There is and can be no controversy as to the rule of law invoked by the defendant; that is, that a matter once litigated and determined by competent authority cannot a second time be brought in controversy between the same parties. In the concise and perspicuous language of Lord Chief Justice De Grey in the Duchess of Kingston’s case, so universally quoted with approbation, “ the judgment of a “ Court of concurrent jurisdiction, directly upon the point, is, “asa plea, a bar; or as evidence, conclusive, between the “ same parties, upon the same matter, directly in question in “ another Court.” But to give a judgment such effect, it is an essential element in the rule that there be an identity of parties. For it is a principle universally acknowledged, that *268no one can, in general, be bound by a judgment, unless he be a party to the suit, or be in privity with the party. (1 Stark. Ev. 217 n.) “ It is (says Starkie) a general rule, that a ver- “ diet shall not be used as evidence against a man where the “ opposite verdict would not have been evidence for him ; in “ other words, the benefit to be derived from the verdict must “ be mutual. This (he adds) seems to be no more than a “ branch of the former rule, that to make the judgment con- “ elusive evidence, the parties must be the same; for then the “ benefit and prejudice would be mutual and reciprocal.” (Id. 220.) cl Both the litigants must be alike concluded, or “ the proceedings cannot be set up as conclusive upon either.” (1 Greenl. Ev. See. 524.)
Are the parties to the present suit the same as the parties to the judgment relied on by the defendant as a bar to the action ? Is the present defendant concluded by the proceedings in the former suit ? Clearly not. He was not a party to that suit. He was not made a party in any of the forms known to the law. The answer of the defendants in that suit did not make him a party to the suit. Hot being a party to the record, he is not concluded by the judgment; and as it is essential that in order to be binding its operation be mutual, neither can the plaintiff in this action he concluded by that judgment.
It is insisted that the plaintiff is estopped by the averments in his answer in the former suit, from denying that the defendant was a party to that suit. It might be replied that the judgment on which he relies as imparting absolute verity, is an adjudication of the contrary. That averment was as certainly controverted and pnt in issue in the former suit, as any other averment in the answer; and was as certainly negatived and adjudged to be untrue by the judgment of the Court in that case. The plaintiff must have an equal right with the defendant, to insist upon the verity and conclusiveness of that adjudication.
It is evident the defendant was not a party to the former *269judgment; and ifc cannot avail him, either as a plea in bar, or as evidence in this suit. The instructions and judgment of the Court, maintaining the contrary, are therefore erroneous.
It is true, the plaintiff sought to recover his demand of the plaintiff in the former suit; and that he failed to establish the liability of the latter. But because the plaintiff in that suit, who was not a party to the contract and is not a party to this suit, was not liable upon the contract here sued on, ifc is neither a legal nor logical deduction that the present defendant is not. The plaintiff may have misconceived Ms remedy, and prosecuted his demand against the wrong party; but sorely he is not thereby precluded from suing the right one.
The judgment is reversed and the cause remanded.
Be versed and remanded.