a real action against B., and an issue was found against A., this would estop A. and C., in a subsequent action by them against B., from raising the same issue. But it would have been otherwise in an action of trespass (V).

A record in an action between A. and B. is no estoppel in an action between A. and C. (c), unless, in the former action, issue was joined upon the title to the property in question in the action, and judgment was given thereon (d); and unless B. and C. are joint wrongdoers (d). But a judgment in an action against two persons who had borrowed money from the plaintiffs (though the judgment was unsatisfied) was held to constitute a bar to another action brought by the same plaintiffs against a third person, who was afterwards discovered to have been really interested as a partner with the two debtors in the business, for the purposes of which the money had been borrowed (e).

But the record in an action between A. and B. would be admissible in evidence in an action between A. and C. (ƒ),

which the freehold comes in debate, Bro. Estop. pl. 15; and comments thereon in Outram v. Morewood, 3 East, 346.

(b) Incledon v. Burgess, Comberbach, Rep. 166; 1 Shower, 27. For a discussion of the differences between judgments in real and personal actions, sce Ferrer's Case, Co. Rep. vol. iii. p. 271; and per Ld. Ellenborough in Outram v. Morewood, 3 East, 346.

(c) Kinnersley v. Orpe, 2 Dougl. 517; Outram v. Morewood, 3 East, 316; Hudson v. Robinson, 4 M.

& S. 475. But see In re Defries, Nordon v. Levy, 48 L. T. 703.

(d) Ferrer's Case, 2 Cro. Eliz. 668.

(dd) In which case there is an estoppel even if the judgment is unsatisfied, Brinsmead v. Harrison, L. R. 7 C. P. 547.

(e) Kendall v. Hamilton, L. R. 4 App. Cas. 504. But, as to unsatisfied judgments, cf. Bermondsey (Vestry) v. Ramsey, L. R. 6 C. P. 247.

(f) Blakemore v. Glamorganshire Canal Co., 2 C. M. & R. 133;

and a record of proceedings between A. and B. may be pleaded as res judicata in bar to a second action brought by A. on the same cause of action, against a person having privity with B. (g). And where the parties are numerous a judgment against a few selected representatives may bind the rest (h).

So also a record in an action in which A. was plaintiff and B. and C. joint defendants is not strictly speaking a legal estoppel in a subsequent action in which A. is plaintiff and B. defendant (2), but, if given in evidence, it is conclusive as to the rights of the parties (j). However, a judgment in an action against A., B., C., &c., sued as joint debtors, in favour of any one of them, is no bar to a subsequent action against the others in respect of the same claim, if it does not appear that the judgment in the earlier action was obtained on a ground which discharged all the alleged debtors ().

As to the subject-matter of the action.-In order that a record inter partes may operate by way of estoppel in a subsequent action, the cause of action must be the same, i.e., there must be a substantial identity (1). For instance, a judgment for the plaintiff in an action of replevin was a bar to a subsequent action for special damage to the goods

Parker v. Lewis, L. R. 8 Ch. App. 1035.

(g) Strutt v. Bovingdon, 5 Esp. 59; Lockyer v. Ferryman, L. R. 2 App. Cas. 519.

(h) Commissioners of Sewers &c. v. Gellatly, L. R. 3 Ch. D. 610. (i) Callow v. Jenkinson, 20 L. J. Ex. 321.

(j) See per Ld. Ellenborough in Strutt v. Bovingdon, 5 Esp. 59; and Blakemore v. Glamorganshire Canal Co., 2 C. M. & R. 133.

(k) Phillips v. Ward, 33 L. J. Ex. 7. Cf. Buckland v. Johnson, 15 C. B. 145.

(1) Plummer v. Woodburne, 4 B. & C. 636.

replevied, as the special damage might have been recovered in the action of replevin. But it was no bar to a subsequent action for trespass to the land on which the goods were (m).

So where, in an action at common law, the plaintiff' declared on a promissory note and also for goods sold and delivered, but, upon executing a writ of inquiry after judgment by default, he gave no evidence on the count for goods sold and delivered, and took his damages for the amount of the promissory note only, it was held that the judgment was no bar to the plaintiff recovering, in a subsequent action, for the goods sold (n).

So, also, the decree of dismissal of a bill in equity was no bar to a new suit in equity, asking the same relief, but stating a different case and giving rise to a different equity. For example, H. filed a bill in equity, in the Supreme Court of Sydney, claiming to be admitted as a shareholder in respect of certain shares, and the Court, after hearing the case on the merits, dismissed the bill. H. subsequently filed a bill in the English Court of Chancery for the same purpose. But, on the ground that the allegations in the former suit were different from those in the latter, the decision at Sydney was held not to be conclusive against the plaintiff in the latter suit (o).

(m) Gibbs v. Cruikshank, L. R. S C. P. 454.

(n) Seddon v. Tutop, 6 T. R. 607. The judgment in the former action was, however, held to be prima farie, though not conclusive, evidence that the demand had been inquired into: see the judgment of Grose, J., and cf. Hadley

v. Green, 2 C. & J. 374 ; and Davis v. Hedges, L. R. 6 Q. B. 687.

(0) See per Ld. Westbury in Hunter v. Stewart, 31 L. J. Ch. N. S. 346, reversing Wood, V.-C. And as to the refusal of a former motion, see In re Anglo-French, &c. Socy., L. R. 14 Ch. D. 533.

Moreover, the mere allegation, in a bill for relief in Chancery, of matters which were not and could not be the subject of a decree in the suit, was no bar to a new suit founded upon such matters, subsequent to the

decree (p).

And, in the same way, a judgment in personam in an Admiralty case is no bar to a subsequent action in rem (q).

But the mere fact that the form of action was not the same, did not under the old system prevent a judgment in one action operating as a bar to another (r). Thus a judgment in trover might operate as a bar to an action for money bad and received (s); and, if the declaration were framed in such a manner that the causes of action might be the same, it was incumbent on the party bringing the action to show that they were not (t).

And where the demand for which the second action was brought existed prior to the first action, it would seem that it is incumbent on the plaintiff in the second action to show that such demand was not inquired into in the first action (u).

(p) Bainbridge v. Baddeley, 2 Phil. 705; Toulmin v. Copland, 2 Phil. 711.

(1) Nelson v. Couch, 15 C. B. N. S. 99; The Bengal, Swabey's Adm. 468; The John & Mary, Swabey's Adm. 471; The Sylph, L. R. 2 Adm. 24.

(r) Cleve v. Powell, 1 Moo. & Rob. 228; Slade's Case, Co. Rep. vol. ii. p 501.

(8) Buckland v. Johnson, 23 L. J. C. P. 204; Few v. Backhouse,

8 A. & E. 789; Palmer v. Temple, 9 A. & E. 508; Bristowe v. Fairclough, 1 M. & G. 142.

(t) See the judgment of Abbott, C. J., in Ld. Bagot v. Williams, 3 B. & C. 235.

(u) See, in the case of a reference to arbitration, Ravee v. Farmer, 4 T. R. 146; and Golightly v. Jellicoe, note ibid. See also Smith v. Johnson, 15 East, 213; and Dunn v. Murray, 9 B. & C. 780.

And where the cause of action is the same, and the plaintiff has had an opportunity in the former action of recovering, and but for his own fault might have recovered that which he seeks to recover in the second one, the former judgment is a bar to the second action, even though the claim in the second action is for a very much larger amount (x).

Thus where plaintiff sued in an action of assumpsit for money had and received, and defendant pleaded a judgment recovered by default, for £4000, in an inferior court for the same causes of action, and plaintiff replied that the causes of action were not the same; and at the trial it appeared that defendant had received on account, from plaintiff, and as his steward, sums of money at different times; and that, on the investigation of the accounts, plaintiff found that there was due to him a much larger sum than that for which he had declared in the inferior court; but that he had proceeded for the smaller sum under the belief that defendant had no available property beyond that amount, it was held, that all the sums which plaintiff knew that defendant had received at the time when he commenced the action in the inferior court, were to be considered as causes of action in respect of which he had declared and recovered judgment (y).

And again, where plaintiff brought an action in the county court for damage to his cab through defendant's negligence, and having recovered the amount claimed

(x) See the remarks of Willes, J., in Nelson v. Couch, 15 C. B. N. S. 99, at p. 108; and Barber v. Lamb, 8 C. B. N. S. 95; see

also The Phosphate Sewage Co. v. Molleson, L. R. 4 App. Cas. 801. (y) Ld. Bagot v. Williams, 3 B. & C. 235.