(p) This question was examined by Parker, C. J., with his accustomed ability, in King v. Chase, 15 N. H. 9. It was there held, that by "the matter in issue" is to be understood that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings; that the facts offered in evidence to establish the matter which is in issue are not themselves in issue within the meaning of the rule, although they may be controverted on trial. Thus, where an action of trover is brought, and a deed is offered in evidence to establish the title of the plaintiff, and impeached by the other party as fraudulent, if the jury, in considering the case, are of the opinion that the deed is fraudulent, and they find that the property in question is not the property of the plaintiff, and return a verdict that the defendant is not guilty, the verdict and judgment will not conclude the plaintiff, in another suit, for the recovery of other property included in the same conveyance. Nor can the verdict be used in evidence to impeach the deed in such subsequent suit.

(q) It is not essential that the second suit should be in the same form as the first, in order that a judgment therein should be a bar. If the cause of action is the same in both, the former judgment is conclusive. Thus, a judgment in trover is a bar to a second action of assumpsit for the value of the same goods. Agnew v. McElroy, 10 Smedes & M. 552; Young v. Black, 7 Cranch, 565; Livermore v. Herschell, 3 Pick. 38. See Loomis v. Green, 7 Greenl. 386. Where the cause of action is the same, a former judgment in a suit between the same parties, though an inadequate one, is a bar to a second recovery. Finney v. Barnes, 17 Conn. 420. In that case an action was brought, in the name of the judge of probate, against a removed executor, on his probate bond, in which action sundry breaches were assigned, and among them, that the defendant had neglected and refused, upon demand made therefor, to pay over to his successor the moneys in is hands belonging to the estate; and thereupon judgment was rendered against the defendant for a certain sum and costs. On a scire facias afterwards brought on this judgment, it appeared that the testator had given by his will certain legacies, payable to the legatees respectively when they should become eighteen years of age; that neither at the time of the defendant's removal from office, nor at the trial of, and judgment in, the original action, had these legatees arrived at that age; that the defendant had then in his hands moneys belonging to the estate, derived from a sale of lands under a decree of probate, sufficient to pay such legacies, which he still retained; that on the trial of such action, no claim was made or evidence offered in relation to the nonpayment of such legacies, nor were they considered by the court or included in the judgment, the action having been instituted and prosecuted solely for the benefit of those entitled to the residuum of the estate after the payment of such legacies. Held, Williams, C. J., and Waite, J, dissenting, that the former judgment must be considered as covering the whole ground, and constituting a bar to any claim for the legacies in the scire facias, the cause of action in both suits being essentially the same. See Garwood v. Garwood, 20 Cal. 514.

1 The dismissal of a suit because the wrong form of action has been used does not bar a suit in another form of action. Kittredge v. Holt, 58 N H. 191.

by similar evidence, is certain. (qq) But let us suppose * that in an action for assault and battery, in which only the general issue is pleaded, the defendant relies upon the "molliter manus imposuit," asserting the alleged assault to have taken place on his own land; the plaintiff denies that the land belonged to the defendant, and this is the main or only question actually controverted. Gould a judgment in this case be interposed as a bar to a writ of entry for the same land, between the same parties? It is clear that it could not, if the rule once in force, and now not entirely obsolete, be applied, - namely, that only matters directly involved in the issues made upon the pleadings, are considered as res judicata. (qr) But if to trespass quare clausum, soil and freehold are pleaded by the defendant, can a judgment in this action be pleaded in bar to a writ of entry? It is more difficult to answer this question, because it differs from the former in the new element, that the title to the very land is put in issue of record, and by the pleadings. And very high authorities answer this question differently. (r) The Supreme

(qq) Packett Co. v. Sickles, 5 Wallace, 580; Wilcox v. Lee, 1 Hob. 356.

(qr) Duncan v. Holcomb, 26 Ind. 378; Johnson v. Morse, 11 Allen, 640.

(r) Thus, in Arnold v. Arnold, 17 Pick. 4, which was a writ of right, the tenant pleaded a judgment in favor of his grantor, rendered in an action of trespass quart clausum upon an issue joined upon a plea of liberum tenementum, and the plea was held to be no bar. And from the opinion delivered, it seems that the judgment upon this plea would have been the same, if it had been interposed as a bar to a writ of entry. And in Mallett v. Foxcroft, 1 Story, 474, it was held to be no bar to a writ of right, that there had been a judgment on a petition for partition between the same parties in favor of the tenant, upon an issue joined therein on the sole seisin of the demandant. But in Dame v. Wingate, 12 N. H. 201, it was directly decided, that a judgment rendered in an action of trespass quare clausum upon an issue joined on a plea of liberum tenementum, is a bar to a writ of entry for the same premises. And Gilchrist, J., said: "It is a principle well established in the law, that a former judgment, upon a point directly in issue upon the face of the pleadings, is admissible in evidence against the parties and their privies, in a subsequent suit, where the same point comes in question. Nor is it material that the former suit was trespass, and the latter a writ of entry, if the same point were decided in the former suit. It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery, of itself, in an action of trespass, is only a bar to the future recovery of damages for the same injury; but the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which, having once distinctly been put in issue by them, or by those to whom they are privy, in estate or law, has been on such issue joined, solemnly found against them. It was so held in Parker v. Leggett, 13 Rich. L. 170. Ellenborough, C. J., Outram v. Morewood, 3 East, 366. The recovery concludes nothing upon the ulterior right of possession, much less of property in the land, unless a question of that kind be raised by a plea and a traverse thereon. Id. 367. And a recovery in any one suit, upon issue joined on matter of title, is equally conclusive upon the subject-matter of such title; and a finding upon title in trespass not only operates as a bar to the future recovery of damages founded on the same inquiry, but also operates by way of estoppel to any action for an injury to the same supposed right of possession. Id. 354. The issue upon a plea of liberum tenementum raises a question of title. Forsaith v. Clogston, 3 N. H. 403." See also Benwas offered in relation to it, and the question was not submitted to court or jury. (sv)