The whole purpose of the law being to settle questions and terminate disputes, it will not permit a question which has been settled to be tried again. (n) But it must be the meaning of this rule - for this meaning is required by obvious justice - that only a question which has been settled after a full and regular trial, and which has been the object of direct investigation, and to which parties have had their attention drawn in such wise as to warrant the supposition that a new trial would * but repeat a former process, - only a question tried in this way is excluded from further trial. For it would be unjust and dangerous to permit a party to bring up an important question incidentally, and then bind conclusively the other party by the result, although he might well have neglected this question, for this time, in his wish to confine all his attention and all his efforts to what he had a right to deem the true question. The rule therefore may be ex203; Thayer v. Mowry, 86 Me. 287; Chamberlain v. Carlisle, 6 Foster. 540. The true spirit of the rule also requires the former suit to have been valid and effectual; otherwise, the second suit will not be considered vexatious. Downer v. Garland, 21 Vt. 362; Hill v. Dunlap, 16 id. 645; Quinebaug Bank v. Tarbox, 20 Conn. 510; Durand v. Carrington, 1 Root, 355. The prior suit must also have been actually entered in court; for it must be proved by the record to be for the same cause, and pending when the second was commenced. Parker v. Colcord, 2 N. H. 36; Commonwealth v. Churchill, 5 Mass. 174; Trenton Bank v. Wallace, 4 Halst. 83; Smith v. Atlantic M. F. Ins. Co. 2 Foster, 21. The pendency of a prior suit in which the defendant is summoned, as trustee of the plaintiff, is no cause for abatement of the suit subsequently commenced by the plaintiff (the principal defendant in the first action) for the cause of action sought to be reached by the trustee process. Wadleigh v. Pillsbury,

14 N. H. 873. And see Morton v. Webb,

7 Vt. 128. Neither is a suit at law a defence to a suit in equity. Peak v. Bull, pressed thus, - that a judgment on the same matter in issue by a court having jurisdiction of the matter, (nn) and making a judicial examination into the merits of the question, (no) is a conclusive bar. (o) But when we * come to the meaning of * 730

8 B. Mon. 428. Nor vice versa. Colt v. Partridge, 7 Met. 570; Haskins v. Lombard, 16 Me. 140; Blanchard v. Stone, 16 Vt. 234; Ralph v. Brown, 3 Watts & S. 395.

(m) White v. Whitman, 1 Curtis, C. C. 404.

(n) But the party insisting upon a former recovery as a bar to an action, must show that the record of the former suit includes the matter alleged to have been determined. Campbell v. Butts, 3 Comst. 178. Consequently, where the declaration in the first suit states a particular matter as the ground of action, and issue is taken by the defendant, parol proof is inadmissible to show that a different subject was litigated upon the trial. Id. And see Boston & Worcester R. R. Corp. v. Dana, 1 Gray, 83; Davis v. Tallcot, 2 Kern. 184; Green v. Clarke, id 343.

(nn) See Goodrich v. City, etc., 5 Wallace, 566.

(no) Hence a decree obtained by an arrangement between the parties has not the force of a res judicata. Jenkins v. Robertson, Law Rep. 1 H. of L. Sc. 117.

(o) The Duchess of Kingston's case, 20 Howell's State Trials, 538, is the leading case on this point. Lord Chief Justice De Grey there said: "From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment 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 exclusive jurisdiction directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or 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." This rule was expressly adopted by Story, J., in Harvey v. Richards, 2 Gallis. 229; and by Gibson, C. J., in Hibshman v. Dulleban, 4 Watts, 191. See also Wright v. Deklyne, Pet. C. C. 202; Gardner v. Buckbee, 3 Cowen, 120. In this last case, B. sued G. upon a promissory note in the Marine Court of the city of New York, and G. pleaded the general issue, with notice that the note was given upon the fraudulent sale of a vessel by B. to G., which was the question upon the trial; and the verdict was for the defendants; and afterwards B. sued G. in the Court of Common Pleas for the city and county of New York, upon another note given upon the same purchase. Held, that upon the trial of the second cause, the record and proceedings in the first were conclusive evidence of the fraud, and were a conclusive bar to the second action; that the proper course was to give the record of the Marine Court in evidence, and then show by parol evidence (e. g., by the justice who tried the first cause), that the same question had been tried before him. So where B. brought trespass quare clausum fregit in May, 1816, laying the trespass with a continuando between the 1st November, 1814, and the 24th November, 1815, and recovered; and then brought trespass against the same defendant for a subsequent injury to the premises in question in the former suit, - it was held, that the record in the former suit, followed by parol evidence that the premises in question were the same in both, was conclusive evidence of the plaintiff's title in the second action; that it operated against the defendant by way of estoppel, whether it was pleaded or given in evidence in the second suit. Burt v. Sternburgh, 4 Cowen, 559. See also Outram v. More wood, 3 East, 346; George v. Gillespie, 1 Greene, la. 421. It is not necessary that the plaintiff's claim in both suits be identical. If both arise out of the same transaction, and the defence is equally applicable to both, the first judgment will be conclusive. Bouchaud v. Dias, 3 Denio, 238. In this case H. C. was indebted to the United States for duties, arising upon a single importation, and gave two bonds with the same sureties, payable at different times, for distinct parts of the same debt. One of the sureties having paid both bonds, brought an action in the Superior Court of the city of New York against his co-surety for contribution on account of the money paid upon one of the bonds; and the defendant pleaded a discharge of himself from the whole debt by the secretary of the treasury, pursuant to the act of Congress; to which the plaintiff demurred, and judgment was given against him. Held, that such judgment was a conclusive bar to a subsequent action in the Supreme Court between the same parties, in which the plaintiff sought to recover contribution on account of the money paid on the other bond. So where A took from B a bill of sale of certain personal property, and C afterwards levied upon the property by virtue of attachments in favor of B's creditors, and A subsequently took and converted to his own use a part of the property, for which C sued him, and recovered judgment in a justice's court, on the ground that the bill of sale was fraudulent and void as to the creditors, - it was held, that the judgment was conclusive upon the question of fraud, in an action of replevin afterwards brought the phrase, "the same matter in issue," and the application of the rule, we find an irreconcilable conflict between the authorities. (p) Much of the difficulty springs, no doubt, from the relaxation of the rules and practice of pleading; but there are questions on this subject in their own nature difficult, and which can only be determined by further adjudication. It may be difficult to draw the line, but it is necessary that it should be drawn somewhere. (q)l That extrinsic evidence is now received to show that the issue on trial is or is not the same as that involved in a former trial, and that this evidence may be controverted by A against C in the Supreme Court, to recover the residue of the property. Doty v. Brown, 4 Comst 71.