Curia,
per Woodworth, J.This is a writ of error to the Common Fleas of the city of Mezo York. Buckbee, plaintiff in the Court below, commenced an action against Gardner, on a promissory note. The defendant pleaded the general issue, and gave notice of special matter, that the note was given in part payment for a vessel called the Tiger, sold to the defendant and others, and alleged fraud by the plaintiff in the sale ; the vessel being at the timé rotten and unseaworthy, and that known to the plaintiff. At the trial the plaintiff admitted, that the note was one of two promissory notes, for the same amount, given by the defendant and two' others, as the consideration upon the sale of the vessel.
The defendant offered to prove, in bar of the plaintiff’s demand, that the plaintiff impleaded the defendant, in the Marine Court of the city of New York, upon a promissory note, bearing even date, and for the same amount as the one now in question, signed by the same parties, and given for the consideration money; that, upon, the trial in the Marine Court, the fraud of the plaintiff in the sale was the only point in question; and that judgment had been rendered in that Court in favour of the defendant, on the ground that the sale was fraudulent. The plaintiff objected to the' testimony, because the judgment had not been pleaded, or notice given ; and that the note on which the present suit was brought, is a different instrument from that declared on in the Marine Court. The Judge declared the evidence" was not admissible, in that stage of the cause, but might be *126offered, after proof to the jury of the fraud, and in support thereof, to which the defendant excepted.
The defendant, then, in proof of the fraud, offered in evidence the record of the judgment in the Marine Court, in favour of the defendant, on the other note. By the record it appeared that the defendant pleaded the general issue, and. gave notice of a total failure of the consideration. I. B. Scott, one of the Justices of that Court, testified, that the matters directly in question before the Marine Court, were, the unseaworthiness of the vessel at the time of sale, and the knowledge of that fact by the plaintiff; it not being disclosed at the time of sale to the defendant.
The counsel for ttie defendant then insisted, that the record was a judgment of a Court of concurrent jurisdiction, upon the same matters in question in the Court below, and was conclusive evidence in favour of the defendant to entitle him to a verdict. The Judge decided, and charged the jury, that the matters given in evidence by the defendant, were not, in themselves, sufficient to bar the plaintiff’s action, but we* e entitled to the serious consideration of the jury, and were to be taken by them in conjunction with the other evidence of fraud offered in proof. The jury found a verdict for the plaintiff. The defendant excepted to the opinion.
It appears clearly that the question of fraud was tried between the parties, in the Marine Court, on one of the notes given in part payment of the vessel. That Court had concurrent jurisdiction. The question is, whether the judgment thus obtained is not a conclusive bar to a recovery in this .cause ? The lavt' is w'ell settled, (hat the judgment of a Court of concurrent jurisdiction, directly upon the point, is, as a plea in bar, or evidence, conclusive between the same parties, upon the same matter directly in question in another Court. This was the rule laid down by De Grey, Chief Justice, in delivering judgment in the Dutchess of Kingston's case. (11 State Tri. 261. 1 Phil. Ev. 223. 1 Peters' Rep. 202, Cir. Court U. S.) I am not aware that it has been departed from 'by our Courts. The general principle does not. appear to be controverted by the counsel for the defendant *127In error; but it is urged that the judgment in the Marine Court does not affirm any particular fact in issue in this cause, but is general and indefinite ; and that, from the language of the record, it cannot be inferred whether the two cases were founded on the same or a different state of facts. It is true, the record merely proves the pleadings, and that judgment was rendered for the defendant. Without other proof it would not make out the defence. The record shows that it was competent, on the trial, to establish the fraud of the plaintiff. Whether fraud was made out, and whether that was the point upon which the decision was founded, must necessarily be proved by evidence extrinsick the record. To do so is not inconsistent with the record, nor does it impugn its verity. The jury must have passed on the fraud. It was directly in question. Scott testifies that the unseaworthiness was not disclosed at the time of sale to the defendant. The inquiry, then, was solely directed to the question, was the vessel unseaworthy, and had the plaintiff knowledge of that fact when he sold ? By the finding of the jury, both propositions are affirmed. The judgment became conclusive between these parties, on these points, and is an effectual bar to the action to recover the residue of the consideration money. It is unnecessary to consider whether the record was admissible in evidence under the general issue, without notice. It was admitted, and no exception was taken on that ground. The effect ascribed to it seems to be the material question in the case. It is in general true, that, under nonassumpsit, most matters in discharge of the action, which show that at the time of the commencement of the suit the plaintiff had no cause of action, may be taken advantage of. (1 Chit. 472.) This rule may appear somewhat arbitrary, as the object of pleading is to apprize the adverse party of the grounds of defence. It is, however, peculiar to this action, although, as Chitty observes, not according with the logical precision which usually prevails in pleadings. The Judge ought to have charged the jury, that if, from the evidence, they were satisfied that the matters in question had been passed upon in the Marine Court, the record was conclusive against the plaintiff’s right to recover.
*128^ am °f opinion that the exceptions are well taken, and that the judgment ought to be reversed.
Judgment reversed.
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