * * * From a judgment against a plaintiff no adjudication in his favor can properly be derived as res judicata. It is not, and can not be, an essential element of the jural relation on which an ad- verse decree rests.' The majority of the full bench of Allaha- bad high court in Jamaitunnissa v. Lutfunnissa^ held that 'the findings in a judgment upon matters which subsequently turn out to be immaterial to the grounds upon which a suit is finally disposed of, as to the plaintiff's right to any portion of the relief sought by him as declared by the decree, amount to no more than obiter dicta, and do not constitute a final decision.' Mr. Justice Mahmood alone dissented, and maintained 'that the adjudication as to the invalidity of the wagfnama would be binding upon the defendant as res judicata notwithstanding the fact that the suit against her was dismissed on the ground that she held possession in lieu of dower.' In support of this view he relied on a number of cases, and observed that, in Man Singh v. Narayan Das,* the court having determined an issue on which the suit might have been disposed of, 1. Indian L. R. 18 Calcutta 647. 3. Indian L. K. 7 Allahabad 606. 2. Indian L. R. 7 Bombay 466. 4. Indian L. R. 1 Allahabad 480. IMMATERIAL ISSUES. 547 proceeded to try and determine another issue, the deter- mination of which was not required for its disposal ; and it was held that its trial and determination could not be treated as a nullity, and that the issue could not again be tried and determined in another suit, ' ' That high court has recently held the same again in Indarjit Prasad v. Richha Rai.^ In the former suit an un- limited decree had been given to the then plaintiff upon his claim for possession and title, but there was a statement in the judgment that his possession would be subject to the de- fendant's right to half the value of the produce and half the value of the timber. Sir John Edge, C. J., and Knox, J., said: 'Section 13 was never intended to bar the trial of a material issue, because the judge in a previous suit in which that question was absolutely immaterial had tried the question and given an opinion upon it. * * * The decree is the final judicial determination of the suit; and if a decree is specific and is at variance with a statement in the judgment on which it is founded, it is the decree to which we must pay attention and not the statement in the judgment.' The Madras high court also, in Muttukumarappa v. Arumuga,^ held that a finding against the plaintiff on an issue, not being necessary for the final decision which was entirely in plaintiff's favor, was not res judicata. '' In Venkayya'u. Narasamma,' Muttusami Ayyar and Brant, JJ., said, that 'in Krishna Behari Roy v. Brojeswari,* the judicial committee of the privy council observed that the adjudication on the question of adoption in a previous suit concluded the party claiming to be adopted in a subsequent suit, although the decision in the former case proceeded on the finding that a pat7ii lease, granted by the mother of the plaintiff, was not in excess of her powers as widow, although the determination that the adoption was true was not nec- essary to the dismissal of the claim, it being simply mate- rial to the ground of claim.' There is nothing, however, in 1. Indian L. R. 15 Allahabad 3. 3. Indian L. E. 11 Madras 207. 2. Indian L. R. 7 Madras 145. 4. L. R. 2 Indian Appeals 283. 548 THE MERITS. their lordship's judgment to show that their final decision did not proceed on the ground of the adoption, which was the only- point in issue in the previous suit as between the plaintiff and the intervener who would certainly have been the heir if the plaintiff's adoption had not been held valid. The observation of the Madras high court judges was rather an obiter dictum, as they really held that the decision in the former suit had not proceeded only on the ground of the invalidity of the oral will on which the plaintiff's claim was based, and were not pre- pared to adopt the suggestion that the issue as to division or non-division was not material to the decision actually recorded in that suit. "A full bench of the Punjab chief court laid down broadly, in Narain Das v. Faiz Shah,* that 'no matter can be said to be directly and substantially in issue, nor to be finally decided, unless its determination is necessary for the decision of the case upon the ground on which the final adjudication ultimately proceeds.' The opinion in Pala Mai v. Maya,^ is not against this view. There the plaintiffs' former suit had been dismissed ' on the ground that they could not sue for a declaratory decree, and also on the ground that it was bad on the merits — the former decree having been based as much on the one ground as on the other ; ' and Stogdon, J., in giving the judgment of the court, observed that there was no reason against his deciding every point upon which he intended to base his decree. He added, however, that 'any decision regarding points upon which it was not intended to base it, would be unnecessary and extra- judicial, and would not be binding on the parties,' and distin- guished the cases reported as 1884 P. R. No. 29, and 1879 P. R. No. 27, on the ground, that ' the finding which was held not to operate as res judicata was one upon which the decree was not based, and which was absolutely unnecessary to the decision of the case.' " § 230. Administrator, suit to remove — Accounts. — In a suit to remove an administrator for a specified cause, the general 1. 1889 Punjab R. No. 157. 2. 1890 Punjab R. No. 146. IMMATERIAL ISSUES. 549 state of his accounts are not in issue, and a finding in detail on that matter is not res judicata.^ Agreement to pay — Payment. — A, as the surviving partner of the firm of A and B, sued C and D at law to recover a debt. D then sued A and C in chancery, alleging that, for a valuable consideration, C had agreed with him, D, to pay the debt sued for at law, and had actually paid it, and that the action at law was being carried on by collusion between A and C for the benefit of the latter. The answer of A denied that the debt had ever been paid and also all collusion with C; and C also denied the same matters, as well as the agreement with D to pay the debt. The matters alleged in D's bill were found to be untrue and those in the answers to be true. A now, in sup- port of his action at law, gave this decree in evidence, and the court instructed the jury that it was conclusive in respect to the facts then in controversy. This was decided to be error, the court saying: ''The true doctrine is, that facts found sufiicient to uphold the decree conclude the parties and noth- ing else."^ In other words, the court held that, when it was found that C never had agreed with D to pay the debt, which would have defeated the suit, the other matters were surplus- age and not binding. § 231. Bona fide holder or no. — A sued B and C to set aside a mortgage, executed by B to C, upon the ground that it was fraudulent as to creditors. D was made a party defendant, and answered that he was a bona fide holder of the notes secured, to which a reply in denial was filed. It was decided that the mortgage and notes were valid and the bill was dismissed. D now brought a suit to foreclose and made A, as a judgment lien holder, defendant. A now set up, by cross-bill, that D was not a bona fide holder, alleging facts which showed that the notes were held as collateral to other matters which disclosed an ultimate equity in B which ought to be applied on his, A's, judgment. D claimed that the former adjudication was con- 1 . Dictum in Owens v. Link, 48 Mo. 2. Coit v. Tracy, 8 Conn. 268 (20 Am. App. 534. D. 110). 550 THE MERITS. elusive in his favor that he was a bona fide holder, but this claim was denied, because the question, in what capacity he held the notes, was immaterial in the first suit/ Cancellation suit — Amount due. — In a suit to cancel a mortgage upon the ground of j)ayment, if the answer denies the payment, a further allegation that a large sum is due is sur- plusage, and a finding that a specified amount is due is im- material ; and, if there is a judgment dismissing the suit, the finding as to the amount due is not conclusive in a new suit to foreclose.^ § 232. Commissions — Construction ot will. — An executor brought a suit to obtain a judicial construction of a will, and filed a statement showing his receipts and disbursements, among which was an item for commissions which just equaled five per cent, of the amount received. What was done with this item, the case fails to show ; but in a subsequent action in respect to his commissions, he claimed that the former suit fixed the rate at five per cent. But this claim was denied, upon the ground that the sole object of that suit was to determine who were the beneficiaries under the will.* Trade-mark. — A person employed to sell goods on commis- sion began to manufacture and sell for himself, and used his employer's trade-mark, for which the latter sued him, and the issue was joined on his right to do so. It seems that, on the trial, the question of his commissions was gone into, yet a find- ing in respect to them was held to be immaterial, and no evi- dence in a subsequent action for their recovery.* 1. Russell V. Epler, 10 111, App. 304. action, evidence was given as to the 2. Campbell v. Consalus, 40 Barb, terms of the contract for compensa- 509. AflBrmed, Campbell v. Consalus, tion, from which it appeared that the 25 N. Y. 613. ten per cent, commission was only to 3. In re Selleck, 111 N. Y. 284 {In re be paid upon moneys received by the Decker's Estate, 19 N. E. R. 66). defendants on orders procured by 4. Springers. Bien, 128 N. Y. 99 (27 Springer during his employment by N. E. R. 1076). The courtsaid: "The Bien,and that moneys received there- claim is that this judgment is res judi- after on orders placed by Springer, cata upon the claim for compensation but which were unexecuted when upon which this action is brought. It his employment ceased, were not is said that, on the trial of the former subject to the commission. We are IMMATERIAL ISSUES. 551 § 233. Construction of deed of trust in a suit to determine its validity. — In a suit brought by virtue of rights claimed under a deed of trust, to restrain the defendant from prosecuting an action of ejectment, the defense was ( 1 ) that the deed was made without consideration ; (2) that it was made with intent to defraud creditors ; ( 3 ) that the trustees never accepted the trust ; (4) that the trustees had reconveyed to the grantor, and (5) that the defendant had purchased the land at a sheriff's sale against the grantor. The court not only sustained the suit, which necessarily adjudged that none of the matters set up in defense were valid, but it went on and construed the trust deed. This construction was decided to be immaterial and not binding on the parties. The court said : "The complainants having es- tablished that the deed was properly executed and in force, notwithstanding the renunciation and reconveyance of the trustees, and that it contained trusts so far valid as to entitle also referred to certain findings made by the trial judge in the former action, which, as claimed, sustain this construction of the contract. It is a sufficient answer to the claim of estop- pel by the former judgment, that, con- ceding that the evidence in that action warranted a finding that the present plaintiff was only to have commis- sions on moneys actually received dur- ing his employment, and that the findings bear the construction con- tended for, nevertheless they were wholly irrelevant to the issues, and did not enter into and were not in- volved in the final judgment. Neither the verdict of a jury nor the findings of a court in a prior action, upon the pre- cise point involved in a subsequent action between the same parties, con- stitute a bar,unless followed by a judg- ment based upon them, or into which the verdict or finding entered. It is the judgment whicli constitutes the bar, and not the preliminary determi- nation of the court or jury. So also, and for obvious reasons, although judgment has been entered, it does not prevent the relitigation of of any irrelevant fact, although it may have been litigated and found in the prior action. Webb v. Buckelew, 82 N. Y. 555; Stannard v. Hubbell, 123 N. Y. 520 (25 N. E. Rep. 1084). The question whether the contract for compensation included commissions on all orders procured by the plaintiff during his employment, upon which moneys should be realized by the de- fendants at any time, or only on or- ders procured upon which money was realized during the employment, was immaterial to the judgment and relief granted. The accounting pro- vided by the judgment did not em- brace the matter of compensation, and that question was still open, notwith- standing the judgment, to subsequent conti'oversy. The claim now made is not inconsistent with any matter ad- judged in the former action, although it may have been covered by the evi- dence and embraced in the findings." 552 THE MERITS. the trustees or cestui que trust to the possession of the lands, they had done all that was necessary to entitle them to a decree. If the court gave a wrong reason for its judgment, or placed it upon unnecessary grounds, the parties would not be estopped as to those reasons or grounds in any other suit."' Construction of will as to personalty, rights in land DETERMINED. — The porsoiial estate of a testator was amply suf- ficient to pay all his debts and legacies, and the will contained simply an authority but no direction to sell the real estate. Under these circumstances, the executors brought a suit against the heirs and beneficiaries to obtain a construction of the will, in which a decree was rendered that the will converted all the real into personal estate, and that the excess, over one-half of the gross amount of the estate, went to the next of kin. It was decided that, while this decree was binding on the heirs in regard to the personalty, it did not prevent them from disput- ing the right of the next of kin to the excess over one-half of the real estate.^ § 234. Contract, execution of, determined in suit dismissed for want of Jurisdiction. — A statute of New York provided that its courts should have no jurisdiction to entertain a suit by a non-resident against a foreign corporation on a contract not made within the state. A person brought a suit against a for- eign corporation, on two successive contracts to pay a license for the use of a patent, and the answer, among other things, alleged the non-residence of the plaintiff, and that the contracts were not made within the state. After a trial, there was a finding that both contracts were made, and that the first one was en- tered into within the state, and damages were assessed, but that the second was made in Michigan, and for that reason, because the court had no jurisdiction, no judgment was rendered upon it. The court limited the judgment on the first contract to the date of the second, apparently upon the theory that it was su- 1. Woodgate v. Fleet, 44 N. Y. 1, 12. Vedder's Will, 2 Connoily 548 (15 N. 2. Clark, Matter of, 62 Hun (69 N. Y. Suppl. 798; 40 N. Y. St. Eeporter Y. Supr.) 275 {In re Vedder's Estate, 119). 17 N. Y. Suppl. 93) — reversing In re IMMATERIAL ISSUES. 553 perseded by the second, but this limitation was not made at the instance of the defendant. The plaintiff having removed to New York, thereby obviating the jurisdictional question, brought a new suit on the second contract, and contended that the find- ing in his favor in the first suit that the contract was made was conclusive ; but it was decided that the finding was not material; that it was merely introductory to the finding of want of juris- diction.* § 235. Deed, in ejectment, held to be a mortgage, and amount due determined. — If the plaintiff seeks to recover land by virtue of a deed from the defendant, and is defeated upon the ground that his deed is a mortgage, a finding that it is wholly unpaid is immaterial, and does not bind the defendant in a suit to foreclose.^ Deed, validity of, determined in action for breach of CONTRACT TO CONVEY. — A persou having taken possession of land under a contract for a deed, brought a suit for damages, alleging that the defendant had never tendered a deed, and was unable to do so. The defendant denied that he was unable to make a deed, and alleged that he was discharged from his agreement to do so b}'' reason of certain matters set forth. There was a trial and a finding that the legal title to the land was vested in the defendant's wife by virtue of a deed executed to her by his father, and that defendant had a power of attor- ney from her to sell the land, but that it was so encumbered that a conveyance could not be made according to the contract; 1. Cauhape i;. Parke, Davis & Co. ,121 evidence of the fact so found in a N. Y. 152 (24 N. E. R. 185). The subsequent action, although the court court said: " We think the judgment made it the basis for limiting the is right. It rests upon the principle plaintiff's recovery on the first con- that a former judgment is not avail- tract ; and whether the court, in so able in a subsequent action, for doing, acted erroneously, or by acqui- another cause, between the same par- escence of the plaintiff, makes, we ties, to establish any fact not material think, no difference. The defendant to the adjudication actually made in w^as in no way responsible for the ac- the former action. The finding in the tion of the court." former action of the existence of the 2. ^Mitchell v. Insley, 33 Kan. 654 (7 second contract was not material, in a Pac. R. 201). legal sense, so as to make the finding 554 THE MERITS. and it was therefore found that the defendant had broken the contract, and damages were assessed in favor of the plaintiff, upon which a judgment was rendered. The plaintiff issued an execution upon this judgment, sold the same land, purchased it himself, and then brought a suit to cancel the deed from the defendant's father to his wife on the ground that it was a forgery, alleging that the father had died and that the land had descended to the defendant as the sole heir at law. The de- fendant now contended, that the finding in the former case that the legal title was vested in his wife by virtue of this deed was a bar to the present suit. But the court denied this con- tention, saying that it was not material in the former suit whether the defendant did or did not have title, because, when the plaintiff showed the deed to his wife, he avoided that point by showing a power of attorney from her to convey; and that the judgment was founded solely on the fact that the land was encumbered.* § 236. Domicile determined in proceeding to probate will. — In a proceeding to probate a will, one of the questions contested was whether the domicile of the testator was in England or in Chili. As the same relief would be given, no matter which way that question was decided, it was held that a judgment probating the will, and also adjudging that the domicile was in England, did not bind the parties on the latter point. ^ Ejectment, time of ouster. — In ejectment, if there is no claim for mesne profits, there are but two material issues, namely, right of entry by the plaintiff and wrongful possession by the defendant ; and an adjudication in respect to the time of ouster is not binding.' The court said: "That the record in the former case is not an estoppel as to the time of ouster, is clear; for if the question of mesne profits may be considered out of the case by virtue of the finding of its withdrawal 1. Remington Paper Co. v. O'Dough- 3. Coburn v. Goodall, 72 CaJ. 498 (14 erty, 81 N. Y. 474, 488. Pac. R. 190). 2. De Mora v. Concha, L. R. 29 Ch. Div. 268, 302. IMMATERIAL ISSUES. 555 then there were but two other questions which could have been material in that action, namely, right of entry by plaintiff , and wrongful possession of defendant when the suit was com- menced." False imprisonment, fact of, determined in breach of PROMISE SUIT. — To a complaint for false imprisonment, alleging that the defendants had locked the plaintiff up in a room, and, by threats of violence and a pistol drawn, had compelled him to confess that he had made and violated a certain promise of marriage, and had extorted from him a promise to pay a cer- tain sum of money, an answer that the matters and things complained of were adjudicated in an action by one of the de- fendants against the plaintiff for the breach of the marriage contract mentioned, is bad, because no such issue could have been made.^ § 237. — " Fraudulent" alteration of note, adjudged in suit upon it. — It being the law, that a fraudulent alteration of a note not only avoids it but also bars an action to recover the origi- nal consideration, while an alteration innocently made simply avoids it and does not preclude a suit upon such consideration, a judgment for the defendant, in a suit on a note in which the defense was that it had been fraudulently altered in a ma- terial part, is no bar to a suit upon the consideration for which it was given, because it was not necessary to prove the fraud in the first case, although it was specially alleged.^ Fraudulent representations — No representations. — To an action to recover the first installment upon a land contract, the answer was that it was procured by false and fraudulent representations concerning the quantity of timber on the land; and, after a contest, there was a finding that no representations were made in respect to the timber, upon which a judgment was rendered for the plaintiff. In an action on the second in- stallment, this was held to preclude a defense that there was a warranty in respect to the timber, because the finding was that 1. Hildebrand v. McCruni, 101 Ind. 2. Eckert i'. Pickel, 59 Iowa 545 (13 61. N. W. R. 708). 556 THE MERITS. no representations of any kind were made.^ This case seems to me to be unsound. Whetlier or not any representations were made was immaterial in the first suit unless they were fraudulent. Freehold. — To an action of trespass quare clausum fregit, the defendant having pleaded not guilty and freehold in him- self, a specific finding of both issues in his favor and judgment accordingly can not be used in a new action to establish the latter issue in his favor, because it was rendered immaterial by the finding on the general issue. ^ § 238. Heirship, adjudged in granting letters of adminis- tration. — If the probate court, upon granting letters of admin- istration, decides matters that do not then need to be consid- ered, as, for instance, who the heirs are, the adjudication, in respect to the latter question, is not binding.* Knowledge of possession, immaterial. — A agreed to pur- chase the undivided share of B in a mill and was given posses- sion. B afterwards conveyed his interest to C, and A brought a suit against C to enjoin him from using his deed in support of his claim to the mill, alleging, among other things, that he, C, when he received his deed, knew that he. A, was in posses- sion. A decree in favor of A, finding that C, when he took his deed, had knowledge of A's possession, is no evidence to show that fact in a subsequent action between the parties, be- cause it was immaterial whether C did or did not know that fact.* § 239. Mistake in stranger's deed. — B, having the posses- sion of land, filed a bill against C to quiet his title, alleging that he was the owner, and that, '' through inadvertence or mis- take," it was included in a deed executed by one A to the de- fendant, C, and praying that the latter be enjoined from inter- fering with it. The answer denied the plaintiff's title, and al- leged that the defendant was the owner, and that there was no 1. Lumber Co. v. Buchtel, 101 U. S. 3. Kauhi v. Keoni Kiaikulani,3 Ha- 638. waiian 356. 2. Rogers v. Ratcliff, 3 Jones' Law 4. Hotchkiss v. Nichols, 3 Day 138, 225— Nash, C. J., dissenting. 143. IMMATERIAL ISSUES. 557 "inadvertence nor mistake " in his deed from A. A was vouched in to defend the title, and, after a trial, there was a finding by the master that there was no mistake in the deed, but that the complainant had the title, and there was a decree in his favor which contained the substance of the bill and that part of the report of the master which showed that the com- plainant was the owner, but not that part relating to the mis- take in the deed. A then sued the defendant, C, to correct his deed upon the. ground that the land in controversy in the former suit was included in it by inadvertence and mistake, and sought to use the former decree as conclusive evidence to show that fact ; but it was held that he could not do so, be- cause that was a question with which the complainant in that case had nothing to do ; or, in other words, that the issue made on that point was immaterial.^ § 240. Mortgage of chattels, validity of, determined in suit against officer for levying writ. — In Alabama, the possessory interest of the mortgagor of chattels before the debt becomes due is subject to levy and sale on execution ; and in such a case, in which a levy had been made on a chattel before the maturity of the mortgage, the mortgagee filed a claim to try the right of property, in which the only issue permissible under the statute was whether or not ' ' the property levied on was subject to the execution." Notwithstanding this, the validity of the mort- gage was actually contested on the trial and a verdict and judg- ment rendered for the execution plaintiff. This was decided to be no bar to a suit to foreclose the mortgage, because the issue in regard to it in the first suit was immaterial.^ § 241. Number of owners of a vessel determined, wherein agency or no agency is the issue. — A and five others sued B, alleging that the plaintiffs were joint owners of a vessel, and that they, as such joint owners, loaned to him one hundred dollars, as the master of the propeller Phoenix, which was in distress and needed the use of the money, which he promised 1. Tarbell v. Tarbell, 57 Vt. 492. 2. Davidson v. Shipman, 6 Ala. 27, 32. 558 THE MERITS. to repay, but neglected to do. B's answer was a denial, and also that he received the money as the agent and servant of the owners of the propeller. On the^e issues there was a trial and finding that the plaintiffs themselves had employed B to perform services for them in saving the wreck of the propel- ler, and that the money sued for was advanced to him to be laid out for them. Upon this finding there was a judg- ment in favor of B. He then sued A, alleging that the latter had employed him to perform services in and about saving the wreck of the propeller, and asked to recover one hundred and sixty dollars. A's answer was a denial, and also that the services were performed at the request of himself and seven others named who were living and should have been joined as defendants. In reply to this second answer, B introduced the former record, in which A, in his complaint, had alleged that he and five others had made the loan to him, and contended that it precluded A from now showing that the services sued for were performed for seven persons besides himself. But this con- tention was denied . The court said that it was true that the finding in the former case was, that the plaintiffs had hired the defendant to perform services, and that the money sued for had been ad- vanced by them to him to be used for their benefit, but that that finding and the judgment for the defendant upon it involved no adjudication of the matter now in dispute ; that the material question decided was that the money sued for was not a loan but an advancement.* Partner, general or special. — ^The code of Louisiana pro- vides that the ' ' authority of the thing adjudged takes place only with respect to what was the object of the judgment." Under this law it was held that if the executor of a succession proceeded against the liquidator of a commercial firm, of which the testator had been a member, to compel a restoration of the property of the succession, the judgment in that pro- ceeding could not settle the fact that the liquidator was or was not a general partner in the commercial firm with the tes- tator, because the object of the suits was different.^ 1. Sweet V. Tuttle, 14 N. Y. 465, 469. 2. Slocomb v. De Lizardi, 21 La. Ann. 355 (99 Am. D. 740). IMMATERIAL ISSUES. 559 § 242. Payment, by whom made, determined in partition suit. — A person agreed to convey a tract of land to his son-in- law, and actually put him in possession. Afterwards the lat- ter paid a part of the price, and a conveyance was made to his wife, the daughter of the grantor. The grantor having died, a suit in equity for partition and to determine advancements was brought, and as the unpaid portion of the purchase-price of this tract was an advancement to the daughter, the matter was referred to a commissioner, who made a report showing the agreed price of the land, and the date and amount of the payment, which he found was made by both her and her hus- band, arid a decree was made charging her with the balance as an advancement. Subsequently a contest arose between the heirs of the daughter and the heirs of her husband as to who made that payment. The heirs of the daughter claimed that the report of the commissioner was conclusive that they paid it jointly, but this claim was denied, because the material question in the equity suit was not who made the payment, but how much wari paid, and the heirs of the husband were permit- ted to show that he paid it all.* 1. Odom V Beverly, 32 S. C. 107 (10 whom this payment was made, but S. E. R. 835). The court said: "There whetherany payment had been made, is no douLt that the record of the so as to determine whether any por- equity case mentioned shows that tion of the land, and, if so, how much, Alexander contracted for the pur- should be regarded as an advancement chase of tho land in 1850, and that a to Elizabeth ; and it was found that a short time before the execution of the certain portion still remained due, deed, in 1854, James Odom gave him which was set off as an advance- a receipt for 1370.80, paid on this pur- ment to her. The entire question in chase ; the receipt appearing in the the equity case as to the lands in the record being as follows : ' September possession of the children of James 25, 1854. Received of Alexander Bev- Odom, including the tract conveyed erly, three hundred and seventy dol- to Elizabeth, was — First, whether lars and eighty cents, in part pay- the deeds executed had been deliv- ment for the land whereon he now ered ; and, second, whether the pur- resides.' It is true, the commis- chase-money had been paid, or sioner in equity, in 1866, reported whether the lands had been conveyed that this receipt was given to Alex- as advancements ; and these were the ander Beverly and wife for so much questions really adjudged and decreed, money, which they paid. But it must not involving the questions as to the be remembered that the question un- respective interests of Alexander and der consideration then was not by Elizabeth, nor whether the payment 560 THE MERITS. § 243. Payment of one claim, determined in suit upon anotlier. — The issue being whether or not a sum of money had been paid and received in satisfaction, discharge and settlement of the cause of action sued upon, a finding that it was paid and received in "satisfaction, discharge and settlement of every claim, debt or cause of action " held by the plaintiff, is no bar to a suit by him upon other claims then held by him.* Payment to stranger. — A, being an agent to collect sub- scriptions and pay them over to B, was sued by the subscribers for money collected and not paid over to B, and there was a special finding that C, who was a party to the suit, had not paid his subscription to A, but had paid it to B directly. This part of the finding, and the judgment upon it, was decided to be im- material and not binding, in a suit against C to recover his sub- scription, because the issue was in respect to how much A had received, and not as to what had been received by B, who was not a party to the suit.^ § 244. Possession of chattels, right to, determined in suit to establish a right of remainder. — Several persons filed a bill of ne exeat against a woman and her husband, alleging that they, the plaintiffs, were interested in certain negroes as remainder- men, and praying that the defendants might give security for their forthcoming, and also for the removal of the trustee and the appointment of another. The defendants denied any intention of removing the negroes, and set up their claim to them during the life of the wife. What matters were contested the case does not show, but the decree was, that the defendants should give security as prayed for, and the trustee was removed and a new one appointed. This new trustee, during the life of the wife, brought trover against the husband for the negroes, of the $370.80 was made exclusively their respective interests in the land, by the one or the other, or by both, was an open question." Under these circumstances we think 1. Phelan v. Gardner, 43 Cal. 306, the question of payment, — that is, by 311. whom made, — as between the heirs of 2. Lathrop v. Knapp, 37 Wis. 307, Alexander and Elizabeth, and as to 314. IMMATERIAL ISSUES. 561 and the defense was, that the husband's right to hold their possession during the life of the wife was adjudicated in the former decree. But the court decided that the defense was not good, because, in order to make the decree, it was only neces- sary to decide that the complainants were remaindermen, and not that the trustee did not have the right to the possession ; and that, therefore, that right was open to investigation.* § 245. Quantity of interest in estate determined in suit to construe will. — A, being one of the beneficiaries under a will, sold his interest in the estate to B, another beneficiary, and warranted it to be one-tenth. Afterwards the executor brought a suit to construe the will and to determine the rights of all persons in interest, including A and B. The decree was that the interest of certain beneficiaries, including A, was one-tenth each, and that others had smaller fractions, and that C, anoth- er beneficiary, had purchased and owned the interests of A and B and all the others, except one small one. In the meantime another suit arose between B and the heirs of A, in respect to the interest of the latter, which he had warranted to be one- tenth, and his heirs contended that the decree in the former case which expressly adjudged it to be one-tenth, was conclusive. But this contention was denied, upon the ground that that question became immaterial to them when it was adjudged that they had sold their interests to C. The court said, and said correctly, that they could not have taken an exception to the report on that point for want of interest in it.^ The opinion reads: "This record shows that neither Benjamin McCo}^ nor Lucinda Rexroad had, when the final decree was entered, any opportuni- ty to be heard on this question. If either of them had regarded the principles, upon which the commissioner had reported that the proportions of General McCoy's estate coming to each of his residuary legatees was to be determined, as erroneous, they could not have excepted to the report for this error, though apparent 1. Hunter V. Davis, 19 Ga. 413, 415. 2. McCoy v. McCoy, 29 W. Va. 794 (2S. E. E. 809). 36 562 THE MERITS. on its face ; for neither of tliem could possibly have been in- jured for want of interest. Of course, William McCoy, as well as any of the defendants who, by the commissioner's re- port, appeared still to have an interest in this question, and in whose favor the court in the final decree ordered moneys to be paid, as stated in this report, could have excepted to it because of the principles adopted by the commissioner apparent on the face of the report, whereby he ascertained the amount coming to each. They could have excepted to the report, and could have been heard by the court; and, having this opportu- nity to be heard, they are bound by the decree as res judicata; but none of the other parties to this suit are so bound, if the principles above laid down are correct." § 246. Quantity of water to which party is entitled deter- mined in trespass. — A having sued B for damages caused by diverting one thousand inches of water from a stream, a re- covery is not an adjudication that he is entitled, as against B, to the use of one thousand inches. B could make no issue on the exact amount taken, as he was liable if he wrongfully took any.^ A complaint set forth the rights of the plaintiff in a slough of water, and alleged that the defendant had, prior to February, 1883, constructed a dam in the channel of the slough, from which it had diverted water, by means of a ditch, away from the plaintiff 's lands, for which damages were asked. The answer denied all the allegations of the com- plaint, and alleged that the defendant, by virtue of acts com- menced in 1875, had acquired a prescriptive right, by means of a ditch twenty feet wide at the bottom and forty feet wide at the top, and a dam across the channel of the slough just below the head of the ditch then constructed by it, to divert from the slough about 100 cubic feet of water per second, measured under a four-inch pressure, and that the plaintiff's cause of action was barred by the statute of limitations. Upon these issues, the court found that the defendant had acquired a pre- scriptive right to divert water from the slough sufficient to fill 1. McDonald v. Bear River and Auburn Water, etc., Co., 15 Cal. 145, 147. IMMATERIAL ISSUES. 563 / its ditch twent}' feet wide at the bottom and forty feet wide at the top, and tliat tlie plaintiff 's cause of action was barred by the statute of limitations. The court also found that the de- fendant had never claimed the right to divert, and had never diverted any water from the slough, except when more than five hundred cubic feet of water per second were flowing in it by the head of the defendant's ditch. Upon these findings there was a judgment for the defendant for costs. The plaintiff afterwards brought a new action to obtain a judgment, declaring that the defendant was not entitled to divert any water from the channel of the slough, except when there were more than 500 cubic feet per second passing down it by the head of the defendant's ditch, and then only to the extent of 100 cubic feet per second, and contended that the former ad- judication was conclusive on those questions in his favor. But the court said that the issue presented by the complaint in the former action involved simply the right of the defendant to make any diversion of the water, and that it was necessary for the defendant to establish such a right as would defeat the case, but that the limit of that right was immaterial. Hence his contention was denied.* Quantity of wheat, determined in action concerning TITLE solely. — A bought two car-loads of wheat of B, which was then in his elevator. The elevator burned down that night, and in the morning A demanded the wheat. It was lying in a pile, partially burned. A replevied this " pile," alleged to be about eleven hundred bushels. It was held that a recovery did not fix the number of bushels at eleven hundred, as the issue was not as to the amount, but as to the ownership of the pile.' § 247. Redemption suit, amount due, determined in. — If the mortgagor tenders the amount he claims to be due to the mort- gagee, and, upon his refusal to receive it, brings a suit for re- demption, and the court finds that a larger sum is due, fixing 1. Lillis V. Emigrant Ditch Co., 95 2. Voge v. Breed, 14 111. App. 638, Cal. 553 (30 Pac. R. 1108). 543. 564 THE MERITS. the amount, this sum is res judicata in a subsequent suit by the mortgagee to foreclose.' Service in partition. — A and B being tenants in common of land, A first executed a bond to convey his share to B, and afterwards brought a suit in partition, took a decree by default for a sale, and purchased the whole tract and received a deed. In the meantime B had brought a suit on his bond to compel a conveyance, and A, by way of supplemental answer, set up the proceedings, sale and deed in partition. In those proceedings there was a return of service made by a private person, and B, it seems, on the hearing of his suit, controverted the fact of service in the partition suit. But the court found that the summons in that suit was, in fact, served upon B, and held, as a matter of law, that, as B had not set up his equitable rights under the bond in that suit, the decree did not bar them, and entered a decree in his f^vor for a specific performance. The validity of this decree in partition coming in question again between the parties, A contended that the finding of the court in the specific performance suit that service was actually made on B in the partition suit, barred further controversy on that point, but his contention was denied upon the ground that that issue, in the suit for a specific performance, as well as the whole partition proceedings, was immaterial and unnecessary.^ § 248. Street, use and visibility of, determined in suit to enjoin its obstruction. — A village in New York sued a land- owner to enjoin him from obstructing a street ; and, after a trial, the court found that, for more than twenty years prior to the commencement of the suit, the land had been dedicated to the public for a street, and that it ''was thereupon accepted, improved and maintained as a public street by said village, and has been used, occupied, and maintained as a public street or passage-way for persons and teams for the period of more than twenty-five years last past ; ' ' and there was a decree in favor of the village. The defendant in that suit then sued his grantor on the covenant for quiet enjoyment contained in his 1. Miller v. Thayer, 74 Cal. 351 (16 2. Hardy v. Mills, 35 Wis. 141, 148. Pac. R. 187). IMMATERIAL ISSUES. 565 deed; and, as it was the law of the state that this covenant was not broken by a public and visible street, the question arose whether or not the finding in the former case, which was conceded to be conclusive for what it was worth, was a bar. The court decided that it was not, saying that the only issue necessarily involved in that suit was, whether or not the pub- lic had the right to the strip of land as and for a street ; and that when that was determined, the purpose of the suit was accomplished ; but that whether the place was used as a street, or was open or visible as such, was not legitimately within the purview of that action, nor essentially involved in its deter- mination.^ § 249. Tenancy, determined in suit to declare deed a mort- gage. — A complaint alleged that the defendants took a sheriff's deed to secure them for advances made, and asked to have the deed declared a mortgage, and also for a decree ordering them to reconvey on payment, and for an injunction against their claiming any other than a mortgage interest. The answer denied all the material allegations of the complaint, and asserted that they took the deed as purchasers, but alleged that they afterwards agreed, verbally, to allow the plaintiff to repur- chase at an advanced price for a certain time, which he failed to do, and that afterwards the time for the repurchase was extended three months, on certain terms, one of which was 1. Hymes?>. Estey, 116 X. Y. 501 (22 judication is conclusive upon the y. E. R. 1087). The court said : "But plaintiff. But whether or not the a judgment is res judicata as to those place was used as a street, or was open matters only which are within the or visible as such, at the time of the sale subject-matter of the litigation, and by Estey to Todd, was not, so far as those which, as incidental to or es- appears, legitimately within the pur- sentially connected with it, might viewof that action, nor essentially, for legitimately have been litigated in any purpose, involved in its deter- the action. The question, and the mination. That fact, therefore, was only issue necessarily involved, in the not material to the controversy, and former action was whether there was for that reason the plaintiff in this ac- in the public the right to the strip of tion for breach of covenant is not con- land as and for a street, and when the eluded by any expression in that re- existence of such an easement was de- spect in the findings of the court in termined the purpose of the action was the former action." accomplished. To that extent the ad- 566 THE MERITS. that the plaintiff should pay an additional rent of thirty-three dollars per month for the property, which he had paid for three months. This answer was, in substance, that they held the absolute title and that the plaintiff was their tenant. Upon these issues, there was a finding that the defendants had pur- chased absolutely, and that the plaintiff had continued to occupy the premises as their tenant, and, there was a judgment against the plaintiff for costs. In a subsequent action by them to recover the premises, it was decided that this judgment did not establish the fact that the plaintiff was their tenant, because the only matter necessarily involved was whether or not the deed was a mortgage.^ This case impliedly holds that the title set up by the defendants was immaterial and that the finding upon it was of no force. § 250. Title, determined in possessory action. — In a posses- sory action, allegations concerning the title are mere surplus- age, and they do not become res judicata. '^ Vested or contingent interest, determined in suit to CONSTRUE WILL. — Property was devised to executors in trust for two minors until they should, respectively, attain the age of twenty-one or marry ; and in case either should die without lawful issue, then the whole was to be held for the survivor until he attained his majority when he was to have it ; but in case both should die without lawful issue, the property was to be divided among the devisor's heirs and distributees. The persons named as executors having refused to qualify, an administrator, with the will annexed, was appointed. The two minors then brought a suit to have the court decide whether or not the trusts to the executors devolved upon the administrator, and, if not, to have the court appoint a trustee for them, and then to have a reasonable amount for support, education and clothing allowed them. The court decreed that the trust did devolve upon the administrator, and that they had a vested interest, subject to be divested and to go to the sur- 1. People, ex rel. Reilly, v. Johnson, 2. Gibson v. Chouteau, 7 Mo. App. 1. 37 Barb. 602, 507 (14 Abb. Pr. 416, 420). IMMATERIAL ISSUES. 567 vivor upon death before majority, and that, as the estate was vested, the plaintiffs were each entitled to a " reasonable main- tenance out of said estate," and that each would be entitled to his portion when he attained the age of twenty-one or married. Both the minors lived to be over twenty-one years of age and died without lawful issue. After that, the heirs and distrib- utees of the devisor brought a suit to construe the will, claim- ing that, as the first takers died without lawful issue, the prop- erty reverted to them ; and the first decree, which declared the estate to be a vested one, was relied upon as a defense. But it was held to be no defense, because the sole object of the first suit was to determine who w^as the trustee and to have a mainte- nance allowed — the precise question raised in the new suit not being before the court, and the decree being silent con- cerning it.^ § 251. Unborn colt — Title to, determined in suit concern- ing the mother. — A delivered a mare to B upon the agreement that he was to breed her at his own expense and keep her until the colt, which was to belong to him, was foaled and weaned, when the mare was to be returned to A- After she was with foal, C caused her to be levied upon and sold upon an execution against A, and purchased her him- self. Before the colt was born, B sued C for her possession, claiming that, by virtue of his contract, he had a special inter- est in her, was entitled to hold her until the colt was foaled and weaned, which he averred would belong to him. A de- murrer was sustained to his petition for want of merits and a final judgment rendered against him for costs. After the birth of the colt, B sued C to recover it, and his defense was that the first action was a bar. But this was decided to be no defense because the subject-matters of the actions were different — the court saying that the statement in B's first petition that the colt when foaled would belong to him, was unnecessary mat- ter, and that it was not the purpose of that action to determine the title to the colt.^ 1. Withers v. Sims, 80 Va. 651, 660. 2. Maize v. Bowman, 93 Ky.— (19 S. W. R. 589). 568 THE MERITS. Water supply for city. — In a suit by tax-payers to enjoin a city from paying a water tax to a water company, and to cancel the contract for a water supply, if an application is made for an interlocutory injunction to restrain the payment of the tax for water already furnished, the validity of the cori< tract for future supplies is not so involved as to make any de- cision rendered a bar to its further consideration.* 1. Dawson Water- Works Co. v. Carver, — Ga. — (20 S. E. R. 502). CHAPTER X. THE ISSUES — PLAINTIFFS, ISSUES AND ADJUDICATIONS BETWEEJT EACH OTHER. § 252. Principle involved in Chapter § 253. selves — Fraudulent convey- X: (Administrators). ance. 253. Agreement between plaintiffs 254. Husband and wife. that suit shall not determine 255. Partners, their rights among them- § 252. Principle involved in Chapter X. — If a judgment de- termines the rights of the plaintiffs as between themselves without issues in writing formed between them, it is errone- ous, but not void collaterally, in my opinion ; and if merely erroneous but not void, it would be res judicata. The court having jurisdiction over the subject-matter, and the evidence in relation to it having been heard, and the parties being pres- ent and charged with notice of the judgment actually spread upon the record, if they are dissatisfied, good faith and com- mon honesty towards the court would seem to require them to call its attention to the omission of written issues. And to al- low them to remain silent, and to take advantage of that defect collaterally, seems to me to encourage trickery and sharp prac- tice.^ Still, if the adjudication is simply general, it would be construed, with reference to the issues, as settling the rights of the plaintiffs as against the defendants, and not as between themselves. A late case in Texas holds that if a judgment de- termines the rights of the plaintiffs as between themselves, without issues made between them, it is not binding.* Administrators. — In a suit by the joint administrators of an estate to enjoin a creditor, a report was made charging them 1. See Van Fleet Coll. Att., §§ 746- 2. Sandoval v. Eosser, — Tex. Civil 756. App. — (26 S. W. R. 930). (569) 570 THE MERITS. with the value of slaves, and they excepted '' because the said slaves were, without the fault of these complainants, by the act of the government, freed and emancipated," and this excep- tion was sustained. Afterwards one of these administrators sued the other, claiming that the defendant had converted these slaves to his own use before the war, thereby committing a de- v-astavit, by reason of which a debt due to the plaintiff from the estate was lost. But the decree sustaining their joint excep- tion to the report was held to settle conclusively that they were not converted, and to be a bar to the suit.* § 253. Agreements between plaintiffs that suit shall not determine their rights among themselves. — If a person hold- ing several insurance policies assigns them to third persons, severally, and, after a loss, if the original payee and the as- signees all join as plaintiffs, under an agreement that the rights of the plaintiffs among themselves shall be afterwards determined, that will be binding; and a creditor of the payee can get no advantage over the assignees by reason of any sup- posed irregularity in joining all as plaintiffs.^ Fraudulent conveyance. — A brought a suit to quiet title. Pending the suit, he conveyed a part of the land to B, who was made a coplaintiff and asked to have his share set off to him. The suit was tried and submitted. But before a decision was made, A became a bankrupt, and his assignee was substituted as plaintiff in his place. The lands still standing in A's name were set-off to his assignee, and those conveyed to B were set off to him. No issue was made between A's assignee and B. Subsequently A's assignee sued B to set aside the conveyance from A as a fraud on his creditors, and B insisted that the former decree was a bar, but the court held that the assignee was not bound to raise that issue with him, and denied his contention.^ § 254. Husband and wife. — A woman, her alleged husband 1. Kent V. Kent, 82 Va. 205, 223. 3. Radford v. Folsom, 3 Fed. R. 199. 2. Southern Fertilizer Co. v. Reams, 105 N. C. 283 (11 S. E. R. 467). ISSUES AND ADJUDK'ATIONS BETWEEN PLAINTIFFS. 571 joining with her, Ijaving recovered damages for an assault and battery, after which she procured a divorce because he had an- other wife living, it was held that he had no interest in the judgment, and that it could not be subjected to his debts, and that the judgment did not estop her from showing that he was not her husband.^ § 255, Partners. — Two partners sued a third one, alleging the terms of the partnership, the manner of conducting the business, and that the defendant was the manager; that certain contributions of money were made by each partner, and that the defendant had mismanaged the business and received large profits, and praying ''that an account betaken of said partner- ship business and of all moneys arising therefrom, which have or ought to have been received by the defendant," and that he be adjudged to pay plaintiffs their just proportion. Afterwards there was a consent entry that " under a compromise between the parties to this suit, embracing all matters between said par- ties, it is now adjudged that plaintiffs recover of defendant two hundred and fifty-five dollars, and that each party pay his own costs. " It was decided that this did not bar a new suit between the plaintiffs themselves wherein it was alleged that one had received more than his share, and asking for an accounting.^ 1. Carpenter v. Smith, 24 Iowa 200. 2. Williams v. Clouse, 91 X. C. 322. CHAPTER XI. t THE ISSUES DEFENDANTS, ISSUES AND ADJUDICATIONS BETWEEN EACH OTHER. §256. 257. 258. 259. 260. 261. 262. Principle involved in Chapter XI: (Nebraska rule in equity — Plaintiff tenders issues in equity — Indian cases). Accounting in land transaction — Bona fide assignment — Consideration of deed — Con- tract held void— Corporation, stockholders, county. Cosureties or no — Deed of trust, validity of. Foreclosure of lien or mort- gage. Fraudulent vendee and sheriff — Garnishee — Guarantor. Joint obligors at law. Marriage settlement accounts. § 263. Negotiable paper, present- ment and demand, as be- tween the indorser and ac- ceptor defendants — Partition — Partners — P artnership creditors. 264. Railway consolidation — Sale held void. 265. Suretyship. 266. Tax lien or no tax lien. 267. Title-bond purchaser in parti- tion. 268. Title quieted. 269. Warranty of title. 270. Widow's election under will. 271. Will construed — Will or no will. § 256. Principle involved in Chapter XL — Unless the de- fendants contest an issue with each other, either upon the plead- ings between them and the plaintiffs, or upon cross-pleadings between themselves, it will not be res judicata in a litigation between them. Of course, a judgment determining the rights of the defendants between themselves, under proper pleadings, is conclusive upon them.^ But a judgment against them, if there are no issues between them, does not bind them as against each other. ^ 1. Goldschmidt v. County of Nobles, 37 Minn. 49 (Goldschmidt v. Mills, 33 N. W. R. 544). 2. State Bank of St. Louis v. Bartle, 114 Mo. 276 (21 S. W. R. 816) ; O'Con- nor V. New York & Y. Land Imp. Co., 28 N. Y. Suppl. 544 (8 Misc. R. 243). In the Missouri case, this was said by the court: "Again, it is insisted that, since the proceedings and judg- ment in favor of the Central Nation- al Bank, and against the parties to this suit, found and adjudged that the deed of trust was fraud- (572) ISSUES AXD ADJUDICATIONS BETWEEN DEFENDANTS. 573 Nebraska rule in equity. — In Nebraska, if there is a suit to foreclose a mortgage against several persons as lienholders, subsequent purchasers or lessees, their several pleadings, setting up their respective rights, are cross-petitions against their co- defendants as well as against the plaintiff, and all parties will be bound by the decree rendered on their cross-petitions.^ Plaintiff tenders issues in equity. — As long ago as 1807, the House of Lords decided that a decree between codefendants, grounded on pleadings and proofs between plaintiffs and de- fendants, without any cross-bill, binds the defendants as be- tween themselves.^ Indian cases. — Chand on Res Judicata, sections 77 and 78, says: "77. It is a general principle, that a decision in a suit does not operate as res judicata against all the parties to the suit, but only against those between whom the matter ad- judicated upon was in issue. In Zamindar of Pittapuram v. Kolanka,^ the former suit was for several items of property with one of which the defendant widow's codsfendants were alleged not to have any concern; and in a subsequent suit for that particular property, those codefendants were deemed not to have been parties to the former suit. It is held by the American courts also, that if in any suit an issue is joined between some of the parties only, the decision of the issue has ulently kept from the record, un- therefore, is that, when the parties to der an agreement and collusion of a suit were not adversaries under the the parties, therefore defendant Bar- pleadings, the judgment against them tie, as between himself and plaintiff, jointly does not conclude either, so as the State Bank, is conclusively bound to prevent him from showing, in a by the judgment, and cannot call it in contest between themselves, that the question in his defense to this suit. It obligation should be borne by the will be observed that in the suit of the other." Central National Bank, all the parties 1. Hapgood v. Ellis, 11 Neb. 131, to this suit were defendants. It might 142 (7 N. W. R. 845). well be that, as to the rights of other 2. Chamley v. Dunsany, 2 Schoales creditors of Doran, the State Bank and & Lefroy 690, 718. Accord, Conry v. Bartle would both be bound by the in- Caulfleld, 2 Ball & Beatty 255, 271; dividual act or omission of either, and, Elliott v. Pell, 1 Paige 263, 268; In- as between themselves, the one com- gram v. Smith, 1 Head (38Tenn.) 411, mitting the wrong or neglect would 427. be liable over to the other. The rule, 3. Indian L. R. 2 Madras 23. 574 THE MERITS. no binding force against the others.* It is on the same prin- ciple, that parties to a suit are held not to be bound by a de- cision in it, in a subsequent suit between them, unless they were at arm's length and on opposite sides in the former suit; and a decision in favor of a person is held not to be res judicata against other persons ranged on the same side with him in the former suit. An issue in fact is, as a general rule, open to de- termination, although a finding upon it has been arrived at be- tween the parties in a former suit in which they both \vere de- fendants.^ This is on the broad ground, that a judgment in a suit for or against two or more persons ordinarily determines nothing as to their respective rights and liabilities as against each other. Nor could any other course ordinarily be expedi- ent, as generally the object of a suit is merely to dispose of the plaintiff's claim, and the defendants therefore are not allowed to appeal against each other; and to treat an expression of opinion in regard to their rights inter se as a decision would hardly be proper and equitable. In Jama Singh v. Kamrun- issa,* in which a claim for pre-emption was dismissed, it was held by a full bench of the Allahabad high court that an ap- peal would not lie by a defendant vendor against the defend- ant vendee, from a finding in the judgment as to the validity of the sale in respect of which the pre-emption claim was ad- vanced; and that that finding 'would not bar an adjudication of the matter in issue between them in a suit brought by the latter for the establishment of the validity of the sale-deed.' In Bhagwant Singh v. Tej Kuar,* the decision in the former suit as to the defendants being joint inter se was held not to bar the trial of the issue as to their being joint in a subsequent suit by one of the defendants against the others; Mr. Justice Straight observing that, ' In that proceeding the question whether the 1. Harvey v. Osborn, 55 Ind. 535. Juggut Chunder, 25 "W. R. 416; Sur- 2. Gopalayyan v. Raghupati, 3 Mad- ender Nath v. Brojo Nath, Indian L. ras High Court R. 217; Obhoy Churn R. 13 Calcutta 352; Sarup Sing v. Xo- V. Bhoobun Mohun, 12 W. R. 524; wahir Singh, 16 Punjab R. 66. Khelut Chunder v. Kishen Gobind, 16 3. Indian L. R. 3 Allahabad 132 W. R. 128; Nobin Chunder v. Nim 4. Indian L. R. 8 Allahabad 91 Chand, 17 W. R. 191; Ain Ally v. ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 575 family was joint or divided was not determined among the de- fendants inter se, but simply as against the plaintiff; and it could only be res judicata against him or parties claiming under the same title.' The decision in Slieo Churun v. Fakera^ is not against the general rule, because what was held as concluded in that case between the defendants was only the question of the plaintiff's title in dispute in the former suit. 'There were two persons,' said Sir Richard Garth, C. J., in de- livering the judgment of the court in this case, 'who in the court of first instance desired to come in as interveners, claim- ing certain shares in the propierty in question. The court al- lowed them accordingly to intervene, and of course they had a right to contend, if they had thought fit to do so, that the plaintiff was not entitled to the whole of this property which he claims, but those defendants apparently did not think fit to press their case in the courts below, and allowed judgment for the whole property to be given in favor of the plaintiff, with- out appealing to this court. The present appellant, however, says that those intervening defendants may, at some future time, make a claim for their shares of the property as against him; and that as long as there is any uncertainty as to their title, it would not be right for us to confirm the decree of the court below giving the whole property to the plaintiff. In support of this argument, we are referred to a case decided by the privy council, Periasami v. Tevar.^ That case appears to us to be totally different from the present. There the parties, who were said to be entitled to the property as against the plaintiffs, were not made parties to the suit; and the high court, although there was good reason for supposing that those persons were really entitled, declined to try the question whether they were entitled or not, considering that as between the plaintiff and those persons the question of title might be settled in another suit. The privy council, however, held that this was wrong. They considered that the plaintiff must suc- ceed, if at all, upon the strength of his own title, and that as 1. 7 Calcutta L. R. 69 (Indian L. ' 2. 2 Calcutta L. R. 81. R. 6 Calcutta 91). 576 THE MERITS. these other persons were not made parties to the suit ( as they ought to have been), they might, in some future suit, recover mesne profits, not only as against the plaintiff, but as against the defendants who were bona fide purchasers for value, and had been in possession for many years. But that is by no means the state of things here, because ( for the purpose of this argument) it is admitted that the claimants of the property are before the court. The plaintiff claims the whole property, and the intervening defendants have been allowed to come in and prove their title to any part of it. Having had this oppor- tunity, they have not thought fit to press their case in the courts below, or to appeal to this court. Consequently, the defendant who is now appealing is in no danger whatever of being sued by those two persons, because, as between him and them, the decree, which has been given, will be conclusive. It is true that in this case the lower courts have unfortunately said, that as between the intervening defendants and the plaintiff it does not matter which is entitled, because the inter- vening defendants may, at a future time, recover their shares as against the plaintiff. It may be, that by these observations of the lower courts the intervening defendants have been induced not to press their case or to appeal, as they otherwise would have done; and it is possible that if they should sue the plaintiff at some future time, they may find themselves in a difficulty. But that consideration does not affect the case of the defendant who is now appealing, as, between him and the intervening defendants, the decree in this case will be a con- clusive bar." "78. Defendants make issues and contest with each OTHER. — The mere circumstance of any persons having been formally arrayed on the same side in a suit is immaterial, however, and it is agreed upon now, that they will be estopped by a decision on a matter which was actually in issue between them, and as to which they had an active controversy against each other. Thus Muttusami Ayyar and Brandt, JJ., held in Venkayya v. Narasamma,^ that a decision in a former suit as 1. Indian L. R. 11 Madras 204. ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 577 to the defendants in that suit having been joint, would be res JiicZica^a in a subsequent suit between them, as * although a plain- tiff and a defendant may have been codefendants in a former suit, a matter in dispute between them in a subsequent suit may have formed the subject of active controversy in the former suit so as to preclude them from raising the same question in the subsequent suit.' So also in Chandu v. Kunhamed,' Sir Arthur Collins, C. J., and Handley, J., observed that * defend- ant No. 1 under whom the plaintiff claims was a party, first defendant, to the former suit, but he was ex parte, and, there- fore, the title of defendant No. 2 can not be said to have been actively contested between the present defendants Nos. 1 and 2 in that suit, so as to bring the case within the decision in Venkayya v. Narasamma ; ' and both these decisions were relied upon and followed by the same judges in ]\Iadhavi v. Kelu,^ with the observation that ' there can be no question that, in the former suit and the present one, the question whether the land in dispute was or was not the property of the tarivad of the present plaintiff, then the second defendant, was the subject of active controversy between the jDresent plaintiff and the then karnawan of the tarwad.' In Shadal Khan v. Aminullah Khan,' Duthoit, J., said, in delivering the judgment of a division bench of the Allahabad high court, that — ' both parties to the present suit were parties to the former one ; and although in the former they nominally stood together in the same array, yet as a fact they were opposed to each other, S. being on the side and supporting the case of his mother, the plaintiff, and A being the true defendant in the cause.' Similarly Cunningham, J., in delivering a judgment of a division bench of the Calcutta high court in Bissorup ^'. Gorachand,* said : 'There can be no doubt, that, though the present plaintiffs were joined as defendants in the former suit, they were practically supporting the case of the plaintiff and had the fullest opportunity of con- testing the point which that suit decided — a circumstance which 1. Indian L. R. 14 Madras 324. 3. Indian L. R. 4 Allahabad 92. 2. Indian L. R. 15 Madras 264. 4. Indian L. R. 9 Calcutta 124. 37 578 THE MERITS. is proved by their being joined as respondents in the appeal. In these circumstances, the plaintiffs are debarred under sec- tion 13 from now again contesting the same point with the parties to the former suit.' In Ramchandra v. Narayan/ AVest, J., in delivering the judgment of a division bench of the Bombay high court, said — * according to Ramchandra Bhimaji v. Abaji Parashram,^ it was contended that this adju- dication constituted res judicata amongst the then defendants that the property was a joint estate. It was certainly held sev- eral years ago, in the Collector of Sholaj)ur v. Nana,^ that a court ought, in some cases, to determine the rights of the defend- ants inter se. On this principle probably were founded the ob- servations in Venktesh v. Ganpaya.* If an adjudication between the defendants is necessary to give the appropriate relief to the plaintiff, there must be such an adjudication, and in that case it will be res judicata between the defend- ants as well as between the j^laintiff and defendants. But for this effect to arise, there must be a conflict of interests amongst the defendants and a judgment defining their real rights and obligations inter se. Without necessity the judgment will not be res judicata amongst the defendants, nor will it be res judicata amongst them by mere inference from the fact that they have collectively been defeated in resist- ing a claim to a share made against them as a group.' This decision was approved in the Punjab chief court by Rivaz and Beachcroft, JJ., in Nehal Singh v. Chunda Singh,* in which, in the prior suit, one of the four brothers had sued N and his other two brothers for a fourth-share, and while the other defendants admitted the claim, N contended that he had been excluded by his uncle, and was therefore entitled to half of the family estate — the plaintiff and the other defendants being entitled only to half the estate between the three. The Punjab chief court had held in Ghisa v. Runjit,^ also that a decision as to a common question, such as the tenure of a 1. Indian L. R. 11 Bombay 216. 4. 1876, Bombay P. J. 110. 2. 1886, Bombay P. J. 15. 5. 1890, Punjab R. No. 140. 3. 1874, Bombay P. J. 14. 6. 1880, Punjab R. No. 121. ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 579 village community, iu a suit by one member of the community against the other members would not be res judicata so as to bar a subsequent suit involving that same question be- tween the defendants, unless they were distinctly at issue on the point, and acted as opposite parties, and the order was made so as to affect their rights among themselves. In Phundo v. Jangi Nath,* B sued P, the widow of D, and Bh, a step-brother of D, to recover from Bh, as the heir of D, and from the mortgaged property, the amount of a mort- gage executed by D. He got a decree, and after certain proceedings in execution thereof, brought another suit against them for a declaration as to certain property being liable to be taken in execution as the property of his judgment-debtor Bh. The latter in both the suits claimed to be the heir of D on the ground of his adoption by D, which P denied ; and a finding in favor of the validity of the adoption in the former suit was, apparently without any contention to the contrary, assumed to bar the re-opening of that question between P and Bh in the subsequent suit, even though they were codefendants and therefore arrayed on the same side in both the suits." § 257. Accounting in land transaction. — One Purslow sued several persons for an accounting in a land transaction, and recovered, and a part of them appealed. The court said:^ "In the year 1889 the plaintiff and the appellants became jointly interested in a tract of land which was purchased for the price of $32,000, and within a year was sold for the sum of $45,600. The plaintiff claims that the purchase was made for the joint benefit of himself, W. H. Beck, J. H. Preston, and the copart- nership of Jackson, Patterson & Co.; that the share of the lat- ter was to be two-fifths, and of each of the other persons named one-fifth, of the land purchased; that the business of purchas- ing and selling it was done by Jackson, Patterson and Company; that, although the purchase-price was but $32,000, they, for the purpose of cheating and defrauding the plaintiff, represented that it was $35,000; that they fraudulently represented to him 1. Indian L. E. 15 Allahabad 327. 2. Ochiltree v. Chicago & N. W. Ey. Co. Iowa (62N. W. R. 11). 580 THE MERITS. that it was sold for the sum of $37,500. He asks for an ac- counting and for judgment against Jackson, Patterson and Company for the amount to which he shall be found to be en- titled. He also made Beck and Preston defendants, but they did not appear to this action; and are not interested in this ap- peal. The evidence shows that the firm was composed of An- drew M. Jackson and John C. Patterson, and the controversy in this action is really between them and the plaintiff. They contend that the matters in dispute were involved in an action brought by Beck, to which the plaintiff was a party, which was pending when this action was commenced ; that those matters were thierein so far adjudicated that the j^laintiff is estopped to maintain this action. In March, 1890, Beck com- menced an action against the apjoellants and the plaintiff and Preston, in which he alleged that the purchase of the land in question was for the benefit of the parties to that action as partners, stating the price for which it had been purchased and for which it had been sold ; that the business had been trans- acted by Jackson, Patterson and Company ; and asking for an accounting, and for a judgment against them for one-fifth of the profits. 'This plaintiff appeared in that action, and filed an answer, in which he denied the allegations of the petition, and averred that in March, 1889, he purchased of Andrew M. Jackson and J. C. Patterson one-fifth of the land in contro- versy, and that he afterwards conveyed to them all the interest he had acquired, and that he then had no interest in the prop- erty nor its proceeds. In May, 1891, after this action was com- menced, he withdrew his answer in that one, stating in the instrument of withdrawal that the answer had been made and filed under a misapprehension of facts. He made no further appearance in that action, although it was heard on its merits. On the submission, in August, 1892, the district court found tliat Beck was not entitled to recover, and dismissed his peti- tion. The adjudication in that case was pleaded in this before it was finally submitted for determination. The appellants contend that the pendency of the Beck action was a bar to this, ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 581 and that the adjudication in tliat estops the plaintiff to main- tain this. It is not alleged that the cause of action upon which the plaintiff seeks to recover was set out in the Beck case, nor that it was referred to in the decree, but that the plaintiff might have pleaded in that case, and have had adjudicated, the cause of action upon which he relies in this. "It is true that, in the Beck case, the allegations" of the peti- tion in regard to the transaction in question were substantially the same that the plaintiff claims in this; that his answer con- tained a general denial ; and that the court found that Beck had no cause of action. But, before that finding was made, the plaintiff had withdrawn his answer, and as to him the al- legations of the petition were not denied. He had ceased to claim anything adverse to Beck, and his right to recover for the cause of action he now sets out was not in any manner in- volved. He claimed nothing as against his codefendants, and they claimed nothing as against him, and he and they claimed nothing in common. Their answers were sej^arate, and they acted independently of each other. Although the plaintiff might have so pleaded in that action as to have presented his claim fully, yet he was not obliged to do so. What he claims would not have constituted any defense to the alleged right of Beck to recover, and there was nothing in the case which made it his duty to present his claims against his codefendants for adjudication, under penalty of being estopped to assert them. It is said that a defendant in an action for an accounting, is entitled to a decree for any amount found due him without fil- ing a counter-claim or cross-petition. But in the Beck case, no accounting was asked as against this plaintiff, and he was not entitled to any relief as against Beck. There are cases in which a decree is necessarily an adjudication of the rights of code- fendants as between themselves; as in case the order of distri- bution among them of a fund in controversy is to be deter- mined, and they have had an opportunity to be heard. But no question of that kind was involved in the Beck case. Al- though the two actions involved the same purchase and sale of the land in question by the appellants, yet the relations of 582 THE MERITS. Beck and this plaintiff to tlie transaction were not in all partic- ulars the same, and their respective claims did not rest upon the same facts. The plaintiff paid a part of the purchase-price of the land, while Beck paid nothing. The negotiations to in- duce them to take an interest in the land were conducted sep- arately with each, and the evidence to support their respective claims was not the same. One may have been entitled to re- cover, and the other not. We conclude that there is no ground for holding that the right of the plaintiff to maintain this ac- tion was in any manner affected by the pendency of, or the ad- judication in, the Beck case." Bona fide assignment or no. — A assigned five bonds and a mortgage to B, in trust, to sell and account for the proceeds. The assignment, on its face, was absolute. C then sued A and B to set aside the assignment for want of consideration, but the court held that the assignment was bona fide and dismissed his bill. B sold the bonds, and A sued him for an accounting, and he pleaded the former decree in bar. But the plea was overruled because A was not in privity with C, and also because the issue was not the same.* Consideration of deed. — A son having conveyed land to his wife, and his mother having sued them for dower on the ground that the conveyance was without consideration, a recov- ery by her is not conclusive between the son and his wife be- cause they were not adverse parties.^ Contract held void. — A city having made a contract with A to pave a street, and, having agreed to issue certificates to him, which would be a lien on the abutting lots, and a lot owner, after the work was done, having sued the city and A, and, after a contest by the city and upon the default of A, an injunction forbidding the issuing of the certificates bars an action by an assignee of A against the city upon the contract, because it was declared void in the former suit.^ 1. Gardner v. Raisbeck, 28 N. J. Eq. 3. Lawrence v. City of Milwaukee, 71. 45 Wis. 306, 309. 2. Mahoney v. Prendergast, 58 Hun (65 N. Y. Supr.) 611 (12 N. Y. Suppl. 869). ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. ubo Corporation — Stockholders — County. — The stockholders of a corporation having brought a suit against it and a county to prevent the county from levying or collecting taxes from it, a recovery by them is conclusive between the county and the corporation, although they were co-defendants and made no issues between themselves, because the sole object of the stock- holders was to enforce a right which belonged to the corpora- tion.* § 258. Cosureties or no. — The sureties on a guardian's bond ajDplied to the court to compel him to execute a new bond and to be released from further liability, and the guardian pre- sented a new bond with other sureties which was filed and ap- proved, but no order was made discharging the old bond. The ward afterwards, for the defalcation of the guardian, sued upon both bonds, and the supreme court, on appeal, held that the first bond had never been released, and that the sureties on the second bond were not liable. The sureties on the first bond having paid the judgment, brought a suit against the sureties on the second bond for contribution, but the judgment of the supreme court was held to be a bar.^ To a suit for contribution upon the ground that the plaintiff and defendant were co- sureties on a bond which the former had been compelled to pay, there was an answer of former adjudication, to which a demurrer was sustained. Upon error, the supreme court said : ' "The substance of the answer is, that the action in which the judgment was rendered was prosecuted against the plaintiff and the defendant on what purported to be a bond, both being sued as sureties ; and that it was determined, by the verdict of a jur}^ that the defendant was not liable on the bond, and that the plaintiff alone was liable. What the issues between the obligee and the defendants, or either of them, were, is not stated. Hence, the ground of the defense must be that, as both were parties to that action, the judgment, irrespective 1. Secor 17. Singleton, 41 Fed. R. 725, 3. Koelschu.Mixer,— O.St.— (39N. 727. E. R. 417). 2. Cross u. Scarboro,6 Baxter (Tenn.) 134. 584 THE MERITS. of what the issues were, releasing one of the defendants, is con- clusive of his liability upon the bond, as against the other, and of any liability to contribute as a cosurety to the one who was held and compelled to pay the judgment. We do not regard this as the law. While the exact limits of the doctrine of res judicata, in its application to some cases, are not definitely set- tled, it is accepted as generally true, that the judgment relied on for that effect in subsequent litigation must have been pro- nounced upon the same issues, between the same parties or their privies, standing in an adversary character to one an- other. By this is not meant that they should have stood upon the record as plaintiff and defendant, but that this should have been their real attitude upon the issues tried and determined. As before observed, the defendant does not state what the issues were in the former action. If any were joined between him- self and the plaintiff in this action, the determination of which may be relied on as conclusive of the rights of the parties, they should have been pleaded. They can not be left to conjecture. The mere fact that it was there determined that he was not liable on the bond to the obligee, can not conclude the plaintiff in this action from demanding contribution from him, if, as a matter of fact, they were cosureties on the bond, and the plaintiff has been compelled to discharge all, or more than his just pro- portion, of the common liability. The subject-matter of the two actions is different. The former was a suit on a treasurer's bond by the obligee against the makers, as codefendants, to re- cover for its breach. The present is a suit by one surety on the bond against the other, for contribution, and the cause of action had not accrued at the time of the former suit. It is not based upon the bond. It is not enough that an issue may have been joined between the obligee and the defendant as to the liability of the latter on the bond. Whatever that issue may have been, it was not an issue between himself and his code- fendant, the plaintiff in this action, and could not, therefore, conclude the latter. Though parties to the suit, they were not such in an adversary character, being simply codefendants to the suit on the bond. The plaintiff in this suit could not, in ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 585 the former suit, as a matter of right, have insisted on the ad- mission or rejection of evidence on the trial of the issue; had no right to move for a new trial, nor prosecute error if aggrieved by the rulings of the court ; and hence, he can not be held bound by the judgment in any subsequent litigation to which he may be a party." Deed of trust, validity of. — A had a vendor's lien on a parcel of land. B had a prior mortgage on the same land, and also held other land by a deed of trust to secure the same debt. A brought a suit to enforce his vendor's lien, and made B a party for the purpose of compelling him to exhaust the land held under the trust deed, and to apply its proceeds' to his mort- gage before resorting to the land covered by the vendor's lien. A number of other persons who had interests in the two parcels of land were made defendants. During the pendency of the suit, B sold the land covered by the deed of trust. The mat- ters involved in the suit were referred to a master, who took an account of this sale and reported the net amount which ought to be applied on B's debt, and fixed the rights of all the parties in and to the land bound by A's lien, which report was adopt- ed by the court and a decree made accordingly. Certain per- sons who were defendants in that suit, now filed a bill in equity against B and other co-defendants in that suit, to set aside the deed of trust held by B and the sale made under it, and to have the title adjudged to be in themselves. The defendants in this suit contended that the former proceeding was a bar, while the plaintiffs insisted that no issue was made concerning the valid- ity of the trust deed and sale ; and that, therefore, it could not have been legally adjudicated . But the court held that, although no issue was made on paper, yet that the proceeding to fix the amount which should be applied on B's mortgage by reason of the securit}'^ afforded him by the deed of trust, and the decree adjudging and applying the net amount of the proceeds of the sale, necessarily put in issue the validity of the deed and the sale, and called upon all the defendants in that case to show all objections they might have to either ; and that, if they did not bring forward all their rights it was their own fault. ^ 1. Babcock v. Camp, 12 O. St. 11, 34. 586 THE MERITS. § 259. Foreclosure of lien or mortgage. — In a suit to fore- close a mortgage, a decree quieting the title of certain defend- ants is void as to another defendant if there was no issue by cross-bill between him and them.' A mortgaged land to B, and also gave him a bond to preserve his lien as the j^aramount one. He then erected a building on the land, procuring the material upon credit from C, who placed a furnisher's lien upon the premises, and foreclosed it against A and B by default as a paramount incumbrance. B then sued A and his sureties on his indemnity bond, and it was decided that C's decree was no evidence against either A or his sureties thatB's lien was inferior to C's.^ The decision was put upon the ground that no issue was made between A and B, and that B did not request A to defend. The court said: ''The Minneapolis Glass Company commenced an action against Bartsch and the present plaintiff to enforce a lien upon the premises for glass alleged to have been furnished to Bartsch for the construction of the building. The relief sought in that action was for a personal judgment against Bartsch, and that the judgment be declared a lien on his interest in the premises, and that the lien be adjudged paramount and prior to the lien of the present plaintiff's mort- gage. Neither Bartsch nor the present plaintiff appeared or answered in that action, which resulted in a judgment on default, in accordance with the allegations and prayer of the complaint. These respondents had no notice of that action, nor, so far as appears, did the present plaintiff ever request Bartsch to de- fend the action in its behalf. Plaintiff, having paid the amount 1. Jones V. Vert, 121 Ind. 140 (22 N. sume that it was. There does not E. R. 882). The court said : "There seem to have been any issue tendered was no suit between the present plaint- or made between the defendants. In iff and defendants, no cross-bill hav- short, there does not appear to have ing been filed. The subject-matter in been any suit pending between them, litigation was different, and the par- Any judgment, therefore, that the ties were not the same. The defend- court may have pronounced which ants in the foreclosure suit might pos- purported to settle any title or claims sibly have put the validity of the ven- between them was coram non jvdice, dor's lien in issue by filing a cross- and void." complaint. This does not appear to 2. Pioneer Savings and Loan Co. v. have been done, and we can not i>re- Bartsch, 51 Minn. 474(53 N.W. R. 764). ISSUES AXD ADJUDICATIONS BETWEEN DEFENDANTS. 587 of the judgment in favor of the glass company, brought this action on the bond, and, as evidence of a breach of its condi- tion, introduced merely the record in the other action. There is perhaps no subject upon which the courts are more at sea than the law in relation to the effect of a judgment against a principal for the purpose of charging a surety. Of course, every one is familiar with the rule that, as against any one except the parties and their privies, a judgment is evidence only of the fact of its recovery. What are sometimes called 'exceptions ' to this rule are not exceptions, but do not fall within the rule at all, depending solely ujDon the principle that one may contract to be answerable to another upon such lawful conditions as he pleases. Hence, if a surety stipulates for any particular method by which the liability of his principal or of himself shall be fixed, he is bound by it. If he has undertaken, either expresslj'' or by implication from the position which he has assumed with reference to pending litigation, to be responsible for the result of a suit between others, to which he is not a party, and to which he has not been made privy by notice and an opportu- nity to defend, then, in the absence of fraud and collusion, the judgment against the principal alone would be conclusive evi- dence against him of every fact which it was necessary to find to recover such a judgment. This would be because he had so contracted. In the absence of such an agreement, express or im- plied, it would be as to him res inter alios acta, and evidence of nothing except the fact of its recovery. There would seem to be no middle ground, and it is consequently very difficult to sustain on principle that numerous class of cases which hold certain judgments against the principal prima facie, but not conclusive, evidence that the facts in pais against which the surety agreed to indemnify were established in the suit. In every case the important questions are : What are the terms of the surety's contract? What has he undertaken to indem- nify his covenantee against? On what contingency has he "agreed that his liability shall be fixed? But we have no occa- sion to go into any extended discussion of this subject, for the reason that we are satisfied that, under the facts, the determi- 588 THE MERITS. nation in the other suit that the glass company's lien was prior to that of plaintiff's mortgage is not res judicata, even as to Bartsch. If it is, it must be by virtue of the covenant in the bond, to the effect that Bartsch should keep and maintain plaintiff's mortgage the first and paramount lien on the prem- ises. It seems plain to us, in view of the general purpose of the bond, as well as of its other provisions, that this must be construed as being a mere general contract of indemnity agair^st paramount liens, and not an undertaking to be bound by the result of any actions brought against plaintiff by third parties claiming such liens, or to assume the defense of such actions in the absence of any request by plaintiff for him to do so. Hence, if Bartsch has not created any paramount lien, there has been no breach of the condition of the bond. The mere fact that he was a party defendant in that suit, does not render the determination of that issue between the glass company and the present plaintiff res judicata as to him. It is well settled that parties to a judgment are not bound by it in a subsequent controversy between each other, unless they were adversaries in the original action. Now while the present plaintiff and Bartsch were made defendants in the other suit, they were not adversary jDarties, and there were no issues between them that could have been tried in that action. The issue tendered to Bartsch by the complaint was, that he owed the glass company a certain amount, and that it was a lien on his interest in the premises. The additional issue ten- dered to the present plaintiff was, that this lien was prior to the lien of the mortgage. Bartsch might have had no defense, and yet on the issue of priority of liens the present plaintiffs have had a perfect defense. Bartsch had no issue with either the glass company or the present plaintiff as to which was the prior lien. That issue was entirely between it and the glass company. Neither had Bartsch any right, in the absence of a request on part of the present plaintiff, to assume the control of its defense to the action. It is unquestionably true, that, as between the glass company and the present plaintiff, the judg- ment is conclusive that the lien of the former is prior to the ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 589 mortgage of the latter; but that was not in controversy between the plaintiff and Bartsch. If the plaintiff had desired to make the judgment as to that matter binding on Bartsch, it should have notified him to assume the defense of the action in its behalf. This it would have had a right to do by reason of his contract of indemnity against paramount incumbrances. If he had de- clined to do so, the judgment would have been conclusive against him. Whether it would have been conclusive on his sureties without notice to them also we need not inquire. Our conclusion is, that, in this or any other subsequent controversy between plaintiff and Bartsch, whether on this bond of indem- nity or upon covenants of title in the mortgage, as to whether or not the lien of the glass company was prior to that of plaintiff, the judgment in the former action is not only not con- clusive, but is not evidence at all; and, if not against Bartsch, of course not against these respondents, his sureties." In a suit by A against B, the mortgagor, and C, a subse- quent mortgagee, to foreclose his mortgage, he alleged that C ha*d or claimed some lien or interest in the premises, but that it was subordinate and junior to his, and the decree, by default, was " that C has no right, title nor interest in the land in con- troversy herein." It was held that this decree did not bar C from foreclosing his mortgage against B, the mortgagor and codefendant.* The court said: " There is no doubt of the jurisdiction of a court of equity, upon proper pleadings in a foreclosure proceeding, to determine the rights of all parties with respect to the subject of the controversy, whether plaint- iffs or defendants. But the power to conclude parties not claiming adversely to the plaintiff, whether subsequent mort- gagees, or mortgagor and mortgagee, so as to prevent them from afterwards asserting their rights as against each other, depends upon whether such power has been invoked by one or more of the parties thus interested. In the judgment pleaded as a bar in this case, the only relief sought was the foreclosure of the prior mortgage. In his petition the plaintiff 1. Lincoln National Bank v. Virgin, 36 Neb. 735 (55 N. W. R. 218). 590 THE MERITS. therein alleged in effect that his mortgage was the prior lien. That was a proposition which C could not controvert. It is true he might have answered (assuming that he was still the owner of the mortgage), and by cross-bill secured an account- ing and decree against the mortgagors, and an order for pay- ment from the proceeds of the mortgaged property after the sat- isfaction of the prior lien. The general rule is, that a default is an admission of such facts only as are properly alleged in the petition or complaint. A recognized exception, however, is in a foreclosure or other kindred proceeding in which a de- fendant, who is called upon to disclose his supposed but un- known interest in the subject of the action, by a default, admits his interest to be subordinate to that of the plaintiff. C, by his default, must be held to have confessed the cause of action of the plaintiff, and to that extent the decree is conclusive. But the question of the validity of the mortgage now under consideration as a second lien, was not presented by the pe- tition, and C, as a defendant in that action, was justified in assuming that the plaintiff was merely seeking to assert his own lien. The judgment described in the answer not being conclusive as against C, it follows that the question of the good faith of the assignment of the mortgage to the plaintiff is not material." While I agree with this case, and with the ideas expressed in the quotation just made, the court, in a prior part of its opin- ion, holds that the decree was void collaterally as between the defendants for want of an issue, with which I do not agree. In my opinion, that question was not in the case. The ques- tion was one of construction of the decree. And in construing it by the aid of the entire record, it was plain that it meant that C had no interest in the premises as against the plaintiff. It did not profess to adjudicate the rights of the defendants as between themselves. § 260. Fraudulent vendee and sheriff. — If a sheriff seizes a stock of goods which have been sold by the execution defend- ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 591 ant to a third person, and afterwards the assignee in bank- ruptcy of the execution defendant brings a suit against the lat- ter, the purchaser from him and the sheriff, a recovery by him upon the ground that the sale was fraudulent as to creditors, bars an action by the purchaser against the sheriff for their conversion.* Garnishee. — A judgment that the garnishee defendant owes the principal defendant nothing does not conclude the latter.^ An order in a garnishment proceeding that the gar- nishee deliver the property in his hands to the sheriff to be sold, and that, of the proceeds, he shall be paid one hundred dollars, if no issue was made between the principal defendant and the garnishee concerning the amount due from the former to the latter, is not an adjudication that that sum was due the garnishee.' Guarantor. — A judgment against a bank as principal and others as guarantors and sureties on a certificate of deposit, which fixes all their rights, precludes the bank from pleading ultra vires if sued by a guarantor to recover the amount he was compelled to pay.* 1. Tuska V. O'Brien, 68 N. Y. 446, afterwards the Osage City Bank failed 450. to pay the certificate, and that C 2. Ruff V. Ruff, 85 Pa. St. 333. brought an action against the princi- 3. Collins V. Jennings, 42 Iowa 447, pal, and also the guarantors and sure- 451. ties, in which he recovered judgment 4. Osage City Bank v, Jones, 51 against each and all of them, and Kan. 379 (32 Pac. R. 1096). The court that they, A and B, were compelled said: "A and B recovered a judg- to pay and did pay this judgment. The ment against the Osage City Bank, bank claims that this action should be The action for recovery was based on treated as having been brought upon a judgment obtained by C against the the certificate of deposit, and seeks to Osage City Bank as principal, and raise questions as to the power of its against A and B and another as guar- officers to issue such a certificate, antors and sureties. In their petition and as to its liability as principal, they alleged that the Osage City Bank These questions are not now open for issued a certificate of deposit in favor investigation. Although the certifi- of C, and that, in order to give the bank cate of deposit is mentioned in the pe- credit, they indorsed their names on tition, it is manifestly set up as the basis the back of the certificate, by which of the judgment which was specifically they guaranteed its payment ; that pleaded, and it appears that this ac- 592. THE MERITS. §261. Joint obligors at law. — A judgment recovered against two executors, on their joint bond, in the absence of any issue between them, adjudicates nothing as to their respec- tive rights between themselves.' If three persons are sued on a note, upon which one appears to be tlie maker and the other two indorsers, and one of the latter allows judgment to go by default, and the other answers that he was an accommodation indorser and that time has been given the maker without his knowledge or consent, a judgment in his favor on proving this answer is no bar to a suit against him by the other indorser alleging that he w^as a joint maker. ^ So, if one signs a note two months after its execution and without consideration, a judgment afterwards taken upon it, by default and by consent, against him and the other makers, does not bar him from show- ing that he was not a joint debtor and not liable for contribu- tion.* § 262. Marriage settlement accounts. — A trustee of a wife under a marriage settlement having had various dealings with the trustee of her sister, and desiring to resign, filed a bill for that purpose, praying that an account be taken between the two sisters, and a settlement had of all outstanding indebted- ness between them, to which the sisters and their husbands and trustee all answered, and agreed that an accounting should tion was brought upon the judgment titled to recover the amount which ratlier than the certificate. That judg- they had been required to pay for ment, which was obtained in an action it, together with the interest. The in which all the present parties were questions so much argued by the before the court, determined the rela- bank with respect to its want of au- tions and liabilities of each to the thority to issue the certificate, and its other. In -that action it was deter- consideration, have all been settled in mined that the Osage City Bank was the former action, wherein all inter- liable as the principal, and that A and ested parties were before the court, B were liable as guarantors and sure- and the controversy can not be re- ties, and upon a review in this court newed in this action." that judgment was affirmed. Jones v. 1. Duncan v. Holcomb, 26 Ind. 378. Kuhn, 34 Kan. 414 (8 Pac. Rep. 777). 2. Beer v. Lindenthal, 1 Texas App. Tt was shown that A and B were Civil Cases, § 307. compelled to pay and did pay this 3. McMahan v. Geiger, 73 Mo. 145 judgment. As the bank was pri- (39 Am. R. 489). marily liable, A and B were en- ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 593 be taken, which was had. In this suit it was found and de- creed that the trust estate under the marriage settlement was indebted to the other trust estate in a specified sum, and the resignation of the trustee j)laintiff was accepted, and a new one appointed, who Avas ordered to pay the indebtedness found to be due the other estate out of the first money coming into his liands. It was held that this decree did not bind the estate un- der the marriage settlement, because there were no pleadings between the two estates putting in issue any indebtedness — the only purj^ose of the petitioner being to have his accounts settled and to obtain a discharge.^ § 263. Negotiable paper, presentment and demand, as be- tween the indorser and acceptor defendants. — If the holder of a draft sues the maker, acceptor and indorser, alleging the ac- ceptance, indorsement, presentation for payment, demand, no- tice and non-payment, a recovery by default is no evidence of the presentment, demand and notice in a suit by the indorser against the acceptor/ Partition. — A decree in partition settles the rights of the parties as between themselves.' Partners. — A took out a fire insurance policy on goods, and assigned it to B. The goods having been destroyed by fire, the creditors of A sued him, making B a party, and garnished the insurance company. The latter answered, denying all liability upon the ground that no proof of loss had been made. There was a trial in the principal case, in which A and B were ad- judged to be partners in the stock of goods. A and B now sued the insurance company for the benefit of the creditors. It was held that the judgment in the former case was conclusive in favor of the insurance company, that A and B were partners and that the policy was void because A was not the sole owner. 1. Brewster v. Galloway, 4 Lea (72 3. Forder v. Da\ns, 38 Mo. 107, 115; Tenn.) 558, 566. Pentz v. Kuester, 41 'SIo. 447, 450. 2. Green v. Goings, 7 Barb. 652, 655. 38 594 THE MERITS. This seems to me to be wrong. The insurance company was not a party to that issue. ^ Partnership creditor. — Partners having made an assign- ment to pay both their individual and firm debts, and a credi- tor having brought a suit against all persons in interest, in- cluding the heirs of one of the partners who died after the as- signment, to adjust all their rights and to compel a sale, and the answer of a creditor, by agreement of all parties, except the heirs, having been taken as a cross-bill, a decree in his favor, ascertaining the amount of his debt and ordering it paid out of the assigned property, is not conclusiveagainst the heirs in a new suit to subject their land to the payment of his debt, because no issue was made between them on that matter.^ § 264. Railway consolidation. — Three railways, A, B and C, entered into an agreement whereby A leased the roads of B and C and guaranteed a certain dividend on their stock. After- wards, A having become embarrassed, the directors of the three companies entered into a new agreement by which the dividends guaranteed were reduced, and the capital stock of B and C merged into that of A. The stockholder;? of C brought a suit in its name against A and B to set aside the latter agree- ment, and the defendants both maintained its validity. It was held that the decree setting it aside, while it relieved all the parties from the agreement, did not and could not affect any question arising between A and the stockholders of B in rela- tion to the new agreement, because there were no issues be- tween them.^ The court said : "Holders of the Metropolitan Company's shares, whose interests were only in that company, or were greater than in the other companies, were not so well satisfied with the October agreements; and in December, 1882, a month after the election of a board of directors composed of persons other than in the previous board, a suit was instituted in the common pleas of New York by the Metropolitan Com- 1. Fire Association v. Dickey (Ky.), 3. Beveridge v. New York Elevated 3 S. W. R. 372. Ry. Co., 112 N. Y. 1 (19 N. E. R. 489). 2. Trimble v. Fariss, 78 Ala. 260. ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 595 pany as plaintiff, against the Manhattan and the New York companies as defendants, to set aside the agreements. A de- cision was had in May, 1SS4, declaring those agreements to be null and void as to all the parties thereto. The opinion upon which this decision was entered was rendered by Judge Van Brunt, and is a most able and exhaustive review of the law relative to the government of corporations, their powers, and the duties of directors to stockholders. The effect claimed for his decision by this plaintiff is that as between these companies it is res judicata, and restored the contract in the lease of 1879 with the same obligation as though it had never been modified nor changed by subsequent agreements. That can not be so, and a consideration of the issues presented and tried will dis- pose of any such claim, and may as well be made at this point. " The Metropolitan Company alleged, as grounds for its ac- tion, the lack of power in its directors to modify the tripartite agreement and lease without the consent of its stockhold- ers ; the fact that three of its directors were at the time of making the October agreements also directors of the Manhat- tan Company ; that the personal interests of several of its di- rectors were opposed to the interests of the company ; and that its directors were actuated by fraudulent motives. These alle- gations were met by the denials of the defendants in their an- swers. As affirmative defenses, they set up the October agree- ments as having been made in good faith, and the making of the merger agreement of November, 1881. The issues thus presented for trial and judgment were between the Metropolitan Company on the one hand which was hostile to the agreements, and the Manhattan and New York companies on the other hand which united in asserting the good faith and validity of all that had been agreed to and done between the companies, and in in- sisting upon the indissoluble nature of the corporate relations which resulted from the making of the October and November agreements. What was decided was that the October agree- ments were voidable at the election of the Metropolitan Com- pany, on the ground that its directors had no power to make them without the consent of the stockholders; and that, 596 THE MERITS. even if they had such power, the presence of directors in the Metropolitan board, who were also directors in the Manhattan Company, at the time of the adoption of the October agree- ments, gave either company the right in equity to repudiate those contracts, although they may have been perfectly valid at law. The judgment in that action was that all the parties thereto were relieved from the October agreements. " I do not deny that the legal effect of the judgment in the action referred to was to destroy the contractual relation which had been formed between the companies. Inasmuch as the agreements were tripartite in their nature, a decree relieving one of the parties from their obligations would, of necessity, by destroying their mutuality, annul the whole contract. But that decree was not res judicata upon any question arising be- tween the stockholders of the New York Company and the Manhattan Company, or as to what was the attitude of the New York Company towards its corporators under the agreements of October and of November, nor did it affect the acts done under them. '*The plea of res judicata is not available to parties in an action, unless the judgment set up was rendered upon issues between them. There must have been a controversy between the parties, the'questions in which were or might, within the issues formed, have been competently adjudged. But in the action of the Metropolitan Company referred to, there was no litigation between the defendants, the New York and Man- hattan companies ; nor was there any dispute between them, nor any variance in matters relied upon as defenses to the main- tenance of the action. The only effect which could be given to the judgment in that action was, that, for special reasons applicable to the Metropolitan Company, the October agree- ments, which its directors had entered into as a corporate act, were avoided as to that company." Sale held void. — If A sues B and C to set aside a foreclos- ure sale as void, a recovery of the relief demanded is conclusive ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 597 that the sale was void as between B and C, although there was no issue between them.' § 265. Suretyship. — In an action on a judgment, one of the defendants may show by extrinsic evidence that he signed the obligation on which it was rendered, as surety.^ A sold land to B, a married woman, and she assumed and agreed to pay a mortgage resting upon it, which, in law, made her the principal debtor and A her surety. To a suit by the mortgagee against them to foreclose and to recover a personal judgment for any deficiency, she answered that she never assumed the debt, that the bond and mortgage were fraudu- lent, and that she was a married woman ; but before trial she signed a stipulation consenting that a judgment might be entered in the action for the relief demanded, except a per- sonal judgment for any deficiency, and thereupon a decree of foreclosure was rendered against both, and a personal judg- ment against A alone. From the meager statement of facts in the Reporter, it seems that there was a deficiency which A paid, upon which the bond was assigned to him, and that he then sued her to recover it back. She con- tended that the judgment in the former suit, which held him for the deficiency and exonerated her, barred his claim ; but her contention was denied because no such issue was made between them, nor tendered to them in the complaint.^ ' The court said : " But the judgment for the defendant is sought to be sustained on another ground. In the foreclosure action, as we have said, both Fairchjld and Mrs. Lynch were made parties defendant, and personal judgments against each for any ultimate deficiency were sought. Mrs. Lynch defended, denying her assumption of the debt ; charging the bond and mortgage to be fraudulent ; pleading her coverture ; but, among all her defenses, never alleging that of payment nor the extinguishment of the bond. Before trial she signed a stipu- 1. Craig V. Ward, 1 Abb. (N. Y.) 3. Fairchild v. Lynch, 99 N. Y. 359 Court of Appeals 454. (2 N. E. R. 20). 2. Carpenter v. King, 9 Mete. (51 Mass.) 511 (43 Am. D. 405). ^ 598 "" THE MERITS. lation consenting that a judgment might be entered in the action for the relief demanded in the complaint, except so far as it sought to make her liable for a deficiency, and judgment was accordingly entered of foreclosure and sale, and against Fairchild for the deficienc}^. The effect of this judgment, she claims, discharges her liability in two ways. She contends that the acceptance of the stipulation by the then plaintiff released her, and, as a consequence, released Fairchild, her surety, notwithstanding it conclusively established his liability, and whether he chose to avail himself of a defense personal to himself or not; and she further insists that the judgment, at all events, conclusively determined that she was not liable for any deficiency. But it seems to us very clear that it determined nothing as between the codefendants, Fairchild and Mrs. Lynch. Their rights, as between themselves, were not in issue, were not tried, were not decided, and were totally imma- terial to the case before the court. It is doubtful, even if the effect of the stipulation was not simply to withdraw from the case the then plaintiff's right of action for a deficiency against Mrs. Lynch, and leave it open for future litigation, if that should be deemed necessary. But, whether that be so or not, it certainly did not adjudicate upon any rights or equities between Mrs. Lynch and Fairchild, and left them wholly undetermined. These rights were not before the court ; neither pleaded nor proved; unessential to the judgment rendered, and so not involved in it. That the court had power to have determined the rights of the parties as between themselves is true; but if they were not material to the issues before the court, nor to the relief to be administered, they must, in some manner, have been brought to the notice of the court, and have been actually determined, or involved in the judgment rendered, before that judgment can operate upon them. The rule that a judgment is conclusive, not only as to the questions litigated, but as to those which might have been litigated, means such as were within the issues before the court, and so might have been determined. Such was not the case here. Mrs. Lynch denied her personal liability to plaintiff in the foreclosure. Whether or ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 599 not she was so liable to Fairchild, by reason of his 2:)urchase of the bond, was a question not presented, and which, as the case stood, could not have been tried. The necessary facts for such a determination were absent both from the pleadings and the proof." § 266. Tax lien or no. — Under the Indiana statute, the pur- chaser of land at a city tax sale is entitled to have his money refunded if the description is so indefinite as to fail to carry a lien. And if the owner of the land brings a suit to quiet his title against the city and the purchaser, and succeeds upon the ground that the description was so imperfect that no lien attached, the city will be concluded on that question in a suit by the purchaser to recover his money.* In this case the judg- ment would be binding on the city upon the ground that it was responsible over to the other defendant, and making it a party would do away with the necessity of notice to it to appear and defend the case. See sections 572, 584, j^ages 1157, 1187, infra. § 267. Title-bond purchaser in partition. — A brought tres- pass to try titles against the heirs and widow of B, and also made C, to whom the widow had executed a title-bond for a part of the land, a defendant. A judgment was entered by agreement that A recover one-half of the land and the defend- ants the other one-half, and that partition should be made so that the allotment to defendants should include the land bar- gained by the widow to C. The commissioners in partition made a report setting off certain portions to A and certain others to the heirs and widow of B, accompanied by a map, upon which was platted the part bargained to C, marked "C, assignee of heirs of B," and by agreement of all the parties, except C, a decree was entered vesting the title in the respective parties according to the report. As there was no pleading nor anything in the decree to show what the interest of C was, other than the requirement that the part bargained to him by the widow should be allotted to the defendants, it was decided that 1. Millikan v. City of Lafayette, 118 Ind. 323 (20 N. E. R. 847). 600 THE MERITS. there was no adjudication between C and the other defendants in respect to their rights.^ § 268. Title quieted. — A sued B and a city to quiet title, al- leging that he had executed a deed to B for other lands, and that he wrongfully claimed that it included the land in con- troversy. B answered claiming title under this deed, and the city answered that the land was a part of a public street. There was no cross-petition between B and the city, and no affirmative relief was prayed by either against the other. After a hearing on the merits, a decree quieting the title in B was held to be a bar to a new suit by the city to recover the land from him, because the decree in favor of B necessarily showed that the city had no title. ^ § 269. Warranty of title. — A sold a fence to B, warranting the title and agreeing to pay all costs and damages he might sustain by reason of being sued for its removal. C sued B for its conversion, and, after considerable costs were made, A was made a defendant with B, and a recovery was had against both of them for the value of the fence, and for the costs made after A became a defendant, and against B alone for the costs made before that date. But as the contract between A and B was not put in issue, it was decided that the judgment was no bar to a recovery of all the costs from A by the assignee of B.* § 270. Widow's election under will. — A person devised a tract of land to his widow for life, with remainder over to a son. She occupied this land until she died, after which the son sold the remainder to a stranger. Her administrator then sued the purchaser and all the heirs to recover a statutory allowance of five hundred dollars given to widows, alleging that she did not receive it in her lifetime, and seeking to subject the land to its payment. The purchaser answered that she had elected to 1. Smith V. Lee, 82 Tex. 124 (17 S. 3. Roberts v. Hamilton, 56 Iowa 683 W. R. 598). (10 N. W. R. 236). 2. Devin v. City of Ottumwa, 53 Iowa 461 (5N. W. R. 552). ISSUES AND ADJUDICATIONS BETWEEN DEFENDANTS. 601 take tlie provisions made in the will in lieu of all her interest in her husband's estate, including that now sued for, and upon this answer the action was defeated. The heirs (who were his codefendants in the first suit), except the son who had conveyed to him, then sued him for a partition, alleging that the widow did not elect to take under the will, but took the fee under the law, and that they were her heirs. The pur- chaser sought to conclude them by the former adjudication in his favor, but his contention was denied because there was no issue between him and them.^ 1. Johnson v-. Graves, 129 Ind. 124, 127 (28 N. E. R. 315). The court said: "The appellant offered in evidence a certified transcript of the complete record in a case of George D. Hurley, administrator of the estate of Lucretia Mclver, against the appellees, the ap- pellant, and William Mclver, to en- force the collection of the statutory- allowance of $500 against the same 80 acres of land described in the com- plaint in this action. To the com- plaint of Hurley, administrator, ap- pellant filed an answer, averring the will of James Mclver, and alleging that Lucretia, the widow, had elected to accept and take the provisions made for her in the will of her de- ceased husband. To this answer Hur- ley, administrator, filed a demurrer, which was overruled, an appeal taken, and the judgment affirmed. The ap- pellees objected to the introduction of the record, and the court sustained the objection and excluded the evi- dence, which it is insisted is errone- ous. It is contended by counsel for appellant that the question in- volved in this case is whether or not the widow, Lucretia, accepted the provisions of tne will of her deceased husband, and that the same question was involved in the former case of the administrator for the re- covery of the $500, and that such ques- tion was therein adjudicated in favor of the appellant; that the appellees were parties to the former action, are bound by the adjudication, and estopped from again litigating the same question. The former case was an action by the administrator of the estate of Lucretia, the widow of James Mclver, to recover the flSOO which it was contended she was en- titled to by virtue of the statute, and which had not been paid to her in her life-time, and to subject to sale for its payment 80 acres of land owned by James Mclver in his life-time. To this action the appellant, Johnson, who had purchased the land, was made a party to answer as to his interest. The appellees were made parties by reason of being the heirs of James Mclver. They were sued as heirs. They were called upon to set up any defense they had against the right of the adminis- trator to sell the real estate. The ap- pellant, Johnson, came into court, and answered the complaint of the admin- istrator, setting up a defense which was held valid, and recovered a final judgment in his favor. This set at rest the question involved in the is- sues joined between the administra- tor, Hurley, and Johnson ; but, the appellees being sued as heirs, they 602 THE MERITS. § 271. Will construed. — Executors, having no duties toper- form in regard to the ' ' excess ' ' of the value of the real estate over a certain amount, brought a suit against the heirs and next of kin to have their duties under the will adjudicated. That was done, and the court also decreed that the ** excess" of the value of the real estate over which the executors had no duties should be paid to the next of kin. It was held that this did not bind the heirs.* Will or no will. — In a suit for partition, an order to sell being made, and the question concerning the interest of cer- tain defendants as devisees being sent to a referee, who, after hearing the parties, reported that the will was void and gave them no interest, the confirmation of this report bars all fur- ther contest between the defendants in respect to the validity of the will.^ were not bound by questions pre- bound by a defense that Johnson sented by Johnson in his answer to pleaded to the action. They were not the complaint, showing himself to be called upon to join issue on the facts the owner of the land. If Johnson de- alleged in Johnson's answer, nor were sired to bind the appellees, who were they called upon either to affirm or his codefendants in the former ac- deny the truth of its allegations. The tion, by the adjudication in that case, action was not such as to require the he possibly might have done so by fil- joining of any issues between Johnson ing a cross-complaint, making them and the appellees ; hence they are not parties to it. Being brought into court estopped by the judgment in that case by the administrator as the heirs of from asserting title to the land." James Mclver, to answer and set up 1. Matter of Clark, 69 N. Y. Supr. any defense they might have to the (62 Hun) 275. recovery by the administrator of the 2. Leavitt v. Wolcott, 95 N. Y. 212, and the subjecting of the land to 218. sale for its payment, they were not CHAPTER XII. THE SAME ISSUE— DETERMINED BY THE RECORD— PRINCIPLES AND GENERAL MATTERS. §272. Principle involved in Chapter §276. Former adjudication: (Proof XII. of, how made). 273. Evidence, same will support 277. Necessarily decided. both actions. 278. Opinions and reasons of the 274. Former adjudication: (Burden court. of proof). 279. Presumptions. 275. Former adjudication: (Effect of, under general issue) . « § 272. Principle involved in Chapter Xn. — If an issue, as distinguished from a collateral or evidentiary matter, has been finally decided by a competent judicial tribunal ; if it was di- rectly and not merely collaterally nor incidentally involved; and if it was material and contested, the adjudication, as between the contesting parties and their respective privies, will bar a new contest of the same issue in another judicial proceeding involving a different subject-matter. If the new proceeding involves the same subject-matter, the former adjudication is equally conclu- sive, whether by default or upon a contest. What is or is not the same issue, and how that fact is shown, are considered in this and the next chapter. The general rules and principles are dealt with in this chapter and special matters in the next. § 273. Evidence, same will support both actions. — In a case decided in England in 1772, the court said : "What is meant by the same cause of action is, that the same evidence will sup- port both the actions, although they may be grounded on dif- ferent writs. This is the test to know whether a final deter- mination in a former action is a bar or not to a subsequent (603) 604 THE MERITS. action."* Thus, if the same evidence will support assumpsit and trespass, an adjudication on one will bar the other.'' So, if a suit is brought to recover money advanced to another and is defeated that will bar a suit to recover the same money alleged to have been advanced because of fraud and deceit, if the evi- dence given on the second trial was the same as on the first, and, if believed, would have warranted a verdict and judgment on the first trial for the plaintiff.^ And a judgment on the* merits for defendant, in an action of tort for false representations in respect to the soundness of a horse, will bar an action against him on contract for the same grievance if the same evidence will support both cases.* A judgment in replevin bars an action in trover if the same evidence will sujDport both actions.^ But if A furnishes goods to B, giving him an option to keep and pay for them, or to Return them and pay for their use, and they come into the . hands of C, who is sued by A upon the contract, a judgment against A is no bar to an action by him against C for a con- version, as the same evidence will not support both actions.® A sued B, alleging a loan of bonds to the latter, a sale by him without consent, a demand for their return and a refusal, and a conversion by B to his own use. A demurrer to this complaint for want of facts was sustained with leave to amend, which not being done, a final judgment was rendered for B. A then sued B for the value of the same bonds, alleging a deposit with him at his request, and that he had sold them as agent of A, who ratified the sale. B now contended that the former adjudication was a bar, but this contention was denied upon the ground that the same evidence would not support both actions. One sounded in tort, the other in contract.' So, if a husband sues his wife for a divorce on the ground of 1. Kitchen v. Campbell, 3 Wilson 4. Norton v, Doherty, 3 Gray (69 304, 308 (2 W. Bl. 827, 831). Accord, Mass.) 372 (63 Am. D. 758). Martin v. Kennedy, 2 B. & P. 69, 71 ; 5. Cannon v. Brame, 45 Ala. 262. Taylor v. Castle, 42 Cal. 367, 372; 6. Gayer u. Parker, 24 Neb. 643 (39 Brown v. Cain, 79 Ind. 93; Hahn v. N. W. R. 845). Miller, 68 Iowa 745 (28 N. W. R. 51). 7. Stowell v. Chamberlain, m ii. Y. 2. Rice V. King, 7 Johns. 20. 272, 276. 3. Duncan v. Stokes, 47 Ga. 593. THE SAME ISSUE GENERAL MATTERS. 605 abandonment, his defeat does not necessarily show, in a suit by her against him for maintenance, that her abandonment was justifiable, as the same evidence will not support both cases. If they parted by mutual consent, that would defeat both suits. ^ A wife having sued her husband for a divorce from bed and board on the ground of extreme cruelty and gross and con- firmed habits of intoxication contracted since the marriage, a decree dismissing her suit on the merits does not preclude her from showing, by way of defense to a suit brought by him for a divorce based on her desertion, that he was guilty of such cruel and abusive treatment not amounting to extreme cruelty, and of such intoxication, that she was justified in leaving him, because such evidence, although it would not support her for- mer suit, would sustain her defense to his suit.^ A Vermont statute provided for the forfeiture of a ram found at large in a certain season of the year, and also a penalty of five dollars if he was found among the sheep of another. A person took up such a ram, the owner recaptured him, and then the person who took him up recovered his value in trover because of the forfeiture. This recovery was decided not to be conclusive in his favor in an action to recover the penalty of five dollars, because in this action he had to prove that the ram was with his sheep, while in the first he did not.' In a proceeding by a father to have a statutory guardian of his child removed and himself appointed, a judgment denying relief is no bar to a proceeding by him to recover its custody on a writ of habeas corpus, as the same evidence will not sup- port both proceedings.* If A delivers goods to B, who refuses on demand to return them, and A brings trespass and is de- feated, this will not bar an action of trover, because the same evidence will not support both actions.* The reader will notice that the point now under consideration is mentioned at 1. Wahle V. Wahle, 71 111. 510. 4. Brooke v. Logan, 112 Ind. 183 2. Lyster v. Lyster, 111 Mass. 327. (13 N. E. R. 669). 3. Town V. Lamphere, 34 Vt. 365, 5. Putt v. Rawstern, 3 Modern 1 370. and note (C) (T. Raym. 472 ; 2 Shower 211). 606 THE MERITS. many other places in connection with other matters and that many mistakes are made in its application. It has no application if the question is whether or not the plaintiff has split his cause of action, or the defendant has omitted a cause of defense. In such cases the same evidence will not support both actions. § 274. Former adjudication — Burden of proof. — ^The burden of proof rests upon the party who alleges a former adjudica- tion.^ Some of these cases need special notice. That from 100 New York was this: A, being a judgment creditor of B, sued B and C, alleging that they had fraudulently conspired together to keep B's personal property out of the reach of his creditors by the execution of a chattel mortgage of $1,500 to D, and another of $1,000 to C, without consideration. As the value of the property exceeded the amount of A's judgment, the court instructed the jury that if they were satisfied that the defendants were guilty of the conspiracy charged, A was en- titled to a verdict for the amount of his judgment, and for so much damages for his trouble and inconvenience as they should find proved. A verdict was returned for $1,300, being something more than the amount of A's judgment and inter- est, and this was affirmed on appeal.^ A afterwards issued an execution on his original judgment against B, upon which the property mortgaged by B to C was seized, and the sheriff, be- ing sued for conversion, sought to bar the action by the record in the conspiracy action. His contention was upheld in the court below, but this was reversed on appeal, the court saying that the burden was on the sheriff to show that the question had been decided, and that it was not clear that the jury held the $1,000 mortgage from B to C fraudulent, as the finding that the $1,500 mortgage from B to D was fraudulent would have sustained the verdict.^ If an action is brought for over- flowing land described, between certain dates, a recovery is 1. Pmitt V. Holly, 73 Ala. 369, 371; v. Riley, 100 N. Y. 102, 105 (2 N. E. Dawson v. Parham, 55 Ark. 286 (18 R. 388) ; Cummings v. Colgrove, 25 S. W. R. 48) ; Estep v. Larsh, 21 Ind. Pa. St. 150. 190, 197; Brown v. Street, 60 Ind. 8, 2. Quinby v. Strauss, 90 N. Y. 664. 11 ; State v. Small, 31 Mo. 197 ; Mor- 3. Zoeller v. Riley, 100 N. Y. 102, gan V. Burr, 58 N. H. 470, 472 ; Zoeller 105 (2 N. E. R. 388) . THE SAME ISSUE GENERAL MATTERS. 607 conclusive of a wrongful overflow of some portion of the land between the dates given; and if a new declaration is filed in the same language as the first, except the dates, the burden still rests upon the plaintiff to show, in addition to the former record, that the issues are the same as in that case.* In a suit upon a lease if the answer is a release, and the plaintiff relies upon a former recovery as a bar to this answer, the burden rests upon him to show that the question of release or no re- lease was contested and determined in the former trial. ^ § 275. Former adjudication — Effect of, under g:eneral issue. — If a former adjudication is not specially pleaded as an estop- pel, and is simply given in evidence under the general issue, it is conclusive nevertheless in California, Illinois, Kentucky, Maine, Maryland, Missouri and New York,^ but only prima facie proof and subject to contradiction in Indiana, Massachu- setts, Ohio, Pennsylvania, Virginia, United States and Eng- land.* Ail the cases however agree, that, if there is no oppor- 1. Morgan v. Burr, 58 N. H. 470, 472. 2. Bond V. Markstrum, — Mich. — (60N. W. R. 282). 3. Stockton V. Knock, 73 Cal. 425 (15 Pac. R. 51) ; Gray v. Gillilan, 15 111. 453 (60 Am. D.76] ) ; Lampton v. Jones, oT. B. Monroe (21 Ky.) 235; Chase V. Walker, 26 Me. 555; Walker v. Chase, 53 Me. 258, 261; Shafer v. Stonebraker, 4 Gill & J. 345, 356 ; Offutt V. John, 8 Mo. 120 (40 Am. D. 125) ; Garton v. Botts, 73 Mo. 274, 277; Wood V. Jackson, 18 Wend. 107; Young V. Rummell, 2 Hill 478 (38 Am. D. 594) ; Miller v. Manice, 6 Hill 114, 131 ; Krekeler v. Ritter, 62 N. Y. 372 ; Marston v. Swett, 66 N. Y. 206, 211 ; Cist V. Zeigler, 16 Serg. & R. 282 (16 Am. D. 573) ; Marsh v. Pier, 4 Rawle 273 (26 Am. D. 131, 141) ; Gilchrist v. Bale, 8 Watts 355 (34 Am. D. 469). 4. Picquet v. McKay, 2 Blackford 465; Haller u. Pine, 8 Blackford 175 (44 Am. D. 762) ; Miles v. Wingate, 6 Ind. 458 ; Eastman v. Cooper, 15 Pick. (32 Mass.) 276 (26 Am. D. 600, 604) ; Meiss V. Gill, 44 O. St. 253 (6 N. E. R. 656) ; McKnight v. Bell, 135 Pa. St. 358 (19 Atl. R. 1036); Cleaton v. Chambhss, 6 Randolph (27 Va.) 86, 94 — a dictum; Richardson v. City of Boston, 19 How. (60 U. S.) 263, 268— following Massachusetts law ; Vooght V. Winch, 2 B. & Aid. 662; Matthew V. Osborne, 13 C. B. (76 E. C. L.) 919 ; Doe V. Huddart, 2 C. M. & R. 316. In the Pennsylvania case cited above (McKnight v. Bell, 135 Pa. St. 358 (19 Atl. R. 1036), the court said: "The defendant offered in evidence the record of a former action of trespass quare clmtsinn /regit, brought by him against Robert McKnight, 18th June, 1886, in which he claimed and recov- ered damages, for trespasses commit- ted in the cutting of timber on the same land, after the purchase from McCartney. The pleas in that case were 'not euiltv,' and 'liberum tene- G08 THE MERITS. tunity to plead the former adjudication, it will be conclusive when given in evidence under a general pleading.' The case of Eastman v. Cooper was this : In a suit against A, B and C as partners on a note signed in their firm name, A made de- fault, and B and C pleaded that they did not promise with him. On the trial, it was proved that A had executed to the plaintiff seven other firm-notes for his individual debt, which were not yet due, and that he had afterwards executed the note in suit as a substitute for the other seven, and the plaintiff was defeated. He then sued them on the seven original notes, and they pleaded specially the foregoing facts as a former adjudica- tion, but the plea was held bad, because the question of their want of consideration, although actually litigated and deter- mined, was a mere collateral issue, and a matter to be deduced by inference. After this plea was adjudged insufficient, the defendants, under the general issue, were allowed to prove the same matters, not as a bar, but as "persuasive" evidence for the consideration of the jury, and this was held to be correct.^ mentum.' The defendant offered this was held that a recovery in an action record, to be followed by proof that oitresY>assquaTeclausumfregit,inyvhich. the suit was between the same parties, the only plea was liherum tenementum, and involved the same questions as is not conclusive of the title in a sub- the present suit, as a bar to the plaint- sequent action of ejectment, for the iff' s recovery in this ejectment. The same land. The rule of Stevens v. record was admitted as persuasive evi- Hughes, supra, was there held to have dence only, and was refused as a bar no application to actions of ejectment, to the action. This question was In this case, moreover, the plea of raised in Kerr v. Chess, 7 Watts 367, 'not guilty,' renders the doctrine of and in Foster v. McDivit, 9 Watts 341, Stevens v. Hughes inapplicable, even but it was in neither case decided. In if this were trespass." Stevens v. Hughes, 31 Pa. St. 381, it I.Jackson v. Lodge, 36 Cal. 28; was held, after a very able and learned Clink v. Thurston, 47 Cal. 21; Shel- discussion of the cases, in an opinion don v. Patterson, 55 111. 507; Dame v. by Mr. Justice Strong, that a judg- Wingate, 12 N. H. 291, 295; Chamber- ment upon a traverse of the plea of lain v. Carlisle, 26 N. H. 540, 551 ; liberum tenementum, when that is the Ward v. Ward, 22 N. J. Law (2 Za- only plea, is conclusive in a second briskie) 699, 706; Isaacs v. Clark, 12 action of trespass, when the freehold Vt. 692 (36 Am. D. 372) ; Hughes v. of the same class is attempted to be Eees, 9 Ontario 198. put in controversy. But in Sabins v. 2. Eastman v. Cooper, 15 Pick. (32 McGhee, 36 Pa. St. 453, which is a Mass.) 273 (26 Am. D. 600, 604). case very similar to the present, it THE SAME ISSUE GENERAL MATTERS. 609 Many of the cases, while denying the conclusiveness of the judgment if it is not specially pleaded, say that it is "persua- sive," " powerful," or " strong " evidence. In regard to such expressions, j\Ir. Justice Isaac F. Redfield, of Vermont, said : " I profess myself utterly at a loss to find, from all the cases on the subject, what rule can be laid down for determining the effect of a former verdict upon the same facts, if it is to have any effect in a future litigation, and is not conclusive. Some learned judges have said, * it is evidence,' * stringent evidence, ' * pregnant evidence,' and there the matter rests. My own opinion is, that the former finding, even when it is necessary to resort to oral evidence to ascertain that the fact in dispute was involved in the former controversy, is still conclusive upon the parties, and, of course, upon the jury. But it can not be pleaded as an estoppel, and must, of course, go to the jury ; and, as it rests in pais for the jur}'' to find whether the disputed fact was determined by the former trial, the jury, by refusing to find that fact, which rests in their discretion, always have it in their power to disregard the former verdict, and in that sense, therefore, it is not conclusive, as it is when the matter appears upon the record, and may be determined by the court.'" These remarks seem to me to be sound. § 276. Former adjudication — Proof of, how made. — Although a copy of the entire or complete record is admissible in order to prove a judgment,^ yet if its existence is the only matter to be proved, a copy of it, without the other proceedings, is all that is necessary. Hence, one having agreed to repay money upon the reversal of a judgment, a copy of the judgment of the supreme court, reversing it, is proof of that fact.^ So, in a suit upon a wager that the House of Lords would reverse a decree of the chancellor, a copy of the judgment of reversal alone was decided to be sufficient.* A sentence of a court of 1. Gray u.Pingi-y, 17 Vt. 419(44 Am. 4. Jones v. Randall, 1 Cowper 17, D. 345, 348). relying upon Rex v. Gates, 4 State 2. Smith V. Smith, 22 Iowa 516. Trials 44. 3. Locke V. Winston, 10 Ala. 849. 39 610 THE MERITS. admiralty is sufficient evidence of condemnation without show- ing the previous proceedings.* So, it is held in Louisiana, that the entire record is not necessary in order to prove a judgment.^ But a plea of former adjudication is not sustained by a pro- duction of the judgment entry without any other part of the papers or record.' It would not show what was in issue. Of course a transcript which fails to show when, or for what cause, or by what court a judgment was rendered, is inadmissible in evidence.* In a suit upon the bond of an administrator because of his failure to pay a judgment, a copy of the judgment itself, with- out a copy of the entire record, is sufficient evidence.^ The court said : "A judgment is the conclusion of the law upon matters contained in the record. Whenever it is sought to es- tablish the conclusion, merely, and the contents thereof, the judgment is admissible by itself ; but, when the object is to shov»r any of the premises from which the conclusion was drawn, then the whole record must be produced. The contents of the judgment, the relation of the parties, or other facts expressed therein, are part and parcel of the conclusion. So, likewise, are any legal incidents which the law attaches to these contents. It only remains to apply the doctrines above announced to the facts of the case now under consideration. In order to show a right .of action on the bond, it was incumbent on the plaintiffs to establish a devastavit by the administrator. The judgment entry being prima facie correct, the existence of the judgment as a fact would be established. One of the questions the judg- ment must necessarily have adjudicated was ' sufficiency of as- sets,' as such is the effect the law gives to judgments of that class when shown to exist. Therefore, to prove the devastavit, it was necessary to show simply the existence of such judg- ment, execution issued thereunder, and proper return of nulla bona. It was only to prove the fact of rendition of the judg- 1. Gardere v. Columbian Ins. Co., 7 3. Thomas v. Stewart, 92 Ind. 246. Johns. 514. 4. Bevington i». Buck, 18 Ind. 414. 2. Judson V. Connolly, 5 La. Ann. 5. Gibson v. Robinson, 90 Ga. 756 400. (16S. E. R. 969). THE SAME ISSUE GENERAL MATTERS. 611 ment, and its contents, that a certified copy of the judg- ment entrj^ of the superior court was tendered in evidence. The existence and contents of that judgment was the sole sub- ject of inquiry, so far' as the suit which resulted in it was concerned, and it follows from what has been said that the trial judge properly allowed the judgment to be proved in the man- ner objected to." In order to show the right to issue an exe- cution,* or to sue upon an injunction bond,^ a copy of the judg- ment entry alone is suflBcient. The same rule holds good if the question relates to the payment of a note by a receiver,' or a sale of a note by a bankrupt.* A case in Indiana holds that a complaint on a judgment from another state which simply shows the impaneling of the jur}^ a trial, verdict and judg- ment for the plaintiff, without any of the pleadings or other proceedings, is bad on demurrer.' This case seems to me to be unsound. § 277. Necessarily decided. — If an issue is necessarily de- cided in reaching the adjudication made, of course it is set- tled.^ In an action to recover an installment of interest upon a note, if the sole plea is a denial of its execution and if evidence is given in support of this plea, a judgment on the merits will necessarily settle that issue and bar further controversy concerning it iii a new suit for another install- ment. So, if the defendant, in the case supposed, also pleads payment, and gives evidence to support both issues, a recov- ery by the plaintiff necessarily adjudicates the falsity of both ; while, on the contrary, a recovery by the defendant does not necessarily show the truthfulness of either, because the record will not show upon which one the finding was made, unless it was special. The cases on this point are quite numerous, but 1. Doe ex dem. Starke v. Gildart, 4 4. Price v. Emerson, 14 La. Ann. How. (5 Miss.) 267, 271. Accord, 141. Lowry v. McDurmott, 5 Yerger (13 5. Ashley v. Laird, 14 Ind. 222. Tenn.) 225. 6. State National Bank v. North- 2. White V. Clay, 7 Leigh (34 Va.) western Union Packet Co., 35 Iowa 68. 226. 3. Succession of Stafford, 2 La. Ann. 886. 612 THE MERITS, they are considered in connection with the special matters con- tained in this and the next chapter. A few cases to illustrate will be given. Thus, a general verdict in California, if there are several issues, concludes such matters only as were necessa- rily decided.^ But if the plaintiff, under the issues, has to prove several things to make out his case, a recovery by the defendant is prima facie a bar to all of them.^ In this case, the action was to recover damages caused by flowing back water upon the plaintiff's land. The court said : "The answer of defendant put in issue all the allegations in the petition, and put upon plaintiff the burden of proving every fact material to his right of recovery. Under the issue he was required to prove his ownership of the land alleged to have been injured, the ex- istence of the alleged water-course, the erection by defendant of the embankment, and that it caused the waters of the stream to flow back upon and injure the land; and the instructions of the court, given upon the trial, submitted each of these ques- tions to the jury for their determination. If the verdict had been special, and it was made to appear by the record that plaintiff's failure to recover was owing to the failure to prove that the embankment as it then existed had the effect to cause the water to overflow his land, the judgment would not estop him from showing, in a subsequent action, that as sub- sequently maintained it had the effect to cause such overflow. But the verdict and judgment were general, and upon the merits. They must therefore be regarded as an adjudication of all the issues in the case. The judgment, therefore, deter- mines, as between the parties, that what plaintiff claimed was a natural water-course had no existence as such, and that the waters which accumulated at the place in question were mere surface waters, which the defendant had the lawful right to de- fend his premises against by the means employed by him for that purpose." If a set-off is pleaded, and the plaintiff recovers, and after- wards sues upon his judgment, to which the same set-off is 1. Kidd V. Laird, 15 Cal. 161, 182. 2. Hahn v. Miller, 68 Iowa 745 (28 N. W. R. 51). THE SAME ISSUE GENERAL MATTERS. 613 pleaded, the burden is upon the defendant to show that it was not passed upon in the first action.^ A question which it was not necessar}^ to decide, and which the judgment expressly left open, is not res judicata because within the scope of the issues.' In an action of ejectment, the plaintiff was defeated upon two grounds, namely: First, because the person from whom he received his deed was disseized; and, second, because the defendant then held a base fee not yet determined. This base fee being afterwards determined, the plaintiff brought a new action by virtue of his original deed, but it was decided that the first adjudication that his deed was void barred the action.^ To conclude any matter by a former adjudication, it must be made to appear, either from the record or by extrinsic evidence, that it was determined.* And, in order to make a record conclusive, without the aid of extrinsic evidence, it must show that the question was necessarily deci^ied.^ Thus, to prove that a payment to C satisfied a debt to B, both the payment to C and the agreement with B that it should apply on his debt must be shown. Hence, a finding of the payment to C, without the finding of an agreement, is no evidence.® In a suit to restrain a person from maintaining a causeway over tide water in front of plaintiff's land, the court said:' "It is averred in the bill and appears in proof that the com- plainant, at the May term, 1889, of the court of common pleas for Washington county, recovered a judgment on the verdict of a jury assessing damages in the sum of five dollars against George P. Sherman, the predecessor in title of the present respondents, for the continuance and maintenance of the causeway southerly from Gooseberr}' Island into the waters of the cove, between September 20, 1886, and April 3, 1889. 1. Carter v. Hanna, 2 Ind. 45. 5. Althrop v. Beckwith, 14 III. App. 2. Stannard v. Hubbell, 56 Hun (63 628. N. Y. Supr.) 450; Teal v. Terrell, 48 6. Fairman v. Bacon, 8 Conn. 418, Tex. 491, 507. 425. 3. Jamaica Pond Aqueduct Corpora- 7. Sherman v. Sherman, — R. I. tion V. Chandler, 121 Mass. 1. — (30 Atl. R. 459). 4. Wilch V. Phelps, 16 Neb. 515 (20 is. W. R. 840). 614 THE MERITS. The jury, in returning this verdict, must necessarily have found as a fact tliat the waters of the cove and of Point Judith pond were public navigable waters. That fact, therefore, is res judicata, and no longer open to controversy between the parties." §278. Opinions and reasons of the court — (See §313, infra ) . — The supreme court of Connecticut says that the opinion of the court is no part of the j udgment, and can not be used to show what matters were considered and decided in case the judgment is not specific ; that those matters must be shown by witnesses who can be cross-examined, and that the opinion is merely hearsay.^ So it is held in Illinois, that the value of a plea of former recovery is not to be determined by the reasons which the court rendering the former decree or judgment may have given for doing so.^ Likewise in Louisiana, it is decided that the reasons given by the court are no part of the judgment and are not res judicata.^ The federal court sitting in that state rules that if the decree is ambiguous, the opinion of the court may be examined to determine what was decided,* with which 1. Buckingham's Appeal, 60 Conn, tions imposed upon all witnesses. It 143 (22 Atl. R. 509). The court said: must be given under oath, and subject "The court admitted in evidence the to the right of cross-examination, and written opinion of the judge who tried it must not be what is termed 'hear- the case in the United States court, say' evidence. By the admission of This was no part of the record. It the opinion, as evidence to show the was admitted for the purpose of show- grounds of the decree, these f unda- ing the grounds of the decree. The mental rules of evidence were violated, decree itself did not show on what and the court committed an error." facts it was based. After the record 2. Harmon v. Auditor of Public Ac- was admitted, the question then was counts, 123 111. 122 (13 N. E. R. 161, whether or not the validity of the gifts 164) . to the nieces, which was in issue in the 3. Chaffe v. Morgan, 30 La. Ann. case at bar, had been in issue, and had 1307, 1310. Substantially in accord is been determined, in the prior suit. In Succession of McDonogh, 24 La. Ann. such a case, if the record does not 33. clearly disclose the facts upon which 4. New Orleans, M. & C. R. Co. v. judgment or decree is based, they may City of New Orleans, 14 Fed. R. 373. be shown by any proper evidence out- side of it. But the witnesses who give such evidence must do so in the ordinary waj'', and under the condi- THE SAME ISSUE GENERAL MATTERS. 615 the state court agi-ees/ but at the same time holds that the de- cretal part governs in what was decided. In another case in that state, the title to land having been in issue, and the supreme court having simply reversed the judgment and remanded the cause for further proceedings according to law, it was held that the question of title was not res judicata, although "from the reasoning of the court, in which they express the opinion from the evidence then before them, that the titles to certain portions of the land had failed, it is to be inferred that the object of remanding the cause was to enable the defendants to show the amount of loss which they had sustained."^ A later case in that state holds that, if a decree is rendered on appeal, and a petition for a rehearing is filed based upon a certain construction of the contract in controversy, an opinion refusing a rehearing does not make the construction contended for res judicata in a new case between the parties, although that construction was approved by the court in its reasons for denying a rehearing.' The court said : *' To this petition for injunction Abraham opposed the plea of res judicata, which was sustained by the judge a qua, and from his judgment the present appeal is taken. The basis of the plea is not the decree or judgment rendered by this court, but merely the expressions referred to above, contained in the opinion on rehearing. It is elementary that in the decree rendered, and not in the opinion pronounced, will be found the thing adjudged. The reasoning and opinion of the court on the evidence are not res judicata, unless the subject-matter be defi- nitely disposed of by the decree. The plea of res judicata is stricti juris , and must be established beyond question, and all doubts inure to the benefit of the party against whom it is pleaded. The plea here was manifestly unfounded. The only decree rendered by this court in the former suit was one perpet- uating the injunction and quashing the former writ of seizure 1. Harrison v. Goclbold, 1 McGloin La. Ann. 491, and in Davis v. Millaa- (La.) 178. don, 17 La. Ann. 97, 104. 2. Pepper v. Dunlap, 5 La. Ann. 200, 3. Penouilh v. Abraham, 43 La. Ann. 202. Approved in Fisk v. Parker, 14 214 (9 S. R. 36). 616 THE MERITS. and sale. The only issue was whether or not that writ was issued prematurely ; and we decided that, in manner and form as prosecuted, it was, and we decided nothing else. The issue as to whether it would have been premature, if it had been taken out in the manner and form now pursued, was not decided by us. The creditor asked us to decide it, and to grant him relief, and we decided to do so, for the reasons given, namely, that his pleadings did not support such a demand. We therefore refused it, and simply reserved his rights. This left the entire subject-matter of that contention 'in the air,' undetermined by any decree ; and whatever we may have said in our opinion by way of commentary on the evidence, being followed by no decretal action, can not serve as a basis for the plea of res judi- cata.'' If a decree fails to show upon which of several issues it is founded, but refers to the opinion of the trial judge on file to explain what was determined, the opinion can be examined for that purpose.^ The court said: "If, in case the record leaves a doubt as to which of several matters may have been passed upon, parol evidence may be admitted to solve the doubt, what possible objection can there be to the consultation by the appellate court for that purpose of the written opinion of the judge who heard and decided the case below ? In the case at bar, the trial judge filed with the papers in the cause his reas- ons for his decision, which the decree itself shows was done for the express purpose of explaining his decision. This being the case, the opinion of the trial judge, thus referred to in the decree, becomes a part of the record, and may be looked to, and is even more reliable to explain, in doubtful cases, what was in issue and what was determined, than mere extrinsic evidence to the same end. We do not mean that the mere opinion of the trial judge, which may happen to be in writing, and copied into the record, constitutes a part of it, but we do say that if the decree, as in this case, refers to the opinion of the trial judge in terms that make it clear that the object was to refer to it to explain what was determined, and 1. Legrand v. Rixey, 83 Va. 862 (3 S. E. R. 864). THE SAME ISSUE GENERAL MATTERS*. 617 the reasons therefor, then the opinion becomes legitimately a part of the record, and must be examined in order to explain what was in issue, and what was determined by the judgment or decree in question." See Burton v. Mill, 78 Va. 470. In a suit upon a railroad aid bond issued by a city, the peti- tion set out a copy of the bond which showed that its purpose was to aid in the building of machine-shops, and it also re- ferred to the statute under which the city acted. The answer set up, as a special defense, a change in the municipal organ- ization, and there was a trial and judgment for the plaintiff. A motion by the city for a new trial was overruled, and it then made a motion in arrest of judgment upon the ground that the allegations of the petition and recitals of the bond showed that it was issued without authority of law, and this motion was also overruled. The city then presented a petition for a re- hearing, in which one of the points made was, that the law did not authorize the issuance of the bond. The court filed a writ- ten opinion denying this petition, in which the question raised by the answer in reference to the change in the municipal or- ganization was the sole one discussed, saying that that was ** the only matter set out in the plea." In a suit on another bond, the city contended that the question concerning its au- thority to issue them was not adjudicated in the former action, and based its contention mainly upon the fact that the court had not passed upon that question on the petition for a rehear- ing. But this contention was denied, the court saying that the question was squarely decided by the ruling denying the mo- tion in arrest, and that the fact that the court gave it no con- sideration in overruling the petition for a rehearing might have been because it thought none was necessary.^ In a suit against a receiver upon a contract to recover profits, there was a finding that none had been made and a judgment upon the finding. On appeal, the judgment was simply af- firmed, but the reason given for that ruling was that the con- tract was void, in a new suit on the contract, it was decided tliat the opinion of the appellate court giving its reason was 1. Laird v. City of DeSoto, 32 Fed. R. 052. 618 ■ THE me:rits. not res judicata, and that the validity of the contract was still open.^ A case in the District of Columbia holds that if the de- cree is general or ambiguous, the opinion of the court may be examined in order to ascertain what was decided. In this in- stance it was done to show that the supreme court dismissed a bill because the plaintiff had no lien, and not because he had no lawful claim. ^ § 279. Presumptions. — If there are several issues tendered by the complaint or the answer, will it be presumed, upon a general finding and judgment, that all the issues made by the prevailing party were decided in his favor? The affirmative is held in Illinois, Indiana, New York and Vermont, while the contrary is maintained in Colorado, Connecticut, Iowa, Mary- land, Massachusetts, Wisconsin and by the Supreme Court of the United States. Thus, in an action for trespass upon land in Illinois, if the defenses of title in the defendant and the statute of limitations are pleaded, and evidence is given on both, a general verdict and judgment for the defendant is prima facie evidence that both were decided in his favor. ^ So, 1. Robinson v. New York, L. E. & sented by the pleadings were found in W. Ry. Co., 64 Hun (71 N. Y. Supr.) his favor. White v. Simonds, 33 Vt. 41 (18 N. Y. Suppl. 728; 46 N. Y. St. 178, is quite in point. That was an Reporter 35). action of assumpsit on three promis- 2. Strong v. Grant, 2 Mackey (D. sory notes, and the defendants relied C.) 218. for their defense upon a judgment in 3. Rhoads v. City of Metropolis, their favor in the state of Massachu- 144 111. 580 (33 N.E.R. 1092). The court setts in a suit on the same notes, in said: "The decisions of the courts of which two issues were tried, — one the different states are not altogether denying the merits of the plaintiff's uniform as to the effect as an estoppel claim, and the other only present- of a verdict and judgment in favor of ing a temporary bar to his re- a defendant in a case wherein several covery. It appeared that 'upon the distinct and separate defenses are pre- trial of that case evidence was intro- sented by the pleadings, but in our duced by the defendants on both opinion the preponderance of author- issues, and that a general verdict ity sustains what seems to us to be was returned in their favor, on which the better and more reasonable rule, a general judgment was rendered. — that, if evidence upon all the is- That verdict and judgment were sues is heard, a general verdict in held to be conclusive of the issue favor of the defendant is at least prima denying the merits, the court saying : facie proof that all the issues pre- 'When a case is submitted to the jury, THE SAME ISSUE GENERAL MATTERS. 619 in Indiana, if the record shows that several issues were pre- sented, on any one of which the judgment could have been given, they are all prima facie res judicata.^ So, although it is a misjoinder of causes of action in that state to unite a claim for waste to an action to recover land, yet it will be presumed that the recovery by the plaintiff included both causes.^ Of course, the plaintiff may show by parol, in a new action, that no evidence was offered in respect to the waste, in order to over- come the presumption.' A late case in the same state was this : The plaintiffs sued the defendant upon a written contract to furnish her a monu- ment for $560, for which a horse, harness and buggy were taken at $300, and the balance to be paid in cash when the work was involving two or more issues, with evidence tending to sustain them all, and a general verdict is rendered, such verdict is prima facie evidence that all the issues were found in favor of the party for whom the verdict is ren- dered. And when, as in this case, a judgment on such verdict is presented by the defendants to defeat a recovery in a subsequent suit, brought on the same cause of action, the burden of showing that the verdict in the first suit was rendered upon an issue pre- senting only a temporary bar, and that such bar has since been removed, or has ceased to operate, is thrown upon the plaintiff." In Day v. Val- lette, 25 Ind. 42, a general verdict and judgment in favor of the defendants were pleaded in bar, and it appears that the issues joined in the former suit involved the same questions pre- sented in the suit on trial, but that there were also other issues in the former suit, which, if found for the same parties, would have produced the same result, even though the is- sues involved in the suit on trial had been decided the other way ; and it was held that, while the former ver- dict and judgment were not necessar- ily a conclusive bar to the second suit, they were so prima facie. In Sheldon V. Edwards, 35 N. Y. 279, the defend- ant in a former suit had, under the provisions of the New York code, joined in his answer what amounted to a plea in abatement with a plea to the merits in bar, and it was held that a general verdict and judgment in favor of the defendant in the former suit was a bar in his favor, in a sub- sequent suit, as to both defenses. In Steamboat Line v. Lyon, 12 Fed. Rep. 63, the trial court charged the jury that, if two defenses are set up in an answer, and evidence is submitted to a jury upon the trial of the action tending to support both defenses, and a general verdict is rendered for the defendant, such verdict and judgment is a bar in another action upon the same demand. On motion for a new trial, heard by both the circuit and district judges, it was held that the charge was correct." 1. Day V. Vallette, 25 Ind. 42 (87 Am. D. 353). 2. Bottorff V. Wise, 53 Ind. 32, 34. 3. 53 Ind. 32, 35. G20 THE MERITS. completed. They alleged that the work was completed, except the inscription, which the defendant refused to furnish, and they asked to recover the balance of the contract-price. The defendant answered, first, a general denial; second, that the contract had been abandoned by mutual consent; third, that she was a widow, illiterate, impaired in body and mind, not in the habit of doing business, ignorant of the different kinds and qualities of marble, and without knowledge of their values, all of which the plaintiffs well knew ; and that they fraudulently represented to her that the monument mentioned in the con- tract was the best Italian marble, of the value of $600 ; that she relied upon those representations, and was thereby induced to enter into the contract and to pay $300 upon it; that the monument was of an inferior grade of marble, not worth over $200 ; and that the plaintiffs then had but a part of it, having long since sold the base to a third person ; fourth, that the plaintiffs, by thp terms of the contract, were to construct a monument for her of certain material and of certain dimen- sions, not mentioned in the contract, and were to construct and place an urn upon it ; that they had always retained the monument in their possession as their own, and had sold its base as their own, and had kept the proceeds as their own, and had not accounted to her for them ; that if they had con- structed the urn they had never placed it on the monument, and that she had never accepted the monument as a compliance with the contract, nor in any other manner. There was a reply in de- nial, and a trial and judgment for the defendant. She then sued them to recover the value of the horse, buggy and harness delivered to them upon the contract, and the record in the for- mer case was relied upon as a defense. The court said that, under its previous decisions, what was in issue must be de- termined by the pleadings, and that the presumption was that all the issues were determined in favor of the defendant. It construed the third paragraph of answer as an acceptance of the monument by her at its actual value, which had been paid, and the second that it had been abandoned by mutual consent, and admitted that if the former judgment was upon one para- THE SAME ISSUE GENERAL MATTERS. 621 graph, she would be entitled to recover the value of the prop- erty delivered to them, whereas if it was upon the other, she would not. It finally concluded that she could not recover be- cause of the issue tendered by her third paragraph of answer.' But just why the presumption that the judgment was rendered on that paragraph was stronger than that it was rendered on the first or second was not explained. It seems to me that the record, without evidence to show what was actually litigated, was nugatory. The intermediate courts of New York, with one exception, have ruled that a judgment is a prima facie adjudication of all the issues in favor of the prevailing party. ^ Thus, a complaint having been demurred to upon four grounds, three of whicli were on matters of form and one on the merits, and there hav- ing been a general ruling sustaining it, it was presumed that all the grounds were sustained, and the ruling was held to be a bar to a new action.^ Another case in that state holds, that, if the complaint in replevin alleges title, and a demand and refusal, a judgment for the defendant will be presumed to be for want of title in the plaintiff.* The supreme court of Vermont says that **if a case is submitted to the jury, involving two or more issues, with evidence tending to sustain them all, and a general verdict is rendered, it is prima facie evidence that all the issues were found in favor of the prevailing party. "^ In an earlier case that court says: "If the declaration is of a general character, as in general indebitatus assump- sit, though the judgment is prima facie conclusive of all that might have been given in evidence under it, yet re- sort may be had to evidence to show what, in fact, was litigated, and of that only will the judgment be conclu- sive."* On the contrary, it is said in Colorado, that, if there 1. Howe V. Lewis, 121 Ind. 110 (22 3. People v. Stephens, 51 How. Pr. N. E. R.978). 235,239. 2. Agate v. Richards, 5 Bosworth 4. Brady v. Beadleston, 62 Hun (6V> 456; Yongers, etc., Insurance Co. v. N. Y. Supr.) 548. Bishop, 1 Daly 449; Hartnettv.Adler, 5. White v. Simonds, 33 Vt. 178, 15 Daly 69 (2N. Y. Suppl. 713), affirm- 180, (78 Am. D. 620). ing 1 N. Y. Suppl. 321. Contra, Haw- 6. Parks v. Moore, 13 Vt. 183 (37 ley ». Singer, 5 Demarest 82. Am. D. 589). 622 THE MERITS. are two issues, upon either one of which the judgment might have been rendered, it is not prima facie res judicata as to either.* An early case in Connecticut says: "If there are several points in issue, no authority can be found to warrant the admission of the record as evidence to prove one of the several facts put in issue. "^ It is held in Iowa, that, if there are three distinct defenses pleaded, a judgment for the defendant raises no presump- tion that the decision was based on any particular one of the defenses.^ So, if one of the defenses was bad, it will not be presumed that the decision was founded on it.* A sued B in Maryland for the breach of a contract to deliver corn in pay- ment for a chattel. The pleas were non-assumpsit and a set-off for goods sold and delivered, and there was a verdict and judgment for B. He then sued A for the same goods de- scribed in his set-off in the former case, and the answer being former adjudication, it was decided that, as the former record failed to show upon what ground B recovered, the burden was upon A to prove that B's set-off was adjudicated.^ It is held in Massachusetts, that, if the answer to an action on a note ten- ders two issues, namely, that it was originally void, and that, if valid, it was subsequently discharged by agreement, a judg- ment for the defendant is not, of itself, prima facie evidence in his favor, in another action between the same parties, that the note was originally void, as it does not show upon which issue it was rendered.® So, it is decided in Wisconsin that a judgment does not conclude a matter in issue if it might have been rendered on finding it either way.' The Supreme Court of the United States says: "If it appears from the record that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indi- 1. Solly V. Clayton, 12 Colo. 30 (20 5. Garrott v. Johnson, 11 Gill & J. Pac. R. 351). 173 (35 Am. D. 272). 2. Ryer v. Atwater, 4 Day 431, 434. 6. Littlefield v. Huntress, 106 Mass. 3. Linton v. Crosby, 61 Iowa 293 121, 126. (16 N. W. R. 113). 7. Bergeron v. Richardott, 55 Wis. 4. Linton v. Crosby, 61 Iowa 401 129 (12 N. W. R. 384). (16N.W. R. 342). THE SAME ISSUE GENERAL MATTERS. 623 eating which of them was thus litigated, and upon which the judgment was rendered, the whole subject-matter of the action will be at large, and open to a new contention, unless this un- certainty be removed by extrinsic evidence showing the pre- cise point involved and determined."' If a recovery by the plaintiff might have been on any one of several issues, the rec- ord alone will not be prima facie evidence in his favor to es- tablish, in a new suit, any one of the issues.^ If there are several issues in a suit to enjoin the execution of a tax deedj and there is a dismissal of the bill, without showing why, the record will not bar a suit to set aside the deed as fraudulent, because it does not show that that issue was decided.^ If a bill for an infringemeiit of a patent is dismissed on the merits, the record alone will not bar a new suit upon the same patent for other alleged infringements, because the dismissal may have been based on the fact that the defendant had not yet done anything as charged.* If an answer in equity also contains demurrers, and the cause is submitted to the court on the pleadings and proofs, a dismissal of the bill absolutely will be presumed to have been on the merits, and not upon, the demurrers for defects in plead- ing, because in the latter case it was the duty of the court to state that fact.^ If A sues B and C for wheat, rye and corn, and the answers are that the wheat was sold to B alone, and that A had not fulfilled his part of the contract, a recovery by A does not necessarily bar a suit by B against A for a breach of the contract in failing to deliver the same wheat, because, in the absence of evidence to show the facts, it can not be inferred that it was included in the first verdict.® A lessor sued the les- see for several breaches of covenants contained in the lease, to which there was an answer in denial, and a verdict and judg- ment for the plaintiff for one cent. One of the covenants sued 1. Russell «. Place, 94 U.S. 606, 608. 4. Steam-gauge and Lantern Co. v. 2. Geneva National Bank v. Inde- Meyrose, 27 Fed. R. 213. pendent School District, 25 Fed. R. 5, Billing v. Gilmer, 60 Fed. R. 332 ; 629. Billing v. Gilmer, 62 Fed. R. 661. 3. Clark v, Blair, 14 Fed. R. 812. 6. Lawrence v. Hunt, 10 Wend. 80 (25 Am. D, 539). 624 THE MERITS. upon stipulated, that, if the lessee should commit waste, the lessor should have the right to enter and expel him, which, after judgment, he did. The lessee sued him for trespass, and the trial court held that the record in the former action was con- clusive that this covenant had been broken, and that it was, therefore, a complete defense ; but this was reversed, because it was uncertain from the record upon what covenant the verdict was given. It was also decided that the burden was on the lessor to prove that the verdict went upon that covenant/ 1. Sawyer v. Woodbury, 7 Gray (73 Mass.) 499 (66 Am. D. 518). UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 870 281 3