—The first question is as to the sufficiency of the second plea. This plea is to the further maintenance of the suit, and avers, in substance, that after the commencement of the present action, Chamberlain sued Gaillard in assumpsit, to recover for the use and hire of the slave sued for in the present action, alleging that he was the owner of said slave; and that in that action a recovery was bad by Chamberlain upon the merits. The rule is, that judgments are final and conclusive between the parties, when rendered on a verdict on the merits, not only as to the facts actually litigated and decided, but that they are equally as conclusive upon all the facts which were necessarily involved *510in the issue (Cummings v. McGehee, 9 Port. 349; Greenl. Ev., §§ 522, 528; C. & H. Notes to Phil. Ev., 830); and although the particular matter is not necessarily involved in the issue, yet if the issue is broad enough to cover it, and it actually arose and was determined, it may then be connected with the record by evidence aliunde.—Robinson v. Windham, 9 Port. 397; Davidson v. Shipman, 6 Ala. 27; Wood v. Jackson, 8 Wend. 9; C. & H. Notes to Phil. Ev. (2 ed.) 847-8. If it were otherwise, a judgment upon the same matter, and between the same parties, could never be conclusive, in any case where, from the generality of the pleadings, the particular facts tried and determined did not appear upon the face of the record itself. In the plea we are considering, however, there is no allegation that the question of ownership entered into the issue of the former action. The averment, in effect, is simply, that the defendant'in the action of detinue obtained a judgment, in a suit commenced after that action, for the hire of the same slave, and that the declaration in such suit contained an averment that he was the owner of the slave. But the gist of the action was, the right to recover for the use of the slave ; and if that right was established, it would have been entirely immaterial whether the plaintiff in that action was the owner of the slave or not. If Gaillard had hired the slave of him, and thus recognized his title as owner, he would not be allowed to dispute that fact; and in such a case, the allegation of ownership would have been treated as an immaterial averment. — Peters v. Heydenfeldt, 3 Ala. 215. The court, therefore, could not say from an inspection of the record alone, that the ownership of the slave was necessarily involved in the action referred to in the plea ; and there was, for that reason, no error in sustaining the. demurrer.
In relation to the charge of the court: The special plea on which the trial was had, was, in substance, a former recovery by Chamberlain against Gaillard, in which the record is set out, with the additional allegation, that the ownership of the slave sued for formed a material part of the issue on that trial. The appellant, to support this plea, introduced the proceedings and judgment, corresponding with the record described in it, showing an action of assumpsit by the appellant against the appellee to recover for the use and hire of *511a slave, named Adam ; the declaration alleging that Chamberlain was his owner. This suit was commenced, and judgment rendered in favor of the plaintiff therein, during the pendency of the action of detinue, to the further maintenance of which it was pleaded in bar; and in connection with the record, the judge who presided on the former trial was introduced as a witness, who proved that, on such trial, there was evidence before the jury as to the ownership of the slave in the trial then proceeding, — that this question of ownership was argued to the jury on the first trial, and that they were charged and instructed by the judge in relation thereto. The charge of the court upon this evidence was, that the record, and testimony offered in connection with it, were not sufficient to sustain the plea. That the plea is defective is certain, for, conceding that the question of title was material in the suit to which it refers, that is not enough. It should show that it was material, so as to bar the suit against which it is pleaded ; and that it could not do, unless it showed that it was necessarily determined by the jury that Chamberlain was the owner of the slave at the time of the commencement of the detinue suit. Chamberlain, as we have seen, might have recovered upon the bailment of the slave by him, without reference to the ownership ; or he might have proved that he was the owner at a period any time within six years before the commencement of his action, and claimed the right to recover hire during the period his title lasted. It was necessary that the plea should have shown that Chamberlain, in the former suit, rested his right to recover upon the ownership alone, and that the verdict and judgment necessarily determined that he was the owner down to the period we have mentioned.—Lawrence v. Hunt, 10 Wend. 80. The plea is, that on the former trial the question of ownership was material to the right of the plaintiff in that suit to recover ; and unless the defendant shows a state of facts which negatives his right to recover on any other ground, his plea is not'sustained. That there was evidence on the other trial as to the ownership of the slave; that that question was argued before the jury, and a charge given upon it by the judge, is not enough. These facts all may exist, and the determination of this question not necessarily be involved. Non *512constat but that Chamberlain may have predicated his right to recover upon a bailment, in which the title would have been immaterial, as well as upon the question of ownership. It was not (and could not be) shown that the question of title was determined by the jury, until it was shown that they could not have found their verdict without determining this question; and unless the facts established such to have been the case, the plea was not sustained. In this aspect, as there was no evidence tending to show that the evidence was confined to the question of ownership alone — the issue being broad enough to allow Chamberlain to claim independently of that fact — the plea was not sustained, and there was no error in the charge to that effect.
As to the counsel for the defendant, on the trial below, being entitled to open and conclude the investigation and argument of the cause, in consequence of having the affirmative of the issue as presented by the plea : We do not regard that question as an open one in this court. Under our practice, the plaintiff is entitled to the opening and conclusion in every case, unless he waives the right to open.—Worsham v. Goar, 4 Port. 441; Grady v. Hammond, 21 Ala. 427.
Judgment affirmed.