A search has served only to indicate that the reported case (FRYE v. UNITED STATES, ante, 145) is the first instance in which the admissibility in evidence of the result of a deception test has been considered by an appellate court.

It is true that deception is frequently accompanied with noticeable physical reactions. It is a judicial commonplace that the credibility of witnesses is best measured by those who have an opportunity of observing their demeanor on the witness stand.

And it has been held that there is no error in instructing the jury that, in determining the credibility that should be accorded to the testimony of the defendant in a criminal case, they may take into consideration his demeanor and conduct both upon the witness stand and during the trial. Boykin v. People (1896) 22 Colo. 496, 45 Pac. 419.

It is very generally held that the conduct, demeanor, and words of one charged with crime, about the time of its commission or of its discovery, or on his arrest for or on accusation of it, are admissible in evidence against him. But, as remarked in Gassenheimer v. State (1875) 52 Ala. 313: "The mental emotions, the manner in which they will be manifested, the causes which will produce them, are as varied and various as the faces and physical organizations of men. It is a dangerous species of evidence, and too much caution cannot be exercised in receiving and weighing it."

The deception tests devised by scientists are of three kinds: the association-reaction test, of which the late Professor Münsterberg, of Harvard University, was a proponent, in which the time used by the subject of the test in thinking of words associated with those in a list given him, some of which are neutral and some of which may evoke a guilty association, is measured; the respiratory test, which is based upon the hypothesis that the

Mr. John A. Larson of Berkeley, California, in an address before the Section of Criminal Law of the American Bar Association, on "The Berkeley Lie Detector and Other Deception Tests," published in 47 American Bar Association Reports (1922) page 619, and in 40 of the Medico-Legal Journal, page 14, expresses the opinion that "there is no test in its present state which is suitable for the positive identification of deception and suitable for court procedure." And in an article on "The Cardio-Pneumo-Psychogram in Deception" (1923) 6 Journal of Experimental Psychology, 420, he says: "Without data drawn from thousands of cases of deception from all types of temperaments under all conditions, a judicial decision will be impossible."

And in an article in 33 Yale L. J. 771, on "The Use of Psychological Tests to Determine the Credibility of Witnesses," it is said: "The conditions in a laboratory are so dissimilar to those of a court room as to justify questioning the use of even a proved laboratory method. Again, one of the most important factors in producing accelerated blood pressure is fear, often present when a suspected criminal is being examined about the details of the crime, but apt to be absent from a person deliberately lying in a civil case, as, concerning the terms of an offer, or the blowing of a locomotive whistle. Especially is this so when the witness is not a party to the suit."

With reference to the systolic bloodpressure test, it is said by Burtt ("The Inspiration-Expiration Ratio During Truth and Falsehood" (1921) 4 Journal of Experimental Psychology): "The lying consciousness ap

pears to have an emotional (probably fear) content, and it is possible to influence expressive measurements somewhat by emotional control. Some subjects successfully raise their blood pressure during [truth telling] by imaginary emotions. It is thus important to have other criteria as a check.” The

same author regards systolic blood pressure as having a greater diagnostic value than respiratory changes, as indicative of conscious deception.

Mr. Jahn A. Larson, in the address above referred to, says: "Many cases of confessed deception have been noted in which there was no rise which Marston states constitutes deception."

Marston, the principal exponent of the systolic blood-pressure test ("Systolic Blood-pressure Symptoms of Deception" (1917) 2 Journal of Experimental Psychology, 117, 163, note 14), concludes: "The behavior of the blood pressure does not act as the

story told during one record being the truth within the knowledge of the examiner. The examination should be private with carefully controlled conditions. The record should be interpreted by a psychologist experienced in this particular line, . and above all it should be compared minutely with the record known to be symptomatic of that individual's consciousness while telling the truth."

Other published articles of interest along this line are "Psychological Possibilities in the Deception Tests," by W. N. Marston, 11 Journal of Criminal Law, 551 (February, 1921), and "Modification of the Marston Deception Test," by J. A. Larson, 12 Journal of Criminal Law, 390 (November, 1921). E. S. O.

Roe, for appellant:

Averments objectionable as irrelevant or redundant should be assailed by motion.

Douglass v. Bishop, 27 Iowa, 214; Bolinger v. Henderson, 23 Iowa, 165; McMurray v. McMurray, 107 Iowa, 648, 78 N. W. 691; Johns v. Pattee, 55 Iowa, 665, 8 N. W. 663; Rock v. Rinehart, 88 Iowa, 37, 55 N. W. 21.

There is no estoppel unless someone is misled or induced to act in some way to his detriment or alter his position to his prejudice.

City Bank v. Radtke, 87 Iowa, 363, 54 N. W. 435; Hubbard v. Hart, 71 Iowa, 668, 33 N. W. 233; Byer v. Healy, 84 Iowa, 1, 50 N. W. 70; Wishard v. McNeill, 85 Iowa, 474, 52 N. W. 484; Durlam v. Steele, 88 Iowa, 498, 55 N. W. 509; Fryer v. Harker, 142 Iowa, 708, 23 L.R.A. (N.S.) 477, 121 N. W. 526.

Persons not parties to an adjudication cannot rely thereon. To be a bar, a judgment must be between the same parties or their privies and must equally bind both parties, when an estoppel by judgment is claimed.

Lindt v. Linder, 117 Iowa, 110, 90 N. W. 596; Woodward v. Jackson, 85 Iowa, 432, 52 N. W. 358; Hultz v. Zollars, 39 Iowa, 589; Tiffany v. Stewart, 60 Iowa, 207, 14 N. W. 241; Re Dille, 119 Iowa, 575, 93 N. W. 571; Hays v. Marsh, 123 Iowa, 81, 98 N. W. 604; Heins v. Wicke, 102 Iowa, 396, 71 N. W. 345; Long v. Valleau, 87 Iowa, 675, 55 N. W. 31, 56 N. W. 748.

Messrs. Tinley, Mitchell, Ross, & Mitchell, and Preston & Dillinger, for appellee:

The parties to a controversy respecting their mutual obligations may substitute therefor the mutual obligations of a new contract, and when this is done their rights and liabilities are determined by the new agreement.

Hall v. Smith, 15 Iowa, 584; Merry v. Allen, 39 Iowa, 235; Sioux City Stock Yards Co. v. Sioux City Packing Co. 110 Iowa, 396, 81 N. W. 712; Lindt v. Schlitz Brewing Co. 113 Iowa, 200, 84 N. W. 1059; Fritz v. Fritz, 141 Iowa, 721, 118 N. W. 769; Goss v. Smith, 178 Iowa, 348, 159 N. W. 984.

A party to a cause of action resulting in a judgment is estopped in a collateral proceeding to claim the judgment to be void for any reason, or to deny its effect.

Ellis v. White, 61 Iowa, 646, 17 N. W. 28; Schneitman v. Noble, 75 Iowa, 120, 9 Am. St. Rep. 467,.39 N. W. 224.

Defendant cannot, after entering into a contract of settlement of his cause of action for damage against the mortgage company upon claim that the company obtained the note by fraud, and that he was compelled to pay it, now take a contradictory position in this action commenced by plaintiff to collect the amount due on the note.

Farmers' Mill. Co. v. Mill Owners Mut. F. Ins. Co. 127 Iowa, 317, 103 N. W. 207; Hawes v. Swanzey, 123 Iowa, 54, 98 N. W. 586.

A party to litigation will be estopped from changing his position after receiving benefit, although the necessary elements of an equitable estoppel are lacking. Under such circumstances he will not be permitted to take a contradictory position.

Midland Linseed Co. v. American Liquid Fireproofing Co. 183 Iowa, 1051, 166 N. W. 573; Mollring v. Mollring, 184 Iowa, 464, 167 N. W. 524; Ohio & M. R. Co. v. McCarthy, 96 U. S. 258, 24 L. ed. 693.

In actions of tort or fraud, where a party's liability is necessarily dependent upon the culpability of another who was the immediate actor, and who, in an action against him by the same party for the same act, has been adjudged not culpable, the adjudication inures to the benefit of all others against whom claim is made.

7 Labatt, Mast. & S. p. 7876; Portland Gold Min. Co. v. Stratton's Independence, 16 L.R.A. (N.S.) 677, 85 C. C. A. 393, 158 Fed. 63; Eckles v. Des Moines Casket Co. 152 Iowa, 164, 130 N. W. 113.

Faville, J., delivered the opinion of the court:

The appellant purchased stock in a corporation known as the Farmers' Mortgage Company. He gave a series of notes therefor. One of the notes for $1,350 was sold to appellee. When this original note came due, the appellant renewed the same by giving the note in suit direct to appellee as payee. Appellant pleaded fraud in the inception of the original note. By way of reply, appellee alleged that, prior to the commencement of this action, appellant had commenced a suit in equity against the Farmers' Mortgage Company, wherein appellant sought the cancelation of this subscription for stock in said company, and also

the cancelation of the various notes he had given for said stock subscription. The pleadings and decree in said former suit were set forth in appellee's reply.

In the former case this appellant prayed that the original note herein referred to be canceled and restored to him, or, in the event that the same had been negotiated, that he have judgment against said mortgage company for the amount of said note. Issue was joined in said action between appellant and the mortgage company, and the cause was settled between the parties by a written stipulation. Subsequently appellant, as plaintiff in said action, filed a supplemental petition, alleging that the mortgage company had not performed the terms of said written stipulation, and praying specific performance of said contract and judgment against the mortgage company. Said stipulation provided that the mortgage company should return to appellant two certain notes, which were then in possession. of the mortgage company; and, in regard to the $1,350 note, which had been sold to appellee and another note, it was agreed that the mortgage company should issue to appellant certain stock of said company at a certain value in satisfaction thereof, and the mortgage company agreed to sell or cause said stock to be sold at an agreed price within ninety days. The supplemental petition alleged the failure of the mortgage company to sell said stock, and to return to appellant "the amount of money which he has been caused to pay on certain notes," and prayed judgment for said amount. This referred to the original note of $1,350 and another one.

Issue was joined by the mortgage company on the supplemental petition of this appellant in said cause, the company claiming that said stipulation of settlement was unauthorized and invalid. A decree was entered in said cause, adjudging that said stipulation between appellant and the mortgage company was valid and binding, and that the contract

of settlement had been fully executed, except that the mortgage company had not sold the stock which it delivered to this appellant, but "for such failure to sell said stock plaintiff [appellant] has not shown that he has suffered any damages."

The pleadings and the decree in said action between this appellant and the mortgage company were fully set forth in the reply of appellee, filed in this cause. Appellant's motion to strike said reply is upon the ground that the said matters so pleaded are immaterial, irrelevant, and redundant; that they do not constitute an adjudication as between appellant and appellee, because appellee in this case was not a party to said action; and that they do not constitute estoppel. Said motion to strike was overruled, and it is from said ruling that this appeal is prosecuted. Both parties concede that the trial court treated the motion to strike as a demurrer to the reply, and we shall so regard it.

Fairly analyzed, the reply alleges that appellant brought an action in equity against the mortgage company, wherein it alleged the mortgage company was a wrongdoer, and had procured from appellant the original note of $1,350 by fraud; that this appellant had made settlement of matters growing out of said transaction with the tort-feasor, and had obtained full satisfaction and settlement from said party, including full settlement for the original note, which the mortgage company obtained from appellant, and which was transferred to appellee.

It is the contention of appellant that the matters so pleaded, showing full settlement between appellant and the wrongdoer, the mortgage company, involving the identical transaction out of which the note in suit arose, are immaterial to the issues tendered in this action, because appellee herein was not a party to said suit, and the matters so adjudicated are not binding upon appellee, and do not constitute an estoppel in behalf of appellee as against this appellant.