any claim to recover for the services and expenses now claimed by him and that the court did not pass upon his present claim, and in proof of this he offered in evidence the record and files in that case. The record showed that the declaration in that action contained a special count upon the written contract above stated, and a general count for work and labor, and for money expended, and that the judgment was a general judgment for the defendant.

The court was of opinion and decided that the appellant was barred from recovering upon his present claim for services and expenses by reason of the judgment, and thereupon rendered judgment for the appellee. The appellant filed a motion for a new trial for error in this ruling of the court.

F. L. Hungerford (with whom was Graves and Morrill), in support of the motion.

Hitchcock, contrà.-The claim sought to be enforced in this proceeding is res adjudicata. The case of Hungerford v. Hicks, 39 Conn. 259, was tried in the Superior Court. It was an action of assumpsit, embracing a special count founded on a special contract, and counts for work and labor, and for money laid out and expended for the defendant at his special instance and request. To this action Hicks pleaded the general issue. So the parties were at issue on the question, whether or not Hungerford had any honest claim against Hicks for labor done and performed, or for money laid out and expended for him at his request. And that is the very issue involved in this proceeding between the same parties.

We say, therefore, that in the declaration in the action of assumpsit, between these same parties, Hungerford had appropriate counts for this claim; that he there declared that Hicks was indebted to him for work and labor, and for money laid out and expended; that Hicks by his plea denied this; that the parties were thus legally and fairly at issue as to whether Hungerford had any such claim against Hicks; that Hungerford introduced proof to satisfy the court of the truth of this claim; that the court rendered judgment, generally, against Hungerford; and that Hungerford moved for a new trial, on the ground that the Superior Court did not render judgment in his favor on this identical claim, under the common counts in his declaration. Is not, therefore, this claim res adjudicata? "Parties will not be permitted to litigate what

VOL. XXIV.—11

they once had an opportunity of litigating in the course of a judicial proceeding; but whatever might have been put in issue in that proceeding shall be concluded to have been put in issue and determined:" McDowall v. McDowall, 1 Bailey's Eq. Rep. 324.

PARDEE, J.-It is a well-settled principle of law that whenever a court of competent jurisdiction has judicially tried and determined a right or a fact, the judgment thereon, so long as it remains unreversed, shall be conclusive upon the parties and those in privity with them in law or estate.

This trial and determination must be upon pleadings wherein is an averment of a fact precisely stated on one side and traversed on the other, and found by the court or jury affirmatively or negatively in direct terms, and not by way of inference. Such a result would be obtained where an issue is reached by special pleading; rarely, when the general counts in a declaration are met by a general denial.

In our modern practice it is usual to insert several general counts in a declaration and when the general issue is pleaded to these many different claims may be tried. When upon pleadings thus framed a general judgment is rendered, and is thereafter pleaded in bar, it is primâ facie evidence of a prior adjudication of every demand which might have been drawn into controversy under it; but, like other prima facie evidence, it may be met and controlled by other competent evidence tending to show that any particular demand or claim was not presented or considered : Sawyer v. Woodbury, 7 Gray 499.

In Kennedy v. Scovil, 14 Conn. 68, this court said, that, "in order to constitute a former judgment an estoppel, or in other words, to render it conclusive on any matter, it is necessary that it should appear that the precise point was in issue and decided; and this should appear from the record itself." And, in Dickinson v. Hayes, 31 Conn. 423, the court say: "Where two or more distinct causes of action are sued for in the same declaration and there is a general verdict and judgment for the plaintiff or a judgment for him on default, the record of such judgment is not conclusive evidence that both or all of those causes of action have been passed upon or adjudicated. Thus, in Seddon v. Tutop, 6 Term Rep. 607, the plaintiff sued upon a promissory note and also for goods sold. The defendant suffered judgment by default, and

upon executing the writ of inquiry, the plaintiff being unprepared with evidence regarding the goods, took his verdict and judgment for the note only In a subsequent action for the goods it was held that the judgment in the first suit was no bar to the plaintiff's recovery in the second, and that the plaintiff was at liberty to prove what took place at the first trial for the purpose of showing that his verdict and judgment then, did not include the price of the goods sued for now."

The right of the appellant to recover $1000 from Hicks upon the special contract may have been the issue which was tried and determined in the original suit; the same is true of his right to recover the reasonable value of his services upon the direction of Hicks to "go on and make a noise about the property;" also, of his right to recover for money laid out and expended for and at the request of Hicks, the record, showing merely a general judgment for Hicks, leaves it wholly uncertain, without other evidence, whether or not the right of the appellant to recover the claim which he has presented to the commissioners was put in issue, tried and determined in that suit.

Upon these principles, the record in question cannot be deemed conclusive for the purpose for which it was offered in evidence. The appellant is entitled to the privilege of showing that the claim which he now presents was not put in issue, tried or determined in the original suit

There is error in the judgment complained of, and it is reversed. In this opinion the other judges concurred.

It seems to be well settled, as a general rule, that a former recovery for the same cause of action, is to be regarded as an equitable defence, and need not be specially pleaded under the old rule of pleading, requiring estoppels by record to be specially pleaded, under penalty of being regarded as waived by the party: Stafford v. Clark, 2 Bing. 277: Gray v. Pingry, 17 Verm. 419423. A former recovery for the same cause of action is as much an equitable defence as payment or accord and satisfaction, and no more subject to any special stringency in pleading.

And we may here state that by the

always that each particular of the items of the former recovery, and the present action, shall be precisely identical. As one entire cause of action cannot be so subdivided as to maintain separate actions upon the different items, it follows that if the former judgment embraces any of the items in the present action, it will be a bar to the subsequent suit. Thus a conviction for a common assault will bar any future prosecution for the same assault, with intent to kill, or to commit rape Re Thompson, 9 W. R. 203. This point was involved to some extent in the recent English case-Wemyes v. Hopkins, 23 W. R. 691; L. R. 10 Q. B. 378-where a prosecution un

der one statute was held to be a bar to another for the same offence, although in a different form and under a different statute. This view is decisive of the only question actually raised in the principal case.

The dictum, that where the former adjudication is relied upon as an estoppel in regard to particular facts, it must appear by the record in the former action that such facts were in issue and directly passed upon, and the estoppel must be so pleaded, is well settled: Vooght v. Winch, 2 B. & Ald. 668; Outram v. Morewood, 3 East 345; Hopkins v. Lee, 6 Wheaton 109; Fairman v. Bacon, 8 Conn. 418; Gray v. Pingry, supra.

It is said in some cases that where the question was, in fact, determined in the former action, but that does not appear upon the record, and where of course it cannot be pleaded as an estoppel of record, it may nevertheless be

given in evidence in any subsequent ac
tion between the same parties, where
the same facts are involved, and will
have such weight as the triers choose to
give it: Vooght v. Winch, supra; Outram
v. Morewood, Gray v. Pingry, supra.
The precise effect of such a new finding,
when acted upon in a subsequent action,
seems not well settled. Our own views
were expressed in the case last cited,
and need not be repeated. And it is
well settled that a judgment-bond upon
specific recitals upon the record will
not, as matter of course, prove such re-
citals to the full extent, but only so far
as is requisite to uphold the judgment:
Burlen v. Shannon, 99 Mass. 200; Phil.
Ev., ch. 2, 22; Hotchkiss v. Nichols, 3
Day 138; Coit v Tracy, Conn. 266;
where it is said: "Facts found by a
former decree, which were not necessary
to uphold the decree, do not conclude
the parties."
I. F. R.

Supreme Court of Errors of Connecticut.

ABIGAIL HANFORD v. HARVEY FITCH AND OTHERS.

The petitioner in 1820, then a married woman, joined with her husband in mortgaging for his debt a piece of land owned by her, soon after which she removed with her husband from the state, and they continued to reside out of the state until 1869, when he died. Immediately after the execution of the mortgage, C., a creditor of the husband, attached his life-interest as tenant by the curtesy in the land, and afterwards had it set off to him in part satisfaction of the judgment which he obtained. In 1822, C. purchased the mortgage interest, taking a quit-claim of the land from the mortgagee, and three months after he conveyed the land by a warranty deed to a purchaser, from whom by sundry conveyances the land came in different parcels to the respondents. The land was originally of little value, unfitted for cultivation or for building purposes, but the respondents had at great expense graded and erected houses and other buildings upon it. At the time C. made the conveyance he was in actual possession of the land, but it did not appear when he took possession nor whether under his mortgage title or that derived from the levy of his execution. No interest upon the mortgage debt was ever paid by the petitioner or her husband, nor was any attention given by either of them to the property before his death. After his death, the petitioner inquired about the property and demanded possession, which being refused she brought a bill in equity to redeem. Held, 1. That if C. was to be regarded as having taken possession under the levy of his execution the petitioner would not be barred by the

Statute of Limitations.

3.

2. But that, in the absence of any evidence on the subject, and after so great a lapse of time, the court would presume that he had abandoned his claim under the levy and had taken possession as mortgagee. That his possession as mortgagee, and that of those deriving title from him, being adverse to the petitioner, she would be barred by the Statute of Limitations. (Two judges dissenting.)

A married woman who executes a mortgage of her land with her husband, is not saved by her coverture from the running of the Statute of Limitations against her title in favor of the mortgagee.

BILL to redeem mortgaged premises and to remove a cloud from a title; brought to the Superior Court in Fairfield county. The following facts were found by a committee:

In 1812, the petitioner was married to one Zalmon Hanford, with whom she lived thereafter till his death, which took place in 1869. There was issue of the marriage born alive, and capable of inheriting the property hereinafter mentioned.

In 1818, the land in question was conveyed to the petitioner by David and Silas C. Lockwood, who were the lawful owners of the same. The consideration for the conveyance was the sum of $550, which was paid out of the proceeds of a prior sale of real estate belonging to the petitioner, and which she had inherited from her mother.

On March 14th 1820, Zalmon Hanford was indebted to Eli B. Bennett of Norwalk, by his promissory note of that date, in the sum of $224.08, payable on demand, with interest, the consideration of which was dry goods, groceries and provisions, before that time sold by Bennett to Hanford, as supplies for his family; and to secure the payment of the note, the petitioner and said Zalmon. on that day executed and delivered to Bennett a mortgage of the land in question, which was on the same day recorded in Norwalk.

Very soon after the execution of the mortgage, the petitioner and her husband left Norwalk, and went to reside in the state of New York, where they lived about thirteen years, and then removed to Ohio, where they remained until about the year 1843, and then removed to the state of Illinois, where they resided till his death, and where the petitioner still resides.

any

actual pos

Neither the petitioner nor her husband ever had session of the land after their removal from Norwalk, and Bennett never took possession. At the time of their removal it had been. cultivated only to a limited extent, and no buildings had been erected upon it.