[Wood v. Wood.] he was, or ever had been a member of said partnership, and averring that said partnership was composed of complainant [W. C. Wood] and J. P. Wood only." It may be added, that the matter of the indebtedness of said mortgagors in said mortgage, was clearly, fully and specifically claimed by said W. C. Wood in his said bill and as clearly, fully and specifically denied by the mortgagors, the defendants therein, and all indebtedness by them thereunder was distinctly denied. The question, then, of indebtedness or not, by them to complainant, W. C. Wood, was clearly and distinctly made in that case, and was an issue therein. Upon a reference to the register, on the issues involved, he found and reported that the partnership was begun on August 1, 1882, and that the members of the firm were complainant, W. C. Wood, J. P. Wood, F. S. Wood, B. W. Wood, and M. A. Wood, the complainant in this suit; he stated an account between the partners, showing a balance due complainant, W. C. Wood, and found a balance of $2, 791.79 due on the mortgage. "On Au gust 6, 1895, the cause was submitted for decree on the exceptions of both parties to the register's report, and on the 3d of February, 1896, in term time, the chancel lor, upon a consideration of all the evidence, decreed that M. A. Wood [this complainant], F. S. Wood and B. W. Wood were not members of said firm of J. P. Wood & Co., sustained defendant's exceptions, overruled those of complainant [W. C. Wood], and overruled the report in toto." On the 5th of February, 1896, and in term time, the cause as it then stood was submitted on pleadings and proofs, and a decree was rendered the same day, dismissing the bill. The court in this decree held, that the complainant was not enti tled to the relief for which he prayed, and that relief should be denied. That decree, which was final, was appealed from by the complainant, and was here af firmed.-Wood v. Wood, supra. Whether there was any. thing due on the mortgage was a disputed question in the case. The indebtedness claimed by the mortgagee was denied by the mortgagors. "The issue [of indebted [Wood v. Wood.] ness vel non] thus presented, involved one of the equities upon which complainant's right to relief depended." It satisfactorily appears from said decree, when construed in connection with the pleadings, that it was determined not only that M. A., F. S. and B. W. Wood were not partners with complainant under the firm name of J. P. Wood & Co., but, also, that said mortgage was fully paid and discharged. One J. M. Hamil had been examined as a witness by defendants in that case, and it appears that on the submission of the cause his deposition was before the chancellor, but was not in the transcript on appeal to this court. The court said: "We have no means of knowing the nature of his tes timony, and hence must presume, as insisted by counsel, that is was sufficient in character and weight, considered in connection with all the other evidence, to justify the conclusion of the chancellor that the firm of J. P. Wood & Co., was composed of complainant and J. P. Wood only; that there was nothing due on the mortgage, or that its conditions had been performed, and that there has been no misappropriation of firm assets, or conversion thereof into other property, as charged in the bill, and to justify the overruling of the register's report." According to this opinion, then, from which we have no reasons now to dissent, the decree of the chancellor ascertained that said mortgage was fully satisfied. That the court did so adjudge, is not to be doubted on the face of the proceedings, and there is no evidence aliunde to the contrary. To support the plea of res adjudicata, "the parties must be the same, the subject-matter the same, the point must be directly in question, and the judgment must be rendered upon that point."-Gilbreath v. Jones, 66 Ala. 132. Or, as the principle is elsewhere expressed, res adjudicata, is determined as existing, "when it is ascertained that the matters of the two suits are the same, and the issues in the former suit were broad enough to have comprehended all that is involved in the issues in the second suit. The inquiry is not, what the parties actually litigated, but what they might and ought to have litigated in the former suit."-Tankersley v. Pettis, 71 [Wood v. Wood.] Ala. 179; Glass v. Meyrovitz, 119 Ala. 152. The decree here comes well within those requirements. On further consideration on application for a rehear ing, the former opinion in the cause is modified and withdrawn, and the foregoing opinion filed in lieu thereof. The judgment of reversal heretofore rendered will be set aside, and one now rendered affirming the decree of the court below. Affirmed. TYSON, J., dissenting. I think it is entirely clear from the decree dismissing the former bill when it is read in connection with the pleadings in the cause and the opinion of the chancellor, that the dismissal was for a variance a failure to prove the partnership as alleged. "It is elementary that if from the decree in a cause there be uncertainty as to what was really decided, resort may be had to the pleadings and to the opinion of the court to throw light upon the subject.”—National Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 234. The opinion of the chancellor was as follows: "On consideration of the legal evidence the court is of opinion that M. A. Wood, F. S. Wood and B. W. Wood named in the bill were not partners of the firm of J. P. Wood & Co. and not liable to account to complainant as prayed in this suit;" then follows, "The court is further of the opinion that the complainant is not entitled to the relief for which he prays;" following these words, is the decree dismissing the bill. On appeal of that cause to this court, it was held that the variance was fatal and justified the dismissal of the bill, without reference to whether there was anything due on the mortgage.-Wood v. Wood, 119 Ala. 183. It is only by argument or inference that the second clause of the opinion of the chancellor, quoted above, can be said to have had reference to the question of indebtedness, vel non, on the mortgage debt, and that the dismissal was on that account. [Wood v. Wood.] Estoppels must be certain to every intent and if upon the face of the record it is left to conjecture or inference as to whether the dismissal was because there was nothing due upon the mortgage or because of the variance, there is no estoppel.-Bigelow on Estoppel (5th ed.), 51-61; Russell v. Place, 94 U. S. 606; Hooker v. Hubbard, 102 Mass. 245; Steam etc. Co. v. Meyrose, 27 Fed. 213; Burlen v. Shannon, 96 Am. Dec. 733; Gilbreath v. Jones, 66 Ala. 132; Greenwood v. Warren, 120 Ala. 78. The question here is, not whether the issues made by the pleadings were broad enough to present for consideration and decision indebtedness vel non upon the mortgage debt, but it is whether that disputed question was necessarily tried and determined. And the fact that it was actually tried and determined must appear with reasonable certainty, and not as a mere matter of inference or argument.-Strauss v. Meertief, 64 Ala. 310. Even a probability will not supply the place of definiteness and certainty, and where an inference is relied upon, it must be a necessary and an irresistible one. How can it be said with any degree of certainty that the dismissal was not on account of the variance, but on account of the finding by the chancellor that there was nothing due upon the mortgage, or on account of both? I do not think the record furnishes a sufficient answer to this inquiry, and, therefore, entertain the opinion that the estoppel relied upon by complainant has not been shown. The inference that the chancellor found nothing to be due upon the mortgage is not a necessary one to uphold the decree. On the contrary, the decree can well be supported upon his finding that there was a material variance. And this, I entertain no doubt, was the ground of dismissal of the bill. [Steiner Bros. v. Stewart.] 1. Steiner Bros. v. Stewart. Action of Trover. Amendment of complaint; when there is a change of parties defendant. In an action against "S. & B. doing business as S. Bros.," an amendment of the parties defendant by eliminating the parties defendant as originally contained in the complaint and substituting in their stead as a party "S. Bros., a corporation," is the introduction of an entirely new party defendant; and such amendment is improperly allowed. APPEAL from the City Court of Bessemer. Tried before the Hon. B. C. JONES. This was an action of trover brought by the appellee, Mrs. M. S. Stewart, against the appellant. From a judg ment in favor of the plaintiff the defendant appeals. The only ruling of the lower court which is reviewed on the present appeal was based upon the court's overruling the defendant's objection to the allowance of the amendment to the complaint. The facts in rerefence to this ruling are sufficiently stated in the opinion. TROTTER & ODELL for appellant, cited Er parte Collins, 49 Ala. 69; Daris Are. R. R. Co. v. Mallon, 57 Ala. 168; Western R. Co. r. McCall, 89 Ala. 375; Leaird r. Moore, 27 Ala. 326; Berry v. Ferguson, 58 Ala. 314; Vinegar Bend Lumber Co. v. Chicago, etc., 131 Ala. 411. ESTES & SMITH, contra, cited Kuhl v. Long, 102 Ala. 563; McConnell r. Worns, 102 Ala. 588. TYSON, J.-This suit originated in a justice court, and was brought against "Sig Steiner and Bernard Steiner doing business as Steiner Bros. and Alex Dallas." This is shown both by the summons and the caption to the complaint. Before trial in justice court, |