knowledge whatever of its weakness or defects. In the absence of proof it must be inferred that the tables and chairs were in the boxes at the time of the demise, and thus that the use for which the gallery was intended was apparent. There is no evidence that the defendant knew that the tables and chairs were to be removed, and that these boxes were to be filled with all the people who could crowd into them. Much less is there any proof that it knew or had reason to suppose that the same price would be charged for all persons entering the gallery as was charged for persons entering other parts of the building, or that the boxes were to be filled with a noisy, boisterous crowd of people, stamping and keeping time to music. There is no evidence and no inference from any evidence in the case, that the defendant knew or had reason to suppose that the gallery would be used in such a way as to endanger its security. Nor was there any proof that any defect in the gallery was apparent or known to the defendant, or that it could have been known by any examination that could have been reasonably expected or required or even made. The architect, called as a witness by the plaintiff, testified that the gallery was perfectly safe for a quiet crowd, but was not when crowded full of boisterous people, moving and stamping to the time of music, which would break down almost any structure. The sole proof by which it is sought to impose negligence upon the defendant is that the gallery which was thus filled by people thus conducting fell. There was no proof even that any of the timbers in the gallery were too small or weak and that they broke, or that they were not properly joined together and supported, or that the gallery was in any respect negligently constructed. The proof is simply that it fell, and the only apparent cause was the rhythmic tramp of the people who filled it, a cause which the landlord certainly was not bound to foresee and guard against. From such a state of things an inference of negligence is not justifiable. There was no proof that the gallery was not built as strong as any of the other galleries in the same building. Kelley, the lessee, knew the purpose for which the building was to be used, and the character of the exhibition which was to be given; and he could anticipate the crowd of persons who would be called there. He was there and witnessed the manner in which the people conducted themselves; that they were noisy and boisterous and walking about, keeping time to the music. He could have placed supports and props under the gallery, That much he could have done, even without the consent of the landlord, as it would have been no altera. tion of the building. The landlord had no right to enter the building for the purpose of making any changes or alterations or to strengthen or support the galleries in any way. That duty rested entirely upon the lessee. I repeat that there is not the least evidence that the defendant knew that the building was unfit for the exhibition of a walking match, the character of which was not generally known and could not be presumed, or that the gallery would be unsafe for the persons who should enter it for the purpose of witnessing that match; and there can be no pretense that the building or the gallery was a nuisance. If it had been shown, or could reasonably be inferred, that the defendant knew how his gallery was to be used, and that it was dangerous and unfit for that use, and that it concealed its knowledge and did nothing to guard against the danger, no agreement would be needed to establish its liability, as that would rest upon obvious principles of law universally applicable.

The case of Swords v. Edgar, 59 N. Y. 28, somewhat relied upon by the counsel for the plaintiff is one where liability was imposed upon the lessor of a public dock upon the ground that he had suffered a nuisance in his dock before the demise, and he was held liable

on that ground. The decision was made against the dissent of three judges, and after overruling several cases decided in courts of high authority in this country and England, and the ground of nuisance is the only one upon which that decision can stand. There are other similar cases in the New England States and in England. A dock is regarded as a species of public highway, and the owner who suffers a nuisance to be created and continued upon his dock remains liable upon the ground of nuisance.

The case of Camp v. Wood, 76 N. Y. 92, does not sanction plaintiff's contention. In that case the landlord was found guilty of negligence for not keeping safe the portion of the building which remained in his possession and under his control. It was held that the lessor owed some duty to the persons who with his knowledge and consent came into his building, and might thus be exposed to the danger which caused the accident. The maxim sic utere, etc., is sufficient to justify the decision of that case, which is based upon the same principle which imposes liability upon one who digs a hole upon his premises so near a highway that travellers are exposed to the danger of falling therein and being injured.

The case of Francis v. Cockrell, supra, did not involve the liability of a lessor, and the question to be determined in this case was not under consideration there. The point decided there was that "a man who causes a building to be erected for viewing a public exhibition and admits persons on payment of money to a seat in the building, impliedly undertakes that due care has been exercised in the erection, and that the building is reasonably fit for the purpose." The liability was placed upon the ground that there was an implied contract between the defendant and his associates, and every person from whom they received an admission fee to the exhibition, and the distimotion between the liability of those who gave the exhibition in that case and took pay for admission to the same, and the liability of a landlord during the term of his demise was clearly and properly stated, as shown by the abstract from one of the opinions hereinbefore given.

In the case of Grote v. Chester and Holyhead R. Co., 2 Exch. 251, the plaintiff suffered injury by the breaking down of the bridge of the defendant, while being carried over the same by another railroad company, and it was held that the defendant was liable. There was no question in that case of landlord and tenant. The defendant had not leased the bridge or its railroad to the other company, but for compensation paid to it, it permitted that company to carry its passengers over its road and over the bridge; and it was held as it was in the case last cited, that the defendant was under a contract obligation to furnish a reasonably safe bridge, and it was made liable for a breach of the implied contract.

We are therefore of opinion that there was nothing in this case for submission to the jury, that the plaintiff was properly nonsuited, and the judgment below should be affirmed.

Ruger, C. J., dissenting, Danforth and Finch, JJ.

on a trial before the court without a jury, at the Cayuga Circuit. The opinion states the case.

William Tiffany, for appellant.

Rhodes, Coons & Higgins, for respondents.

HAIGHT, J. This is an action in ejectment brought to recover the possession of lands. The facts were agreed upon, and are in substance as follows: John H. Southwick died seised of the lands in question on the 1st day of September, 1869, leaving him surviving his wife, Eliza Ann Southwick, his son Charles H. Southwick, and some other children. He left a last will and testament which was subsequently admitted to probate as a will of real and personal estate. So much of it as is material is as follows: "I give and bequeath to my beloved wife Eliza Ann all my household furniture and all the rest of my personal property, after paying from the same the several legacies already named, to be hers forever. I also give, devise and bequeath to my beloved wife Eliza Ann all my real estate as long as she shall remain unmarried and my widow, but on her decease or remarriage, then what may remain of said realor personal property I give and devise to my son Charles H. In case my son Charles H. should die without children, then after my wife Eliza Ann's death and my son Charles H.'s death, my will is, all the property, real or personal, that may remain, shall go to Augustus Southwick, of Pennsylvania, my brother Nathan's son."

Eliza Aun Southwick, the widow, resided upon the real estate until her death, September 28, 1878. Charles H. Southwick was convicted of the crime of murder in the second degree, and on the 14th day of October, 1875, sentenced to imprisonment at the State prison at Auburn for the term of his natural life, where he ever since then and now is confined on such sentence, and has never had any children. Angustus Southwick and wife, on the 7th of November, 1881, executed and delivered to the plaintiff a deed of the real estate in question. The defendant, George Everett, is in possession of the premises under a parol lease from Charles H. Southwick. Louisa Everett is his wife and the daughter of Eliza Ann Southwick. The court below held and decided that the plaintiff was entitled to recover the possession of the lands.

A question is raised in reference to the construction of the will. It perhaps is not free from difficulty. We have not found it necessary to give this branch of the case a careful examination. The parties concede that if Charles is alive he took an estate in possession of the premises on the death of his mother, and that at most it can only be defeated in case of his death without children. Assuming this to be the case, it then remains to be determined whether or not the contingency has happened. Has Charles died without children? Sec. 40, 3 R. S. (6th ed.) 994, provides that: "A person sentenced to imprisonment in State prison for life shall thereafter be deemed civilly dead." It thus becomes necessary to determine what is meant by the term "civilly dead." Section 42 of the same statute provides: "No conviction of any person for any offense whatever (except upon an outlawry for treason as hereinbefore provided) shall work a forfeiture of any goods, chattels, lands, tenements or hereditaments, or of any right or interest therein." So that even though he may be sentenced to imprisonment for life, and deemed civilly dead, no forfeiture takes place of any of his rights or interests in lands. Charles H. Southwick has brothers and sisters living. Augustus Southwick is his cousin, and is not therefore his heir-at-law. If Charles had not been sencenced to imprisonment for life, he, upon the death of his mother, would have been entitled to the possession of the premises and to their use and enjoyment; but if he should die leaving

children him surviving, the interest of the plaintiff would cease and determine. If the plaintiff is entitled to recover it is upon the ground that Augustus South. wick, by reason of the civil death of Charles H., became vested with the fee absolute of the land. So that in case Charles should subsequently be pardoned, or should escape to a foreign' country, marry and have children, neither he nor his children, on his death, could take or regain the premises. This result, it appears to us, would be in the nature of a forfeiture, which the statute prohibits.

At common law there appears to have been a distinction between civil death as applied to a person who has entered into religion and become a monk professed, and civil death as applied to one convicted of a felony. A person who had entered into a monastery and become a monk renounced all secular concerns, and claimed an exemption from the duties of civil life and the commands of the temporal magistrates. The policy of the law was not to suffer persons to enjoy the benefits of the law who secluded themselves from it, and refused to submit to its requirements. For these reasons a monk was considered absolutely dead in law and his estate would go to his heir. He might make a testament and appoint executors, or if he made none, the ordinary might grant administration to his next of kinfas if he were actually dead or intestate. His executors and administrators had the same power to maintain actions for debt as they would in case he were naturally deceased. He was so effectually dead in law that a lease made even to a third person during the life of one who afterward became a monk, determined by his entry into religion. 1 Bl. Com. 132; Co. Litt., 200.

Whilst a person attainted of felony, and adjudged to imprisonment for life, was considered civiliter mortuus, his disability was not considered to be the strict civil death that attaches to persons entering into religion or who have been banished the realm. He could not bring an action or enjoy his property, but he could be charged in a civil suit and be compelled to plead to the merits; he was under the protection of the law, so that to kill him without warrant would be murder. He could acquire, even though he could not enjoy. He could purchase lands to him and his heirs, and could lease and demise, and his estate would not descend to his heirs. Bullock v. Dodds, 2 Barn. & Ald. 268-275; Doe v. Pritchard, 5 B. & Adol. 765, see opinion of Denman, C. J.; Kynnaird v. Leslie, L. R., 1 Com. Pleas, 389; Platner v. Sherwood, 6 Johns. Ch. 118-127.

The statute of the 29th of March, 1799, provided that in all cases where any person shall be duly convicted or attainted of any felony thereafter to be committed, and adjudged to imprisonment for life in the State prison, he shall be deemed and taken to be civilly dead to all intents and purposes in the law.

Chancellor Kent, in commenting upon this statute in the case of Troup v. Wood, 4 Johns. Ch. 248, says: "I apprehend that the act of March, 1799, was only declaratory of the existing law and enacted for greater caution. Lord Coke says that every person attainted of felony, or who is banished for life, or having committed felony abjures the realm, is extra legem positus, and is accounted in law civiliter mortuus.

In the case of Platner v. Sherwood, supra, the chancellor again refers to this question in his remarks in the case of Troup v. Wood, and states that he did not pursue the subject to the extent that he should have done; that he has since had the benefit of a full and able discussion, and of a diligent and accurate research upon the question. Particular stress is laid npon the concluding clause of this statute, "to all intents and purposes in the law," and he appears to have reached the conclusion that the statute did change the common law in that regard. Under this statute it was

held where a defendant in a cause is sentenced to a State prison for life, he is considered as civilly dead, and a suit against him is abated. Graham v. Adams, 2 Johns. 407. That a pardon would not affect the administration upon his estate, but would restore him to the relation of father and gave him the right to the custody of his infant children. In re Deming, 10 Johns. 232.

On the adoption of the Revised Statutes the statute of 1799 was repealed, and section 40, above quoted, enacted in its stead. Under this statute he is deemed civilly dead; the words "to all intents and purposes in the law" have been stricken out.

It appears to us that the change was for a purpose; that the object of the statute was to place a person under imprisonment for life under no greater disability than existed at the common law. That this is the effect of the decision of the Court of Appeals in the case of Davis v. Duffie, 1 Abb. Ct. App. Dec. 486, it seems to us there can be no doubt. It held that the service of a process upon a convict in a State prison was valid and gives the court jurisdiction. If he is dead to the extent that his personal property passes to his administrators, and his real estate descends to his heirs, should not his creditors pursue the personal represen tatives? Under a recent statute he may now testify as a witness upon civil or criminal trials, and in the discretion of the court a writ of habeas corpus may issue to take him from prison for that purpose. He is also under the protection of the law, and any injury to his person not authorized is punishable in the same manner as if he was not under sentence.

The statute in force at the death of Mrs. Southwick also provided that a person entitled to claim lands after the death of another person having a prior estate, may petition the court for an order that the person upon whose life such prior estate depends may be produced and shown, to the end that it may be determined as to whether or not the person having the prior estate is still alive, and if it shall appear that the person entitled to the prior estate is in prison a writ of

civil death is not such a death as would cause the real estate to descend to heirs. If not, then the civil death of Charles would not operate to vest the fee in Augustus Southwick, or entitle him to the possession of the premises.

Again, whilst this view of the meaning of civil death makes it unnecessary to further construe or interpret the will, still we can hardly believe that the testator, in providing for the transmission of the estate to Augustus Southwick, on the death of his son Charles, without children, had in contemplation his civil death. True he was bound to know the law, and perhaps did understand that a person convicted of murder and sentenced for life would be deemed civilly dead, but in the construing of wills words must be given their ordinary meaning, except where some other is necessarily or clearly indicated. The word death, as used in wills, is ordinarily intended to mean natural death. The judgment should be reversed and a new trial ordered, with costs to abide the event. Barker and Bradley, JJ., concurred. So ordered.

W. & Co. instituted an action against defendants in a State court in Iowa. Defendant filled a petition in bankruptcy in the United States court, but made no defense to the action, and a judgment by default was entered against him. Held, in an action on such judgment brought by W. & Co. in Dakota, that the discharge of defendant, which might, by obtaining a stay of proceedings, have been pleaded in bar of the former action, constituted no defense to the action on the judgment, and that W. & Co. were entitled to recover.

person, and if it shall appear that he is still alive and his identity established, that fact shall be entered on the minutes of the court, and the party petitioning for the order shall pay the costs, etc. If however it should be found that he is actually dead, then the petitioner shall be awarded the possession of the premises. See tit. 8, ch. 5, part 3, Rev. Stat.

If Augustus Southwick should institute proceedings under the statute, it appearing that Charles is confined in prison, a writ of habeas corpus would issue to produce his body. His body being produced and identified, it would become the duty of the court to discharge the proceedings and to order the costs of the proceedings to be paid by the applicant.

Although this statute in much detail makes provision for a careful inquiry as to the death of the person entitled to the prior estate, it in no place contains any provision for the awarding of the possession of the lands because of civil death. Thus by implication we are led to infer that no such thing was intended. These provisions, with some changes, are now embraced in the Code, §§ 2302-2319.

The remarks of Balcom, J., at Special Term, in the case of Freeman v. Frank, 10 Abb. Pr. 370, to the effect that the rights and liabilities of a person civilly dead are as entirely gone as though he were actually dead, was obiter and not well considered.

If we are correct in our conclusion that under the Revised Statutes the disability caused by civil death is no greater than the disability existing at common law on the part of persons attainted with felony, then we regard the case of Platner v. Sherwood, supra, as controlling upon the question here presented. The

haha county.

Winsor & Swezey, for appellants.

Bartlett Tripp, for respondent.

PALMER, J. The pleadings and findings in this record show that on the 28th day of August, 1878, the plaintiffs, as copartners under the name of M. D. Wells & Co., commenced an action upon an account for goods sold and delivered against the defendant, by personal service of process, in the Circuit Court for Buchanan county, in the State of Iowa, which was a court of general jurisdiction. The defendant made no appearance or answer, and at the October term of 1878, on the 29th day of October, judgment was rendered against him for $577.50 and costs. After the commencement of that action, and on the 31st day of August, 1878, the defendant filed his petition in bankruptcy in the United States District Court for the Southern District of Iowa, and such proceedings were had therein that in April, 1880, he obtained'a discharge in the usual form. This action was brought upon the judgment, and the only defense Interposed by the defendant is the discharge in bankruptcy. The trial court held, for the purposes of this case, that the demand in judgment was discharged, and that the plaintiff could not recover. Judgment dismissing the action, and for costs, was entered against the plaintiffs, from which the appeal is taken.

The sole question presented upon this appeal is whether a discharge granted under the late bankrupt law impairs, or at all affects, a judgment recovered in a court of competent jurisdiction, subsequently to the

*S. C., 22 N. W. Rep. 497.

filing of the petition in bankruptcy, which by the statute is "deemed to be the commencement of proceedings of bankruptcy." Rev. Stat. U. S., § 4991. While there is some conflict in the cases, especially in regard to the doctrine of merger involved in the question, we are convinced by the recent authorities cited, and the principles established by the courts of this country as to the conclusive effect of a final judgment, that the defense here interposed should not prevail.

In Bradford v. Rice, 102 Mass. 472, the action was like the case at bar, upon a judgment recovered in another State, pending proceedings in bankruptcy; and it was ruled that the certificate of discharge was no defense to the action. Gray, J., gives the opinion, the first paragraph of which contains the substance of the decisions:

"The ruling of the court below was in accordance with a series of decisions of this court, by which it has been held that if after the institution of proceedings in insolvency or bankruptcy, judgment is rendered upon a debt provable under those proceedings, the original debt is merged and extinguished in the judgment, and the judgment is not provable against the estate of the debtor, nor discharged by the certificate; and this not merely because such a merger takes effect by the rules of the common law, but because the creditor, by taking judgment, and so changing the form of his debt, and securing to himself the benefit of conclusive and permanent evidence of it, and an extension of the period of limitation of an action thereon, is held on his part to have elected to look to the debtor personally, and to abandon the right to prove against his estate; and the debtor, on the other hand, who might have protected himself by moving the court in which the action was pending for a continuance, in order to afford him an opportunity to obtain and plead a certificate of discharge, is held, by omitting to make such a motion before judgment, to have waived the right to set up hls certificates against the plaintiff's claim; and therefore the rights of both parties must be governed by the judgment which the one has moved for, and the other has suffered to be rendered."

This decision is followed and approved in later cases in the same court. Cutter v. Evans, 115 Mass. 27; Ray v. Wight, 119 id. 426. In Boynton v. Ball, 105 Ill. 627, the same conclusion was reached in the Circuit, Appellate and Supreme Court upon the question here involved. The Supreme Court reviews the question upon both the grounds stated in the Massachusetts case, and while recognizing the conflict which has existed in the courts concerning the doctrine of merger by judgment, says on this point: "We are satisfied the better doctrine, and that too established by the latter decision, is that a judgment rendered after an adjudication in bankruptcy creates a debt which cannot be proved against the bankrupt's estate; that the indebtedness existing prior to the recovery becomes merged in the judgment." Then referring to the other ground of decision in the Massachusetts case the court says: "The Circuit Court did not lose jurisdiction of the case because Boynton was adjudged a bankrupt; but as was held in Eyster v. Gaff, 91 U. S. 521, it was the duty of the court to proceed with the cause until, by some pleadings, the court was informed of the changed relations of the parties. See also Holden v. Sherwood, 84 Ill. 92. The Circuit Court could do nothing less than proceed with the case to final judgment; and as the judgment is to be regarded as the joint act of Boynton, who of his own choice allowed it to be rendered, and of the plaintiff, upon whose motion it was rendered, the rights of these two parties must be regarded as finally setttled by that judgment. We are not aware of any case that holds that where a defense might have been made to a pend

ing cause of action, but was not set up, solely through the negligence of a defendant, such defendant may afterward interpose the same defense to the judgment which has been rendered against him. It is ordinarily enough that a party has had a day in court and an opportunity to plead his defense. The bankrupt act in clear terms provides for the stay of an action which may be instituted against the bankrupt until his discharge is passed upon. This statutory provision was incorporated into the law for the purpose of enabling a defendant, situated as was appellant, to plead his discharge in bar of the action; but as appellant gave no heed whatever to the law, and through his own negligence allowed a judgment to be rendered against him, what reason can be urged for holding that the judgment shall not be binding upon him? None is perceived."

The same question has recently been decided in Bowen v. Eichel, 91 Ind. 22, in harmony with the decision above cited; and this decision is based mainly upon the proposition that if a defendant fails to interpose a stay of proceedings, upon the intervention of bankruptcy, he must abide the consequences of the judgment.

These decisions are sustained by numerous authorities in like cases. In re Williams, 2 N. B. R. 80, by Judge Shipman; In re Gallison, 5 id. 353, by Judge Lowell; In re Mansfield, 6 id. 388; Hollister v. Abbott, 31 N. H. 442; Holbrook v. Foss, 27 Me. 441; Pike v. McDonald, 32 Me. 418; Sampson v. Clark, 2 Cush. 173: Faxon v. Baxter, 11 id. 35; Cutter v. Evans, 115 Mass.,27 supra; Steadman v. Lee, 61 Ga. 58; Revere Copper Co. v. Dimock, 90 N. Y. 33. The cases cited contra appear to have been decided upon a limited and exceptional view of the doctrine of merger.

But independently of this question of merger, we are clearly of the opinion that the defense here interposed cannot prevail without violating another principle, that the judgment is final and conclusive as to every matter of defense existing at the time. That the act of 1867 provides an ample remedy whereby the suit in the lower court might, upon the application of the defendant, have been stayed to await the determination of the court in bankruptcy on the question of the discharge, and judgment therein prevented, is no longer an open question. Rev. Stat. U. S., § 5106; Hill v. Harding, 107 U. S. 631; S. C., 2 Sup. Ct. Rep. 404; Ray v. Wight, 119 Mass. 426; Page v. Cole, 123 id. 93. But no such application having been made, that court retained complete jurisdiction, and could properly proceed to judgment. Doe v. Childress, 21 Wall. 642; Eyster v. Gaff, 91 U. S. 521; Holden v. Sherwood, 84 Ill. 92; Amador C. & M. Co. v. Mitchell, 59 Cal. 168; Cutter v. Evans, 115 Mass. 27; Ray v. Wight, 119 id. 426, supra; Hill v. Harding, 107 U. S. 631,supra. These cases show the remedy of the statute is in the nature of a personal privilege on the part of the bankrupt. It is said by Justice Gray in the last case cited, as he had before declared when chief justice of the Massachusetts court (Ray v. Wight, 119 Mass. 428), that if neither the bankrupt nor his assignee in bankruptcy applies for a stay of proceedings, the court may of course proceed to judgment. And the extent of this statutory remedy is to afford a complete defense in the action. The stay of proceedings is to await the determination of the court in bankruptcy "on the question" of the discharge, "evidently for the purpose of enabling the bankrupt to obtain his discharge, and plead it in bar of the action." It is so held in the Indiana, Illinois and Massachusetts cases, and assumed or conceded to be so, in the other cases cited. In Ray v. Wight, supra, the court plainly says that one of the objects of this provision is "to protect the bankrupt, in case he obtain his certificate, from having the original cause of action against him merged in a judg

This remedy of the statute therefore, being in the nature of a personal privilege, and the defendant having waived it as he did, how can he now avoid the legal consequences of the obligation created by the judgment of the court? This obligation no longer rests upon the contract or consent, for "judicium redditur in invitum." A judgment is essentially different from a contract in its nature and elements, and is deemed in law as "obligation of record." 2 Am. Lead. Cas. 819, 820; O'Brien v. Young, 95 N. Y. 428, and cases cited; State v. City of New Orleans, 109 U. S. 285; S. C., 3 Sup. Ct. Rep. 211. From the time the Supreme Court, in Mills v. Duryee, 7 Cranch, 481 (1813), decided that nil debet is not a good plea to an action upon a judgment of another State, it has been uniformly held that a party bound by such obligation is estopped from alleging or proving that at the time he did not owe the debt. Christmas v. Russell, 5 Wall. 290; Cromwell v. County of Sac, 94 U. S. 351; Revere Copper Co. v. Dimock, supra; Jordan v. Phelps, Cush. 545; Fuller v. Shattuck, 13 Gray, 70; Stephens v. Howe, 127 Mass. 164; Patrick v. Shaffer, 94 N. Y. 423. And within the general principle of the res adjudicata it is well established that the judgment of a court of competent jurisdiction is final and conclusive, not only as to any matter of defense actually determined, but as to every other defense or remedy to defeat or diminish the recovery, which might have been interposed, but was omitted or otherwise waived. Jordan v. Van Epps, 85 N. Y. 427, and cases cited; Wells Res Adj., § 251, 67; Marriot v. Hampton, 7 Term R. 269; Le Guen v. Gouverneur, 1 Johns. Cas. 492; Walker v. Ames, 2 Cow. 428; Binck v. Wood, 43 Barb. 320; Clemens v. Clemens, 37 N. Y. 74; Noble v. Merrill, 48 Me. 140; Bridge Co. v. Sargent, 27 Ohio St. 233; Bates v. Spooner, 45 Ind. 493; Kelly v. Donlin, 70 Ill. 378; Dewey v. Peck, 33 Iowa, 242; Bank v. Stevens, 46 id. 429; Mally v. Mally, 52 id. 654; Parnell v. Hahn, 61 Cal. 131.

SCHOFIELD V. CHICAGO, ETC., R. Co.*

Where a person, in a sleigh drawn by one horse, on a wagon road, approaching a crossing of a railroad track, with which he was familiar, could have seen a coming train, during its progress through a distance of seventy rods from the crossing, if he had looked from a point at any distance within 600 feet from the crossing, and was struck by the train at the crossing and injured, he was guilty of contributory negligence, even though the train was not a regular one, and was running at a high rate of speed, and did not stop at a depot seventy rods from the crossing in the direction from which the train came, and did not blow a whistle or ring a bell between the depot and the crossing.

Held, proper for the trial court to direct a verdict for the defendant.

judgment is final and conclusive between the parties,

not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation, within the purview of the original action."

And in the Sac County case, 94 U. S. 352, it is said that where the former judgment was upon the same claim or demand in any subsequent action, "it is a finality as to the claim or demand in controversy, concluding parties not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." Thus for example, a judgment rendered upon a promissory note is conclusive as to the validity of the instrument and the amount due upon it, although it be subsequently alleged that perfect defenses actually existed, of which no proof was offered, such as forgery, want of consideration, or payment. If such defenses were not presented in the action and established by competent evidence, the subsequent allegation of their existence

defendant. The suit was one to recover damages for personal injuries to the plaintiff, caused by his being struck by a train running on the railroad of the defendant, while the plaintiff, in a sleigh drawn by one

horse, was endeavoring to cross the track on the 13th of February, 1881, at Newport, in Minnesota. The issippi river, through Newport to St. Paul, about 4 train was running north, on the east bank of the Misso'clock in the afternoon, in daylight, on Sunday. The track was straight from the crossing to a point 2,320 feet south of it, and the country was flat and open. The plaintiff was himself driving, with a companion in the sleigh, in a northerly direction, on a wagon road which ran in the same general course with the railroad, and to the west of it, and attempted to cross it from the west to the east, as the train approached from the south. The crossing was seventy rods to the north of the depot at Newport. Opposite the depot, the wagon road was 280 feet distant to the west of the ing the beaten track in the snow. depot. The plaintiff had a slow horse, and was followWhen he arrived at

a point in the wagon road 600 feet from the crossing, he could there, and all the way from there till he reached the crossing, have an unobstructed view of

*S. C., 5 Sup. Ct. Rep. 1125.