Atkinson, J.
Where, in a given transaction, several promissory notes resting upon the same consideration are executed and pass by negotiation into the hands of different third persons, though in a suit instituted by a holder of one of these notes the maker defends by filing a plea of failure of consideration and his plea is found against him, he is not thereafter estopped *320by the judgment rendered in that case from filing a like defense to a similar action brought by a holder of another of such promissory notes. Estoppels by judgment, like estoppels in pais, must be mutual. Judgment reversed.
August 18, 1896.
Ooanpl'ahit on note. Before Judge Grober. Milton superior court. August term, 1895.
Mayfield as bearer sued E. S. Dodd, J. D. Neese and T. J. Bettis on a promissory note for $100.00, dated March 24,4 '1891, and due November 1, 1894, payable to J. M. Dodd or bearer, .and signed by defendants. Defendants pleaded mot indebted; and that the note was given for a certain jack which was worthless, and hence the consideration of the note had failed. There was a verdict for plaintiff on conflicting evidence. Defendants moved for a new trial, and the motion being overruled, they excepted. The motion was upon the ground, among others, that the court erred in charging, that if the jury should believe from the evidence that another note was given as a part of the consideration of the purchase of the jack along with the note sued on, and that the first note had been sued on and a plea filed thereto on the ground of failure of consideration, and that this plea had been found against this defendant in a case wliere such plea was tried and the facts were such as to allow the trial of such plea on its merits, then the matters set up in such plea and determined against the defendant would be res -aidjudiewta and they could not be set up against him in this case. (It was insisted by the plaintiff that on the trial of the former case the defendant insisted on the plea of failure of consideration for the reason that the payee had an interest in the note and that the bearer held it as collateral and had only a part interest therein.)
J. A. Dodgen and J. P. Broolce, by Glenn & Rountree, for plaintiff in error.