1884, theplaintiff commenced an action against the defendant thereon. in this court, for the installment of rent falling due thereon on May 15,1884, wherein, among other things, the due incorporation of the plaintiff, and its power and authority to construct and lease said road, as well as the due execution and validity of said lease, and the power and the authority of the plaintiff and defendant to execute the same, and perform the covenants therein contained, were put in issue and contested by a demurrer to the answer of the defendant therein, and by the judgment of this court thereon were determined in favor of the plaintiff, whereupon, on March 28, 1885, the defendant not making, or offering to make, any further answer or defense to the complaint, final judgment was given thereon for the plaintiff and against the defendant for the sum demanded thereon; (3) that the defendant ought not to be allowed or heard to deny the corporate existence of the plaintiff, or to deny the demise by the plaintiff to the defendant, or the due execution by each of them of said lease as alleged in the complaint, because on June 25, 1885, the plaintiff commenced another action thereon, in this court, against the defendant, to recover three semi-annual installments of the yearly sum of $2,919.90, which the defendant in and by said lease agreed to pay the plaintiff, to meet the expense of maintaining its organization, pending said lease, amounting in the aggregate to $4,379.85, wherein on July 29, 1885, on a demurrer to the complaint by the defendant, judgment was given against it for the amount claimed by the plaintiff; and (4) in the last two actions denies that on July 29, 1885, or other time, in any action then pending between the plaintiff and defendant for the same cause of action set forth herein, any judgment was given in favor of the former or against the latter for the Bum of $4,028.32, or any other sum. On November 28th the defendant moved to strike out the reply of ratification, and the two replies of prior adjudication, and also an averment following the denial therein of any knowledge of the alleged invalidity of the meeting of the defendant's directors at which the lease was authorized, to the effect that said meeting was duly called and held, and the resolution in question. duly passed thereat. The effect of these two contradictory allegations as to this matter of the 'lIleeting in question is to make the denial a sham, or the averment Yedundant, as the party moving against them may elect. 'rhe motions to strike out were allowed as to the averment on the ground of redundancy, and denied as to the replies, for the reason that their sufficiency ought to be tested by demurrer. Thereupon, on January 2, 1886, the defendant demurred to the two replies of former adjudication, and the questions arising thereon were then argued by counsel and submitted. From these replies it appears that certain matters set up in the answers herein as a defense to these actions have been heretofore considered and determined in this court, in an action between these parties, on this lease, in favor of the plaintiff.
OREGONIAN RY. CO. V. OREGON RY. &;
. On a demurrer to a complaint every material matter well pleaded therein is confessed, and if judgment is given thereon, the same is. as conclusive and binding on the parties to the action as though it was given on an issue arising on a denial of the allegations of the complaint; and if a final judgment is given for the plaintiff, on a demurrer to the answer, such judgment is a conclusive determination between the parties of the questions involved in the defense made by such answer, and of the truth of the material allegations in the COlliplaint, and may be pleaded as an estoppel in any other action between them. Gould v. Evansville, etc., R. Co., 91 U. S. 533; Attrora v. West,7 Wall. 99; Goodrich v. City, 5 Wall. 573; Wells, Res. Adj. § 446. In the first action mentioned in the reply it appears that the defendant answered the complaint, and alleged the invalidity of the lease for the reason, among others, that it had no power to exe· cute the same; and on a demurrer to this answer final judgment was given for the plaintiff. In the second one, all the material facts relative to the incorporation of the plaintiff, and· the execution of the lease by the plaintiff and the defendant, were admitted by a demurrer to the complaint, on which there was a final judgment in favor of the former. A judgment in an action on a particular demand is an estoppel in an action between the same parties as to any fact or matter actually put in issue aud determined or admitted it;l the prior action. Davis v. Brown, 94 U. S. 428; Cromwell v. County of Sac, Id. 353; Russell v. Place, Id. 608; Beloit v. Morgan, 7 Wall. 619; Sharon v. Hill, Fed. Rep. 337. Beloit v. Morgan, supra, is a good illustration of the rule, and a case on all fours with this. A judgment was given in an action on a bond against the maker thereof in favor of the plaintiff. The bond was one of a series issued at the same time; and in a subsequent action between same parties, on another of these bonds, it was held that the judgment in the first action was conclusive, as to the valid· ity of all of them. The court said, in substance, that all the objections made to the enforcement of the bonds in the second action might have been made in the first, and that u a party can no more split up defenses than indivisible demands, and present them by piecemeal in successive suits growing out of the same transaction." In this lease there are, so to speak, a suCt.Jessive series of obligations or undertakings by the defendant to pay rent to the plaintiff every half year for a number of years, incurred or assumed at the same time and Udder the same circumstances. In the action brought to recover an earlier installment of this rent the defendant might have made any defense thereto involving the validity of the lease or its liability thereunder, and the question of the validity of the lease, and the liability of the defendant to pay the rent therein reserved, having be£'n determined in favor of the plaintiff in that action, tho
controversy is so far closed, and the defendant is estopped to set up any defense to a subsequent action for the recovery of any other of such installments of rent that existed and might have been made to the former action. On the argument it was suggested that the judgment in the first of the former actions had been taken to the supreme court on a writ of error, and therefore its operation, as a bar or an estoppel, is suspended. It is admitted that the writ of error has been taken as suggested; but even then it is not clear that the court can take notice of the fact on the demurrer to the replication. On the trial of the question made by the reply, the record of the former suit being introduced in support of the allegation therein, the fact that the judgment had been taken to the supreme court on error may be shown by way of confession and avoidance of the reply, if the effect of such a proceeding is to suspend the force and operation of the judgment, as claimed. But considering, for the time being, that the admission of the plaintiff's counsel as to the writ of error is a part of the reply, the estoppel of the former judgment is not affected thereby. A writ of error does not suspend the operation of a judgment as a bar or an estoppel. It is not an appeal, which is so far a continuation of the original suit, but a proceeding in the nature of a new action to annul and set aside the judgment of the court below, which is not thereby vacated or affected pending the proceeding. Railway Co. v. Twombly, 100 U. S. 81; Sharon v. Hill, 26 Fed. Rep. 337; Preem. Judgm. § 328. A writ of error from the supreme court to this is not a proceeding under the Code, but the common law, as modified by the Revised Statutes. The declaration of the latter clause of section 505 of the Code that an action "is deemed pending from the commencement thereof until its final detel'mimttion upon appeal," has no application to an action in this court,-at least after it has terminated in a judgment for either party. The proceeding for the review of such a judgment is had in the supreme court, and is not within the operation of section 914 of the Revised Statutes, conforming the praccice in the circuit and district courts to that of the state courts. But it is also admitted that no writ of error has been taken to the judgment in the second action mentioned in the reply, and there is therefore no question that it is an estoppel as to all the material matters admitted by the demurrer to the complaint therein. The motions to strike out portions of the answers are allowed, except as to the clauses numbered 3 and 8, and as to these they are disallowed. The demurrers to the answers, inclu4ing the matter in said clauses 3 and 8, are allowed, and the demurrers to the replies are uverruled. This leaves the cases for trial on the questions of fact arising on the replies of ratification and prior adjudication to the answers of the defenda'ht, the former being, by section 92 of the Code, "deeme-d controverted by the adverse party, as upon a direct denial of avoid-
HOSFORD '11. HOTCHKISS.
ance, as the case may require," without any actual rejoinder thereto; and the issues made between the replies in numbers 1,120 and 1,14:3. to the defenses of former judgments in actions on the same cause of action.
«(Ji1'euit Cowrt, E. D. New Y01'k.
HUSBAND AND WIFE-SEPARATE ESTATE-PROMISSORY NOTE-INDORSEMENT BY WIFE OF MAKF:R-LIABII,ITY.
Where a promissory note was made by one H., payable to the order of his wife, who thereafter, before the delivery of the note, signed the following indorsement: "Pay to the order of P. For value received, I hereby charge my separate estate with payment of within note;" and there was no protest or notice of non-payment of the note: held, in an action seeking to charge the wife as joint maker, that her liability was simply that of an indorser.
At Law. Demurrer to complaint. John McDonald j for plaintiff, Louisa P. Hosford. John E. Parsons, for defendants.
BENEDICT, J. On the fifteenth day of May, 1879, one Philo P. Hotchkiss made his promissory note as follows:
"NEW YORK, May 15, 1879. "Three years after date I promise to pay, to the order of Georgiana I. Hotchkiss, five thousand dollars, at the American Exchange Bank, value received, with interest at the rate of seven per cent., payable semi-annually. Due May 18, 1882. "PHILO P. HOTCHKISS."
Georgiana 1. Hotchkiss was at the time of the making and delivery of the note, and now is, the wife of the maker, and was then and is now possessed, in her own right, of a separate estate. She, before the delivery of the note, wrote upon the back as follows:
"Pay to the order of Mrs. Louisa P. Peet. For value received, I hereby charge my separate estate with payment of the within note. "GEORGIANA 1. HOTCHKISS."
Upon these facts, the question raised by the demurredo the complaint is whether, there having been no protest or notice of non-payment of the note, Georgiana 1. Hotchkiss can be held liable to pay it as joint maker thereof with her husband. Upon this question my opinion is that the defendant cannot be held liable upon this note in question as joint maker. Her writing on the back of the note contains no promise to pay. What she did was to write an indorsement on it by the words, "Pay to the order of Mrs. Louisa P. Peet." She then wrote: "For value received, I hereby charge my separate estate with the payment of the
by R. D. & Wyllys Benedict., Esqs., of tie Xew York bar.