
    NETTIE L. SCOTT v. J. K. NAHALE.
    Appeal from District Court, North Kona.
    Submitted June 22, 1899.
    Decided October 14, 1899.
    Erear and Whiting, JJ.
    A judgment for the defendant in an action upon an express contract for pasturage of cattle is not a bar to a subsequent action for trespass although between the same parties and in regard to the same cattle upon the same land during the same period.
    
      L. Andrews for the plaintiff.
    
      W. G. AcM and E. Johnson for the defendant.
   OPINION OF THE COURT BY

FREAR, J.

This is au action of trespass to recover damages alleged to have been caused by defendant’s cattle running upon plaintiff’s land. Defendant pleaded res adjudieata, and showed in support o£ his plea that he had obtained judgment in a certain action of assumpsit which had previously been brought against him by this plaintiff to recover a sum alleged to be due upon an express contract for the pasturage of these same cattle upon the same land and during practically the same period as that during which the trespasses are alleged to have occurred. The district magistrate sustained the plea and gave judgment for the defendant. This was error. The question in the assumpsit case was whether there was a contract or not. The question in this is whether there was a trespass or not. The finding in the former case that there was no contract did not settle the question whether there had been a trespass.

The judgment appealed from is reversed and a new trial is ordered.  