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is a provision in the policy that the company will " Wbat is the interest in the property which is pay in thirty, sixty, ninety or any other pum- the subject matter of the insurance which sball berof days after proofs of loss bave been served, make the contract valid? We think the best the limitation does not attach until after the definition to be, any such interest as shall make period wbich the Company has in which to pay the loss of that property a pecuniary damage ihe loss bas expired. The limitation cannot ap to the insured. The most common form of ply until a right of action has accrued, and, un- this is the direct interest of absolute ownership. til the period which ihe company bas to pay the But it is certain that the insured peed not be an loss in bas expired, no right of action exists. owner, if he be so circumstanced with respect New York v. Hamilton F. Ing Co. 39 N. Y. 45; to the property that he will derive some pe Chandler v. St. Paul F. & M. Ins. Co. 21 Minn. cuniary benefit from tbe safety of the thing or 85; Ellis v. Council Bluff Ins. Co. 64 Iowa, 507; its continued existence, and some injury from Hay v. Star F. Ins. Co. 77 N. Y. 235; May, Ins. its destruction.” $ 479.

Tbis doctrine is supported by high authority. The case in this court, of Barber v. Wheeling Lucena v. Craufurd, 2 Bos. & P. N. R. 269; H. & M. Ind. Co., 16 W. Va. 658, strong's Buck v. Chesapeake Ins. Co. 26 U. 8. 1 Pet. leans to, in effect sustains, this position. The 151 (7 L. ed. 90); opinion in Hooper v. Robinpolicy involved in that decision contained a son, 98 U. 8. 538 (25 L. ed. 221). provision that the loss should be paid sixty A cbarterer may insure. Bartlet v. Walter, days after proof, and, further, that itber party 13 Mass. 267; Robbins v. Nero York Ins. ('0, í miglit ask an arbitration, and that no suit Hall, 325, should be brought until afterwards, and a pro- The very fact that the Company, having opvision that no suit should be maintained unless portunity to inquire, if it wished, as to the inwithin six months after the loss should occur. terest of tbe assured, and that it did issue to This court beid that it provided for an indefi- bim a policy, is prima facie evidence of bis innite period before suit, and that the “intent of surable interest, placing the burden op it to the parties to the contract was that the six- disprove it. Sheppard v. Peabody Ins. Co. 21 monibs' limitation should commence to run W. Va. 318. when the cause of action accrued, and not be. Thus, Murdock has relations recognized by fore.

Tbere that was upon the award. Here the law of insurance to this barge, and was not no arbitration is provided nor can we say ap a mere stranger to it. Then the further quesindefinite period is to elapse before suit; but ittiop arises, Did this policy cover only Murdock's is provided that the Company has sixty days in interest, or also that of Hare? We think it which to pay after proof of loss. So, that case covered the interest of Hare as owner of the is authority for the position (1) that the limita- barge. The fact that the policy is “op account tion dois not begin until cause of action accrues; of steamboat Charleston and owners," and that and (2) that it does not begin from the actual this barge is tbe ibing insured, and that it was loss, -ibus departing from the letter of the to be towed by the steamboat, leads us to the policy. The Company insists that it denied its conclusion that this word “owners” was inliability by letter from its secretary on April tended to cover the ownership of the barge, 25, 1868, saying: "I do not think there is any and, at any rate, that oral evidence may be liability on this Company for the loss of said beard to establish that fact. Murdock's evibarge; hence I cannot give you any instructions dence is tbat be stated, when the policy was in the case. Supposing that you will be bere negotiated to the Company, that the policy was soon, we will then give you our reason for this to protect bimself and Hare, the owner of the opinion.”

barge. He was the charterer or bailee of the This is not an absolute, unqualified denial of barge, and acted berein as agent of Hare. liability, but contemplated further interview; The opinion in Hooper v. Robinson, 8v pra, and were it such, according to the opinion in 2 lays down the proposition that "the agent, Parsons, Marine Ins., 480, the insured must wait factor, bailee, carrier, trustee, consignee, mortuntil the time for payment has gone.

gagee and every other lienholder may insure It is next contended by counsel of appellant to the extent of his own interest in that to tbat Murdock bad no insurable interest in the wbich such interest relates; and by the clause barge Joseph McDonald, and that at any rate, on account of whom it may concern,' for all under this policy, Hare, the owner of it, could others, to the extent of their respective interpot take its benefit, because of its being express, ests, where there is previous authority or sub ly “on account of steamboat Charleston and sequent ratification." owners.” The policy reads: “On account of The syllabus announces that a policy to A steamboat Charleston and owners, loss payable "on account of whom it may concern, or with to Captain Thomas Murdock. This policy of other equivalent terms, will inure to the interest insurance witnesseth that the Franklin Insur- of the party for whom it was intended by A." ance Company, by these presents, do cause to It seems to us the word "owners” in this polbe insured, lost or not lost, in the sum of $1,000 icy meets this requirement, and thus includes on the barge James McDonald, towed by the Hare's interest, as we do not tbink it was insteamboat Charleston, from Wheeling," etc. It tended to refer to owners of steamboats. The is plain tbat it was the intention of The parties words “on account of owners" mean anyono to insure against loss to the barge. Murdock's intended, who is an owner of the thing insured. relation to it, having chartered it of its owner, 1 Parsons, Marine Ins. 47. Hare, and being in possession and custody of But, outs de of the principle that there it for the trip for business for profit, gave him must be words like " or whom it may conan insurable interest in it.

cern," or any aid from the word "owners," in Parsons, in his work on Marine Insurance this policy, this court has gone further in Shep(vol. 1, p. 161), asks and answers the question: pard v. Peabody Ins. Co., 21 W. Va. 368, holding that, “if a party has the care and custody showed that the absolute owner of the property of property, he may insure it in his own name, was Hare, pot, as the declaration alleged, Mureven though he be not responsible for its safety, dock; but with it was evidence that Murdock if he really insured it for the owner, though bad lawful possession of the property, and as this be not expressed on the face of the policy, agent insured it,-facts which operated lo nulli. for, in such case, he has an insurable interest; fy the variance, and made that no variance which and, in general, to give a party an insurable in- without such facts would have been a variance. terest in property, it is not necessary that be The agent's right to sue in bis own should bave any actual right of property, either name, wbere [as bere] the instrument is in legal or equitable, in the subject insured, but its terms payable to him, is the same, whether it is su "cient if he, or those whom he represents, be a promissory note, bill of exchange, check will suffer any sort of loss by its destruction.” bill of lading, policy of insurance, bond and

And in Deitz v. Providence Wash. Ins. Co., 31 the like instances." 1 Wait, Act. and Def. 279. W. Va. 851, it is held that “wbere a contract, In policies of insurance it is a common pracnot under seal, is made by an agent in his own tice to bring your action either in the pime of name, for an undisclosed principal, either the agent or principal. Sargent v. Morris, 3 Barn. agent or the principal may sue upon it, and & Ald. 277, cited, 3 Rob. Pr. (New) 35. parol evidence is adinissible to enable the prin- Again, Murdock was, as charterer of this cipal to slow that he is the real contracting barge, a bailee in actual possession, having party.”

thus a special or qualified properly. As such Hare ratified Murdock's act of insurance, and bailee he could maintain trespass or trover for this policy was assigned to bim.

its injury or loss. 3 Rob. Pr. (New) 415, 416. The couris are justly liberal to the insured in No proposition is better settled than that these matters, because the company has insured either hailor or bailee may maintain action in the property against loss, and when loss comes respect of it against a wrong.doer,—the latter it is only bolding it to do wbat it contracted to by virtue of bis possession; the former by reado, and it cannot harm it beyond what it con- son of his property. 2 Rolle, Abr. 551; Com. templated when it issued the policy, that the Dig. Trespass; 3 Rob. Pr. (New) 416; 6 Wait, owner takthe benefit, though not named, un- Act. and Def. 104; 2 Addison, Torts, $ 520; 1 der one who acted for bim. Appellant sug. Hilliard, Torts, 494. gesis that the declaration is in the name of Mur. In criminal pleading property may be laid in dock, in bis own right, and on a policy trtated the indictment as the property of bailee baring by the declaration as made to bim, and averring special property. 2 Bishop, Crim. Proc. $721. the barge to be his also; whereas the evidence No matier that the recovery by the agent or shows that the ownership of the barge was in bailee, wben effected, will be for the use of an. Hare, and only a mere rigbt and possession in other. Murdock as a charterer, and the loss proven is The court's opinion in Rhondes v. Blackixion, thus Hare's, not, as the declaration states, a loss 106 Mass. 334: “It is a well-establisbed rule to Murdock by destruction of bis property. of law that when a contract, not unuler senl, is

It is settled by Deitz v. Providence wash. Ins. made with an agent in his own name, for an Co., supra, that an agent, upon a contract made undisclosed principal, either the agent or the in bis name, for an unnamed principal, may principal may sue upon it. If the agent sues, sue in bis own name. In declaring on such a it is po ground of defense that the beneficial contract, be is to follow its letter, treating bim- interest is in another, or that the plaintiff, self as bolding the legal title under it as payee when be recovers, will be bound to account to or contractor. The fact that he may sue in his another. There is an additional reason for own name imports that, as the contract is in giving this right to the agent when be bas a bis own name, be may plead on it as such. If special interest in the subject matter, or a lien he may sue in his own dame, why, in describ- upon it. But the rule prevails wben the sole ing the property. may be not describe it as in interest under the contract is in the principal. the contract as his, and the loss as to bis prop-The agent's right is, of course, subordinate to erty?

and liable to the control of the principal, to the The case of Deitz v. Providence Wash. Ins. Co. extent of his interest. He may supersede it by says that an agent may take an insurance in suing in his own name, or otherwise suspend the name of bimself for property not owned by or extinguish it, subject only to the special him, and sue on the policy in his own name. right or lien which ihe agent may bave acThus, in effect, it bolds that an agent may in- quired.” See Wood, Ins. $ 279. sure another's property without the words and Again, if the word “owners” in this policy owners” or oiber equivalent words, and sue in makes it an open policy, like the words "or his own name for the use of another party. If whom it may concero" or "owners," as I have BO, must be not necessarily, in declaring upon above beld, Murdock might sue on it for the the policy, allege the property and consequent use of Hare. Wood, on Insurance, 818, lays loss as bis? It will be said that in Deitz v. it down that “where the policy is open, and Providence Wash. Ins. Co. a statement, treated as payable 'to whom it may concern,' an action part of the declaration, averred the property to may be maintained in the name of any person belong to the true owner, but that such is not baving an insurable interest in the property, the case here. That statement prevented any whose interest and relation to the property is variance between the allegation of property such that he can be said to have been wiihin and proof of property, both showing the prop: the contemplation of the parties, and the dec. erty to be in the wife; but it is not perceived laration must show such interest and relation; that it altered the right, existing without it, of or the person interested may maintain an ac the agent to sue and declare in his own name. tion in the name of the assured, for his benefit When, in this case, the evidence came, it and such is the better practice

I presume, in the latter case, the declaration | May 28, 1887, it was error to make the sum would be on th property as that of the as- found by the verdict bear interest from date of sured.

verdict, as the judgment does. We concur in Again, do objection was made or exception this view. At the date of the verdict it was taken to the introduction of evidence that Hare provided by Code 1868, chap. 131, $ 14, that was the owner of the absolute property in the the jury should find the amount of principal barge. Had this objection been made in the and interest due at the time of the trial, and trial court, it could bave been remedied under judgment should be rendered for that amount, our Statute of Amendment. Not having been with interest from the date of the judgment. there made, it is too late to raise it for the first Chapter 120, Acts 1882, amending this section, time in this court. Harrison v. Farmers Bank, provided that judgment should be rendered for 6 W. Va. 1; Cook v. Days, 9 Gratt. 142. The amount of tbe verdict, with interest from

The policy treated and recognized Murdock the date of the verdict. Thus, the law ip force as owner of the barge, and promised him pay. when this verdict was rendered did not impose ment of the policy. Wben a note is made to a the burden of interest from the verdict, if any corporation, this estops the denial of its exis- lime should elapse before judgment. The mattence. Here the policy must be held as rec- ter of interest upon a sum found by a verdict ognizing bis tiile for its purposes, and the fact is of siatute regulation, and the then law at that the evidence showed that he had a special once, upon the relurn of the verdict, attached property wbile Hare had the absolute property to it, fixing the rights of the parties to it, and would not seem to produce a variance. If by that tbey must be governed. there bad been an averment of this property in The Act of 1882 does not expressly apply (if Hare, would it bave defeated Murdock's re- it cffectually could) to verdicts rendered before covery, the policy being payable to bim? If it became a law, and we should not give it not, why is such averment necessary? To pre-, retrospective operation, and thus place a burvent surprise? That would be a fact which den on the defendant, which by the law in would not be in law a surprise, for the special force at the date of the verdict he would not property in Murdock would prevent its so op bear. Though the Legislature may bave the eraling. Will pnt a recovery in this action of power to make a law operate retrospectively, the whole loss bar Hare from another action it must clearly appear that such was the inten. for the same cause?

tion, the presumption being that it was intended Appellant's counsel nex: insists that the dam- to operaie on future transactions. Duval v. ages ($1,244.85) were excessive, and for that Malone, 14 Gratt. 24; Cooley, Coust. Lim. 370; cause the verdict should have been set aside. Wade, Retroactive Laws, § 31; McCance v. Not deciding whether the motion to set it | Taylor, 10 Gratt. 585. aside, made March 2, 1887, was too late, or The language and manifest intent of this could be entertained, we cannot say that it was fourteenth section, as re-enacted in 1882, bear excessive. The policy fixes the valuation of evidence that it was designed for future ver. the barge at $2.0.0, the sum insured at $1,000, dicts. Tbough it be hard on the plaintiff to and thus it was a valued policy, and there was get po interest for the long space from the vertotal loss. Valued policies bind the insurer to dict and judgment, such is the right of the pay the whole sum insured in case of total loss. parties. It may be true, as contended by apWood, Ins. § 41; Parsons, Marine Ins. 200, pellee's counsel, that a policy of insurance bears and note.

interest after loss; but that policy is so far Murdock's evidence puts the barge's value at merged by the verdict-by the proceedings in $1,500 to $2,000 at least, and Shipley's at $2, the court towards final judgment—that we 000 at least. Taking the view we do, that this cannot look to it, but musi go by the Statute. policy covers, not merely Murdock's insurable Being of opinion that in this matter of inter. interest, but also the property of Hare as est the Circuit Court erred, the judgment must owner, we cannot say the sum is excessive. be reversed, with costs to appellant in this court; Agents, commission merchants or others bav. and ibis court, proceeding to render such judg. ing ihe custody of, and being responsible for, ment as the Circuit Couri should have rendered property, may insure in tbeir own names; and thereupon, it is considered that the plaintiff rethey may, in their own names, recover of the cover from the defendant $1,244.85, the dam. insurer, not only a sum equal to their own in- ages by the jury in their verdict assessed, with terest, but the full amount pamed in the interesi ihereon from the 28th day of May, policy, up to the value of Ibe property. War- 1887, until payment, and also his costs about ing v. Indemnity F. Ins. Co. 45 N. Y. 606. bis suit expended.

The last point made by the brief of appel- Snyder, P., and English, J., coucurred, lant's counsel is that the verdict baving been Green, J., being abseut. reudered on May 25, 1873, and judgment on

PENNSYLVANIA SUPREME COURT. George G. STARCK, Admr., etc., of Joseph from setting up the suicide of an insured E. Siarck, Deceased,

person as a desense to its liability on tbe policy 0.

insuring his life by a statute providing that “all UNION CENTRAL LIFE INSURANCE

companies, after having received three annual Co. of Cincinnati, Ohio, Appt.

premiums on any policy, ... are estopped from

defending upon any other ground than fraud, (-.....Pa..-....)

against any claim arising upon such policy by

reason of any errors, omissions or misstatements An insurance company is not prevented of the assured in any application made by such

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assured on which the policy was issued, except as It was conceded that the three annual preto age."

miums were paid by plaintiff's intestate, and, (March 31, 1890.)

if the learned president of the common pleas the Court of Common Pleas for North condition, the Company was estopped from

of hampton County in favor of plaintiff in an ac. enforcing the bar of the eighth condition of the tion upon a policy of life insurance. Reversed. policy, in this case; but, we are of opinion that

The case sufficiently appears in the opinion. be was mistaken as to the scope and effect of Mr. Charles F. Walter for appellant. the thirteenth condition. In or opinion it has Mr. H. J. Steele for appellee.

no effect whatever on the eighth condition.

The condition in question is not as clearly Sterrett, J., delivered the opinion of the expressed as it might bave been, and its meancourt:

ing is further obscured by the omission of a In bis statement plaintiff claimed $2,000, the comma after the words “sucb policy.” For. full face value of the policy. The Company, merly it was unusual to punctuate legisla ive in its affidavit of defense, averred that the in- Acts and deeds, but in construing them the sured, by reason of his having committed sui courts always read them with such stops as cide, on July 27, 1889, violated the eighth gave effect to the whole. 4 I. R. 65. It is condition of bis policy and thereby. rendered well settled that peither punctuation nor the the same pull and void, except as to the sum absence of points is to be seriously regarded in of $74.52, the reserve value” of the policy the construction of statutes. It was intended, wbicb is protected by the ninth condition there. by the condition under consideration, that the of. The eighth condition, above referred to, Company, after having received three annual provider "that in case the insured shall die by premiums, should be estopped from defending, his own hand, wberber sane or insane etc., on the ground that errors, omissions or this policy shall become null and void.” misstatements were made by the assured in the

The plaintiff baving elected to take judg: application on which the policy was issued, ment for the reserve value, admitted to be due, unless such errors, omission or misstatements and proceed for the residue, entered a rule for were of such a character as to amount 10 acjudgment for want of a sufficient allidavit of tual fraud, excepting, bowever, misstatements defense. The rule was afterwards made abso-as to age, whether fraudulently made or not. late and judginent entered accordingly. From In other words the tbirteenth condition rethat judgment this appeal was taken, and the lates solely to defenses based on errors, omisonly question for our consideration is whether sions or misstatements in the application; and, the court below erred in construing the thir. with the exception of errors or misstatements teenth condition of the policy, and holding as to age, it debars tbe Company from defendthat the Company was estopped by its pro ing on either ground in case the error, omis. visions from insisting on the bar of the eigbila sion or misstatement was inadvertently or in. condition above quoted. The thirieenth con- nocently made, but it does not probibit the dition is as follows: "Wbether the insured re Company from defending on the ground tbat side in Onio or elsewhere, this policy is issued the errors, omi-sions or misstatements were subject to the following named section of the fraudulently made, or on the ground ibat error Obio Revised Statuies: section 3626. All com- or misstatement as to age was actually made, papies after baving received three annual pre whether fraudulently or not. miums on any policy issued on tbe lite of any We find nothing in any of the provisions of person in this State are estopped from defend the policy that was intended to esiop the Coming upon any other ground than frand, against pany, in any case of suicide, from selling rip the any claim arising upon such policy by reason bar of the eighth condition, except to the ex. of any errors, omissions or misstatements of the tent of the “reserve value” of the policy, to assured in any application made by such as which reference bas already been made. sured on wbich the policy was issued except Judgment reversed. as to age."

McCollum and Mitchell, JJ., absent.

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NOTE.- Doctrine of res judicata.

tribunal, cannot afterwarris be litigated by a new The doctrine of res judicata is plain and intelligi- proceeding either before the same or any other tri. ble, and amounts simply to this, that a cause of ac- bunal. Foster v. The Richard Busteed, 100 Mass. tion once finally determined, without appeal, be- 409. tween the parties, on the merits, by a competent The doctrine applies to the decision of the refereo 7 L. R. A.

57

A PDE Speby. defendant from a judgmentuof

While this by-law was in force plaintiff bethe Superior Court for the City and Coun: came, by reason of sickness, entitled to the ty of San Francisco in favor of plaintiff, and benefits, which he received for more than a year. from an order denying a motion for a new trial, During that time the Society adopted a by. in an action to recover certain sick benefits al law which provided that if a member sball leged to be due plaintiff by reason of bis mem- bave received benefits coutinuously for six bership in defendant Society. Affirmed. months the payment of benefits to such memCommissioner's opinion.

ber sball thereafter cease. Plaintiff became a member of the defendant Under this by-law payments to plaintiff were Society at a tine when there was a by-law in stopped and be afterwards sued in a justice's force providing that in case a member not court to recover a certain amount alleged to be specially disqualified should become sick, be due and recovered judgment, which was afshould receive ibe sum of $10 per week. fimed upon appeal to the superior court.

on a question within the power of the court to di-, judgment at law; and both are conclusive on the rect to be determined by a reference, and which rights of the parties thereby adjudicated. Sibbald might be reviewed on appeal. Demarest v. Daig, 1 v. United States, 37 U. S. 12 Pet. 489 (9 L. ed. 1167); 11 Abb. Pr. 16; Outram v. Morewood, 3 East, 316; Shriver v. Lynn, 43 U. S. 2 How. 43 (11 L. ed. 172); Gardner v. Buckbee, 3 Cow. 120: Burt v. Sternburgh, Washington Bridge Co. v. Stewart, 44 U. 8.3 How. 4 Cow. 559; Wood y. Jackson, 8 Wend. 9; Miller v. 413 (11 L. ed. 658); Pennington v. Gibson, 57 U. S. 16 Manice, 6 Hill, 121; Bouchaud v. Dias, 3 Denio, 238; How. 65 (14 L. ed. 847); Nations v. Johnson, 65 U. S. Doty v. Brown, 4 N. Y. 71; Birckhead v. Brown, 5 24 How. 195 (16 L. ed. 628); Hornbuckle v. Stafford, Sandf. 134; Davis v. Tallcot, 12 N. Y. 184; Castle v. 111 U. S. 389 (28 L. ed. 468); Bryan v. Kennett, 113 U. Noyes, 14 N. Y. 329.

S. 179 (28 L. ed. 908). Questions passed upon by the Supreme Court of A judgment rendered on a compromise can be Illinois in a former decision of the case are res judi- pleaded as res judicata to another suit between the cata. Hyde Park v. Corwith, 9 West. Rep. 788, 122 same parties, embracing the same cause of action. m. 441.

Culverhouse v. Marx, 39 La. Ann. 809. In order that a judgment may constitute a bar to The principle of res juicata applies to a decision another suit, it must be rendered in a proceeding as to the custody of a child on a writ of babeas cor. between the same parties or their privies, and the pus, while the state of facts remains the same. point of controversy must be the same in both Weir v. Marley (Mo.) 6 L. R. A. 672. cases, and must be determined on its merits. A judgment upon the ownership of property. Hughes v. United States, 71 U. S. 4 Wall. 232 (18 L where that is a material point in issue, is res judi. ed. 303),

cata, in all subsequent actions between the same Where, in a former case in the same court, be- parties and their privies, upon the question of tween the same parties, it has been adjudged that ownership. Hughes v. United Pipe Lines, 29 N. Y. an alleged contract relied on by defendant does, St. Rep. 564. not exist, it is proper to strike out an answer which A judgment by an equally divided court, deterBets up the same contract, and to exclude evidence mining title to land, is conclusive upon a question of offered to prove it. Estes v. Chicago, I. & D. R. Co. the same title in a subsequent case between differ72 Iowa, 235.

ent parties, where the state of facts is the same and A decree, sentence or judgment of a court of in the absence of the showing of the former decompetent jurisdiction is conclusive in any future cision was manifestly erroneous. Kolb v. Swann. litigation of the same question between the same 12 Cent. Rep. 105, 68 Md. 516. parties or those claiming under them. Andrews v. A decree in chancery may be res judicata as beStelle, 22 N. J. Eq. 479: Ehle v. Bingham, 7 Barb.tween the original parties, altbough other persons 494; Young v. Rummell, 2 Hill, 478: Kingsland v. collaterally interested were made parties that it Spalding, 3 Barb. Ch. 341; Lyon v. Perin & G. Mfg. might be final, and not because they were legal parCo. 125 U. S. 698 (31 L. ed. 839); Gelston v. Hoyt, 1 ties to the original contract on which the litigation Johns. Ch. 542; Foster v. The Richard Busteed, 100 is founded. Thompson v. Roberts, 65 U. S. 24 Huw. Mass. 409; Cook Co. v. Calumet & C. Canal & D, Co. 233 (16 L. ed. 648). (111.) 23 N. E, Rep. 629.

Conclusiveness of former judgment. See note to It concludes partics and those in privity with Bollong v. Schuyler Nat. Bank (Neb.) 3 L. R. A. 142: them upon every matter actually presented and de- Sharon v. Terry (Cal.) 1 L. R. A. 572. termined, and such claim and defenses as might

Judginent by default. have been presented and determined. Kilander v. Hoover, 9 West. Rep. 244, 111 Ind. 10; Mc- The rule as to the conclusiveness of judgments apBurnie v. Seaton, 9 West. Rep. 259, 111 Ind. 56; plies to a judgment by default. Goebel v. Ima, 111 Chicago v. Cameron, 9 West. Rep. 507, 120 III. 447; N. Y. 177; Harshman v. Knox Co. 1:22 U. 8. 306 (30 L Snow v. Mitchell, 37 Kan. 636, 639; Hanson v. Manley, ed. 1152). 72 Iowa, 48; authorities cited in Harmon v.

But only as to such matters or issuable facts as Auditor of Public Accounts, 11 West. Rep. 76, 123 are properly averred in the complaint. Adair v. III. 122; Stockton v. Ford, 59 U. 8. 18 How. 418 (15 L. Mergentheim, 13 West. Rep. 853, 114 Ind. 303; Bared. 395).

top v. Anderson, 2 West. Rep. 679, 104 Ind. 578; McBut where the second suit is not upon the same Fadden v. Ross, 5 West. Rep. 692, 108 Ind. 512 causes of action, though between the same parties, Judgment on demurrer to complaint. the former judgment is conclusive as to matters which were in fact necessurily decided, and is not

A Judgment rendered upon demurrer to the decconclusive as to matters which might have been, laration is equally as conclusive of the matters conbut which were not, presented and decided. Laird fessed by the demurrer as a verdict finding the same v. De Soto, 32 Fed. Rep. 652.

facts would be. Gould v. Evansville & C. R. Co. 91 A judgment is conclusive only upon a matter U. 8. 526 23 L. ed. 416): Schroers v. Fisk, 10 Colo. 599; within the issue and necessarily involved in the de

Bissell v. Spring Valley Twp. 124 U. 8. 225 (31 L ed. cision. McCall v. Carpenter, 59 U. 8. 18 How, 297

411). (15 L. ed. 389); Washington, A. & G. Steam Packet

Judgments of other jurisdictions Co. v. Sickles, 72 U. S. 5 Wall. 580 (18 L. ed. 550). We think the rule well settled that a judgment.

A final decree in chancery is as conclusive as a l which is conclusive between the parties and a bar

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