The first question which will be considered, is, whether Orphia Bacon, the defendant, was a proper witness. She was pronouced so, by the judge at the circuit; and I perceive no objection to that decision. The adjustment of an executor’s or administrator’s account always precedes a settlement of the estate. It is essential, and hence a matter of duty—duty to himself, and safety to the estate. This adjustment is strictly and properly matter of accounting, in relation to which all parties in interest may testify. It is the right and duty of the executor to render his account to the judge of probate. His bond obliges him to do this. In accounting for property received, and debts and liabilities incurred, his oath may be absolutely necessary; and it is believed, that this practice extensively, if not universally, prevails in our courts of probate, and has been sanctioned by the higher courts.
Were Shepard, her co-executor, living, he could account on oath; and the accounts of the executors against the estate would thus be settled. An adjustment between them might be essential; and shall his death vary or affect her rights? I think not.
The great question, however, is, whether the finding and decree in the case of Orphia Bacon v. James B. Fairman and another (vid. 6 Conn. Rep. 121.) can be used, on this trial, as an estoppel or as proof, conclusive or otherwise, against the plaintiff, to disprove the facts in the present cause. It is doubtless true, that a matter once litigated and decided, by a court of competent jurisdiction, shall not, a second time, be brought *425in controversy between the same parties; but they are forever concluded thereby. 1 Stark. Ev. 191. 194. There is another principle which has a governing influence on this point; and that is, the fact found by a former decree or judgment must have been necessary to uphold that decree or judgment, in order to make it an estoppel, or conclusive, or, in general, evidence at all; and to create an estoppel, such fact or point must have been directly put in issue, and it must so appear on the record. Outram v. Morewood, 3 East 346. Hopkins v. Lee, 6 Wheat. 117. Kinnersley v. Orpe, Doug. 517, Smith v. Sherwood, 4 Conn. Rep. 276. Betts v. Starr, 5 Conn. Rep. 550. Denison v. Hyde, 6 Conn. Rep. 508. 516, 17. Abbe v. Goodwin, 7 Conn. Rep. 377. 383. Coit v. Tracy, 8 Conn. Rep. 268, 276. Hotchkiss v. Nichols, 3 Day 143. Ryer v. Atwater, 4 Day 431. 434. 1 Stark. Ev. 204, 5. & seq. The several positions above are fully supported, by these authorities, and many others, which might be cited. Let these principles be applied as tests on the question whether the former decree between those parties tan operate as an estoppel, or as conclusive, or be received as evidence at all.
The question to be tried was, whether Shepard had made payment of the note, in whole or in part, which was secured by the mortgage. This might have been shewn, by proof of a payment directly to Bacon, in his life-time, or by proof of money paid to Daniel Beers, by Shepard, under an agreement between him and G. Bacon, or a like agreement with Orphia Bacon, after she became the owner of the note, that the money so paid should be applied, on the note secured by the mortgage. It was, indeed, necessary to prove payment of the money to Beers; but it was further necessary, to make such evidence relevant and proper, to shew the other fact, viz. that it was paid under an agreement to have it apply as above stated. This was the precise view of this testimony, by the Sup. Court of Errors; for they decided, that notwithstanding the proof of payment was made, yet that fact was irrelevant without the further fact of an agreement for its application to the mortgage, and in their decree directed, that no deduction should be made from the debt to be paid, on that account. The decree in the former cause, then, if it bear at all on the present case, proves the defence set up to this bill; and of course, it can, in no way, operate against the defendant.
Should a plea of full payment be made to a note, and should *426the jury find, that the defendant paid a sum of money to be applied in full of another note, it will hardly be contended, that when that other note is put in suit, and payment pleaded, the former finding would be evidence for the defendant; or should an accord without satisfaction be pleaded, and be found by the jury, that such finding would be evidence in part of the agreement, on a suit for an agreement to accept. The truth is, such a finding, in any case, would prove nothing; nor could it be introduced as evidence of any fact, because the bare statement shews, that it was wholly immaterial and irrelevant, standing alone.
I have, in this opinion, made great use of a brief furnished by the late lamented Mr. Benedict, because I found it presented the argument in that dense yet luminous view, for which that gentleman was so conspicuous, and by which the court were so often instructed and enlightened, and rarely more so than in this, one of his last efforts.
The other Judges were of the same opinion, except Bissell, J., who, having been of counsel in a branch of this cause, declined giving any opinion.New trial not to be granted.