Merriam v. Whittemore
71 Mass. 316
Mass.
1855
Check Treatment
Bigelow, J.

This case clearly comes within all the legal tests by which the conclusiveness of former judgments as a bar to further suits is determined. The subject matter of judicial controversy had been drawn in question in a former action ; it was there directly put in issue; the parties to that suit were the same; the issue was distinctly found by the jury, and a final judgment therein was rendered in favor of the defendant. 1 Greenl. Ev. §§ 528, 531. Gilbert v. Thompson, 9 Cush. 348. Bigelow v. Winsor, 1 Gray, 302. It is not necessary, in order to make a judgment conclusive, that the cause of action should be the same in the first suit, as in that in w’hich the judgment is pleaded or relied on in bar. But it is essential that the issue should be the same. The judgment is then coextensive with the issue on which it is founded, and is conclusive only upon matters necessarily included within it. It comprehends any fact or title distinctly put in issue, and is a bar only so far as the same fact or title is again in dispute. The defendant, in the present case, did not set up the former judgment as a bar to the cause of action set out in the plaintiff’s writ. This he admitted ; but he relied upon it as conclusive against any further Utigation of the validity of his discharge in insolvency; that *318being the same issue, involving the same inquiry, which had already been tried and settled between himself and the plaintiff in the former action. To this extent it was conclusive ; but it did not bar the plaintiff from trying any other issue which might properly arise in the case. The judgment was not pleaded in bar or offered in evidence as a defence to the- cause of action; but only as a conclusive answer to the replication which the plaintiff had made to the defendant’s discharge in insolvency. And for this reason it was not necessary for the defendant to set out the former judgment in his answer to this action. It was an answer in the nature of a rejoinder to the plaintiff’s replication, and was not required to be pleaded under St. 1852, c. 312, § 19.

The exceptions taken by the other defendants in: the former suit did not in any way affect the rights of the present defend ■ ant. That suit was finally determined as to him. It was tied on separate issues, and a verdict was found in his favor, to which no exceptions were taken. He was therefore entitled to a judgment thereon. His insolvency severed the promise, so far as to entitle him to plead his discharge in bar, leaving his co-contractors liable. St. 1838, c. 163, § 7. Bicknell v. Dorion, 6 Pick. 484.

Exceptions overruled.