Gilbert v. Thompson
63 Mass. 348
Mass.
1852
Check Treatment
Bigelow, J.

We think it very clear that the ruling of the ‍​‌​​​​​​‌‌‌​‌​‌​‌​​​​‌​​‌‌​​‌‌‌​‌​​​‌​‌​‌​‌‌​​​​‍court below in this case was errоneous.

The law is well settled, that a judgment in a former action is conclusive only when the same cause of action has been once adjudicated ‍​‌​​​​​​‌‌‌​‌​‌​‌​​​​‌​​‌‌​​‌‌‌​‌​​​‌​‌​‌​‌‌​​​​‍between the same parties, or the same point has been put in issue upon the record, and directly found by the verdict of the jury. Eastman v. Cooper, 15 Pick. 276, 279. To have this effect, the rule formerly was, that it must be pleaded in bar, or by way of estoppel, unless the party, relying upon it ‍​‌​​​​​​‌‌‌​‌​‌​‌​​​​‌​​‌‌​​‌‌‌​‌​​​‌​‌​‌​‌‌​​​​‍as a defence, had had no opportunity of so рleading it, in which case it was allowed to have the same effеct, when offered in evidence. Outram v. Morewood, 3 East, 346; Vooght v. Winch, 2 Barn. & Ald. 662; 2 Smith’s Lead. Cases, (Am. ed.) notes, 496; Howard v. Mitchell, 14 Mass. 241; Eastman v. Cooper, 15 Pick. 276.

If a matter to which an estoрpel was applicable, was distinctly put in issue by one party, and the other party, instead of pleading the estoppel, tоok issue upon the fact, he was held to have waived the estoppel, and the jury were permitted to find the truth, although it might be contrаry to the record. Under the system in force in this commonwealth, of trying all questions under the general issue, a party cannot, of coursе, be held to the same strictness. But it would certainly seem to be reasonable, and in accordance with the principle upon which the rule of pleading was ‍​‌​​​​​​‌‌‌​‌​‌​‌​​​​‌​​‌‌​​‌‌‌​‌​​​‌​‌​‌​‌‌​​​​‍originally founded, that any matter relied upon as an estoppel should be' set out in the specification of defence ; otherwise, it ought to have no other еffect than as evidence, competent under the general issue, to be passed upon by the jury. In the case a bar, no such specification of defence was filed. But, without determining this question, it is suffiсient for the decision of this case, that the fact relied on by thе defendant as conclusive, was not essential to the finding of the former verdict, but was only incidental and collateral thereto. The former action *350was trespass guare clausum, the gist of which was the breaking and entering the housе of the present defendant. The taking of personal proрerty was alleged only by way of aggravation of the principаl injury, and the title to it could only come in question incidentally, as affecting the amount of damages, and not as essential to the maintеnance of the action. All that was essential to the finding of the verdict in the former action was proof of the breaking and entering. This was all that was directly in issue between the parties, and all that was conclusively settled by the verdict and judgment. Although, therefore, the titlе to the piano, as an element to enhance the damages, was actually drawn in question and passed upon by the jury in the formеr action, yet it was ‍​‌​​​​​​‌‌‌​‌​‌​‌​​​​‌​​‌‌​​‌‌‌​‌​​​‌​‌​‌​‌‌​​​​‍a question collateral to the one really in issue between the parties. The rule is well settled, that nothing cаn be pleaded by way of estoppel, or relied on as conclusive evidence against a party, except it was dirеctly in issue and found by the former verdict. This rule cannot be extended tо collateral facts, or facts to be deduced by inference from the former finding of the jury. It follows that, the cause of action in the former suit having been different from that now at issue between the parties, and as the title to the piano, although incidentally passed on by the jury, was not the gist of that action, but only incidentally involved therein, the former judgment cannot be held to be conclusive upon the plaintiff in this action. See Dutton v. Woodman, ante, 255; Harding v. Hale, 2 Gray, 399.

Exceptions sustained.