The judgment in the former trespass suit is not conclusive. The record shows only that as between the plaintiff and the defendants the right of possession to the whole or a part of the premises described was in the plaintiff at the time of the alleged trespass. It does not further show what was in issue, or what was the basis of the finding in that suit. A judgment is conclusive only upon the matter which was directly in issue upon the former trial. The fact that the premises and boundaries in the writ of entry are the same as described in the trespass suit does not show that the matter in issue is the same, or what matters were necessarily determined in that action. Morgan v. Burr, 58 N.H. 470, 472, 473.
In the equity suit reported 64 N.H. 572, the judgment was for the defendant, dismissing the plaintiff's bill. The findings of the referee in that case, set forth in the alternative decree, did not pass into judgment because the plaintiff failed to comply with the conditions of the decree entitling her to judgment on the report. *Page 264 2 Her. Est. 1423. The report of the referee in the equity case is not competent evidence in this case, no judgment having been rendered upon it. Fowler v. Moore, 63 N.H. 111; Pitman v. Thompson, 63 N.H. 73.
Judgment for the defendants on the report.
SMITH, J., did not sit: the others concurred.