This action is against the defendants, as co-partners, doing business under the name and style of A. H. G-errish & Co. ' The defendant Swanton contests, that he is not a member of such firm. The other defendants have submitted to a default, thereby admitting the existence of such firm and that they are members of the same.
The plaintiff, to prove that Swanton was a member of the firm of A. H. G-errish & Co., introduced the record of a judgment in his favor, against said Swanton, in which his right to recover depended upon his establishing the fact of his being such partner on the day of the date of the note then in suit. On the trial of that action the following question was proposed to the jury; — " Was the defendant (Swan-ton) a partner and member of the firm of A. H. G-errish & Co., in the business at Bethel, from 1854 to 1857?” To this the jury answered — "He was.”
The same question is in issue between the same parties in the present case. In the first suit, the rights of the parties depended upon the fact whether the defendant Swanton was a member of the firm of A. H. Gerrish & Co. That question has been once clearly and distinctly presented to the jury by these parties. "It is not necessary, in order to make a judgment conclusive, that the cause of action should be the same in the first suit as in that in which the judgment is pleaded or relied upon in bar. But it is essential that the issue should be the same.” Merriam v. Whitmore, 5 Gray, 317. The finding of the jury must be regarded as settling, as between these parties, the fact specially submitted to and found by them. And such seems to be the entire weight of judicial authority. Chace v. Walker, 26 Maine, 555; Gardner v. Buckbee, 3 Cow., 120; Sawyer v. Woodbury, 7 Gray, 499; Jennison v. West Springfield, 13 Gray, 544; Perkins v. Walker, 19 Verm.,144; Chapman v. Smith, 16 How. U. S., 133. Exceptions overruled.
Davis, Kent, Walton, Barrows and Danforth, JJ., concurred.