1. In a case having long and complicated pleadings, where a
second count of a declaration has been left by the withdrawal of a
plea without an answer, so that judgment might have been bad on it
by nil dicit,
a superior court will not, on error, infer
as of necessity that a judgment below for the plaintiff was thus
given, the case being one where, after such withdrawal, there were
numerous demurrers, pleas, replications, and rejoinder arising from
a first count, and the proceedings showing that these were the
subject of controversy. The second count will be taken to be
2. A reversal in a court of last resort, remanding a case,
cannot be set up as a bar to a judgment in an inferior court on the
3. The rule that judgment will be given against the party who
commits the first fault in pleading does not apply to faults of
4. The plea of res judicata
applies to every objection
urged in a second suit when the same objection was open to the
party within the legitimate scope of the pleadings in a former one
and might have been presented in it.
5. Interest warrants or coupons in a negotiable form draw
interest after payment of them is unjustly neglected or
The charter of the City of Aurora authorized its council,
whenever a majority of its qualified voters required it, to take
stock in any chartered company for making "roads" to that city, and
to make and sell their bonds to pay for it. With this power, the
city, in 1852, issued $50,000 of bonds to the Ohio and Mississippi
Railroad Company, a company whose charter authorized it to survey,
locate, and construct a railroad "on the most direct and
practicable route" between Lawrenceburg on the Ohio and Vincennes
on the Wabash. The bonds recited that they were issued in payment
of a subscription to stock in the Ohio & Mississippi Railroad
Company, made by the city by order of the common council, in
pursuance of its charter.
The bonds all passed from the company to West & Torrence,
and the interest, due January 1, 1856, not being paid, these
persons brought suit on them at May Term 1856, in the Dearborn
County Court of Indiana for payment.
Page 74 U. S. 83
The declaration alleged that the city, under the authority of
its charter, subscribed for $50,000 of the stock of the company;
that the company was chartered to construct, and was then
constructing, a railroad to the said city; that a majority of the
qualified voters had assented to the subscription; that the city
issued and sold
the bonds to raise the funds to pay for
the stock, and that the plaintiffs purchased
The city pleaded: 1. That the location of the railroad was not
established through the city till after the subscription. 2. That
the company was not chartered to construct, and was not, at the
date of the subscription, constructing a railroad to
To the first plea the plaintiffs demurred, and the demurrer was
sustained; and to the second they replied, that the company located
their railroad through the city before the bonds were
The defendants demurred to the replication, but the court
overruled the demurrer.
The concluding statement of the record was that "the said city,
not desiring to controvert the facts stated in said reply, but
admitting the same," judgment was rendered for the plaintiffs.
Other sets of coupons subsequently falling due, West &
Torrence, at May Term 1861, brought suit on them in the same
Dearborn court on pleadings much the same as the other and obtained
judgment against the city. This judgment was reversed
error in the Supreme Court of Indiana and the cause
Subsequent sets of coupons being unpaid, West & Torrence
brought suit on them in the Circuit Court of the United States for
The declaration in this third suit recited, "for that whereas"
the city, by virtue of power given in its charter, had lawfully,
and in due form, "and for a valuable consideration,
executed and issued the bonds, and that the plaintiffs, "for a
had become the legal holders, and
owners, and bearers" of them, and the city had refused to pay, a
right of action had accrued. The city demurred, assigning
Page 74 U. S. 84
for cause that the declaration did not allege that the bonds
were issued in pursuance of such a vote of the inhabitants of the
city as the charter required.
The court overruled the demurrer and gave judgment against the
A yet still additional series of coupons falling due, West &
Torrence brought the suit which was now here by error. The
declaration contained a special count (much as in the preceding
cases), and the common counts. Separate demurrers were filed to the
respective counts, but were overruled and withdrawn. The general
issue, called in the record the first plea, was also pleaded and
subsequently withdrawn, the second count being then left without
Seven special pleas, numbered from two to eight, inclusive, were
pleaded to the special count.
The 2d alleged that the bonds were issued without any good
or valuable consideration.
The 3d that they were void because the company was not chartered
to construct a railroad to
The 4th because a majority of the qualified voters of the city
had not signified their assent &c.
The 5th because the railroad company was not chartered to make a
The 6th because the subscription was made and the bonds issued
before the road was located to the city, and before the railroad
company had resolved to make such location.
The 7th because the stock, before its issue to the defendants,
became wholly worthless through the mismanagement of the
The 8th because the proper officers of the city never sold and
delivered the bonds as required by law, and the company obtained
them without such sale and without authority.
Notice to the plaintiffs was alleged of all these facts.
Of replications not withdrawn, the first, which was to the
second plea, set up the judgment, May Term 1856, of the Court for
The 2d was to all the pleas except the 1st, and set up the
judgment in the circuit court of the United States.
Page 74 U. S. 85
The 5th was to the 3d, 4th, 5th, 6th, 7th, and 8th pleas, and
also set up the judgment in the Court of Dearborn County, as
described in the first replication.
The 6th was to the 4th plea, and set up the same judgment.
The 8th was also to the 4th plea, and set up that the defendants
were estopped by the recital in the bonds from denying that a
majority of the qualified voters of the city had assented to the
The 10th was to the 3d, 5th, and 6th pleas, and set up certain
proceedings of the city council, therein recited, as an answer to
the said several pleas.
The city demurred specially to each of the replications, but the
court overruled the demurrer, and the defendants filed a rejoinder
to the 2d replication, the rejoinder being the judgment recovered
in the Court of Dearborn County, at May Term 1861, and that the
supreme court of the state, on appeal, had reversed it for error,
and remanded the cause.
The rejoinder, by agreement, was to be regarded as pleaded to
all the replications adjudged good except the 10th.
The rejoinder being held bad on demurrer, the parties waived a
jury and submitted the cause to the court for the assessment of
damages, and the court, having heard the evidence, gave judgment
for the plaintiffs. Upon which the defendants took a bill of
Page 74 U. S. 87
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Fifty bonds of one thousand dollars each were issued by the
corporation defendants on the first day of January, 1852, in
payment of a subscription of fifty thousand dollars previously made
by the order of the common council of the city to the capital stock
of the Ohio & Mississippi Railroad Company. Authority to
subscribe for such stock and to issue such bonds under the
conditions therein specified is conferred upon the corporation by
the eighteenth section of their charter. Said bonds were
negotiable, and were made payable in twenty-five years from date,
with interest at six percent per annum. Interest warrants or
coupons were attached to the several bonds for the payment of each
year's interest till the principal of the bonds should fall
Plaintiffs became the holders for value of all of the bonds,
together with the coupons thereto attached, and the defendants
having neglected and refused to pay the interest for the three
years specified in the record, the plaintiffs brought an
Page 74 U. S. 88
action of assumpsit, to recover the amount of the unpaid
interest as represented in the respective coupons for those years.
Their claim was set forth in the declaration in a special count
alleging the substance of the facts as above stated, and the
declaration also contained a second count for goods sold and
delivered, which also embraced the common counts. Separate
demurrers were filed to the respective counts, but they were
overruled by the court and were afterwards withdrawn by the
defendants. They also pleaded the general issue, called, in the
record, the first plea, which was subsequently withdrawn.
Seven special pleas, numbered from two to eight, inclusive, were
also filed by the defendants to the special count, but the
withdrawal of the general issue left the second count without any
Second plea alleged that the bonds and coupons described in the
special count were issued without any good or valuable
Third plea alleged that the corporation was not authorized to
issue the bonds to the railroad company because the company was not
chartered to construct a railroad to the city.
Fourth plea alleged that a majority of the qualified voters of
the city did not, at an annual election, signify their assent to
the making of the subscription to the stock, as required by
Fifth plea alleged that the bonds and coupons were null and void
because the railroad company was not a company chartered to make a
road to said city.
Sixth plea alleged that the bonds and coupons were null and void
because the subscription to the stock was made, and the bonds and
coupons were issued, before the road was located to the city and
before the railroad company had determined to make the
Seventh plea alleged that the bonds and coupons were null and
void because the stock of the company, before it was issued to the
defendants, became of no value through the mismanagement of the
directors, and was wholly worthless.
Page 74 U. S. 89
Eighth plea alleged that the bonds and coupons were null and
void because the proper officers of the city never sold and
delivered them, as required by law, but that the company obtained
the possession of the same without such sale and without
Notice to the plaintiffs of the respective defenses so pleaded
is alleged in each of the several pleas. Six only of the eighteen
replications filed by the plaintiffs remain to be examined, as all
the rest of the series were subsequently withdrawn without
objection or were held to be bad on demurrer.
Those not withdrawn are the first, second, fifth, sixth, eighth,
and tenth of the series, as appears by a careful inspection of the
transcript. Of these, the first was to the second plea, and set up
a former judgment rendered in favor of the plaintiffs, May Term
1856, of the Circuit Court for the County of Dearborn in the State
of Indiana in a certain action brought by the plaintiffs against
the defendants to recover the amount of the coupons attached to the
same fifty bonds, which fell due the first day of January next
preceding the rendition of the judgment, and the plaintiffs prayed
judgment, if the defendants ought to be admitted to aver against
that record, that the bonds and coupons were issued without any
good or valuable consideration.
Second replication was to all the pleas except the first, and
set up a former judgment recovered by the plaintiffs, May Term
1857, in the Circuit Court of the United States for the District of
Indiana in an action of assumpsit against the defendants for the
amount of another set of the coupons attached to the same fifty
Fifth replication was to the third, fourth, fifth, sixth,
seventh, and eighth pleas, and also set up the judgment recovered
in the Circuit Court of Dearborn County, as described in the first
replication, and substantially in the same form.
Sixth replication was to the fourth plea only, and set up the
same judgment, and in the same form as pleaded in the fifth
Page 74 U. S. 90
Eighth replication was also to the fourth plea, and alleged that
the defendants were estopped by the recital in the bonds from
denying that a majority of the qualified voters of the city at an
annual election signified their assent to the subscription.
Tenth replication was to the third, fifth, and sixth pleas, and
set up the proceedings of the city council therein recited as an
answer to the said several pleas.
Defendants demurred specially to each of the several
replications, but the court overruled the respective demurrers, and
held that the several replications were sufficient.
Leave was granted to the defendants at the same time to rejoin,
and on a subsequent day they appeared and filed a rejoinder to the
Parties also filed an agreement at the same time to the effect
that the rejoinder should be regarded as pleaded to all the
replications adjudged good except the tenth, which was the second
replication to the third, fifth, and sixth pleas.
Substance and effect of the matters alleged in the rejoinder
were that the plaintiffs recovered another judgment against the
defendants in the Circuit Court for said Dearborn County in a suit
founded on another and different set of the coupons attached to the
same fifty bonds, and that the supreme court of the state, on
appeal, reversed the judgment for error and remanded the cause for
Plaintiffs demurred to the rejoinder, and the court sustained
the demurrer and held that the rejoinder was bad. Thereupon the
parties waived a jury and submitted the cause to the court for the
assessment of damages, and the court, having heard all the evidence
introduced by the parties, rendered judgment for the plaintiffs in
the sum of ten thousand five hundred and thirty-four dollars and
fifty cents damages and costs of suit.
1. Judgment having been rendered for the plaintiffs, the
defendants tendered a bill of exceptions, which was allowed by the
presiding justice and signed and sealed. Statement in the bill of
exceptions is that the parties submitted the
Page 74 U. S. 91
cause to the court upon the record and the evidence therein set
forth, but it is obvious that when it was submitted, there was
nothing left to be done except to compute the damages.
None of the pleadings terminated in issues of fact except such
as had been withdrawn or waived by one side or the other, and all
the issues of law had been determined against the defendants. When
the defendants withdrew the general issue and left the second count
in the declaration without any answer, the plaintiffs, as upon
might have moved for judgment for the want of a
plea, but they did not submit any such motion, and both parties
proceeded thereafter throughout the trial as if there was but one
count in the declaration. [Footnote
Viewed in the light of the proceedings in the suit subsequent to
the withdrawal of the general issue, it must be understood that the
second count was waived, as there is not a word in the record to
support the proposition assumed by the plaintiffs that the judgment
was rendered on that count.
2. Every issue of fact having been withdrawn and every issue of
law in which the other pleadings terminated having been decided in
favor of the plaintiffs, they were clearly entitled to judgment on
the first count. Irrespective, therefore, of the bill of
exceptions, the writ of error brings here for review the decisions
of the court below in overruling the demurrer of the defendants to
the tenth replication of the plaintiffs and in sustaining the
demurrer of the plaintiffs to the rejoinder of the defendants as
filed to the first, second, fifth, sixth, and eighth replications
of the plaintiffs.
Such being the state of the case, the decisions of the court
below may be reexamined in this Court without any bill of
exceptions, as the questions are apparent in the record and arise
upon demurrers to material pleadings on which the cause depends.
Page 74 U. S. 92
3. Examination of the questions growing out of the decision of
the court below in sustaining the demurrer to the defendants'
rejoinder will first be made, because if the objections taken to
that decision are overruled, the questions involved in the other
decision will be of no importance, as the plaintiffs in any event
must prevail and the judgment of the circuit court must be
affirmed. They must prevail in that event because the several
replications to which that rejoinder was filed, as extended and
applied by the agreement of the parties, furnish a complete answer
to all the special pleas of the defendants.
Before proceeding to consider the questions growing out of that
decision of the court below, it should be remembered that the
defendants, in filing the rejoinder, waived their demurrers to all
the replications to which it was filed. Applied as it was by the
agreement to all the replications not abandoned, except the tenth,
it follows that all the demurrers except that filed to the tenth
replication were waived.
Pleading over to a declaration adjudged good on demurrer is a
waiver of the demurrer, and when a defendant files a rejoinder to a
replication, previously adjudged good on demurrer, his act in
pleading over must for the same reason be held to have the same
effect. [Footnote 3
4. Extended argument to show that the matters alleged in the
rejoinder are not of a character to constitute a sufficient answer
to the several replications to which it was filed is unnecessary,
as it is scarcely so contended by the defendants. Undoubtedly the
view of the pleader was to set up an estoppel against the matters
pleaded by the plaintiffs in their first, second, fifth, sixth, and
eighth replications and to claim the benefit of the rule that an
estoppel against an estoppel opens up the whole matter and sets it
at large; but the insuperable difficulty in the way of the attempt
to apply that rule, even supposing that the former judgments are
pleaded as technical estoppels, is that the matters pleaded in the
Page 74 U. S. 93
do not amount to an estoppel, as they merely show that the
judgment for the plaintiff, as recovered in that case in the court
of original jurisdiction, was reversed in the appellate tribunal
and that the cause was remanded to the subordinate court for
further proceedings. Second trials often result in the same way as
the first, and certainly the reversal of the judgment under the
circumstances shown in the allegations of the rejoinder is not
conclusive evidence that the plaintiffs may not ultimately recover.
Unless a final judgment or decree is rendered in a suit, the
proceedings in the same are never regarded as a bar to a subsequent
action. Consequently where the action was discontinued, or the
plaintiff became nonsuit, or where from any other cause, except
perhaps in the case of a retraxit,
no judgment or decree
was rendered in the case, the proceedings are not conclusive.
5. Suppose the rejoinder is bad, still the defendants contend
that the replications to which it was filed are also bad and that
they are entitled to judgment as the first fault in pleading was
committed by the plaintiffs. Doubts were entertained at first
whether, inasmuch as the demurrers were abandoned after the
replications had been adjudged good, the point was open to the
defendants; but the better opinion is that the waiver of the
demurrers left the rights of the parties in the same condition as
they would have been if the demurrers had never been filed.
Conceding that to be the rule, then it is clear that the defendants
may go back and attack the sufficiency of the replications, as it
is the settled rule of law in this Court in respect to demurrers
that although the pleadings demurred to may be bad, the court will
nevertheless give judgment against the party whose pleading was
first defective in substance. [Footnote 5
Page 74 U. S. 94
Statement of the rule by Stephen is that on demurrer to the
replication, if the court thinks the replication bad but perceive a
substantial fault in the plea, it will give judgment not for the
defendant but for the plaintiff, provided the declaration be good;
but if the declaration also be bad in substance, then upon the same
principle judgment would be given for the defendant. [Footnote 6
Apart, therefore, from their own demurrers, and solely by virtue
of the plaintiffs' demurrer to their rejoinder, the defendants may
go back and attack the plaintiffs' replications, but they can do so
only as to defects of substance, as it is well settled that the
rule applies only where the antecedent pleading is bad in
substance, and that it does not extend to mere matters of form.
] Mere formal
objections, therefore, to the replications will not be noticed, as
such objections are not open under the pleadings in this
6. Four of the replications set up the two former judgments, and
as they involve the same questions, they will all be considered
together. Duly exemplified copies of those judgments are exhibited
in the transcript, and they are well described in the replications.
When the record of a former judgment is set up as establishing some
collateral fact involved in a subsequent controversy, it must be
pleaded strictly as an estoppel, and the rule is that such a
pleading must be framed with great certainty, as it cannot be aided
by any intendment. Technical estoppels, as contended by the
defendants, must be pleaded with great strictness, but when a
former judgment is set up in bar of an action or as having
determined the entire merits of the controversy, it is not required
to be pleaded with any greater strictness than any other plea in
bar or any plea in avoidance of the
Page 74 U. S. 95
matters alleged in the antecedent pleading of the opposite
party. [Footnote 8
Same rule applies to a replication as to a plea, as the
plaintiff cannot anticipate what the defense will be when he frames
his declaration. Cases arise also where the record of the former
suit does not show the precise point which was decided in the
former suit, or does not show it with sufficient precision, and
also where the party, relying on the former recovery, had no
opportunity to plead it; but it is not necessary to consider those
topics, as no such questions are directly presented in this case
Aside from all these questions, and independent of the form of
the replications, the defendants make two objections to the theory
that the former judgments set up in this case are a conclusive
answer to the respective defense pleaded in their several special
First. They contend that a judgment on demurrer is not a bar to
a subsequent action between the same parties for the same cause of
action unless the record of the former action shows that the
demurrer extended to all the disputed facts involved in the second
suit, nor unless the subsequent suit presents substantially the
same questions as those determined in the former suit. Where the
second suit presents no new question, they concede that the
judgment in the former suit, though rendered on demurrer, may be a
bar to the second suit, but they maintain that it can never be so
regarded unless all those conditions concur.
Secondly. They also deny that a former judgment is in any case
conclusive of any matter or thing involved in a subsequent
controversy, even between the same parties for the same cause of
action, except as to the precise point or points actually litigated
and determined in the antecedent trial, and they insist that none
of the defenses set up in their several special pleas was directly
presented and determined in either of the former suits, as supposed
by the plaintiffs.
Page 74 U. S. 96
7. Identity of the parties in the former suits with the parties
in the suit at bar is beyond question, and it cannot be
successfully denied that the cause of action in the former suits
was the same as that in the pending action within the meaning of
that requirement as defined by decided cases of the highest
authority. Where the parties are the same, the legal effect of the
former judgment as a bar is not impaired, because the subject
matter of the second suit is different, provided the second suit
involves the same title and depends upon the same question.
] Second suit for
trespass was held, in the case of Outram v. Morewood,
] to be barred
by the record of a former judgment between the same parties
recovered long before the second trespass was committed, as it
appeared that the same title was involved in both cases. Precisely
the same rule was also laid down in the case of Burt v.
] and the reason assigned in its support was that the
plaintiffs' right of recovery and the defense set up in the second
action depended on the same title as that involved in the former
suit. So where an importer and two sureties executed two bonds for
duties, and the principal being insolvent, one of the sureties paid
the whole amount and brought a suit against the other surety for
contribution on the bond which first fell due, and was defeated on
a plea of release by the obligee, with his own consent, the
judgment was held in a subsequent suit for contribution for the
amount paid on the other bond to be a conclusive bar to the second
claim, it appearing that both bonds were given at the same time,
upon the same consideration, and as parts of one and the same
Different bonds, it will be noticed, were described in the two
declarations, but the decision of the court was placed upon the
ground that the cases were precisely alike as to the right of the
plaintiff to demand and the duty of the defendant as a co-surety to
make contribution. Nothing is better settled, says the court, than
that the judgment of a
Page 74 U. S. 97
court of concurrent jurisdiction, directly upon the point made
in the suit, is conclusive between the same parties upon the same
subject matter, and they referred to the case of Gardner v.
as directly in point, and there can be no doubt that it is entirely
Substance of the material facts in that case was, that two notes
had previously been given by the defendant for the purchase money
of a vessel which he refused to pay, and in the suit on the first
note the defense was that it had been obtained by fraud, and the
judgment was for the defendant; and in a subsequent suit on the
other note, that judgment was held to be conclusive as to the
question of fraud.
Weighed in the light of those decisions, it is quite clear that
the cause of action, in the legal sense, is the same in the case at
bar as that in the respective former judgments set up in the four
replications under consideration.
In the suit determined in the state court, the declaration
alleged to the effect that the defendants, under the authority
conferred on the corporation by virtue of their charter, subscribed
for fifty thousand dollars of the stock of the railroad company;
that the company was chartered to construct, and was then
constructing a railroad to said city; that a majority of the
qualified voters of the city signified their assent to the
subscription by expressing on their tickets, at an annual election
in said city, that they were in favor of the same; that the
defendants issued and sold the bonds to raise the funds to pay for
the stock, and that the plaintiffs purchased the bonds and became
the holders of the same and of the coupons thereto attached.
Defendants demurred to the declaration, but the court overruled
the demurrer and they subsequently filed an answer, setting up two
1. That the location of the railroad was not established through
the city till after the subscription.
2. That the company was not chartered to construct, and was not,
at the date of the subscription, constructing a railroad to the
Page 74 U. S. 98
Plaintiffs demurred to the first answer, and the demurrer was
sustained by the court, and to the second defense they replied that
the company located their railroad through the city before the
bonds were delivered, and the defendants demurred to the
replication, but the court overruled the demurrer.
Concluding statement of the record is that "the said city, not
desiring to controvert the facts stated in said reply, but
admitting the same," judgment is rendered for the plaintiffs.
Second judgment set up in the replications was rendered in the
circuit court of the United States in a suit on another set of the
coupons attached to the same fifty bonds, and the declaration
alleged that the defendants, by virtue of the power conferred in
their charter, did lawfully and in due form execute and issue the
bonds under the seal of the corporation, and that the plaintiffs,
for a valuable consideration, became the legal holders and bearers
of the same, and of the coupons thereto attached.
Special demurrer to the declaration was filed by the defendants,
and they showed for cause, among other things, that it did not
allege that the bonds were issued in pursuance of such a vote of
the inhabitants of the city as the charter required. Both parties
were heard, and the court overruled the demurrer and gave judgment
against the defendants for the amount of the coupons, with
interest. Inspection of those records therefore shows that the
several questions involved in the present suit, as to the validity
of the bonds, the time and place of the location of the railroad,
and the alleged failure to secure the antecedent assent of a
majority of the qualified voters of the city, were all put in issue
in those cases. They were not only put in issue, but they were
determined, unless it be denied that the effect of a demurrer to
the declaration or other pleading is that it admits all such
matters of fact as are sufficiently pleaded. Such a denial, if
made, would be entitled to no weight, as it is a rule universally
Page 74 U. S. 99
Foundation of the rule is that the party demurring, having had
his option to plead or demur, shall be taken, in adopting the
latter alternative, to admit that he has no ground for denial or
traverse. [Footnote 15
On the overruling of a demurrer, the general rule is that
judgment for the plaintiff is final if the merits are involved, but
a judgment that a declaration is bad cannot be pleaded as a bar to
a good declaration for the same cause of action, because such a
judgment is in no just sense a judgment upon the merits. [Footnote 16
] Other exceptional cases
might be named, but it is unnecessary, as none of them can have any
bearing on this case. [Footnote
Taken as a whole, the pleadings of the defendants in the
respective cases amounted to a demurrer to the respective
declarations, and the substantial import of the decision of the
court in each case, was that the declaration was sufficient to
entitle the plaintiffs to judgment. Beyond question, they were
judgments on the merits, although rendered on demurrer, and in such
case the well settled rule is that every material matter of fact
sufficiently pleaded is admitted.
Since the resolution in Ferrer's Case,
] the general principle has
always been conceded that when one is barred in any action, real or
personal, by judgment on demurrer, confession, or verdict, he is
barred as to that or the like action of the like nature for the
same thing forever.
Objection was taken in the case of Bouchaud v. Dias,
] that the
former judgment between the parties could not be a bar to the
subsequent action, because it was rendered on demurrer to the
defendant's plea, but the court held that it made no difference in
principle whether the facts upon which the court proceeded were
proved by competent evidence, or whether they were admitted by the
parties; and they also held that an admission, by way of demurrer
to a pleading, in which the facts are alleged, must be just
Page 74 U. S. 100
the opposite party as though the admission had been made ore
before a jury. [Footnote 20
Reference to cases decided in other jurisdictions, however, is
unnecessary, as this Court decided, in the case of Clearwater
] that on demurrer to any of the pleadings which are in bar
of the action, the judgment for either party is the same as it
would have been on an issue of fact joined upon the same pleading
and found in favor of the same party. [Footnote 22
Defense of a former judgment rendered upon general demurrer to
the declaration was also set up in the case of Goodrich v.
this Court held that it was a good answer to the suit, although the
appellant insisted that it was not, because the judgment was
rendered on demurrer.
8. Unsupported as the second proposition of the defendants is as
to the theory of fact on which it is based, it will not require any
extended consideration. Much doubt and perhaps uncertainty exist in
judicial decisions as to the limits, in certain cases, within which
the conclusive effect of a judgment is confined by law as expressed
in the maxim nemo debet bis vexari pro una et eadum causa,
and also as to the manner in which the former judgment in that
class of cases should be taken advantage of by the party. [Footnote 24
But it is believed that the case at bar may be decided without
encountering any of those conflicting opinions, as they occur
chiefly where the party claiming the benefit of the former judgment
failed to plead it at the first opportunity, or where no such
opportunity was presented and it was introduced under the general
issue. Decisions made in such cases were cited at the argument, but
they afford very little aid in the solution of any question arising
in this record. Remark should also be made that the several
Page 74 U. S. 101
set up the former judgments not merely as settling some
collateral fact involved in the case, but as having determined the
entire merits of the controversy involved in the pleadings.
Such a case falls directly within the rule that the judgment of
a court of concurrent jurisdiction, or one in the same court
directly on the point, is, as a plea, a bar, and conclusive between
the same parties upon the same matter directly in question in a
subsequent action. [Footnote
When not pleaded, but introduced as evidence under the general
issue, the judgment, it was said in that case, was equally
conclusive between the parties; but that point will not be
considered in this case, as it is in no manner involved in the
pleadings. Express determination of the court, also, in the case of
Outram v. Morewood,
] was, that the rule that a recovery in one
action is a bar to another, is not confined to personal actions
alone, but that it extends to all actions, real as well as
Repeated decisions established the rule in the early history of
the common law that where a judgment was rendered on the merits, it
barred all other personal suits except such as were of a higher
nature for the same cause of action. [Footnote 28
Judgment in a writ of entry is not a bar to a writ of right, but
the meaning of the rule is that each species of judgment is equally
conclusive upon its own subject matters by way of bar to future
litigation for the thing thereby decided. Hence the verdict of a
jury, followed by a judgment or a decree in chancery, as held by
this Court, puts an end to all further controversy between the
parties to such suit, and it has already appeared that a judgment
for either party on demurrer to a pleading involving the merits is
the same as it would have been on an issue in fact, joined upon the
same pleading and found in favor of the same party. [Footnote 29
Page 74 U. S. 102
Determination of this Court, in the case of Aspden v.
was that a judgment or decree, in order that it may be set up as a
bar, must have been rendered by a court of competent jurisdiction
upon the same subject matter, between the same parties, and for the
same purpose; and in the case of Packet Co. v. Sickles,
] the decision
"the essential conditions under which the exception of the
becomes applicable are the identity of the
thing demanded, the identity of the cause of the demand, and of the
parties in the character in which they are litigants."
Attempt was made in that case, as in this, to maintain that the
judgment in the first suit could not be held to be an estoppel
unless it was shown by the record that the very point in
controversy was distinctly presented by an issue, and that it was
explicitly found by the jury; but the court held otherwise, and
distinctly overruled that proposition, although the defense of
estoppel failed for other reasons.
Courts of justice, in stating the rule, do not always employ the
same language, but where every objection urged in the second suit
was open to the party within the legitimate scope of the pleadings
in the first suit, and might have been presented in that trial, the
matter must be considered as having passed in rem
and the former judgment in such a case is
conclusive between the parties. [Footnote 32
Except in special cases, the plea of res judicata,
Taylor, applies not only to points upon which the court was
actually required to form an opinion and pronounce judgment, but to
every point which properly belonged to the subject of litigation
and which the parties, exercising reasonable diligence, might have
brought forward at the time. [Footnote 33
Substantially the same rule was laid down in the case of
Outram v. Morewood,
] in which the court said that "a recovery in
one suit upon issue joined on matter of title, is
Page 74 U. S. 103
equally conclusive upon the subject matter of such title" in any
subsequent action, as an estoppel.
Better opinion is that the estoppel, where the judgment was
rendered upon the merits, whether on demurrer, agreed statement, or
verdict, extends to every material allegation or statement which,
having been made on one side and denied on the other, was at issue
in the cause, and was determined in the course of the proceedings.
The allegation in the case of Ricardo v. Garcias,
] was, that the
matters in issue on the second suit were the same, and not in any
respect different from the matters in issue in the former suit, and
the House of Lords held that the plea was sufficient -- evidently
deciding that nothing was open in the second suit which was within
the scope of the issue in the former trial. [Footnote 37
] Properly construed, the opinion of
this Court on this point in the case of the Packet Company v.
is to the same effect, as plainly appears in that part of it in
which the court say that if the record of the former trial shows
that the verdict could not have been rendered without deciding the
particular matter in question, it will be considered as having
settled that matter as to all future actions between the parties.
Applying that rule to the case at bar, it is clear that a judgment
rendered on demurrer settles every matter which was well alleged in
the pleadings of the opposite party.
9. Separate examination of the authorities cited by the
defendants, in view of their number, is impracticable, but it will
appear, if they are carefully read and rightly applied, that they
do not support the proposition under consideration. On the
contrary, the decision of the court in the case of Gilbert v.
is that a judgment in a former action is conclusive where the same
cause of action was adjudicated between the same parties, or the
same point was put in issue on the record and directly found by the
verdict of a jury; and the case of Merriam v. Whittemore,
] is precisely
Page 74 U. S. 104
same effect. Unguarded expressions are found in the opinions in
the case of Carter v. James,
] but the decision turned upon the point
that the cause of action was not the same in the pending suit as
that litigated in the former action. For these reasons our
conclusion is that the decision of the circuit court in sustaining
the demurrer of the plaintiffs to the rejoinder of the defendants
was correct, and that the plaintiffs were thereupon entitled to
10. In such cases, where the sum for which judgment should be
rendered is uncertain, the rule in the federal courts is that the
damages shall, if either of the parties request it, be assessed by
a jury. [Footnote 42
But if the sum for which judgment should be rendered is certain,
as where the suit is upon a bill of exchange or promissory note,
the computation may be made by the court, or what is more usual, by
the clerk; and the same course may be pursued even when the sum for
which judgment should be rendered is uncertain if neither party
request the court to call a jury for that purpose. Common law rules
were substantially the same, except that "the court themselves
might, in a large class of cases, if they pleased, assess the
damages, and thereupon give final judgment." [Footnote 43
Evidently a jury in this case was not necessary, but it was not
error to hear proofs under the submission, as both parties assented
to the course pursued.
Exceptions were taken to the ruling of the court in allowing
interest upon the coupons, and the bill of exceptions states that
the exception of the defendants was allowed, but it does not state
what amount of interest was included in the judgment, nor give the
basis on which it was computed. Judging from the amount of the sum
found due, it is, perhaps, a necessary inference that interest was
allowed on each coupon from the time it fell due to the date of the
judgment, and if so, the finding was correct.
Page 74 U. S. 105
Bonds and coupons like these, by universal usage and consent,
have all the qualities of commercial paper. [Footnote 44
] Coupons are written contracts for
the payment of a definite sum of money, on a given day, and being
drawn and executed in a form and mode for the very purpose that
they may be separated from the bonds, it is held that they are
negotiable, and that a suit may be maintained on them without the
necessity of producing the bonds to which they were attached.
] Interest, as a
general rule, is due on a debt from the time that payment is
unjustly refused, but a demand is not necessary on a bill or note
payable on a given day. [Footnote 46
] Being written contracts for the payment of
money, and negotiable because payable to bearer and passing from
hand to hand, as other negotiable instruments, it is quite apparent
on general principles that they should draw interest after payment
of the principal is unjustly neglected or refused. [Footnote 47
] Where there is a contract to
pay money on a day fixed, and the contract is broken, interest, as
a general rule, is allowed, and that rule is universal in respect
to bills and notes payable on time. [Footnote 48
] Governed by that rule this Court in the case
of Gelpcke v. Dubuque,
] held that the plaintiff, in a case entirely
analogous, was entitled to recover interest. [Footnote 50
Necessity for remark upon the other exceptions is superseded by
what has already been said in respect to the plaintiff's
Judgment affirmed with costs.
Mr. Justice MILLER, dissenting.
The doctrine of estoppel by a former judgment between the same
parties is one of the most beneficial principles of our
jurisprudence, and has been less affected by legislation
Page 74 U. S. 106
than almost any other. But its effect is to prevent any further
inquiry into the merits of the controversy. Hence, with all the
salutary influence which it exerts in giving permanence to
established rights, in putting an end to angry contests, and
preserving tranquility in society, it can only be justified on the
ground that the precise point, either of law or of fact, which is
presented in the suit where the estoppel is pleaded, had been
previously decided between the same parties or their privies, by a
court of competent jurisdiction. The principle is equally available
and potent whether it is set up by a defendant as an answer to a
cause of action, or by a plaintiff to prevent the same defense
being used in the second suit that was decided against in the
first. In the former case, it must appear that the cause of action
in the second suit was the same that it was in the first suit, or
depended on precisely the same facts. In the latter case it must
appear that the defense set up in the second suit was the same
defense, or in other words, consisted of the same facts or points
of law as that which was passed upon in the first suit.
It is true that some of the earlier cases speak as if everything
which might have been decided in the first suit must be considered
concluded by that suit. But this is not the doctrine of the courts
of the present day, and no court has given more emphatic expression
to the modern rule than this. That rule is that when a former
judgment is relied on, it must appear from the record that the
point in controversy was necessarily decided in the former suit, or
be made to appear by extrinsic proof that it was in fact decided.
This is expressly ruled no less than three times within the last
eight years by this Court, to-wit, in the Steam Packet Co. v.
Same v. Same,
] Miles v. Caldwell. [Footnote 53
] The principle asserted in these decisions is
supported by an array of authority which I will not stop to insert
here, but which may be found well digested and arranged in the
notes of Hare and Wallace to the Duchess of Kingston's
The opinion just read asserts a different rule, and insists
Page 74 U. S. 107
that whatever might have been fairly within the scope of the
pleadings in the former suit, must be held as concluded by the
In the case before us, the second plea clearly and distinctly
avers that the bonds, which are the foundation of plaintiffs'
action, were issued without any good or valuable consideration, and
that this fact was known to the plaintiffs when they received them.
I have examined in vain all the pleas filed by defendants in the
former suit to discover any plea which set up this defense, or
which raised such an issue that the want of consideration must have
been passed upon in deciding the case. Nor can I discover any plea
under which it might have been decided. Here, then, is a distinct,
substantial defense to the bonds sued on, sufficient to defeat the
action, which was never presented to the court in the former
action, and therefore, never decided, and I am of opinion that the
former suit did not conclude defendants' right to have this matter
inquired into in this action.
Hogan v. Ross,
13 How. 173; 1 Chitty's Archbold's Practice (11th ed) 288; 1 Tidd's
Practice, ed. 1856, 563; Stephen on Pleading, 108; Bisbing v.
6 Watts & Sergeant 450; Cross v.
6 Blackford 130.
20 How. 436; Gorman v.
15 Pet. 115.
United States v.
5 How. 29; Jones v. Thompson,
621; Clearwater v.
1 Wall. 42.
Wood v. Jackson,
8 Wendell 9; Reed v.
Locks and Canals,
8 How. 274; Rex v. St.
9 Q.B. 884; Greeley v. Smith,
1 W. & M.
181; Knox v. Waldoborough,
5 Me. 185; Hull v.
13 Mass. 155; Sweigart v. Berk,
& Rawle 305; Bridge v. Sumner,
1 Pickering 371; 2
Taylor on Evidence 1528; Harvey v. Richards,
231; Ridgely v. Spencer,
2 Binney 70.
3 Cranch 229; Sprigg
v. Bank of Mount Pleasant,
10 Pet. 264;
United States v.
5 Cranch 261; Clearwater v.
1 Wall. 38; 1 Chitty's Pleadings 668;
15 Pet. 115.
Stephen on Pleading 143; Mercein v. Smith,
2 Hill 210;
Matthewson v. Weller,
3 Denio 52; Townsend
7 How. 706.
Tubbs v. Caswell,
8 Wendell 129; Bushell v.
1 Ld.Raymond 369.
Gray v. Pingry,
17 Vt. 419; Perkins v. Walker,
144; 1 Greenleaf on Evidence 12 ed. 566;
Shelley v. Wright,
Doty v. Brown,
4 Comstock 71.
3 East 346.
4 Cowen 559.
Bouchaud v. Dias,
3 Denio 243.
3 Cowen 120.
1 Williams' Saunders 337, n. 3; Stephen on Pleading 155; 1
Saunders on Pleading and Evidence 952; 1 Chitty's Pleading 662.
Manchester Bank v.
20 How. 303.
10 Pet. 298.
24 How. 188.
6 Reports 7.
3 Denio 244.
Perkins v. Moore,
16 Ala. 17; Robinson v.
5 Cal. 428.
68 U. S. 1
5 Wall. 303; Nowlan v. Geddes,
72 U. S. 5
Broom's Maxims (4th ed) 321; Sparry's Case,
Stafford v. Clark,
2 Bingham 377.
Rex. v. Duchess of Kingston,
20 State Trials 538.
3 East 357.
Hutchin v. Campbell,
2 W. Blackstone 831.
6 Wheat. 113; Lawrence v. Hunt,
Wendell 83; Wood v. Jackson,
7 Cranch 565.
45 U. S. 4
65 U. S. 24
Greathead v. Bromley,
7 Term 455; Broom's Legal Maxims
(4th ed) 324.
2 Taylor's Evidence § 1513; Henderson v. Henderson,
3 East 346.
2 Smith's Leading Cases, 6th ed., 787.
12 Clark & Finelly, 400.
Stevens v. Hughes,
7 Casey 381.
72 U. S. 5
9 Cushing 348.
5 Gray 316.
13 Meeson & Welsby 137.
1 Stat. at Large 87, § 26; Renner v.
1 Wheat. 218; Mayhew v.
6 Wheat. 129.
2 Saunders on Pleading and Evidence 218; 2 Archbold's Practice
1 Wall. 83; Meyer v.
1 Wall. 384.
Knox Company v.
21 How. 544; White v.
21 How. 575; McCoy v. County of
7 American Law Register 193; Parsons on Bills and
Vose v. Philbrook,
3 Story 336; Hollingsworth v.
3 McLean 472.
Delafield v. Illinois,
2 Hill 177; Williams v.
7 Wendell 112.
2 Parsons on Bills and Notes 393.
68 U. S. 1
Thomson v. Lee
3 Wall. 332
65 U. S. 24
72 U. S. 5
69 U. S. 2
2 Smith's Leading Cases from page 791 to the end of the