V. 0. & I.
take and pay the bonds; and upon the other, to transfer tbb ,stock and receive the bonds for the same. Until the .subscription is made the contract is unexecuted, and obligatory upon neither party." See, also, Town of Concord v. Savings Bank, 92 U. S. 625. Demurrer sustained.
SHUMWAY and others
CmOAGO & IOWA R. Co. and others.
(Circuit Oourt, N. D. Iai'Mu. - , 1880. )
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,being i:Q the Chicago, 'Burlington & Quincy Railroad Company. Admitting that there may be a question as to the part each of the indiy,idul).l defendants may have taken in any act affecting the validity of the stock, still I do not well ,see how, under the facts of the case, and considering the questions involved in it, there can be said to be a controversy which is wholly between Mr. Perkins, who asks for the removal of the cause, and the plaintiffs. If it were admitted that he took a more active part in any transaction which would tend to render, Or which would actually ren ler, the stock invalid, it is difficult to understand how that m ,kes it a controversy wholly between him and the plaintiffs, or between the plaintiffs and anyone of the individual defend'ants. And if it were conceded also that one of the individual defendants was the owner of a portion of the stock, and its 'invalidity was to be 'determined or ascertained from transactions in which the defendants participated jointly, I cannot see that it should be as creating such a controversYibut,as has already been stated, in view of the admitted ownership of the shares of the stock, there cannot be said to be any controversy existing in the case, which is wholly between Mr. Perkins and the plaintiffs, and therefore the application which is made to have the transcript of the record filed, and the cause entered on the calendar, is overruled.
(Circuit Oourt, N. D. New York.
former adjudication is an estoppel only as to the matters in issue or points in controv",rsy, upon the determination of which the finding or verdict was rendertld. OromwelZ v. County of Sac, 94 U. S. 351. BAME-"MATTER IN ISSUE"·-DEFINITION.-The matter in issue or point in controversy is that ultimate fact or state of facts in dispute upon which the verdict or finding is predicated. S. BAME-:MATTER OF EvIDENCE.-Whatever is merely matter of evidence becomes of no importance after the determination of the matter In issue.