The opinion of the court was delivered by
Redfiekd, J.This case seems to have been tried by a jury, in the court below, without objection. This, was, indeed, unnecessary, and irregular in some respects. The issue formed upon the plea of nul tiel record could only be tried by the court, and should have been jfo-si tried, before it could be known that any issue for the jury would remain in the case. For, if determined in favor of the defendant, as it in fact was, nothing would remain for the jury to try. We should not deem it necessary here to notice the subject, if the trial, having passed under the revision of this court sub silentio, was not liable to be thus drawn in precedent, in future trials.
The same reason, last stated, makes it necessary to advert, perhaps, to the form of the defendant’s first plea in bar. It alleges, that the same matter had been determined in a former trial between the same parties, without stating in favor of which party the case was determined, and then concludes with a proutpatet per recordum. This plea is traversed; and is treated by both parties as a plea of estoppel. The books all agree, that the greatest strictness is required in pleading estoppels. Every fact necessary to create the estoppel must be alleged with the strictest certainty; and it must be alleged that all these facts appear by the record, which is vouched *423as an estoppel; and the court then determine the matter, on inspection of the plea, if demurred to, or of the record, if that be denied, Co. Litt. 352 b., Thomas’s Arrangement, 3d vol. 431-433; 1 Chit. PI. 238-9. All pleas of estoppel must rely upon the estoppel in conclusion. Co. Litt. 303 6., Thomas’s Arrangement, 3d vol. 431; 1 Chit. Pl. 540, The case of Shelley v. Wright, Willes’ R. 9, contains an approved precedent of a plea of estoppel. But the plea in this case not being demurred to, it remains to determine its merits.
It is not easy, without considerable labor, to extract, from the numerous cases upon the subject, the precise doctrines which, have been settled upon the subject of the effect of a former verdict, or judgment, between the same parties, touching all or any portion of the matters again at issue. Perhaps the following corollaries are fairly deducible from all the cases, which will be found to embrace most of the principles involved in the subject. 1
1. There is always to be observed this distinction, between a former adjudication, when it is relied upon as having determined the entire merits of the controversy now in hand, and when it is brought forward only as settling some collateral fact involved, and which might have been merely incidental to the former controversy, that in the former case the defence is never required to be pleaded strictly as an estoppel, while it always is in the latter case. Stafford v. Clark, 2 Bingham 377, [9 Eng. Com. Law R. 437;] 3 Stark. Ev., 3d Lond. ed., 960, 961. The former defence is not by way of estoppel, but only an equitable defence, like payment, release, or accord and satisfaction, an award, or account stated, all which matters, as well as a former recovery, may be given in evidence under the general issue in debt, or assumpsit, trover, or trespass on the case; and in trespass, or covenant, need only be pleaded like any other plea in bar, and not as an estoppel. It is not essential to the defence of a former recovery, that the plaintiff should have prevailed in the former suit, but only that the trial should have been upon the merits.
2. Where the former trial is relied upon, as settling some collateral fact involved in the present trial, it must appear by the record of the former judgment, that that fact was put distinctly in issue by the parties in that ease, and that it was determined by the triers. Vooght v. Winch, 2 B. & A. 668; Fairman v. Bacon, 8 Conn. R. *424418. This last requisite of an estoppel by matter of record, that it should appear, by the record vouched, that the particular fact was in issue and found, is determined by the cases of Outram v. Morewood, 3 East 345, Hopkins v. Lee, 6 Wheaton R 109, and Jackson v. Wood, 3 Wendell, 27.
3. But if such fact do not appear by the record to have been distinctly in issue and determined, or if the matter be not properly pleaded as an estoppel, it is said the record and finding in the former trial are evidence, but not conclusive. Wright v. Butler, 6 Wend. 284; Standish v. Parker, 2 Pick. 20; Parker v. Standish, 3 Pick. 288; Spooner v. Davis, 7 Pick. 147; Vooght v. Winch, ubi sup.; Outram v. Morewood, and many others. Upon this last subject there is, no doubt, as is said by Mr, Starkie, no inconsiderable difficulty. 3 Stark. Ev. 958. I profess myself utterly at a loss to find, from all the cases upon the subject, what rule can be laid down for determining the effect of a former verdict upon the same facts, if it is to have any effect in a future litigation, and is not conclusive. Some learned judges have said, “ it is evidence,” “ stringent evidence,” “ pregnant evidence,” and there the matter rests. My own opinion, is, that the former finding, even when it is necessary to resort to oral evidence to ascertain that the fact in dispute was involved in the former controversy, is still conclusive upon the parties, and of course upon the jury. But it cannot be pleaded as an estoppel, and must of course go to the jury; and, as it rests in pais, for the jury to find whether the disputed fact was determined by the former trial, the jury, by refusing to find that fact, which rests in their discretion, always have it in their power to disregard the former verdict; in that sense, therefore, it is not conclusive, as it is when the matter appears upon the record, and may be determined by the court.
4. It is said, in all the books, that estoppels must be pleaded, and that if not, they are waived, but that, if the party has no opportunity to plead the matter, he may give it in evidence, and it will be equally conclusive. This, I have no doubt, is correct, on the same ground that certain other defences in certain actions are required to be specially pleaded, as for example the statute of limitations. But I profess myself utterly opposed to the reason, which has been handed down to us for requiring this strictness of pleading in *425regard to estoppels of record, that is, that “ estoppels are odious,” “ not to be favored,” “ because they shut out the truth.” This last clause seems to contain the pith of the whole matter, the hinge upon which all the odium, turns, — •“ because they shut out the truth ! ” If it were said that they shut out litigation, or controversy about truth, I could comprehend the force of the maxim; but by what species of logic it is made to appear that a second contestation of the same matter, after the lapse of considerable time, and the uncertainty which time always brings, more or less, upon all past transactions, is to be made more sure of resulting in the truth, is quite beyond my corriprehension. I hold, that the entire doctrine of the eonclusiveness of former adjudications, not only as to the merits of the controversy, but as to all facts distinctly put in issue, and found by a tribunal of competent authority, instead of being an odious doctrine, is one of the most salutary and conservative doctrines of the law. Well has the maxim been appropriated to this subject, — Interest reipublicce sit finis litium.
From whát has been said, it will be apparent that in the present ease the estoppel was conclusive. It seems to possess all the necessary requisites. 1. It is the same subject-matter. 2. It is between the same parties. 3. The fact relied upon was put distinctly in issue in the former case and found by the triers. 4. This appears by the record. 5. No exception is taken to the form of pleading the estoppel.
Judgment affirmed.