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

So far as we can venture to state rules which may determine these difficult questions, we should say, that "the matter in issue" is either that which the record and the pleadings show clearly to be so; or else a question which extrinsic evidence shows to have been actually tried, and shows also to have been absolutely essential to the case, in so much that the answer to it decided the case, and if it had not been contested the case could not have been tried. (ss) We should say, that the judgment in the supposed case of trover should not be conclusive upon the questions which might be raised in other cases as to the validity of the instrument, and the title it gave; and we should incline also to the opinion that the judgment in the supposed case of trespass quare clausum should be no bar to a writ of entry. (st) It cannot, however, be denied, that the present tendency of the law is to permit parol evidence to show the actual grounds on which the judgment rested, when the record needs not and does not exhibit those grounds. (su) And also, not to permit the former judgment to be a bar, although the record presents the claim, if no testimony nett v. Holmes, 1 Dev. & Bat. 436. In some States, a judgment in an action of trespass upon the issue of liberum tenementum, has been held admissible in a subsequent action of ejectment between the same parties. See Hoey v. Furman, 1 Penn. St. 295; Kerr v. Chess, 7 Watts, 871; Foster v. M'Divit, 8 id. 341, 849; Meredith v. Gilpin, 0 Price, 146. As to the effect of a judgment in ejectment, as regulated by the Revised Statutes of New York, see Beebee v. Elliott, 4 Barb. 467.

(rr) Aurora City v. West, 7 Wallace, 82. See also Durant v. Essex Co. 7 Wallace, 107; Beloit v. Morgan, 7 Wallace, 619; Derby v. Jacques, 1 Clifford, 426; Jackson v. Lodge, 86 Cal. 28.

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

(ss) Where a seller of property took sundry notes in payment, and put one in suit, and afterwards another, it was held, that the defendant could not set up against the action the same defences he had set up in the former. Freeman v. Bass, 84 Ga. 366.

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

(su) Sturtevant v. Randall, 58 Me. 149.

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

A party cannot avoid the effect of a former judgment, by changing the forum from the equity side of the court to the law side. (uv)

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

(sv) Burwell v. Knight, 61 Barb. 360.

(t) This is not always true; for where a cause of action is such that more than one may sue, a judgment in an action brought by one is a bar to an action by the other. Thus, if a consignor sue a carrier for goods, and the latter has a verdict and judgment on a plea of not guilty, the consignee cannot maintain another action for the same goods. Green v. Clark, 6 Denio, 497. So, where a plaintiff may bring his action against either of two persons, as for instance against the sheriff or his deputy, for the acts of the deputy, a judgment in favor of either would be a bar to a second action for the same cause against the other. See King v. Chase, 16 N. H. 9. And in Parkhurst v. Sumner, 23 Vt. 638, it was held, that all matters which might have been urged by the party before the adjudication are concluded by the judgment as to the principal parties, and all privies in interest, or estate; and among privies are those who are holden as bail for the party. See Davis v. Davis. 30 Ga.296.

(u) See ante, pp. * 724, * 725, and n.

(f).

(uu) Miller v. Johnson, 27 Md. 6.

(uv) Baldwin v. McCrae, 38 Ga. 650.

(v) Agnew v. McElroy, 10 Smedes & M. 662; Johnson v. White, 13 Smedes & M. 684. The former decision must have been on the merits, or the judgment must be such that it might have been. Dixon v. Sinclair, 4 Vt. 354; N. E. Bank v. Lewis, 8 Pick. 113; Lane v. Harrison. 6 Munf. 673; M'Donald v. Rainor, 3 Johns. 442; Lampen v. Kedgewin, 1 Mod. 207; Knox v. Waldoborough, 6 Greenl. 185; Bridge v. Sumner, 1 Pick. 371; Mosby v. Wall, 23 Miss. 81. And where judgment was rendered in replevin against a plaintiff, by nonsuiting him in a case in which he had replevied a vessel alleged to be his by virtue of a bottomry bond, seized by an attaching officer, it was held, that that judgment to be good in bar of an action of trover for the vessel must be pleaded and averred, and proved to have been upon the merits, and to have been rendered in a suit between privies in interest. Greeley v. Smith, 3 Woodb. & M. 236.

(w) Lyman v. Brown, 2 Curds, C. C. 669. Where there was a confession of judgment by members of a firm in the absence of one of the partners, and without his consent, and the judgment

And that if there be now a defence to a claim which could not have been made in the former suit, the judgment is not a bar. (ww)

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