
    Foster v. Wells.
    The rj'tgmenf: of » emirfcof competent jurisdiction i* eonclnsivo and binding upon the parties jifst'i all directly involved and necessjv-ly dotermiu' -l by it; and it matters not wY-ihertii * tribunal rendering it bo clothed ri i limited or ¿^nerai powers. (Note 20.)
    
      Its- -i Ihata jiul mentis not only final as to the ran »r actual W determined, but as to every ■ matter \rhich the Pities might litigate u tlie cauce, .*nd which they might have I ad decided.
    In oi tier that a judgment should be a bar to a second notion, it must appear that the trial was on the meri’.-*, ami that it did not go oil’ on a to-hmeal defem. (Note 21.)
    A non.mit is not a bur to another action; so also ol\t discontinuance.
    A ionner recover;, may be pleaded in bai\ ami or.d testimony to explain the judgment and identity what was adjudicated will be received. (Note 22.)
    The judgment of a justice oí the peace should bo produced whenever it is set up by way of defense.
    Error from "Walker. This suit originated before a justice of the peace. It appears from the transcript sent up with the original xiapers by the justice before whom it was tried to tlie District Court that tlie suit was brought for a debt due “on an acknowledged order under a justice’s jurisdiction.” The in-dorsement ou the summons of the canse, of action is in the following words, i. c.: “This action is brought by the plaintiff to recover of the defendant tlie “balance of an order for two months’ work, amounting to seventeen dollars, “in favor or Harrison Wells.” There was a plea of a former recovery, which was overruled, and tlie justice rendered his judgment as follows: “It is considered by tlie court that the plaintiff, Harrison Wells, recover judgment “against the defendant, Charles Foster, for sixteen dollars and sixty-nine “cents, tlie balance of tlie order acknowledged, which was not considered due “or proven to he due on the 2d day of September, 1818, and costs.” Tlie defendant appealed to the District Court; and in'that court he pleaded a former recovery, and mi tlie. trial offered as a witness William Yiser to aid in proving the former judgment. The transcript of tlie proceedings and judgment offered by the defendant is substantially as follows, i. e.: “Harrison Wells v. “Charles ’¡'’osier, citation issued 21st August; returnable first Saturday in “September, IGirf; debt on order for two mouths’work anda blind bridle; “September 8,1848, parties appeared, and after hearing the evidence,it is considered by tlie court that the. plaintiff recover judgment for oue week of the “work, f;2.;51, and for blind bridle, one dollar, ajid tlie costs; the balance of “ tin» order tile defendant denies being due, and not being proved by tlie plaiu-“tiff.” Here follows (lie bill of costs; then “settled up in full December 2, “1848. money paid Hale, constable, by II, 31. Crabb. (Signed) William Viser, “ J. IV’ This evidence, as it appears by the bill of exceptions, was intended to show, wilii the, aid of the justice in explaining it, that this judgment was for tito same, catt-e of action as tlie one then before tlie court, and thereby support tlie plea of a former recovery. It was objected to by the plaintiff’s counsel and tlie objection sustained by the court; to which the defendant excepted. And it is now assigned for error that in rejecting tlie evidence offered the court erred.
    
      ■Wile!/ 8)- Maxcy, for plaintiff in error.
    We are clearly of opinion that the evidence ought to have been admitted, and in support of our view of tlie law deem it only necessary to refer your honorable court to Cowen & Hill’s Notes on Phillips 011 Evidence, 3 vol., part 2, pp. 838 to 848, where all tlie authorities, both English and American, are collated, and where it is expressly laid down that “tlie principle of admitting evidence aliunde to explain the record of a “former suit and identify the matter to which it relates would appear to be “indispensable to tlie efficient administration of justice.” Esteeming the point to beyes judicata, in tills country at least, we respectfully submit it to the court for decision without further comment.
    Yoakum, for defendant in error.
    I. Tlie District Court was right in ruling out the justice’s docket—
    
      1. Because, to sustain the plea of former recovery, the whole of the record should be offered in evidence. In this ease the justice’s docket only was produced.
    2. Because the first judgment shows that there was a balance of work behind. Foster admitted this by denying- (hat it was due at (he first trial.
    3. The suit was for the value of (he work. It appears that the work was to have been performed at two different times, two-payments. A party contracting-a debt (o be paid in two installments may sue upon each installment -as soon as it becomes due. (Cook v. Whorwood, 2 San ml. 11.. 3:17; Tucker v. Itaudall, 2 Mass. II., 203; Cooley v. Bose, 3 Mass. It., 221; 1 Chittv 1’lead., 93.)
    II. The District Court was right in not admitting oral proof in regard to the ' record. The record must prove itself. (Jacob L. Diet., Record.) ' True, (.lie modern practice, as in the authorities quoted, is admitted. But the record must require explanation before, the court will admit it. If part of the record is kept back, the court will nor hear a witness as (o the contents of that part not produced. IVhat is shown by the justice's docket is clear enough. Evidence will not bo heard to contradict it. The record shows clearly two causes of action.
   ElPSCOMR, J.

Wo will first proceed to discuss the effect of a judgment on the pul-ties to it, in relation to the subject-matter adjudicated and embraced in the judgment; and the following quotation, from high authority, is believed to be very appropriate on this subject:

“With respect to judgments, properly so called — i. e., those solemn decisions of courts of justice, made in the exercise of their rightful jurisdiction, after giving- the parties an opportunity to be heard, and upon due deliberation — the law, proceeding upon the maxim that interest Meipvblicce vt sit finis litium, will regard them as conclusive upon all points directly involved in them and necessarily determined. And whether the” tribunals rendering them are clothed with limited or general powers, -whether they are courts of record or otherwise, malees no sort of difference. So long as they act within the sphere which lias been assigned, their adjudications" are binding- upon the, parties in all future controversies relating to the same matter.” (Coweu & Hill’s Notes on Phil. Ev., v. 3, p. 825.)

Again, if (ho demand upon which (he plaintiff prosecutes has been litigated in ¡i suit previously between the same parties, it is a bar (o a second action. (Cist v. Zeigler, 10 S. & R. R., 282.) The general proposition that the judgment or deoree- of a court possessing competent jurisdiction shall be final as to the matter determined cannot be.”controverted. “The principle, however, extends further; it is not only final as to the matter actually determined, but as to every other matter which the parties might litigate" in the cause, and which they might have had decided.” (1 Johns. Cas., 436; 1 Blackf. R., 300.) But it is only where the trial was on the merits, where all the matters between the parties were or could have been adjudicated, that the-judgment is a bar to another action. So if the party has misconceived his action and taken a nonsuit. Where the defendant in a scire facias pleaded nul tiel record, and prevailed because the scire facias recited a judgment against James A. Green, and the judgment was against James Green, it was held that this constituted no bar to another or second scire facias. (Benton v. Duffy, Cam. & Nor., 98.) Same principle in Commonwealth v. Mortimer. (2 Virg. Cas., 325.) It must appear that the trial was on the merits; for if the canse went off on a technical dcfocl, it would virtnally negative the averment that the cause of action was the same. (Judge Story, in Hayes v. Blake, 1 Mas. C. C. R., 515, 519.) So if the’cause went off because the debt was not due. (Estell v. Taul, 2 Yerg. R., 467, 470.) So a discontinuance of a former suit is no bar to a second suit. (Hull v. Blake, 13 Mass. R., 103, 155.)

There has been a great deal of discussion and some conflict of decision as to the plea o£ a former recovery, whether it should he in bar or by estoppel. Where it. was a judgment of a court of record that was set up, many respectable aulhorities can be found deciding that it should be by estoppel; aud it seems, then, as a consequence, that the record should speak for itself, and parol testimony he inadmissible. But the current of authorities at this day is in favor of receiving the defense, in bar, and allowing- oval testimony to explain the judgment aud 'identify what was adjudieuted. Where the judgment was not tu ai nurt of record, there never was any controversy that it must be offered in !> ir, and .-red evidence to explain (lie judgment v .• s received.

!i is believ 1 uot to he necessary to disi-u ■ j the qn :iou whether a judgment mu -l be in w. itiug- to allow it to be offer -d in bar -mother action; because, \\ bother we are to consider a Justice’s Court a court >£ record or not, they are r< quired to enter their judgments in the proceedings of the case; aud consequently they tire better evidence, when produced aud proved, than mere oral evidence of what was embraced in such judgment. And therefore there can be no doubt that the judgment ought to bo produced whenever the defense of a former adjudication is set up, cither of an acquittal or conviction.

We will proceed to examine how far oral testimony has been received to explain the judgment. It is laid down by Cowen & Hill, in the Notes on Phil.Ev., (3 vol., 838.) “that whenever a question is made respecting the “identity of matters litigated in tlio first suit, parol evidence is admissible to “show what transpired bn the former trial and to explain the judgment;” and they rest t he principle on the authority of tlio following cases: Parker v. Thompson, 3 Pick. R., 429; Cist v. Zeigler, 10 S. & R., 282, 285; Stephens v. Payne. 2 Root R., 83; Wood v. Jackson, 8 Wend. R., 9; and 4 Cow. R., 559; 3 Id., 120. We will refer to but one authority more to show that parol evidence can he received, and that is the case of Éstell v. Taui, cited above in the discussion of another question. Tito action was assumpsit for use, and occupation, aud a count for breach of promise, in not leaving the premises in tenantablc repair; nou-assumpsit pleaded. On the trial, Paul produced in evidence a warrant and judgment: in his favor. And it was proved by tlio justice that his judgment was'given for tile defendant oil the ground that, in his opinion, the debit was not due when the warrant was sued out, and that it was for the same cause of action as to the rent. Judge Peck, after discussing the general proposition of the conclusive, character of a judgment between the same parties, proceeds: “The courts have been long sensible of the difficulties “ which might arise from the loose manner of preparing- and keeping justices’ “records and a concurrent jurisdiction in tlio County Courts with the justice “as to like matters. If we say Unit it must appear from the record that tlio “ same point was in issue, or otherwise lite record he rejected, most justices’ “judgments, being latent as to tins matter in issue, could not bo received in “ evidence. The consequence would be that persons suing before justices of “ the peace, in eases where the County Court jurisdiction was concurrent, could “ try an experiment before the justice, aud, failing there, commence a new suit “ in' this County Court.. To prevent such an evil'we are compelled to consider “ (lie pleadings before the justice as done ore tam.i. It lets in proof, its in “ the case before us, of what was the matter before the justice. The jury of “ course then will receive it with the other proof and give it due weight, not “ disregarding tlio other testimony.”

“ Judge Catron : Parol evidence is admissible to show the fact or issue, tried “ and determined by the justice. It is oven so where the pleadings are in “ writing, hut tlio judgment general and uncertain. (1 Stark. Ev., 202, see. “ 03.) ÍI must be so of necessity when the defense is not on paper.”

The reasoning of the two judges in that case does not seem to address itself very forcibly to' us in the case under consideration. Our justices of the peace often keep their proceedings very loosely, aud they are not expected to be. well acquainted with laiv, and may often use words, in entering up their judgments, in a different sense from their technical import. In tile case under consideration it is exceedingly difficult to determine from the language ern-ployed in the judgment whether the judgment was based on a defect of proof of the indebtedness beyond tlie amount for which the judgment was rendered, or on proof that the balance was not due when process issued. The term “ due ” is used, and that is not at all inconsistent with the fact that the balance afterwards sued for was a debt, but not clue at the time. It is altogether uncertain, and could be explained by no one so well as the justice himself. The application of tlie principles discussed'and tlie authorities referred to, when applied to the case before ns, would seem to have authorised the court below to have received the testimony offered and rejected. It does not appear very clearly whether tlie objection was confined to (he oral testimony offered or to the paper judgment; but it is very clear, from the bill of exceptions, that it was either to the oral testimony or to the paper evidence of the judgment not having been pleaded as an estoppel. In cither case, it would seem the judge was wrong. It is true that we cannot find any case exactly in point where a part sued for liad been recovered and a balance rejected because it was not due, although an existing debt. And tlie fact that tlie suit in eacli case seems to be founded on the same acknowledged order, referred to and described as an entire thing, would seem )o create the presumption that the amount of indobt-ncss would not be divisible, but all be due at the same time. Yet it would require no reasonable indulgence to tlie imagination to suppose that in truth, though an entire indebtedness, it might not in fact be all due at tlie same time. Tlie acknowledgment might have been to perform service for two months. This may have been an entire thing; but the defendant may have proved a modification, fixing on the time when such work was to be performed. Or it may have been an acknowledgment of an aggregate amount of indebtedness for two months’ labor performed, but to be paid by different [1©§] installments. In such a case tlie right of action would accrue when tlie first was due. Suppose, in the case of jSstell v. Taul, that Esl.ell had proved that a part of the rent was due when he sued : could it have been contended that he was not entitled to judgment, for that part without it constituting a bar to another suit for the balance ? Suppose that in suing for a debt due by installments, in the District Court, the plaintiff should set out by mistake the whole debt and pray judgment. When it appeared that a part of those installments wore not due, all that he would have to do would he to discontinue as to tlie installments not due and take judgment for what was dne at the commencement of the suit. Isa party to be placed in a worse condition’because that in the court where he sues the pleading is ore terms ? I think not. We must suppose that there was a discontinuance orally, if it was the fact that a part of the debt was not duo at the time.

Note 20.—Weathered v. Maya, post. 387; Lycch v. Baxter, post, 431: Neill v. Tarin, 9 T., 256; Grassmeyer v. Beeson, 18 T., 753; Mills v. Alexander, 21 T., 154; Bowers v. Chaney, 21 T., 363: Thouvenin v. Rodrigues, 24 T., 468; Webb v. Mallard, 27 T., 80; Moke v. Brackett, 28 T., 443; Giddings v. Steele, 28 T., 732.) -A judgment obtained by fraud cannot be enforced. (Drinkard v. Ingram, 21 T., 650.)

Note 21.—Graves v. White, 13 T., 123; Hassell v. Nutt, 14 T., 260.

Note 22.—Bailey v. Knight, 8 T., 58.

The language of the judgment creates a very decided presumption that the debt was not all due at the counnmencement of the suit, and throws tlie ouus of proof on the defendant; and it is competent for him to show the fact that in truth the acknowledged order was a debt indivisible and due at the same time, and that the plaintiff had only failed from want of being fortified with the testimony. And if so, ho could not bo sued a second time; for tlie law wills that nemo debet bis 'vexari pro eadem causa. For tlie reasons assigned, we believe the evidence offered was admissible, and for its rejection there is error in tlie judgment, for which it must be reversed and the cause remanded.

Judgment reversed.  