delivered the opinion of the court.
From the above statement it is clear, that the main question between the parties to this record, involves the fact of a former adjudication of the subject matter now in controversy. Has a court of competent authority ever passed upon the matter now in suit, in any former action between these parties or their privies, upon the merits of the demand?
In order to determine this question aright, it will be necessary to state a few of the leading facts as they appear on the record. Hoagland assigned to Hughes two bonds or notes on the plaintiff Bell. Huglies, as such assignee, brought suit on the notes against Bell, and on the trial Bell offered the receipt, set out in the above statement as the foundation of the present action, as a set off against the notes in Hughes’ action. The circuit court thought the receipt pertained to a partnership transaction between Hughes’ assignor, Hoagland, and Bell, and as such partnership transaction, it could not be set off against the notes, and rejected the set off for want of jurisdiction. There is no pretence that the merits of the set off were ever passed upon — it was merely rejected, *364and that too for want of jurisdiction. The justice and truth of this set off have never yet been heard or examined into by the court.
There is error in the ruling of the court below, in supposing this action of the court in the case of Hughes’administrator vs. Bell, was such as concluded Bell, or such a concluded Hoagland in relation to the question of partnership between them. Suppose in a controversy between Bell and Hoagland, in order to establish this partnership, Bell had offered this record, showing the rejection of his set off in the suit of Hughes’ administrator against him by the court below, because that court considered it a partnership transaction between Bell and Hoagland, can it be maintained that Hoagland would be bound by it; concluded by it? He would answer, it was a transaction in court, to which he was individually no party — to which he could not have made any defence; nor was lie to be considered bound or concluded by it, and there is no doubt but he would answer correctly, both as to law and fact. Then if Hoagland would not be bound by the act of the court, saying there was a partnership between him and Bell, neither would Bell be. So far then as the matter of partnership is concerned, there is no pretence that it, has been ripened into the force of an adjudication between these parties.
When a matter becomes what is termed res adjudícala, it is equally obligatory on both parties; if it is not binding on both it binds neither. In this transaction, the rejection of the set off because the court, on the trial of Hughes’ suit, decided that the set off could not be used, it being part of a partnership transaction between Bell and Hoagland, cannot be considered res adjudícala in Bell’s favor against Hoagland if he wished so to use it, because it has not the force of res adjudícala against Hoagland, he being no party to the record in his own right.
The reason why courts of justice will not disturb matters once tried between the same parties is, that it is for the interest of the commonwealth that there should be an end to litigation. It would be carrying the doctrine a great ways indeed, for the courts to say that the bare rejection of a subject matter of set off, in a suit between assignee and payee of a note or bond, for the want of jurisdiction in the court over the subject of set off, should afterwards be considered res adjudícala between the payee and assignor, for any purpose either of jurisdiction or merits.
The court below erred in refusing to give the instructions asked for by the plaintiff, and in giving the one it did for the defendant.
Its judgment is reversed, the other judges concurring and this cause is remanded to be further proceeded with in accordance with the views of this court.