¶1dissenting. I do not fully concur in the opinion pronounced by a majority of the court in this case. The only question is, upon the plea of res judicata set up by the defendant. It appears to me, that Maddox had not such an interest in the amount of commissions coming to his co-executor, as to render him incompetent to represent Baldwin as his tutor, as he assumed to do. Not only did he assume to act as tutor in that case, but his attorney at law moved for the homologation of the account, with the exception of the charge for professional services, and it was so homologated, and the judgment in that respect was affirmed in this court. Neither of them appear to have been sensible at that time, of the error as to the amount of commissions. It is clear that the judgment in question, so far as it concernsjdie professional services of Carleton, has the force of res judicata, because Maddox represented Baldwin as his tutor; so that, according to the doctrine settled by a majority of the court, a judgment may be partly conclusive and partly not, *123if the person acting as tutor to one of the parties has an interest in the question though not in the cause. Such an interest in the question might render the tutor less vigilant, but it appears to me does not render him incompetent.
¶2Judgment affirmed.