Page:Federal Reporter, 1st Series, Volume 7.djvu/420

 408 FKDEBAIi BEPOBTEB. �as a conclusive determination of the facts, because the de- fendant corporation waB not a party to that suit. The weight of authority, however, is that where an agent in a transaction is sued after the termination of his agency, and upon a trial of the merits the issue is determined against the plaintiff, the principal, though not a party to the suit, can avail himself of the judgment as a bar, when he is sued by the same plaintiff on the same cause of action. While the principal, if he had no notice of the former suit, and no opportunity to defend it, may not be concluded by a judgment against his former agent, or made responsible for the agent's bad pleading or blunders in the tr al of the cause, because so to conclude him would be to deprive him of his property without due process of law, yet, as regards the plaintiff who has' before sued the agent and been defeated, there is no reason why he should not be concluded upon that principle of public policy which gives every man one opportunity to prove his case, and limits every man to one such opportunity. He has had his day in court, and it is immaterial whether he has chosen to test his right as against the principal or the agent in the transaction, pro- vided the issue to be tried was identical as against both. Castle V. Noyes, 14 N. Y. 329; Emery v. Fowler, 39 Me. 329, and cases cited. �The question, then, under these pleas, is whether the for- mer suit was for the same cause of action as the present suit. For, however the defendants may be concluded or estopped by the determination of the facts necessarily determined in the former suit, if that judgment is offered as evidence in this suit as proof of such facts, yet the former judgment is not a bar to this suit if this suit is not upon the same cause of action as the former. Groinwell v. County of Sac, 94 U. S. 352. The test is whether the issue actually determined in the former suit is identical with that upon which the com- plainant must recover in this suit, if he is entitled to recover at all. I sball assume, for the purpose of these pleas, as claimed by the defendants, that, so far as this bill proceeds for the avoidance of the sale on account of the fraud of Park and Baxter, it states the same identical fraud that was set ��� �