Former Adjudication

A previous determination of the matter in litigation by a competent court between the same parties. To constitute a former adjudication which will bar subsequent litigation, it is essential. (1) That the judgment be final and upon the merits. 115 111. 29; 103 Mass. 280; 78 Mich. 234; 74 N. Y. 449; 82 N. Y. 55; 94 U. S. 851. Thus, a mere nonsuit (48 Me. 353) or dismissal because the action is premature (35 N. Y, 279) is not a bar to a subsequent action. (2) The court must have had jurisdiction of the parties and the subject matter (93 U. S. 277; 132 111. 213), but it may be a foreign court (26 N. Y. 146). (3) The same issues must have been involved (25 N. Y. 613), but the issues include every point which is either expressly in issue, or which Must have been decided to support the judgment (24 Wis. 124. See 2 Smith's Lead. Cas. 63, and note); and the adjudication is conclusive not only as to what was actually litigated, but as to all that might have been litigated under the pleadings and issues made (70 111. 385; 102 N. Y. 452). (4) As respects adjudications in personam, the adjudication must have been between the same parties or their privies (24 How. [U. S.] 241), and in the same capacity (58 N. Y. 463), but their position as plaintiff and defendant need not be the same if they be adversary parties (86 N, Y. 390; 61 Iowa, 290). Privies of a party are bound to the same extent as the party himself. See "Privy. 69 111. 457; 68 Iowa 145. Lessor and lessee (46 Mo. 444), bailor and bailee (12 N. Y. 343), assignor and assignee (17 Mass. 365), mortgagor and mortgagee and wife (110 N. Y. 394), or guardian and ward (27 Pa. St, 226), are not. A judgment in rem is conclusive as to the property in question and the title thereto without issues or parties. 23 Wall. (U. S.) 463.

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