Page:Federal Reporter, 1st Series, Volume 9.djvu/196

 FLANAGIN V. THOMPSON. 181 �defence actually presented 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, having passed into judgment, cannot again be brought into litigation between the parties, in proceediugs at law, upon any ground whatever. But where the second action between the same parties is upon a diiierent claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points con- troverted, upon the determination of which the flnding or verdict was rendered. In all these cases, therefore, where it is sought to apply the estoppel of a judg- ment, rendered upon one cause of action, to matters arising in a suit upon a different cause of action, the injury must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such; matters is the judgment conclusive in another action. The difference in the operation of a judgment in the two classes of cases menti oned is seen through all the leading adjudi- cations npon the doctrine of estoppel. Thus, ih Outrdm v. Morewood, 3 East, 346, the defendants were held estopped from averring title to a mine, in an action of trespass for digging out coal from it, because, in a previous action for a similar trespass, they had set up the same title and it had been deter- mined against them. In commenting upon a decision cited in that case, Lord Ellenborough, in his elaborate opinion, said : ' It is not the recovery, but the matter alleged by the party, and upon which the rccovery proceeds, which creates the estoppel. The recovety of itself, in an action of trespass, is only a bar to the future recovery of damages for the same injury ; but the estoppel precludes parties and privies from contending to the contrary of that point or' matter of fact, which, having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.' And in Qardn&r v. Bttckbee, 3 Cow. 120, it was held by the supreme court of New York that a verdict and judgment of the marine court of the city of New York, upon one of two notes, given upon a sale of a vessel, that the sale was fraudulent, the vessel being at the time unseaworthy, were conclusive upon the question of the character of the sale in an action upon the other note, between the same parties, in the court of comnion pleas." �See, also, the cases cited by Mr. Justice Clifford in his dissenting opinion, page 365. �In the face of these controlling decisions, it is useless to eontend that the determination of a question directly involved in one action is not conclusive of that same question in a second suit between the same parties upon a different cause of action. It is, indeed, a qual- ification of this doctrine that if a particular and distinct defence, which might have been made in the first case, was not made at all, was not put in issue and passed upon, then, in another suit between the same parties, upon a different cause of action, the defendant would not be estopped from raising that new issue. The above-cited cases of Cromwell v. County of Sac, and Davis v. Brown, are con- ��� �