
    Chester S. Tucker v. John Rohrback.
    
      Prior judgment — when a bar.— A. judgment to constitute a "bar to a subsequent action must have been rendered upon the merits upon the same subject matter, and between the same parties.
    
      Where, in a suit by A against B. it appeared in evidence that the same subject matter introduced as a set-off by defendant was involved in a former suit wherein A and’ wife were defendants and B plaintiff, and “ that judgment was rendered thereon,” but did not appear what said judgment was, nor that it was upon the merits; — Hied, that such judgment was not a bar to defendant’s set-off.
    
      Heard, May 19.
    
      Decided October 2 .
    Error to Branch Circuit.
    This was an appeal to the Circuit Court from the judgment of a Justice of the Peace.
    In the Circuit, it was referred, and the referee reported, among other things, that this claim had been litigated in a prior suit, before. A. L. Potter, Esq., a Justice of the Peace of the city of Coldwater, wherein the defendant in this cause was plaintiff, and the plaintiff herein, with one Sophia Rohrback, were defendants; and that plaintiff in that case sought to recover for the same corn-stalks, for which he made claim, under a notice of set-off, in this case; “that said matter was submitted to the Justice, who rendered judgment thereon.” The referee found that said judgment was a bar to defendant’s claim of set-off, and exceptions to his report were duly filed. The judgment of the Court below sustained the report.
    
      T. M. Cooley and F. G. Fuller, for plaintiff in error:
    I. A judgment, to constitute a bar to a claim in a subsequent action, must have been rendered upon the merits, upon the same matter in issue, and between the same parties or their privies.— Outram v. Morewood, 3 East., 351, 364-6; Ward v. Wilkinson, 4 B. & Ald., 412; Carter v. James, 13 M. & W., 147; Simpson v. Pickering, 1 C. M. & R., 529; Jones v. Fales, 4 Mass., 255; Wilbur v. Gilmore, 21 Pick., 253; Gardner v. Buckbee, 3 Cow., 126; Burt v. Sternburgh, 4 Cow., 562-3.
    The' matter in issue is the same when the same evidence will support both actions; and this is the only test by which to know whether a determination in a former suit is a bar to a subsequent action.. — Outram v. Morewood, 3 East., 364; Towns v. Nims, 5 N. H., 260-3; King v. Chase, 15 N. H., 15; Kent v. Kent, 2 Mass., 355; Spooner v. Davis, 7 Pick., 148; Eastman v. Cooper, 15 Pick., 286; Arnold v. Arnold, 17 Pick, 9; Gilbert v. Thompson, 9 Cush., 348; Harding v. Hale, 2 Gray, 400; Rice v. King, 7 Johns., 21; Miller v. Manice, 6 Hill, 114.
    II. The judgment in the case of Tucker v. John and Sophia Rohrback, was not a bar to the set-off offered -in this case: 1. Because the parties were not- the same; 2. Because the issue was not the same. The issue in that suit was, whether the two defendants were indebted to Tucker for the present demand. That issue could only be supported by proof of a joint liability. Proof of the individual liability of John Rohrback would have defeated the claim. But on the issue in this case, the 'set-off must be supported by proof of an individual liability; and proof’ of a joint liability defeats it. The issue in the two cases was, therefore, antagonistic; and evidence which would support the one would defeat the other. — Outram v. Morewood, 3 East., 364-6; King v. Chase, 15 N. H., 15; Harding v. Hale, 2 Gray, 400; Miller v. Manice, 6 Hill, 122, 129-31.
   Martin Ch. J.:

That a judgment, to constitute a bar .to a claim in a subsequent action, must be rendered upon the merits,, upon the same mattér in issue, and between the same parties or their privies, is unquestionable.

In the present case, testimony was offered, and received, tending to show that a portion of the property here in litigation had been the subject of a former suit,, between this same plaintiff, and the defendant and his-, wife, and that judgment was given therein. What that judgment was, or upon what founded, we are not informed. It may have been rendered upon the merits,, or for misjoinder of parties,- or other collateral reason. We are not sufficiently informed respecting- it to attribute to it any force, or to determine its character. We only know, that it was a judgment against other parties than the one now before us as defendant.

The judgment is reversed, with costs, and a new trial ■ordered.

The other Justices concurred in the result.  