,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.
SMITHt1. TOWN OF ONTARIO.
&,SAME-AGENcY.-Therefore, an adjudication that Certain bonds were originally issued by the agents of the defendant without authority, will preclude the plaintiff from showing in another action a ratification by the defendant 'ohheacts of his agents. , '
Motion for aNew Trial. C. T. Richardson and Albertu8 Perry, for complainant. ' W. F. Coggswell, for defendant. WALLACE, D. J. This motion for a new trial involves the single question whether' or not the judgment in the former action between the parties concludes the plaintiff upon the issues in the present suit. The former action was brought to recover instalments of interest on certain bonds of the defendant falling due April 1, 1875. The present action is to recover instalments of interest on the same bonds falling due APfil 1, 1876. In the first action a verdict for the defendant was directed by the court· and judgment was entered accordingly. The defendant now' insists upon that judgment as conclusively establishing the defence that the bonds are invalid. The complaint in the first action alleged, in 8ubst'ance, that the bonds were executed and issued by agents of the defendant, in compliance with authority conferred upon the. agents by statute. The answer controverts these allegations. Upon the teial the defendant moved the court to direGt a. verdict for the defendant, upon the ground that the agents had issued the bonds without compliance with the statute in several specified particulars. The court ruled with the defendant, and ordered a verdict accordingly. In th& present action the same issue is presented by the pleadings, but upon the trial the plaintiff proved that, after the bonM had, been issued, the defendant .ratified the acts of the agents in executing and issuing the bonds. In the former action some evidence was given which tended to prove a. ratification, bd the point whether there had been such ratification or not was not decided or considered. The precise question now is whether the plaintiff is precluded, by the former adjudicWliion, from showing that, although the bonds were 'Griginally
by the agents of the defendant without authority, their Batt were afterwards ratified by their principal. . In 'a recent case, of cOIltrollinga1J.thority, (Cromwell v. County of Sac, 94 U. S. 851,) the rules which furnish the test whether or not a former adjudication is an estoppel, have been defined. so explicitly as to remove the uncertainty which has existbd in a class of cases as to which there have been many conflicting expressions. The general rule, that the judgment of a court of concurrent jUrisdiction is as a plea, a bar, or as evidence conclusive between the same parties upon: the same matter, directly in questioIi in another court, has been repeated in all the adjudications since it was enunciated by Lord Chief Justice De Grey in the Duckess of Kingston's Case; but many authorities are found which declare that the estoppel applies not only to pdints upon which the coul'n was a.ctuaJlyrequired to form an opinion anrlpronounce judgment, but also to' every point. which belonged to the subject of the issue, and which the parties might have brought forward at the time. Perhaps no more striking illustration of the extent to which this doctrine has been carried can be found, than in the decisions of the court of appeals of this state, where it is held that a recovery by a surgeon for professional services is conclusive in his favor when sub13equently sued for malprac-: tice in performing such services, although the point whether the services were properly performed was not presented or contested in the former suit. Gates v. Preston, 41 N. Y.113; Blair v. Bartlett, 75 N. Y. 150. It is unnecessary to refer to cases like Davis v. Hedges, Law Rep. 6 Q. B. 687, and Mondet v. Steele, 8 Mees & W. 858, which are directly to the contrary effect ; but there are expressions of opinion in cases in the supreme court prior to Cromwell v. County of Sac, which indicate that the estoppel extends not only to the matters of fact and law which were decided in the former action, but also to the grounds of recovery or defence which might have been but were not presented. Beloitv. M01'[Jan, 7 Wall. 619; Aurorav. West, 7 Wall. 106. In Cromwell v. County of Sac, however, the conolusiveness
SMITHV. TOWN OI'ONTARIO.
01 the estoppel'its to all matters which might 1 ha'\'6 been liti:·
gated, but were not in fact, is confined to' cA,ses where:the second action is brought upon the same claim or cause of action as that on which the first was brought ; and ·it'iS' lleld that, when the second action between the same partields'upon a different claim or demand, the 'judgment in the pri6raction operates as an estoppel on1yas to those matters in Issue or points controverted in the forril:er action, upon the determination of which the finding or verdict was rendered. .Accordingly, it was decided that where the' plaintiff had been defeated in an action upon coupons of county bonds, upon the ground-that the bonds were void against the county because they had been fraudulently issued by the county judge; that ju.dgment did not conclude the plaintiff in a subsequent action against the county, bronght upon subsequently maturing coupons of the same bonds, in which it was made to appear that the plaintiff was an innocent purchaser of the coupons for value and before maturity. The decision proceeds upon the ground that the question whether the bonds were void as against an innocent holder, for value and before maturity, was not litigated or determined in the former suit, and was therefore open to be litiv,ated in the second action. Accepting Cromwell v. County of Sac as decisive of the doctrine that the former adj udication is an estoppel only as to the matters in issue or points in controversy, upon the determination of which the finding or verdict was rendered, it remains to apply that doctrine to the present case. Concededly, it was not decided that the acts of the agents in issuing the bonds did not bind the defendant, notwithstanding the defendant ratified the transaction, because the effect of the ratification was not considered. But it was decided, upon all the evidence in the case, that the acts of the agents were not binding upon the defendant. Now, what was the matter in issue or point in controversy in that action, within the meaning of the rules of estoppel? Cromwell v. County of SM is an authority that in an action where there was no issue as to the right of a bona fide purc:u1.ser to recover upon bonds, that
questiop was not concluded in a subsequent action by the adjudication in the former action. But that case does not decide that a former adjudication will not be conclusive upon a given question unless the decision turned upon precisely the same evidence as that which is introduced in the subsequent action. The doctrine of estoppel becomes of very little practical value if, whenever a former adjudication is relied on, the former can be distinguished from the second by somo variations in the evidence. The matter in issue or point in controversy may involve a number of minor issues, and it cannot be said not to have been decided because Bome of these minor issues were not specifically considered. The matter in issue has been defined in a case of leading authority as "that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleading." King v. Chase, 15 N. H. 9. The issues presented by the pleadings may be modified by the proceedings upon the trial, as where a defence is withdrawn from consideration, or where a count in the declaration is aba,ndoned. However this may be, the matter in issue or the point in controversy is that ultimate fact or state of facts in dispute upon which the verdict or finding is predicated. If, in an action upon a note, the·.defendant denies the execution of the note, and a verdict is found for the plaintiff, the fact that the defendant executed the note is established finaUy for the purpose of aU subsequent litigation between the parties. It may be that this conclusion was reached upon the consideration of various subordinate facts which do not appear in the subsequent action, or which stand alt61'ed by the case newly presented, yet matter in issue is concluded by the former adjudication. So, in an action against a principal upon a contract made by an agent,where t4e denies the agency and the judgment is for the defendant, the fact that there was no agency is forever established for the purposes of future actions between the partie.s. It may be that the fad of an agency was attempted to be proved, on the trial of the former action, by aha ;'i-iug that the defendant had held out the per-
SMITH l1. TOWNOll'· ONTARIO.
son as his agent, but the conclusiveness of the adjudication could not be overthrown in a subsequent action· by proof of So written authority which was not given upon the trial of the former action. In short, whatever is merely matter of evirlence becomes of no importance after the determination of the matter in issue. If these views are correct it is not difficult to determine what '. in issue or point in coptroversy in the preswas the ent case. The issue was whether or not the acts of the agents in issuing the bonds were, in fact and in law, the acts of the defendant. It was determined that they were not. The point in controversy was not how or whereby the acts of the agents became the acts of the principal, but whether they were so. The plaintiff sought to establish the issue in his favor by showing a statutory authority in the agents. Instead of doing this, the plaintiff might have shown that the defendant had adopted the acts done in his behalf. A subsequent ratification is equivalent to an original authorization. Either mode of proving the agency was permissible under the pleadings, and the allegations of the pleadings in that behalf are the Bame in the present action as in the former one. The ultimate fact to be proved was the agency; the manner of proving it was merely a matter of evidence. The plaintiff can no more be permitted to re-open the matter in issue t,hus settled, by the new evidence which he offered here, than he could be by giving in evidence new or additional facts showing compliance with the statutory requirements. Unless these conclusions express the correct view of the effect of a former adjudication, it would be wiser to abrogate all the rules which comprise the law of estoppel relating to the conclusiveness of former judgments. They are intended to give permanence to established rights by refusing to re-open controversies which have once been tried, and in which the parties have had full opportunity to bring forward their proofs and present the merits of their case. If a controversy once tried and determined is to have no effect whenever different evidence upon the same matter in issue qa,n be produced, the
only practical result would be to add to the ordinary complications of a. trial those which would arise by retrying at the same time a. former controversy also. Tbe motion for a. new trial is denied.
SMITH and others.
(Circuit OQ'Urt, D., NebrasJca,. November 11, 1880.)
OF defendant cannot acquire the right to have his cause removed to the federal courts by the purchase of the interests of his co-defendants.· CONTEMPORANEOU8 ATTACHMENTB.-Five several attachments were sued out on five distinct claims, and were all levied at the same time upon a certain stock of goods. Held, that the controversy as to the ownership of the stock of goodll was 8 single controversy between the plaintitfa on one aide, and all the attachment creditol1l ul-onthe other .ide.
Motion to Remand. - - , for plaintiffs. - - , for defendants. MCCRARY, C. J. We have considered the motion to remand. This was a suit brought in the state court-a replevin against the sheriff of Saline county to recover possession of a stock of goods which the sheriff held under five several writs of attachment. The sheriff appeared in the state court, and moved to substitute the judgment creditors as the real parties in interest, and that motion was sustained. Two of these judgment creditors are citizens of this state, one of them is a. citizen of Iowa. After the subtitution of the judgment creditors as defendants, the Iowa firm appeared in the state court and moved to be substituted as sole defendant, alleging that they had become the purchasers of the claims. There is nothing'in the record to show that motion was acted upon by the sta.te court, but immediately upon its being filed the non-See Hoyt v. Wright, 4 FED. REp. 168.