In the opinion of the judges, given in the Duchess of Kingston's case (2 Smith’s Lead. Cases, 609 [573],) is the following language, given as the result of the numerous decisions, relative to judgments being given in evidence in civil suits : “That the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another court.” It can not be overlooked, that this language lays down a strict rule ; yet, it is supported alike by reason and authority. The parties must be the same, the subject-matter the same, the point must-be directly in question, and the judgment must be rendered on that point. Any of these ingredients wanting, the defense fails. The sentence quoted above has been adopted, both by text-writers and judicial tribunals, and has come to *133be recognized as a judicial axiom.—McCravey v. Remson, 19 Ala. 430; Miller v. Jones, 29 Ala. 174; 1 Greenl. Ev. §§ 528-9; Freem. on Judgments, § 258.
In Chamberlain v. Gaillard, 26 Ala. 504, this court said: “ 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 in the issn«; 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. * * 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 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.”
The present suit is trover against two, Mrs. Jones and B. A. Jones. True, Mrs. Jones died, by which the suit became abated as to her, and it then became an action against B. A. Jones alone. Trover being an action in tort, joint and several in its nature, when one defendant died, it operated a severance, and there is no authority in the law for bringing in the representative of the deceased co-defendant (Code of 1876, § 2912; Foster v. Chamberlain, 41 Ala. 158); and the Circuit Court did not err in vacating the order- of revivor. Rupert v. Elston, 35 Ala. 79.
The defense the two special pleas attempt to raise is former recovery; that Gilbreath, the plaintiff, had previously brought an action of detinue against Delia Jones, the deceased defendant, for the unlawful detention of the chattels sued for in this action ; that there was issue formed, and a jury, verdict and judgment for the defendant; and “ the conversion in the said plaintiff’s complaint is the same identical detention, and none other, alleged by the said plaintiff in the aforesaid suit, commenced, tried and determined as aforesaid, in said action of detinue.” Comparing this defense with the sound rules declared in Chamberlain v. Gaillard, supra, it is fatally defective, in several respects. “ There is no allegation that the question of ownership entered into the issue of the former action;” and the averments of the plea fail to show that that issue must have been passed upon, in the former trial. Another fatal objection to these pleas is, that a jury and verdict in favor of Mrs. Jones can not, on any correct principle, be *134treated as decisive of' plaintiff’s right of recovery • against R. A. Jones.
But, there is a conclusive objection to the defense attempted, in this : Detinue can be maintained only on proof that defendftijt was in possession when the suit was brought. The averments of the pleas do not negative the idea, that Mrs. Jones recovered because there was a failure to make that proof.—Wittick v. Traun, 27 Ala. 562; Haynes v. Crutchfield, 7 Ala. 189; Fenner v. Kirkman, 26 Ala. 650. The rule in trover is different.—Gray v. Crocheron, 8 Porter, 191; Freeman v. Scurlock, 27 Ala. 407.
The demurrer to the special pleas should have been sustained. The Circuit Court algo erred, in th® rule declared in the charge given.
Reversed and reminded,