The opinion of the court was delivered by
Bennett, J.— It is at least a familiar principle of law, *694that, when a fact, appearing to have been put directly in issue on the face of the pleadings, is determined by a jury in one case, the verdict, when properly pleaded in a subsequent suit between the same parties, is conclusive as to the facts found by the verdict in the first case. This is by way of an estoppel ; and, it is usually said that, to give it this effect, it must be pleaded as an estoppel. It is, no doubt, true that where the party has an opportunity to plead the estoppel, he is bound to do it; and, if he omits it, the jury will not be bound by the estoppel, but may find according to the fact. If, however, there has been no opportunity to plead the matter as an estoppel, it may, in general, be given in evidence, and it will have the same conclusive effect as in cases where it is pleaded. This is according to the current of the authorities, though they may not have been entirely uniform. Hobart’s R. 207. 1 Salk. R. 277. 1 Phil. Ev. 224, 225. 14 Mass. R. 243. 3 Cowen’s R. 120. 6 Wend. R. 289. 17 Serg. & Rawle, 319. 1 Swift’s D. 622. 8 Vt. R. 461.
It seems, from this bill of exceptions, that the fact whether there had been a surrender of the premises by the defendant, for the use of which the rent is claimed, on the former trial between these same parties, was put distinctly in issue by them, and by the court in their charge to the jury, and that issue was found for the plaintiff. This action, being brought for rent claimed to have accrued since the former recovery, the defendant, after pleading the general issue, claims, on trial, that though he took the premises of the plaintiff under a contract to pay rent, yet he had surrendered them to him, and that the plaintiff accepted the surrender, and let them to another tenant. The plaintiff could not have replied the estoppel to the defendant’s plea. Fry v. Cook, 2 Aik. R. 342. He must, therefore, be permitted to give it in evidence, and it must be conclusive upon the parties. If, however, this had been a case where the party might have replied the estoppel, it would have been his duty so to have done, if he intended to have relied upon the matter as an estoppel.
The judgment below is affirmed.