This аction was brought for the alleged criminal conversation of defendant with the wife of plaintiff. The-declaration contained two counts.
To a plea, filed puis darrein continuance, plaintiff has intеrposed a demurrer, and thereon two questions have been-argued—(1) as tо the sufficiency of the plea; and (2) as to the sufficiency of the second count of the declaration.
To make clear the contention in respect to the plea, it is-sufficient to say that it avers, that prior to the dаy laid in-the declaration as the day when the alleged tort was committed, plaintiff had committed adultery with various persons ; that his wife had discovered such аdulteries, and afterwards filed a petition for divorce founded thereon; that plaintiff, by answer, denied the charges, and by way of cross petition chargеd his wife with having committed adultery with the defendant in this cause, and prayed a divorce on that ground; that issue was joined on the respective charges and evidence taken, and' thereon a decree passed dismissing plaintiff’s cross petition and denying the relief he sought thereby, and granting the-divorce asked for by the wife in her original petition.
It has been contended, in support of the plea, that the decree therein set up is conclusive against the plаintiff as resjudicata, and affords defendant a bar to this action.
It was argued with ingenuity and no little force, that the law ought not to permit one who has made an issue of this character and, having presumably produced all the evidence in his power, has encountered a defeat thereon, to again vex the courts by a retrial of the same issue. Such considеrations-have elsewhere induced legislation providing for making the allegеd adulterer a party to the divorce proceeding as coresрondent.
But no such legislation has changed our law. We are-therefore left to enforce the well settled and indisputable rule on this matter. An estopрel,' even by the judgment of a court, must be mutual to be admissible in bar, and such a judgment will bind only those who are party or privy thereto.
The plea cannot therefore be supported.
It was further contended in behalf of defendant, that if the plea should be adjudged to be bad, judgment on the demurrer should be awarded in his favor, on the ground that the second count of plaintiff’s declaration discloses no right of action against defendant.
A demurrer reachеs back in its effect through the whole record, and, in general, attaches uрon the first substantial ■defect. Judgment thereon is to be given upon the whole record and against the party in whose pleading the first substantial fault has occurred. Gould Pl., ch. 9, § 3637. But the defect must be such as would be ground for general demurrer. Salt Lake City Nat. Bank v. Hendrickson 11 Vroom 52. When, upon a sрecial demurrer to a plea, which at the argument counsel admitted сould not be supported, objection was made to the declaration, the Court of Exchequer held that the case must be considered as if there wеre a general demurrer to the whole declaration, and if it containеd any matter which would be good on general demurrer, plaintiff would be entitled tо judgment. In the course of the argument the very case now before ns was put to the court, and Parke, B., replied, that “ it must be taken as a general demurrer to the whole declaration, and then—one count being good—how 'can the court give judgment for the defendant?” Boydell v. Jones, 4 Mees. & W. 446.
In the declaration before us there аre two counts. One seems unobjectionable; the other is objected to. If the latter be assumed to be bad, it is quite obvious that judgment cannot go against the plaintiff on the whole record, for that contains one good count.
The plaintiff must therefore succeed on his demurrer.