This was a petition, brought by sundry inhabitants of Rocky-Hill, describing particularly a certain highway in the town, which, they say, has become and is of no use, and ought to be discontinued. The town is cited to appear and defend. Sundry individuals belonging to the town, joined by others of neighbouring towns, appear for that purpose; and first, they file a protest, and afterwards, a plea or answer, from which it appears, that some of the respondents brought their petition to the county court of the county of Hartford, at its March term, 1851, against said town of Rocky-Hill, praying for the laying-out and establishing of this identical highway, now said to be no longer useful or wanted. That petition was granted, the highway was found to be necessary, by the commissioners, and was duly laid out. The report was accepted, and the highway established; damages to be paid on or before the 1st of January, *4731852, and the road to be opened on or before the 20th day of April, following. It will be perceived, that the present petition was brought before the money was paid, if ever, and before the damages were made payable.
The respondents, in their defence, insist, that the matter now asked to be adjudicated, is res adjudicata; and in their pleadings, they say, “Every fact or reason for the laying-out of said highway, which existed at the time of the hearing, on the establishment of said highway, has continued to exist ever since that hearing, and now exists; and that since said hearing and establishment, no new fact or reason has arisen against the continuance of said highway, which was not presented, or might have been presented and passed upon, at said hearing;" and “that if this court shall refer the question as to the convenience and necessity of said highway, to the county commissioners, it will be identically the same question which has already been tried and passed upon, at said hearing, and not other or different; and the decision will depend upon the same facts and reasons which then existed, and were presented, or might have been presented, at said trial, and not other, or different facts.”
These facts and allegations of the respondents are not denied, by the petitioners, in their replication, otherwise than it is alleged in the replication, that at the time of bringing this last petition, said highway had become and was of no public use, convenience or necessity; and that, at said time, public convenience and necessity required its discontinuance, and therefore, the county court had no jurisdiction to enquire into said matter, but the petition must of necessity go to the commissioners; and they alone can decide how this fact of convenience and necessity is.
Now, this replication does not, in substance or form, deny the facts set up in the respondents’ plea—facts on which they rely for their defence. As we understand it, the replication passes by all this, and insists, that the highway is not now necessary, and ought not to be continued, and therefore, the commissioners must proceed to examine and decide whereas the respondents insist, in their pleadings, that this very question, if it can be, has been adjudicated and finally settled, and therefore, as matter of law, should not be further con*474troverted. If the petitioners are right in the claim, that the present necessity of the highway is the question in dispute, it is clearly a question for commissioners; but if, as the respondents claim, the issue tendered is the conclusiveness of the former trial, they are right, and it is a preliminary question for the court.
Were the question of the effect of that judgment to be raised before the commissioners, as the petitioners insist, we apprehend they would not consider it, so as to allow it its full legal efficacy, if indeed any at all. They have power to consider only the convenience or necessity of the highway asked to be discontinued. This is the very language of the statute. P. 425. § 31. Every other question belongs to the county court, as if there were no commissioners in the case. The commissioners obviously proceed in their enquiry upon original evidence, and not upon the opinion of other commissioners; and if they think a highway laid out yesterday, by their predecessors in office, was incorrectly found to be necessary, they must, without a single change of any circumstance, discontinue it, and the next board may lay it out again, and the next discontinue it; each acting, and each sworn to act, according to their respective convictions of the convenience and necessity of the road. Now, we think the question, raised is proper to go to the court, and only to the court. Has the same matter, cause and thing been decided? Or, in other words, has the same cause of action now presented, been adjudicated, on a former trial? If it has, all must agree, that it cannot be again brought into dispute. A bill in chancery, dismissed on its merits, is res adjudicata; so the matter stated in a writ of habeas corpus, unless there arise something new; so in the matter of a divorce. The form in which the res adjudicata was had, is not so important as the fact. Wherever the court can see, from the record, that by the former trial, the present question was settled, the dispute is no longer open to litigation, and the court is bound to arrest the proceeding, whether the parties wish it or not. The court owes a duty to the public to prevent trial after trial, without any new matter or cause for it, lest there should be no end to litigation.
This, we think, is substantially, the present case. The highway had but just been laid out, after an expensive and *475protracted struggle, before commissioners, and in the court; and the pleadings admit, and the court has found, in the language of the protest, that all the facts, reasons and circumstances are the same exactly, and no other, than those which the county commissioners passed upon, when the highway was established; and that the questions are identically the same. Now, if this is not, in the most exact sense, a case of res adjudicata, it is sufficiently so, to justify the court in dismissing the petition. If one trial will not suffice, how many will? unless we are to sanction and encourage endless litigation.
The county court finds, as a reason for not granting the petition, first, “that all the facts in the case upon which it might otherwise be the duty of commissioners to pass, have been already passed upon, by said commissioners, and adjudicated by the court; secondly, that the petition brought to the comity court for a discontinuance of said road, is in the nature of a petition for a new trial, and should set forth such new matter accruing since the laying-out of such highway as would justify a reversal of the doings of such commissioners and of said court. Thirdly, if the commissioners, on the facts so found, should overrule the decision of the commissioners in laying-out said road, if not irregular, their conduct would be ‘improper,’ within the meaning of the statute; and this court is not required to refer said petition to said commissioners to do an act, which, if done, would be a ground for setting aside their report.” These remarks are entitled to great respect.
It is said finally, this is a case where the plea of res adjudicata cannot, by legal possibility, be introduced, as the last petition speaks from a date after the former. Were this true, it does not follow, that the county court did wrong in not entertaining the petition, under the circumstances. But is it entirely certain, this objection is well founded? If the facts, reasons and circumstances, and the question itself are identically the same, and no other, as the protest says, and the court finds, how much is there left, after this, for further trial and adjudication? Nothing substantially; and this is enough. We will not say, that in a proceeding in court, where exact technical rules of pleading are to be observed, a plea of res adjudicata, in such a case as this, might not *476possibly be open to criticism; but we receive the protest and answer as sufficient and proper, in a case situated as this is, to authorize the court to pursue the course adopted.
We advise the superior court, that there is no error in the judgment complained of.
In this opinion all the judges concurred.Judgment affirmed.