
    Stephen Kent versus Paul Kent.
    A judgment upon a formedon in the descender, that the tenant recover his costs, is a good bar to a writ of entry sur disseisin for the same lands brought by the same demandant against the son and heir of the tenant in the first action.
    This was a writ of entry sur disseisin in the per, brought in the county of Essex, where it was argued before Sedgwick, Sewall, and Parker, Justices, at the last November term, by Dane and Jackson for the demandant, and by Livermore and Prescott for the tenant, and continued for judgment to be given here as of that term.
    The writ demands one moiety of a farm called Kent’s Island, “ into which the said Paul hath no entry but by Joseph Kent, who demised the same to him, and thereof unjustly disseised the said Stephen.” The count is special, alleging that Richard Kent, being seised in fee of the demanded premises, on the sixth day of May, A. D. 1740, made his last will, which has been duly f * 889 ] proved, approved, and allowed ; and after directing therein that three fourths of the farm should be leased by his executors until the last day of March, A. D. 1747, and the profits thereof applied to the maintenance of his minor children, —and after bequeathing to his daughters, Mary, Elizabeth, and Sarah, £133 6s. 8d. each, and also directing that his executors should lease the same three fourths of the farm after the last day of March, 1747, until the legacies aforesaid should be paid from the profits, — he devised the whole of the same farm, &c., called Kent’s Island, (the demanded premises being a moiety,) to his son Richard, father of the demandant, in the following manner, viz.: that he should possess the one fourth from the death of the testator until the said legacies should be paid, and immediately after the other three fourths, in fee tail, — and on the tenth day of the same May died so seised; that after the payment of the legacies charged upon the land, and within twenty years of the death of the devisor, Richard, the son, entered, and died seised of the premises on the 12th day of May, A. D. 1760 ; that from him the right of the premises, by form of the gift aforesaid, descended to the demandant, the said Richard’s eldest surviving son, and heir; that the demandant, on the first day of May, A. D. 1775, and within thirty years before the commencement of this suit, entered into the demanded premises and became seised thereof in fee tail ; and that Joseph Kent (father of the tenant) disseised him thereof, and demised the same to the tenant.
    To this declaration the tenant pleads, 1, non d.isseisivit; 2, that the demandant is not the eldest son of the said Richard. On these two pleas issues were joined.
    The 3d plea states that the demandant, on the 28th day of March, A. D. 1770, at the Inferior Court of Common Pleas, impleaded Joseph Kent, the tenant’s father, in a plea of ejectment for the same land. The plea sets forth the former declaration, which states the same will and devise as the present, the death of the testator at the same time, and the payment of the legacies to the daughters, and concludes in these words : “ And Richard Kent, son of the testator, and father of the said Stephen, by force of the will aforesaid and devise therein, and form of * the [ * 340 ] gift aforesaid, after the year of our Lord 1747, and within twenty years last past, in the reign of our royal predecessor George the Second, at said Newbury, entered on the whole of the farm, messuages, and appurtenances, aforesaid, taking the profits, &c., and so became seised thereof in fee tail, and on the twelfth day of May, A. D. 1760, at said Newbury, died so seised thereof; and from him ” (Richard, the devisor’s son,) “ the right of the whole farm, messuage, and appurtenances, aforesaid, by form of the gift aforesaid, hath descended to him, the said Stephen, the said Richard’s then eldest surviving son, and heir of his body, who is more than twenty-one years of age ; and the said Stephen, by force of the will aforesaid, and by form of the gift aforesaid, as eldest son and heir male of the said Richard, ought to be in the quiet possession of the whole of the farm, messuage, and appurtenances, as aforesaid; but the said Joseph hath illegally entered and intruded into a moiety of the same, and ejected the said Stephen, and unjustly withholds the possession thereof from him, the said Stephen, to the damage,” &c. The plea then alleges that, upon not guilt) pleaded, there was a judgment of the Inferior Court in favor of the defendant for costs : it then states an appeal, by the plaintiff, from the judgment of that court to the Superior' Court of Judicature. The tenor of the judgment of the Superior Court is then inserted in the plea, which, after stating the appearance of the parties in that court, proceeds thus : “ The case, after a full hearing, was committed to a jury, sworn according to law to try the same, w'ho returned their verdict therein upon oath, that is to say, they find for the appellee costs. It is therefore considered by the court that the said Joseph Kent do recover against the said Stephen Kent costs taxed at,” <fcc.
    The plea then states, “ that long before the commencement and prosecution of the said action, and until the time of the rendition of the judgment, in said Superior Court, and for a long time after-wards, viz., until the death of the said Joseph, he, the said Joseph 
      was seised and possessed of the demanded premises, as of an estate of inheritance, and from him the same descended, to the said, [ * 341 ] Paul,” (the tenant,) “ his son and heir.” It then * states the identity of the land demanded, and of the persons of the demandant and of the tenant’s father in both actions, “ and that the disseisin of the said Stephen by the said Joseph, supposed by the said Stephen in his said action against the said Joseph, and the disseisin complained of by the demandant in this action, are one and the same, and not different, all which he is ready to verify,” &c.
    To this plea the demandant demurs specially, and assigns the fol lowing causes of demurrer, viz.:
    
    I. That the record, verdict, and judgment, are informal, imperfect, &c., 1st, in that it is not alleged therein that any issue was joined between the parties ; 2d, that the jury returned a verdict for costs only for the appellee; 3d, that judgment was not final, being for costs only.
    II. That the two actions are not of the same or like nature or degree, the former being founded on a title stated in the writ, the latter, on tort and disseisin.
    III. Because the former action did not proceed on the same or lute evidence as the present. In the former, the plaintiff declared on his right only in the premises; in the present, on his actual entry into and seisin thereof, since the former judgment; and in the latter it is alleged that the first devisee in tail entered within twenty years of the death of the devisor, but it is not so alleged in the former.
    IV. Because it is not shown how, or of" what estate, the said Joseph was seised, or how the said Paul is his heir:
    V. Because the said Paul has not alleged that all his claim, estate, &c., is as heir of Joseph, his father.
    VI. Because he has not alleged that the writ on which the said judgment was rendered, and that on which this action is brought, are pf the same degree and kind.
    VII. Because he hath not shown that the title supposed by Stephen in the two writs is the same.
    The tenant joined in demurrer. [ * 342 ] * For the demandant it was said, that this third plea in bar admits the demandant’s right to recover, except so far as the plea shows a good and sufficient defence. Such a plea is not to be favored. If the rneriis of the case are with the tenant, he need not fear a trial on the issues in fact, which would be the only consequence of adjudging this plea bad ; but if the merits are with the demandant, he ought not to be precluded from a trial unless by some clear and rigid rule of law. The Court cannot now decide, or even presume, on which side is the substantial justice of' the case, or how it would appear on trial of the issues ; the object of the plea is to preclude all inquiry into that subject, by showing the former judgment. It ought, then, to appear with certainty that all the material points in the present action were decided in the former; it is not. enough if this is even probable, for if there is the least doubt or uncertainty, the Court will never debar the party of another trial. In the case of Bernard vs. Mott, 
       this principle is recognized and confirmed. The plaintiff’s counsel there admitted that, if the former sentence had expressly decided that the property was not neutral, he would be bound by it, and th^ court “ inclined to think ” that was the ground of the former sentence ; but as this did not appear expressly and conclusively, the court would not preclude the party from controverting it. A former judgment, when pleaded in bar, should also be correct in form, as well as sufficient in substance. The objections to the record, as here pleaded, are of both kinds. 1st. As to the form, it does not appear that any issue was joined; without which, there certainly could be no verdict that could affect either party. But if it is now to be considered that the issue there tendered was duly joined, then the verdict and judgment did not conform to it.  The verdict omits to find the only matter in issue, and finds another which was not submitted to the jury. It is, therefore, wholly unwarranted and nugatory; and the judgment, being founded on the verdict, is equally unwarranted and void. And further, the judgment is for costs only, not awarding that the defendant go without day, or that the plaintiff take nothing *by [ * 343 ] his writ. The case of Level vs. Hall, 
       is directly in point. This case is cited by Holt in Rex & Reg. vs. Knollys; 
       and the fourth and fifth reasons, in this latter case, also prove the great correctness and precision required in a former judgment pleaded in bar.
    But this objection to the verdict and judgment is not confined to their form. They do not expressly determine the merits of the cause, and it is possible they might have been founded on some collateral point.  For example, it is not alleged in the former writ, and of course was not proved on the trial, that Richard Kent, the donee, entered within twenty years after his title accrued. It is true that, in modern times, the judge who tries a cause would probably nonsuit a plaintiff for a defect of this kind; but as the practice then was, the defendant might take a verdict and judgment for costs.
    The two next objections, though assigned as causes of demurrer, apply directly to the substance and merits of the plea in bar. They may be conveniently considered together: 1st, the two actions are not of the like nature or degree — the former being founded on title stated in the writ, and the latter on tort; and, 2d, the same evidence would not support both actions. The general principle is laid down in Ferrer’s case,  that a judgment is a bar, as to the same or a like action, of the like nature, for the same thing; and in Kitchen & Al. vs. Campbell, 
       it is said that the test to ascertain when it is the same cause of action, is when the same evidence will support both actions. When the two actions are of the like nature the party is not barred, if the second is of a higher degree; but here they are wholly different in their nature, and of course there is no question of the degree. The distinction relied upon it laid down in Buchmere’s case,  between formedon, which is founded on title stated in the writ, and entry on one’s own seisin, which is founded on tort; the two actions are as unlike as debt and trespass. The former action, though not very perfect in its form, is manifestly formedon; it avers no entry by [ * 344 ] Stephen, * and no seisin in him ; of course he could not have been disseised, and the allegation that Joseph ejected him is, therefore, idle and irrelevant. The present action is founded on the actual entry and seisin of Stephen, and his disseisin since the former judgment. This seisin and disseisin are the gist of the present action : the effect and operation of the will, and the genealogy of Stephen, were the gist of the former. The only semblance of similarity is, that the count in the present action is special, as required in Fitzh. N. B. 191, E. ; and in setting forth the special estate of which Stephen was seised, it appears to be the same of which he claimed to be seised in the formedon. But it is apprehended that the count is thus required to be special for conformity merely ; and that the facts there stated are not material, nor of the essence of the action. If they were material, they must be proved by the demandant in opening his case on the general issue; but if on that issue the demandant should prove an actual seisin in himself, that would be sufficient prima facie, and the tenant could not call on him to show of what estate seised, whether in fee, in tail, or for life. If I am seised in fact, and a stranger unjustly ousts me, it is of no importance to him whether I claim an estate of inheritance or for life. It is impossible for the Court now to foresee what evidence Paul Kent would produce in his defence, or that he would produce any; and if he produced none, Stephen would recover by merely proving an actual seisin in himself, according to the allegation in his present writ. The reason why the demandant sets forth his special estate may be, that it would otherwise be an injury or inconvenience to him in other proceedings ; if, for example, he should now allege that he was seised of a' fee simple, and at another time have occasion to set out his estate truly, as an estate tail. If these principles are correct, the only appearance of similarity between the two actions is removed.
    But it is admitted that this is not so sure a test as the comparison of the evidence necessary to support the two actions. The principle established in 3 Wils. was recognized in' this Court, in Ivers vs. Hooper. 
       In that case, the two actions were of * the same nature and degree, between the same parties, [ * 345 ] and in effect for the same thing; but the first was held not to be a bar, because the evidence required in the two cases was different—the first being founded on the copy of a bond supposed to be lost, and the second on the original of the same bond. It is contended that, in the case at bar, there is no part of the evidence applicable to the former action that could be necessary in this. The Court are not now to anticipate the tenant’s evidence, and imagine what evidence might be necessary to rebut any presumable defence; they are to consider only what the demandant must prove to entitle himself prima facie.
    
    Now, in the present action, the demandant must prove an actual seisin in himself. This fact, so far from being necessary in the former suit, would have defeated that action, if it had been proved ; for if the heir in tail has once been seised and is afterwards dis seised, he cannot maintain a formedon, but must bring his writ of entry or assize.  This very point might have been the ground of the former judgment, for it is highly probable that Stephen had entered before the former action ; and if that fact appeared on the trial, he ought to have failed in tho' suit, and to have paid the costs, Yet this same fact is essential to th>_ support of his present action, and is the only fact prima facie necessary to be proved on the general issue.
    But even if it were true that the whole count in this action is material, and must be proved on the’trial, there is one material fact alleged here, that was not alleged in the former, — that is, the entry of Richard, the son, within twenty years after his title accrued And if there is any one material fact alleged here, that was not alleged in the former suit, it cannot be said that the same evidence will support both actions, and the demandant has a right to a trial of that new fact.
    As to the fourth cause of demurrer, part of the objection is now removed by the amendment, the tenant now calling himself “ son ’ and heir; but the other part, viz., not showing of what estate Joseph was seised, it is apprehended would be fatal on general [ *346 ] demurrer, but much more when it is assigned as a* cause of demurrer. The rule is that, when a party pleads that he was seised, he ought to allege of what estate seised. 
      Corrvyns cites Saunders vs. Hussey, 
       where this fault was held fatal on general demurrer, though that was in an avowry, which is in nature of a declaration, where less, certainty is required than in a bar.  No precedent can be found, when the seisin is material, where it is not alleged of what estate. And here it is certainly material, because it is necessary in order to show the privity between Joseph and Paul; and if there is no privity, the former judgment is no bar. If it is admitted that there was such a former judgment, and that it was perfectly legal and conclusive, yet if the present tenant was not party or privy to it, it cannot avail in his defence. This point then, being material, is of course traversable, and ought to have been so pleaded that an apt and certain issue could be taken upon it. If he had pleaded that Joseph was seised in fee simple, and that the land descended to him as son and heir, the demandant might have replied that he was not so seised, or perhaps that Joseph left other children, and so Paul was not strictly “ his heir.” If he said in fee tail, and that he was heir in tail, the demandant might have traversed either of those facts. But if he had traversed this seisin of an estate of inheritance,” he could not have foreseen whether the tenant would undertake to prove an estate in fee, in tail, or pur outer vie, and could not have known how to prepare or apply his evidence, and the jury would not have had a “ single certain point ” to decide.
    But, further, it is not alleged that Joseph died seised of this estate • and if not, the land could not descend to his son.
    The fifth cause of demurrer is founded on the principle universally acknowledged, that no party can plead a judgment in his favor, unless it could have been used against him. For aught that appears in this plea, the tenant may now claim and hold this land under another title than that derived as heir of Joseph, in ■yhich case the demandant could not have availed * him- [ * 347 ] self of this judgment against the tenant. And this being essential to the sufficiency of his plea, ought to have been shown expressly and with certainty.
    The sixth cause of demurrer is substantially included in the second, and will be governed by the principles and authorities there cited.
    As to the seventh cause, every bar ought to be sufficient, precise, and certain. Now, if every fact alleged in this plea be admitted, it would not follow that the demandant ought to be barred; for he might have acquired another title since the former judgment, and a title perhaps older and better than either party then had. It is no answer to say that he might reply this; for the point, being essential to the sufficiency of the bar, ought to have been expressly averred in the plea.
    
      For the tenant,
    
    it was observed that the general rule of the law is, that the same question is not to be twice tried between the same parties; and that this rule extended to suits between a party in a former suit, and the heir of the other party. These two actions were intended to be similar, although in strict technical form they differ ; but they both set forth the same title, and both in substance state a disseisin. The Court will incline to support the former judgment, and will not look astutely for defects whereby it may be avoided. But every judgment of a court of competent jurisdiction is good and conclusive against parties and privies, until reversed by writ of error, and cannot be avoided by plea. 
    
    Judgment in an action droitural is a bar to all actions of the same or inferior degree. A recovery in formedon or writ of right is a bar to a writ of entry. So possessory actions are bars to writs in the same degree. 
      Formedon, being in nature of a writ of right, is higher than any possessory action, and a bar to them.  It is then to be considered whether the former action was a writ oj entry or a formedon. A title in the demandant * is specially stated in that action, and then it is ex-- [*34§' pressly alleged that' Joseph illegally entered and ejected him. This could not be unless the demandant was seised. And here was a tort alleged, which goes to show it to be a writ of entry, svr disseisin, and then it was in the same degree with the present action. But if it was a formedon, it is a bar to this action, which is of an inferior degree.
    This judgment, then, if valid, is a good bar to this action ; and this leads to an examination of the objections to it contained in the causes of demurrer stated by the demandant.
    The first cause alleged is, that it does not appear that any issue was joined. But here is sufficient matter to show that an issue was tried, and a verdict rendered upon it. “ The parties appeared, and the case, after a full hearing, was committed to the jury,” &c. If, however, no issue was actually joined, this defect may be amended ;  as may also the verdict, being for costs only.  But it is contended that this verdict is well enough, being conformed to the ancient and universal usage of this Court as late as the' year 1771 ; (here was produced and read a certificate from John Tucker, Esq., clerk of this Court for the county of Suffolk, containing a list of more than sixty actions, determined in this Court in the several counties, from 1760 to 1770 inclusive, in which the verdicts were for the defendants for costs, and in which judgment was entered for costs only, without an eat inde sine die, or nil capiat per billam ;) which observation and certificate also apply to the judgment as well as the verdict. But a judgment is also amendable, as, for example, if entered on a demurrer as upon a nonsuit;  if an ejectment there be omitted quad recuperet terminum; 
       so if eat inde sine die be omitted;  so if judgment be quad recuperet pro misis el custagiis, where it should be pro debito; 
       so if all [ * B49 ] the judgment past be omitted, (since * 16 and 17 Car. 2,) idea consideratum est quad querens nil capiat per billam, and quad defendens eat inde sine die; 
       so if defendant be found not guilty as to part, and no judgment, entered for him. 
    
    But it is a sufficient answer to the whole of this first cause ol demurrer, that by the plea it fully appears that issue was joined, the cause heard upon the plea of not guilty, and a verdict that the defendant was not guilty, whereupon the court gave judgment for costs; which averments in the plea are admitted by the demurrer. Take the whole together, the verdict and judgment are certain to a common intent, and when the intent manifestly appears, the judgment, however informal, shall be supported;  and the best construction is to be made to support a judgment.  If the verdict does not directly conclude to the point in issue, yet it is good if the Court can collect the point in issue out of the verdict, as, if the issue be that tenant has the fee, and the verdict that he has nothing, it is good. 
    
    The second cause of demurrer has been sufficiently answered before.
    The answer to the third, has also been in good measure anticipated. It was not necessary to allege that the last tenant in tail who was seised was seised within twenty years. The precedents are both ways. But generally no time is mentioned, and Booth does not seem to consider it material.  Enough, however, appears on these pleadings to show that he entered within twenty years. The testator died in 1740. The title of the devisee in tail did not accrue until after 1747, and it is alleged that he died seised in 1760.
    But if the seisin is not well alleged, it should have been taken advantage of by abatement.
    *As to the fourth cause of demurrer, it-is contended [ *350 ] that the allegation is sufficiently definite-. Though this expression, estate of inheritance, includes estates in fee simple, fee tail, and also base fees, yet its most usual signification is fee simple. But we insist this is not material. The demandant sets forth his title, and it is enough for the tenant to show an estate in himself inconsistent with that claimed by the demandant. If Joseph died seised of an inheritable estate of any sort, the same descended to Paul, his son and heir, and it is immaterial what that estate was. But this phrase, “ descended to his son and heir,” always implies a fee simple. 
    
    As to the fifth cause of demurrer, the counsel were stopped by the Court. As to the sixth, they had anticipated the answer to it; and for the seventh, it was observed that the record would speak for itself.
    If this judgment is to be set aside in this manner, and for these causes, the consequences will be injurious in the extreme. Nc titles under judgments of our courts will be safe. For many years this was the uniform mode of making up our records. It probably is still retained in many inferior courts, upon whose judgments the title to property of an immense value depends. And if judgments are to be avoided for defects of this nice and technical kind, it is tc be apprehended there are at this day few valid judgments in the state.
    
      For the demandant, in reply.
    
    A plea in bar confesses the plaintiff’s right of action, and avoids it; — in other words, the defendant admits that the plaintiff is entitled to his action, but for the matte-in bar, Hence a plea in bar must be taken strictly, and in it the defendant must state a strict legal title. If there is any point, or piece of evidence, which could not be made, or tried, in the former action, and which may be in this, then this plea in bar is not good. We have also shown defects in the former judgment; and the tenant, by joining in demurrer, has said that that judgment is good. We have, then, a right to avail ourselves of the defects we have pointed out, and it is too late for the tenant to say they are amendable.
    [ * 351 ] * As to the first cause of demurrer, it is. not alleged in the plea in bar, that any issue was joined in the former action, nor can it be inferred from the record pleaded. This fact is material and traversable ; it ought, therefore, to be averred so that it may be admitted or denied. But the defendant asks the Court to presume that a good issue was joined, and to presume many things in support of his plea, not one of which can the Court legally presume in support of a plea in bar, which in the outset attempts to stop the plaintiff’s mouth. If a good issue was joined, the verdict was bad, for in that case it varied from the issue. 
    
    Again, here is only a judgment for costs, on a verdict only for costs. This can be no bar; because such a verdict cannot be pursuant to any material issue, and the judgment is no evidence that the merits were tried and decided; for in a vast many cases there may be such a judgment on mere defects in form in the plaintiff’s writ, or on his misconceiving his action ; as where one sued as administrator, when he should have sued as executor; 
       so where the plaintiff was barred in a formed on in descender, it was held he might maintain formedon in remainder; 
       so if a judgment in chief be against the plaintiff for the insufficiency of his declaration, he may have another action. 
    
    The former judgment, here pleaded in bar, might have been founded on the insufficiency of the declaration. The first devisee had a right of entry into a part of the premises, at least, on the death of the testator, and he lived above twenty years aftenvards, and it is only alleged that he entered in his lifetime; so that he might have entered after the twenty years had expired. That being an action ancestrel droitural, founded on title stated in the writ, it ought to have stated the title fully and correctly. On a practice not so loose as the present defendant contends for, the Court might have directed a verdict against the former plaintiff, for this insufficiency of his declaration. It is enough for us, that this was possible; for the Court * ought to be cer- [ *352 j tain that the former judgment was founded on the merits of the case, and not on any insufficiency of the declaration.
    But it is objected that, if the former proceedings and judgment were defective or erroneous, the demandant should have brought his writ of error, and reversed the judgment. This is not necessary. All the books agree that, when an erroneous, or even an informal, judgment is pleaded in bar of another action, the plaintiff may show the defect in it, and it shall be no bar.  When the defendant shall move to amend the old record, a new question will arise, not now before the Court.
    It is said that, in the year 1770, and before, there was a practice that made law, of finding verdicts for costs on pleas upon the merits, and of trying causes without issue joined. We deny that this was ever the general practice, and a few cases which have been industriously collected could not settle the law. Further, as there were no colonial statutes bearing upon the subject, these proceedings were at common law, and must have been governed by English authorities, which were the same at those times as at the present. It cannot be conceived that such extreme ignorance or looseness in practice should be suffered to prevail at a period when we had eminent lawyers, as well on the bench as at the bar, who must have been familiar with the books, and must have known that they were bound by them ; the only evidence there was of the common law was contained in those books, and if it could be legal so to practise against them, we could have no common law.
    The second, and third causes of demurrer are the most material As to this point, the true rule undoubtedly is that laid down by the court in 3 Wilson, 308. “ And what is meant by the same cause of action is, where the same evidence will support both the actions, although the actions may happen to be grounded on different writs ; this is the test to know whether a final determination in a former action is a bar or not to a subsequent action, and it runs through all the cases in the books, both in real and personal actions.” The former * action was certainly formedon; [ *353 J the defendant alleges only-a right of property, and not my seisin in himself; he could not, therefore, allege or prove any 
      disseisin. But in the present action he alleges an actual seisin in himself, and a disseisin. By the plea of non disseisivit, and the issue thereon, the parties have agreed to carry these facts to the jury.
    On this third plea in bar, the Court cannot inquire into these facts ; for all the purposes of this plea, the defendant admits them if they are questioned at all, it can be only before the jury on the general issue. These points, and the evidence to support them, were not tried or used in the former action. In that the plaintiff could only prove his right by the will and seisin of the testator; but in this he attempts to “ disprove the title of the tenant, by showing the unlawful commencement of his possession.” 
    
    The old cases from Theloal, &c., produced by the opposite counsel, were before the statute of limitations, limiting formedons to twenty years, and allowing thirty years to a writ of entry on the demandant’s own seisin, and fifty on that of his ancestor ; therefore materially varying the principles of this plea in bar. Short and concise dicta in the books often mislead, when the whole case is not known.
    As to the fourth cause of demurrer, the tenant has not the least connection with the judgment pleaded, but in virtue of his heirship. It is essential, then, to allege precisely the father’s estate, and the descent, as alone constituting the privity which enables him to plead that judgment. Every material and traversable fact should be laid with certainty, so that an apt issue may be taken upon it; and the question is, whether seisin of an estate of inheritance be legally certain. On a traverse of this allegation, it is obvious that the parties might wander into evidence competent to prove or disprove an estate in fee simple, or general or special estate tail, or an estate pur outer vie. Hence this would not be an issue on a single certain point, but on several points.
    [ * 354 ] * This objection is supported, not only by the reason of the thing, but by the authorities cited in the opening, particularly the case of avowry in Lutivyche. The rules of pleading are stricter in bars than in declarations.
    The reason is plain on the record, why the tenant in this case has thus pleaded; he could not trust an issue on his father’s seisin in fee, or in tail.
    As to the fifth cause of demurrer, it is certain that, if the verdict pleaded had been for the present demandant, it could never have been used against the present tenant, unless he holds solely under his father. No interest or estate, not so holder, could any way be affected by the former verdict; and it is very clear that, if a verdict the other way could not be used against the present tenant, it cannot be used in his favor, when happening to be for him. The books, on this point, are uniform.
    The sixth cause of demurrer has already been considered in ' substance.
    As to the seventh cause of demurrer, the objection is fatal in point of form, if not in substance. It is the practice, and it is necessary, to aver the titles to be the same. A plea in bar ought to be a complete bar in itself, and is not to be made so by any intendment. If the titles are the same, the tenant must say so, and the demandant need not say they are not. the same. It is material that the demandant’s title in both actions be the same; for if, in this, he has any title or estate which he had not at the time of the other action, such title or estate never can be barred by the former judgment.
    
      
      
        Doug. 575.
    
    
      
       5 Bac. Abr. 299, 303, 311.
    
    
      
      
        Cro. Jac. 234.
    
    
      
      
        2 Salk. 509. — 4 Bac. Abr. lib.
    
    
      
      
        Robinsons case, 5 Co Rep. 33.
    
    
      
       6 Co. Rep. 7.
      
    
    
      
       3 Wils. 304.—3 Moa. 1. Putt vs. Rawstern.
      
    
    
      
       8 Co. Rep. 86.
    
    
      
       Essex November term, 1801.
    
    
      
      
        Fitzh. N. B. 191, 212, 219. — 1 Ld. Raym. 430, Mosley vs. Coldwelt.
    
    
      
      
        Com. Dig. Pleader, E. ]9, 22. — 3 K. 21.
    
    
      
      
        Lutw. 1231.
    
    
      
      
        Grimstead vs. Marlowe, 4 Term R. 719. — Scavage vs. Hawkins, Cro. Car. 571
    
    
      
       14 Vin. Abr. tit. Judgment, G. a, pl. 6.—6 Rep. 8, Ferrer's case —Dyer, 5 Sid. 55.
    
    
      
      
        Theloal’s Dig. 1, 11, c. 38, § 2, 7, 3, 25. — Bract. de Actionibus, lib. 3, cap. 4 § 7, fol. 104. — 1 Reeve’s Hist. Eng. Law, 315. — 6 Rep. 7, 6, Ferrer's case.
    
    
      
       Booth, 94, 144.
    
    
      
       2 Roll. Rep. 59, Sayer vs. Pococh.— Cowp. 407, Gundy vs. Kell.—1 New Rep. 28. — Cro. Jac. 502.
    
    
      
       1 Roll. Abr. 203.—2 Str. 1197. —1 Wils. 33. — Cro. Jac. 185.—2 Jones, 212 — 3 Term R. 659, 749. — Tidd’s Pr. 661, 662. — 1 Com. Dig. Amendment, P. 2.
    
    
      
       1 Roll. Abr. 205, l. 40.
    
    
      
      
        Ibid. 206, l. 20.
    
    
      
       1 Sid. 70.
    
    
      
       1 Vent. 132
    
    
      
       2 Sound. 289.
    
    
      
       2 Str. 786.
    
    
      
      
        Vaug. 75. — 1 Vent. 123. — 5 Com. Dig. Pleader, S. 31, 41.
    
    
      
       2 Saund. 96.
    
    
      
       5 Com. Dig. Pleader, S. 18, 26, 31. — Hob. 54.-2 Rol. 705. l. 40, 50.
    
    
      
      
        Booth, 145. — Co. Ent. 325, 326, 327.-2 Lutw. 959, 974.
    
    
      
       1 Plowd. 26, 28, 33. —5 Com. Dig. Pleader, E. 24.
    
    
      
       5 Bac. Abr. 299, 303, 311.
    
    
      
      
        Robinson's case, 5 Co. 33.
    
    
      
      
        Ferrer’s case, 6 Co. 8.
      
    
    
      
      
        Lepping vs. Kedgwin, cited in 3 Wils. 309
    
    
      
      
        Cro. Jac. 284.
    
    
      
       3 Bl. Com. 184, 185.
    
   At this term the opinion of the Court was delivered by

Sedgwick, J.

(After a concise statement of the pleadings.) This case has'been very ably and very fully argued. Two questions present themselves to the consideration of the Court.

I. Is the judgment pleaded a bar to this action, if there be no material defect in point of form? In other words, if the judgment exhibits evidence that there was a trial on the merits, is * it conclusive upon the title set up by the demandant [ * 355 ] in the present action ?

II. Supposing the defendant might, if the judgment was suf ficiently formal, avail himself of it, — are there such material defects in it, that by law he must be deprived of the benefit of it?

As to the first question, it is laid down in Ferrer’s case, that “when one is barred in any action, real or personal, by judgment on demurrer, confession, verdict, <&c., he is barred as to that or the like action, of the like nature, for the same thing, forever; for expedit reipublicce ut sit finis litium; ” and afterwards, in the same case, it is added, “ It has been well said, Interest reipublicce ut sit finis litium; otherwise, great oppression might be done, under color and pretence of law; for if there should not be an end of suits, then a rich and malicious man would infinitely vex him who hath rights, by suits and actions.” The same principle is again very forcibly expressed in Kitchen & Al., Assignees of Anderson, vs. Campbell. “ You shall not bring the same cause of action twice to a final determination: nemo bis debet vexari: upon this we found our judgment; and what is meant by the same' cause of action is, where the same evidence will support both the actions, although the actions may happen to be grounded on different writs; this is the test to know whether a final determination in a former action is a bar or not to a subsequent action; and it runs through all the cases in the books, both in real and personal actions.”

Let these rules, so reasonable in themselves, a strict adherence to which is so important to the public interest, and which in point of authority are consistent with the principles of the common law, be applied to decide the question under consideration. The former action was brought “ for the same thing” as the present; for by the plea and demurrer it appears that the premises demanded in the former and present actions are the same, “and not l * 356 ] others, nor different.” Both actions then * are brought for the same thing. But then it is said that, according to the recited opinion in Ferrer’s case, the bar does not extend further than to the same or a■ like action. How far it ought in reason and justice to extend, appears in the case cited from Wilson. The action in that case before the court was assumpsit, and the question was, whether it was barred by a previous judgment in an action of trover; whether an action upon a contract should be barred by a judgment in an action for a tort. The Court determined that it was barred; and why ? for the best reason in the world — the merits of the case had been previously tried. It was important to adhere to the principle, that litigation shall not be everlasting; that mere form should not be a mean of endless vexation. Interest reipublicce ut sit finis litium. The court say, You shall never bring the sam.e cause twice to a final determination; and to explain what they mean by the same cause, they say it is where the same evidence will support both actions. This is considered by the courts, and justly, a criterion which governs all the cases in the books, whether real or personal, If this be just, — and I have no doubt that it is, — it only remains to inquire whether, if the demandant had, by evidence, proved the several allegations in his declarations respectively, by precisely the sanie evidence, and no more, both actions would have been supported. The support of neither action would have required more evidence, nor have been satisfied with less. In both cases, if the demandant had proved that the ancestor, his grandfather, was seised, and died seised as alleged, — that he made the will, and that if had been proved as averred, — that a fee-tail estate had, as declared, been created by the will and what was done under it, and vested in the demandant’s father, — that he had entered and become seised of it, and died so seised, — and that the demandant was his eldest son, and male heir, ■— he must have recovered. The same evidence was equally applicable to, and would equally support, both actions. It brings the case, then, within the rule which determines that the latter action shall be barred by the former.

It is true that, in the injuries complained of in the two cases, diere is a technical difference. In the present action, the injury * complained of is a disseisin ; in the former, [ * 357 ] it was probably intended to describe an abatement. But the person committing the injury is in both cases the same. In both cases, therefore, the same title would come to be compared with the demandant’s; and, what is more important, the same evidence would be equally competent and equally effectual, whether the demandant was injured by a disseisin or by an abatement. We come, then, again to the same point, — the same evidence would be equally required in, and would equally support, both actions. The former trial therefore must, if the judgment be sufficiently formal, be a bar to this action.

The view which I have taken of the subject renders it unnecessary to consider the successive remedies which the law has provided as to the rights of title and possession to real property. I will only observe that I am ignorant that there is, as to them, any exception to the rules I have laid down to the extent which, I have expressed.

As to the second question, Are there such material defects in the judgment, that the defendant cannot avail himself of it as a bar ? — I am sorry to see that it is so informal; and I am still more sorry to be informed that this informality has prevailed, in a greater or less degree, from the first settlement of the country down to near the time of the commencement of the revolution. Under these circumstances, it would be too much to determine that all those judgments were mere nullities. Communis error facit jus is a maxim which ought in this instance to be respected, if in any. We have every reason, in this case, to believe that there was a trial of the merits, as in any other; and I think that such a judgment must here be considered as evidence that it was so.

The judgment of the Court is, that the third plea in bar is sufficient. 
      
       6 Rep. 7.
     
      
       6 Rep. 9
     
      
       3 Wils. 308.
     
      
       This is not the criterion. The question in all cases should be, Was the same point put in issue and determined ? — 8 Am. Jurist, pp. 330—335.— Spooner vs. Davis & Ux. 7 Pick. 147. — Outram vs. Morewood, 3 East, 346. — Eastman vs. Cooper & Al Suff. March Term, 1833. MSS.
     
      
      
         Vide Adams vs. Barnes, 17 Mass. Rep. 365.— Howard vs. Mitchell, 14 Mass. Rep 241 — Adams vs. Pearson, 7 Pick. 341. — 8 American Jurist, pp. 55, 330—335.
     