sibility and effect of records as instruments of evidence. The rules of law upon this subject are founded upon these evident principles and axioms; that it is for the interest of the community that a limit should be prescribed for litigation and that the same cause of action ought not to be brought twice to a final determination. Justice requires that every cause be once fairly and impartially tried; but the public tranquility demands that having been once so tried all litigation of that question and between these parties should be closed forever." So Wells on res adjudicata, page 4, says:

Section 5. "The fundamental principle of the rule of res adjudicata, etc., is plainly that the decision of a court of competent jurisdiction is and ought to be a final and conclusive settlement of the questions involved in any particular controversy, as to the parties concerned therein, and as to any title claimed through or under those parties; so that if a fact has once been directly tried and determined by such Court, the same parties cannot properly be allowed again to contest the same matters, in that Court or any other; and also that a judgment on such questions or facts, in legal form is perfect evidence of its own validity. And more especially if the Court had peculiar and exclusive jurisdiction relative to such matters, its judgment should be binding upon the judgment of any other Court, acting in the same matter; always provided that it has acted therein within the proper limits of its jurisdiction."

And at page 203 he continues:

Section 233. "As to installments, the rule has already been stated to be that where there are two or more promissory notes (or bonds) executed as a part of the same transaction, so that what affects one must affect the others in like manner, an adjudication upon one will determine that upon the other. And this applies to defences," &c., &c. Section 234. If a contract provides for payment by installments due at different times, the installments may of course be successively sued on as they become payable," &c.

In Robinson's Practice, Vol. VII, at page 165, we read, applicable exactly to the present case, "Sometimes there may be from one act of the defendant, successive or different causes of action, and for each of these causes a separate suit, as in 22 Car. II., 30, or Geo. III., 31; 29 Car. II., 30 or 55.

"A former judgment for the plaintiff in one of a series of actions for money due by installments, or other successive causes of action, may be evidence (and conclusive, so far as it goes) of the rights of the parties in another of a series of suits on the principle that a judgment is final as to all points and questions actually litigated and determined by it. Love s. Waltz, 7 Cal., 250; Haskins es. Mayor of New York, 11 Hun, 436. Therefore, where in an action on one of a series of notes, given for the purchase price of land, the defendant set up a defence going to the whole of the original cause of action, such as an indisclosed incumbrance on the estate, consequent rescision of the contract &c, and it is adjudged against him, such judgment will estop him from setting up the same facts in defence of a subsequent suit on another of the notes."

In harmony with this is the text of Black on judgments, and res adjudicata.

Section 500. "That the solemn deliberate sentence of the law, prounced by its appointed organs upon a disputed fact, or state of facts,

ld be regarded as a final and conclusive determination of the ques

tion litigated, and should forever set the controversy at rest, is a rule common to all civilized systems of jurispurdence; but it is more than a mere rule of law; it is more even than an important principle of public policy: It is not too much to say that this maxim is a fundamental concept in the organization of every jural society."'

*

So Freeman on the law of judgments, etc., says: Section 249. There is no doubt that a judgment or decree, necessarily affirming the existence of any fact, is conclusive upon the parties, and their privies, whenever the existence of that fact is again in issue between them; not only when the subject matter is the same, but when the point comes incidently in question, in relation to a different matter, in the same or in any other court, except on appeal, writ of error or other proceeding provided for its revision. After judg ment on the merits, the parties cannot canvass the same question again in another action although perhaps some objection or argument might have been urged upon the first trial which would have led to a different judgment.

*

*

"An adjudication is final and conclusive not only as to the matter actually determined, but as to every other matter which the parties might have litigated, and have had decided, as incident to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defence."

To render a matter res adjudicata, it is not essential that it should have been distinctly and specifically put in issue by the pleadings; it is sufficient that it be shown to have been tried and settled by the former suit. When a matter is once adjudicated, it is conclusively determined as between the same parties and their privies."

Black, cited Supra, in Section 501. traces the doctrine through the Roman law, and in Section 502, through the legal systems of modern Europe. Section 504, states the rules applicable to the question, the first of which is as follows; "a point which was actually and directly in issue in a former suit, and was there judicially passed on and determined by a domestic Court of competent jurisdiction cannot be again drawn in question in any future action between the same parties, or their privies, whether the causes of action in the two suits be identical or different.”

I will not further multiply citations from text writers; they are unanimous on the question. It will be seen too, that writers on the Civil law lay down the same doctrine: and it is as expressed by Black in his treatise quoted above, a fundamental concept in the organization of every jural society, or society governed by laws.

Vide Herman on the law of estoppel and res adjudicata, Vol. I, p. 85.-92; Code Napoleon, Sec. 1351. Domat's Civil Law, Vol. I, Sec. 2011.-Escriche, Dictionario de legislacion y jurisprudencia, in verb. "Cosa juzgada."

The Supreme Court of the United States was quite recently called on to determine the application of the doctrine of res adjudicata in an action involving some seven hundred thousand acres of valuable land. The magnitude of the interest involved, and the importance of the case led to the employment of counsel of great eminence, and the whole question was considered and discussed exhaustively. The decision is too recent to have found its way into the published reports, but the usual advance sheets are of course accessible to the officers of the State 27627-02-2

department. The opinion reviews numerous adjudged cases, and concludes in entire harmony with the views I have endeavored to express above.

Vid The Southern Pac. R. R. Co. vs. The United States, decided October 18th, 1897, pp. 17 to 24.

It thus appears that Mr. Powell Clayton was entirely justified in claiming for the demand of the Catholic Church against the Mexican Republic the authority and conclusiveness of res adjudicata, not only as to the facts from which the claim arises, but also as to the amount thereof annually maturing.

Memorandum, for Hon. Assistant Secretary of State, as to the claim of the R. C. Church of California against the Republic of Mexico, for arrears of interest, or the proceeds of the Pious Fund of California. The Pious Fund of California originated in 1697, in money contributed by charitable people, to enable Fathers Salvatierra, Ugarte and Piccolo to commence their missionary efforts in California, for which they had just secured permission from the Crown by the Royal çodula of February 5th of that year. Besides collecting money for immediate expenses, it was determined to form a fund for the permanent support of the Missions, to be established, and the interest at five per cent per annum, of ten thousand dollars being deemed adequate for the support of each Mission, invitations were extended to the piously disposed, to make contributions of that sum or multiples of it, for the purpose, the contributors being accorded the privilege of naming the Missions founded by their contributions. Mention of the first contributors and their donations, and other early history of the fund will be found in the second volume of Venegas "Noticia de la California, y de su Conquista Espiritual y Temporal," &c., Madrid, 1757.

This work is the oldest historical account we have of the colonization of California; it was compiled from the original papers of Venegas, in the Spanish-Mexican archives, by Andres Marc Buriel and is regarded by historical students as a work of highest authority. It is usually cited as "Venegas California." A list of the contributors and Missions founded down to 1731, is also given in a little work entitled "Noticia de la Provincia de Californias en tres Cartas de un Sacerdote Religioso, hijo del real Convento de Valencia, a un Amigo suyo. Valencia, 1794. Carta 2da, p. 48. At that time the contributions amounted to $120,000. In 1735, the Marquis de Villa-puenta and his wife, the Marchioness of Torres de rada, made a munificent donation of estates and property valued even in those days at $408,000, and the purposes and objects of the trust are fully expressed in their deed of the property, a copy of which duly certified by the Notary, in Mexico, in whose archives it remains, was filed with the Mixed Commission and forms part of its record. We have also historical evidence of a bequest of sums amounting to $120,000 by the Duchess of Gandia, and of other very large amounts from Senora Josepha Paula de Arguelles, a wealthy lady of Guadalarcara, made in 1765. These important sums together with many minor ones, and the accumulation of revenues of the property in which the fund was invested, raised its capital to over two millions of dollars. It attained as much National importance in its day as the Smithsonian bequest to the United States has in our times, and its administration was regarded as a subject of public concern.

The Society of Jesus, which down to that time had been its trustee, was, with all its members expelled from the Spanish dominions by the Pragmatic sanction of February 27th, 1767, which was put in force in California in the year following. In virtue of this decree of expulsion, all property possessed by the order, was seized into the hands of the crown. Such as was private property as colleges, noviciates, casas de recreo, etc., was confiscated and vested in the crown; whatever was held in trust for specific purposes, was accepted by the monarch, distinctly, cum onere, and the trust character of the estate acknowledged. Among the latter was the Pious Fund of California which was thereafter administered, and its revenues applied to their appropriate purposes, through the instrumentality of a commission appointed by the royal authority for the purpose. Its magnitude and importance were such that it forms the subject of a special notice in the Pandectas Hispano-Mexicanas, Vo. 2, pp. 150, 172, and seq., as one of the "ramos ajenos de la corona," or outside branches of the treasury, in which, although administered by the crown it has no proprie

tary interest.

On the accomplishment of Mexican independence the property of the Pious Fund which was all within the limits of the republic was transferred with the rest of the possessions of the crown to the Republic. The new government loyally acknowledged the trust character of the estate, and constituted a junta directiva for its management. the Missions of California had meantime been pushed up the Coast as far as Sonoma, by the efforts of the Franciscan order which had succeeded to the Jesuits in Upper California, and had founded there the missions of

All of which were in existence at the time of the annexation of California to the United States. The organization of the Church had meantime undergone a change, naturally resulting from the growth of civilized population, bringing with it private property and social institutions. By an act of the Mexican Congress of September 19th, 1836, the Holy See was invited and urged to erect the provinces of Upper and Lower California into an episcopal diocese and to put them in charge of a bishop to be selected for the purpose, and as one of the inducements to compliance with this request the sixth section of the act mentioned placed in the hands of the new bishop, when chosen, the properties of the Pious Fund, in the following words: Section 6. The properties of the Pious Fund of California are placed at the disposal of the new bishop, and his successors, to be administered by them, and applied to their objects and analogous ones, respecting always the wishes of the founders." The Rt. Rev. Francisco Garcia Diego who was at the time President of the missions was accordingly at the request of Mexico appointed and consecrated as Bishop of the Californias, Upper and Lower, and established his

See at Monterey. The Pious Fund was turned over to him to be administered and applied as above provided.

The Bishop's presence being required in his diocese, the property was managed for him by an agent or apoderado, Don Pedro Ramirez, a resident of the City of Mexico, of high position, eminent probity of character, and capability as a financier. Under his management it remained down to the year 1842, on the eighth of February, in which year General Santa Ana, then dictator of Mexico, under the Bases of Tacubaya repealed the sixth section of the act of September 19th, 1836, and devolved the administration of the trust estate on the government; for which purpose an officer of the army, General Valencia, was appointed, the objects and purposes of the donors being however distinctly respected. Under this decree, the property of the fund was delivered over to the representative of the government, but in the absence of his principal, Don Pedro Ramirez, respectfully protested against the breach of contract involved in the seizure, and insisted on delivering the estate accompanied by an instruccion circumstanciada" or detailed inventory of the property, a copy of which was transmitted to his principal.

Neither the Spanish nor Mexican Government has been very suc

cessful in the administration of trust estates, and within a few months General Santa Ana recognized the error of attempting the task here. It was thereupon determined to sell the properties of the Pious Fund, turn the money into the public treasury and pay interest on it thereafter, in perpetuity. To carry out this purpose the decree of October 24th, 1842, was enacted, wherein, after reciting the intent, by that of the preceding February, "to fulfill most faithfully the beneficent objects of the founders, without the least diminution of the funds destined therefor, a result, only to be attained by capitalising the funds and putting them at interest, to avoid expenses of administration, etc.," it was enacted that all the properties of the fund should be incorporated into the public treasury, the real estate and other properties sold for the capital represented by its income on a basis of six per cent. per annum, and that the National treasury should thereafter pay interest at that rate on the amount; to which purpose the revenue from tobacco was specially pledged.

The transfer of Upper California to the United States by the treaty of Queretaro worked a change in the civil allegiance of the Church of Upper California to the United States; Mexico thereafter ceased to pay to it its portion of the interest on the Pious Fund, and these rears were made the subject of a claim by the prelates then representing and governing the church before the Mixed Commission constituted by the convention of 1868. The Mexican Republic was defended not only by the Hon. Caleb Cushing, whose position at our bar was so eminent, but also by one of its own most distinguished and able lawyers; perhaps the only member of the profession who in all its history acted as judge advocate of a court martial which sent an Emperor to execution. His previous position in the department of State in Mexico, had made Don Manuel Aspiros familiar with all the documentary history of the Pious Fund, and independent of the legal presumption of the truth of all adjudications of a competent tribunal there is the strongest presumption of fact that no possible defense for his client escaped his learning, zeal and vigilance. I say nothing of the character of the distinguished umpire, who decided the case on a disagreement between