Page:Federal Reporter, 1st Series, Volume 9.djvu/852

 THE TUBAL CAIN. 837 �same estoppel should be held to apply where the same elaim or de- fence was legally involved in the prior action, and might have been presented, but was not, in faet, presented or considered. In such cases the courts of this state hold that if such matter be available in the former suit, and the issue by its nature involves the whole trans- action, the defeated party is equally bound, whether he avails him- self of it or not. Dunham v, Bower, 77 N. Y. 76 ; Schtvinger v. Ray- mond, 83 N. Y. 192. Other cases hold that where the causes of action are not the same, though growing out of the same transaction, the estoppel applies only to such issues as were actually raised and con- troverted, or to those ultimate facts upon which the verdict and j'udg- the United States suijreme court. CromwcU v. Gounty of Sac, 94 U. S. 351; Davin v. Brown, 94 U. S. 423; Smith v. Toivn of Ontario, 4 Fed. Eep. 386; Flanagin v. Thompson, 9 Fed. Eep. 177; Beseque v. Beyers, (Wis.) Chic. Leg. N. Nov. 5, 1881, p. 60. �But here the substantial issue is the same in both cases. Each party urges the same identical facts in his own f avor in both actions, — in the one action as a ground of claim for damages ; in the other action as a defence agaiust the claim of the other party. In such cases there is no conflict in the decisions. In the last of the above cases, cited by the libellants' eounsel, the effect of the judgment as an estoppel in such a case is conceded. If the judgment had, there- fore, been recovered prior tp the uling of the libel and pleaded as a defence, it would, when proved, have been conclusive as au estoppel against the libellant's claim in this case. It does not matter that the former judgment was reeovered in a different jurisdietion,- — a sis- ter state, or even in a foreign country; and a judgment of a state court is binding upon subsequent proceedings in admiralty in refer- ence to the same subject-matter. Goodrich v. The City, 5 Wall. 566 ; Taylar v. The Royal Saxon, 1 Wall. Jr. 333. �In the answer here the plea in abatement of the other suit pend- ing was of no avail, as that suit was in a foreign jurisdietion. Wad- leigh v. Veazie, 3 Sumn. 165; Loring v. Marsh, 2 Cliff. 322; Mitchell v. Bunch, 2 Paige, 606 ; Salmon v. Wootton, 9 Dana, 422. But in such cases, whichever first ripens into judgment becomes effective, and may be then allowed to be set up as against the further prosecution of the other action. Child v. Eureka Go. 45 N. H. 547. The proper mode of doing this is by supplemental answer or plea jmis darrein continuance. Steph. PI. 611; Ilendricks v. Decker, 35 Barb. (N. Y.J ��� �
 * aent were predicated ; and such has recently been the decision of