The parties are adjoining land-owners. The controversy between them in point of fact is as to the divisional line between their lots. But it appears from the facts stated in the case that the identical matter in issue was determined and adjudicated in the former action of trespass quare clausum between the same parties, and hence the judgment in that proceeding is a bar in this, the difference in the form of action being immaterial. Then, as now, the location of the divisional line was, aside from the incidental one of damages, the only question in controversy, and therefore the plaintiff cannot now object to a judgment upon the merits, which was rendered upon an issue that he then voluntarily presented by his pleadings, and upon which he was fully heard. Having elected to put his defence in that suit upon a claim of ownership and title up to a certain specified line, by the judgment therein against him, he became estopped to contest the same matter again.
Judgment for the defendant.
SMITH and BINGHAM, JJ., did not sit: the others concurred. *Page 378