Page:Federal Reporter, 1st Series, Volume 7.djvu/708

 696 PEMBAL EEPOETER. �Mich. 90, says, as to the doctrine of adjudication in a former suit, that it is conclusive in respect (1) to the subject-matter of the litigation. The subject-matter of the litigation in the foreclosure case was the establishment of a lien upon a por- tion of the property involved in the present controversy, and to have a decree of foreclosure for the mortgage debt. (2) Conclusive as to all points of fact or law, or both, necessarily settled in determining the issue on the subject-matter, Let it be assumed that the court did not determine in the foreclosure case as to the facts setup bythe answer and cross-bill, — though it would make no difference whether it did or not, — but did determine, as a matter of law, that Oliver could not avail himself of the transactions, no matter for what reason, when, as a matter of law, he was entitled to have his defence con- sidered, then such judgment is res aajudicata and a bar to this suit, because it was necessarily settled in that case that the transactions here pleaded constituted no defence to the the foreclosure. �We have stated what was the subject-matter of the litiga- tion in the foreclosure on the part of the complainant. Now, the subject-matter of the litigation as respects Oliver, in that foreclosure, was the right to have whatever defence he was entitled to make determined in that suit, and the judgment of the court would not be rea adjudicata as to any matter which he was not so entitled, as a matter of right, to have litigated there. It only becomes necessary, as it seems to me, then, to determine whether, as a matter of law, Oliver was entitled to interpose the transactions brought forward in the present suit as a defendant to a decree of foreclosure. As already intimated, if H. M. Eobinson, not a party to the foreclosure, but a defendant here, was a necessary party to any suit in which the transactions in controversy were to be deoided, then, as he could not be made a party to that fore- closure, it was not Oliver's right to interpose the subject- matter of this suit as a defence to that. It has already been stated that H. M. Eobinson was interested with his co-defend- ants in the business and profits of the firm of Guuningham, ��� �