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and where It Is founded on a different claim or demand
of a similar nature. In the first case the judgment
in the first suit, is conclusive as to all matters which
were actually presented, and also those which might
have been presented, while In the second case the
judgment is conclusive only as to those questions act-
ually litigated and determined In the original action."^

The foregoing principles are best Illustrated by a
reference to decided cases in which the^ were applied.
Where a widow, an heir, was made a party defendant
in a partition suit, and was served and failed to appear
and partition was had, such decree Is a bar to a sub-
sequent action for dower.s

A counterclaim cannot be made the subject of an
independent action when it results from an alleged
contract, the existence of which In material parts Is
negatived by a prior judgment. Thus an action by a
tenant for breach of verbal agreement to repair, is
barred by a prior judgment In a proceeding to dispos-
sess bim.9

In an action by a physician for services rendered, the
defense of malpractice Is barred by a judgment on the
merits for the physician In a suit brought against him
by the patient for malpractice in the same service .lo

Judgment in trespass for an unlawful sale of property
to pay a school tax, is an estoppel to an action against
school district in assumpsit for the amount of such
tax."

Occupants who fall to set up a claim for Improvements
In an action by one claiming under paramount title,
are barred by judgments thereln.i^

A bill for specific performance of a contract under
seal, alleging that It has never been rescinded but
containing an alternative prayer for repayment of
money paid under It, which has been dismissed after

V. Griffith, 76 Va. 919; Knltsinger v. Brown, 72 Ind. 466.
4 Thompson v. Myrick, 24 Minn. 4.
« 7 Wall. 108.

6 Cromwell v. County of Sao, 94 U. 8. 861 ; Steam Packet
Co. V. Sickles, 24 How. 888; Hubbard v. Flint, 58 Miss.
266; Hiokerson v. City of Mexico, 58 Mo. 66; Freeman on
Judgments, §§ 273, 274, and oases cited; Duchess of
Kingston's Case, 2 Smith's Leading Cases, from page 791
to end of yolume.

7 Cromwell v. County of Sac, 94 U. S. 867.

8 Jordan v. Van Epps, 85 N. Y. 427.

9 Nemetty v. Taylor, 63 How. Pr. 887.

10 Haynes v. Ordway, 58 N. H. 167.

11 Kendall v. School District, 75 Me. 858.
'1 Raymond v. Boss, 40 Ohio St. S48.



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« hearing on the merits, Is no bar to an action at law to
recover money so paid on the ground of the rescission
•of the contraot.1'

Extrinsic and parol evidence is admissible to prove
what Issues were actually tried and determined,
and given to the jury.^^

So it may also be shown by parol, that a claim
though set out in the former record, was not sub-
mitted for adjudication, and hence was not covered
by the judgment.!^ ,

Thus, where two or more causes of action are sued
for in the same declaration, and a general judgment
and verdict is rendered, it is prima facie evidence only
of the adjudication of every demand which might have
been drawn in controversy under it, but may be met
by evidence tending to show that any particular de-
mand was not presented or considered.^^

A finding not involved in the issue of a case ' is no
bar to a later adjudication.^

But when a question is presented by a bill in equity,
urged and relied upon in the argument and passed
upon by the court In the opinion, it cannot with reason
be said that the point was not involved, and that the
opinion of the court on the question is obiter dictum,^

It is of no consequence in what form a claim was
-presented, or defense made in a former suit. If it
was in issue and actually litigated and decided, it
binds the parties in subsequent proceedings.^^

Thus if the question has been presented on a motion
and decided it is res adjudicata.^ Final judgment on
demurrer for plaintiff is a bar to another action,^ but
it is no bar if given for defendant.^ An adjudication
in a former suit in which a certain account was pre-
iiented as a set-off is a bar to a suit based on the same
account.ss What has been determined against a party
in a former suit, cannot in a subsequent action be set
up by way of counterclaim.^^ Nor can a matter once
•decided in a suit be opened in a second suit between
the same parties where they have changed sides,^ or
where the object of the second suit is different.^e

Specific Performance,— 'All application for the spe-
cific performance of a contract is addressed to the
sound discretion of a court of equity, and even where a
legal contract is shown to exist, it will not be granted
as a matter of course^? Such discretion is not to be
exercised arbitrarily but in accordance With the facts
established, and in accordance to such principles as



is BaUou V. Billings, 186 Mass. 807.

i4Foye V. Hatch, 182 Mass. 106; Merchants' Bank v.
fichulenburg, 48Mioh. 108; Hickerson v. Mexico, 68 Mo.
'41 ; Armstrong v. St. Louis, 8 Mo. App. 100.

u Paine v. Insurance Co., 12 R. I. 440; Lightford v.
Wllmot, 28 Mo. App. 6.

16 Dickinson v. Hayes, 81 Conn. 428; Hungerford's Ap-
peal, 16 Am. Law Beg. 79. See note, 8 Gent. L. J. 263.

17 Teates v. Briggs, 96 111. 79.

IS Almy V. Daniels, 28 Gent. L. J. 828.
19 Harriman v. Roberts, 62 Md. 64.

50 Wilson V. Mcintosh, 80 Kan. 234; Johnson v. Latta,
84 Mo. 189.

51 Smith V. Homsby, 70 Ga. 662; Dixon v. Zadik, 69 Tex.
029.

n Los Angeles v. Melius, 69 Gal. 444.

» Miller v. Ticker, 14 111. App. 668.

84 Worrel v. Smith, 6 Colo. 141.

» Hayner v. Stanley, 8 Sawyer C. G. 214.

» Be Roberts, 59 How. Pr. 186.

V Bowman v. Cunningham, 78 111.48; Abbott v. L'Hom-
cnedieu, 10 W. Va. 677; Iglehart v. Vasil, 78 111. 63; Thurs-
ton V. Arnold, 48 Iowa, 41 ; Sweeny y. Ohara, 48 Iowa, 84 ;
Yincent v. Larson, 1 Idaho (N. S.) 241 ; Goodwin v. Col-
lins, 8 Del. Ch. 189; Pomeroy on Kq. Juris. § 1404; Shen-
andoah R. Co. v. Lewis, 76 Va. 833.



are applicable to the facts.ss One of these prindples
is that the contract must be certain and unambiguous,
both in the description of the property and the estate
conveyed,* and must be capable of being performed.*
The certainty requisite in a contract which is the subject
of adjudication in a court of equity is greater than in a
suit at law.81 But this certainty need be only a rea«
sonable one, satisfactory to the court in regard to the
subject-matter of the contract and the circumstances
under which it was entered into.^ It must be founded
upon a valuable consideration.ss A good considera-
tion, as distinguished from a valuable consideration,
such as love and natural affection, will not be suffi-
cient.84 So the mere expression of an intention to
make a gift of land without further proof that the
promisee expended money or labor on the faith of it,
will not support a specific performance.^ Mere in-
adequacy of price furnishes no ground for refusing a
specific performance of a contract.* But an uncon-
scionable bargain, or one that will produce injustice or
hardship, will not be enforced.^ When the considera-
tion is inadequate, evidence of the contract must be
especially clear and satisfactory.* A party who seeks
the aid of a court of equity to have a contract spe-
cifically performed, must bring himself within the
equitable maxim that "he who seeks equity must do
equity," and must, therefore, show that he has per-
formed the acts which formed the consideration of the
contract,* and should not be guilty of delay in making
the application.^

It is well settled that equity will compel the per-
formance of a promise, whether written or oral, to give
land to another who, relying thereon, has entered into
possession, made improvements, expended money on
its account and thereby changed his condition in life.'tt
The improvements ought to be of greater value than
the use and occupation of land, when entered on the
faith of a verbal grant.^ Where the husband makes



« Paris V. Haley, 61 Mo. 461.

* Preston v. Preston, 96 U. S. 200; Los Angeles Assn. v.
Phillips, 56 Gal. 689; Brown v. Brown, 88 K. J. £q. 660.

L * Mastin V. Halley, 61 Mo. 196; Pomeroy Eq. Jar. 1406.
31 Mastin V. Halley, 61 Mo. 196.
» Paris V. Haley, 61 Mo. 468.

* Mintarn v. Seymour, 4 Johns. Ch. 497; Lear v. Chou-
teau, 28 111. 89 ; Butman v. Porter, 100 Mass. 887.

84 Kennedy v. Ware, 1 Barr, 463; Morris v. Lewis, 81
Ala. 58; Bispham Eq. § 878.
» Galloway v. Garland, 104 lU. 276.

* Erwin V. Parham, 12 How. 197.

87 Snell V. Mitchell, 66 Me. 48 ; Miss. R. Co. v. GromweU,
91 U. S. 648; Cameron Goal Go. v. Emanuel, 49 N. T. (Su-
perior Ct.) 77.

88 Cole V. Cole, 1C6 Ul. 462.

* Colson V, Thompson, 2 Wheat. 886; Vawter v. Bacon,
89 Ind. 666; Watts v. Waddle, 6 Pet. 889; Reeves v. Kim-
ball, 40 N. T. 299: King v. Ruckman, 21 N. J. 699; Rogers
V. Taylor, 40 Iowa, 193; Jenkins v. Harrison, 66 Ala. 846;
MoComas V. Easly, 21 Gratt. 28; Allen v. Atkinson, 21
Mich. 861.

40 Alexander v. Hoffman, 70 HI. 114; Hedenl>erg v.
Jones, 78 111. 149; Marshall v. Peck, 91 lU. 187.

41 West V. Bundy, 78 Mo. 407 ; Freeman v. Free-
man, 48 N. Y. 34 ; Galbraith v. Galbraith, 6 Kan. 402; Har-
desty V. Richardson, 44 Md. 617 ; Shepherd v. Berin, 9
Gill, 32; Langston V.Bates, 84 111.624; Bright v. Bright,
41 Ul. 97; Hiatt v. WUliams,72 Mo. 214; Sluder v. Steyer,
69 Ga. 126; Dunn V. Stevens, 94 Ind. 181; Gannon v. Col-
lins, 8 Del. Ch. 182; Campbell v. Felterman,20 W. Va.
898; Sutton v. Myrick, 89 Ark. 424; Lorentz v. Lorentz, 14
W. Va. 761; Hanlon v. Wilson, 10 Neb. 188; Patterson v.
Gopeland, 16 How. Pr. (N. T.) 460; Dozier v. Matson, 94
Mo. 828, and oases cited.

41 Bason v.'.Bason, 61 Tex. 226.



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Improyemeiits relying on a promise made to his wife,
in a suit for specific performance, she can have the
benefit of these iiiproyements as if paid for in part by
herself.^ The heirs of a grantee can also enforce the
performance of a promise made to him.^ The ground
upon which equity enforces the performance of an
oral agreement to convey land in violation of the stat-
ute of frauds is that of equitable fraud. To refuse a
decree enforcing the performance of a promise when
another relying upon it had altered his condition would
operate as a fraud upon him, and place him in a situ-
ation for which he could not obtain compensation at
law.« David Plessnbr.

« Mnrphy y. Stever, 47 Mich. 623.

44 Bohanon t. Bohanon, 96 111. 591.

46 Campbell y. Feiterman, 20 W. Va. 898; Sutton y.
Myrlok, 89 Ark. 424; WUUams y. Morris, 96 U. 8. 444;
Dougherty y. Harsel, 91 Mo. 161; Anderson y.Schookley,
88 Mo. 260.



CORRESPONDENCE.



To the Editor of the Central Law Journal:

Under the title of "correspondence" in No. 8 of the
current volume of your Journal, Mr. Jno. B.
Fithian, of Joliet, III., undertakes to correct what ap-
pears to him to be an erroneous statement of the law
in Illinois made by the writer of the leading article on
the ''Statute of Limitations in Mortgage Foreclosure,"
published in the preceding number. Mr. Fithian re-
fers to Rev. Stat. 111., ch. 83, § 11, which provides an
action of foreclosure or sale is absolutely barred un-
less brought within ten years from the time the right
of action accrues, and cites as an example, a note
dated January 1, 1877, payable one year after date,
and secured by real estate mortgage, upon which a
payment had been made in 1880, that the mortgage
could not be foreclosed now, although a judgment
could be obtained for the unpaid balance of the note.
'JThis precise point has been passed upon by our su**
preme court in the case of Schifferstein v. Allison, de-
cided January 20, 1888, and reported in 12 West. Rep.
847. Judge Scbolfleld delivered the opinion of the
court, holding that an action of foreclosure would not
be barred in the above example cited by Mr. Fithian,
and that the cause of action or right to make sale is to
be regarded as having accrued after the last payment
indorsed upon the indebtednes. Tho's. F. Fbrns.
Jerseyville, 111.

To the Editor of the Central Law Journal:

The letter of Jno. B. Fithian, of Joliet, in ^o. 8, of
the current (28th) volume of the Journal, on the
limitation of foreclosure of mortgages in Illinois, is
misleading, as the Supreme Court of Illinois, on Jan-
uary 20, 1888, in case of Schifferstein v. Allison, has
settled that question. The court holds that S 11 of the
limitation act, which provides that ''no person shall
commence an action or make a sale to foreclose a
mortgage, or deed of trust in the nature of a mort-
gage, unless vdthin ten years after the right of action
or right to make such sale accrues." It must be read
in connection with % 16 of the same chapter, which
provides that an "action on bonds, promissory notes,
etc., shall be commenced within ten years next after
cause of action accrued; but if any payment, or new
promise to pay, shall have been made in writing * * *
within or after said period of ten years, then an action
may be commenced thereon at any time within ten
years after the time of such payment or promise to



pay;" and an action to foreclose a mortgage Is not
barred when payments on the note secured thereby
have been made within ten years : 15 N. E. Rep. 275.
Elgin, HI. Jambs Colbman.



QUERIES AND ANSWERS.*

QUBRT No. 4.

A corporation is created under the laws of Minne-
sota for manufacturiBg puri>oses. The time for whicb
it was incorporated expires; under the laws of this
State three years' time is given for closing up the busi-
ness of the corporation after it is dissolved by limita-
tion. The three years have expired, but no steps have
been taken to close up Its business. It owns property,,
both re al and personal, and continues to do business
as usual. How can its affairs be now closed up, and
how can its property be disposed of? W. S.

QUERIES ANSWERED.
QuBRT No. 2 [28 Cent, L. J. 51}.

Has a divorced wife a legal right to continue the use^
of her late husband's name. Cite authorities. X.

Answer, It is the English and American usage for a
a woman to retain her husband's surname, till by a
decree of divorce she is authorized to resume her
maiden name. However, she can be known by any
name she may choose to assunke: Schouler's Donu
Rel. $ 40. C. Z.



RECENT PUBLICATIONS.

A TRBATISB ON THB LaW OF LANDLORD AND TEN-
ANT, with fipedal reference to the American Law.
By H. L. Gear, of the San Francisco Bar. San-
Francisco ; Bancroft- Whitney Co., Law Publishers
and Booksellers. 1888.

Every practitioner is familiar with what is popu-
larly known as the "pony" series of text-books.^
Their standing among members of the profession is
already determined and fixed, owing to the reputation
of such writers as Mr. Boone, Mr. Desty, Mr. Hawes-
and Mr. Newmark. The book we are considering is
the latest of this series. The subject is a difficult one
upon which to collate authorities and reduce to ruleSt.
owing largely to the local differences of statute and
practice. The aira of the author, as he tells us, is ta
present a complete, yet succinct view of the law of
landlord and tenant. A large number of English-
cases have been cited, but the special purpose has ev-
idently been to make the work a complete presenta-
tion of the American authorities. In this, if one may
Judge by its very extensive notes and citations, the
author has succeeded. There is no work of this series
that seems to the writer more thoroughly and care-
fully annotated. There are many sections in the work,,
occupying only a page of text, the notes to which fills
a half dozen pages. In terse, succinct style, the author
treats of the nature and creation of tenancy, making
clear distinctions between those for life, for a fixed
term, from year to year, at will and by sufference.
The care in which it has been prepared, is seen upon
finding chapters on detailed branches of the subject,
such as "occupancy on shares," "lodgings and apart-
ments," etc. The features of the instrument of lease
and the payment of rent, with all the questions aris-
ing thereunder, are carefully treated, as well as those
of possesfiion, transfer and termination of tenancy. In
short, so far as we can see, there is nothing omitted
belonging to this very practical branch of the law.
The subject and the book are such that lawyers will
have almost every day use of it.



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9a



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243
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Wisconsin 27,76,282,269

1. Admiraltt— Salvage^ Award. Facts reviewed

with ireferenoe to whether amount allowed a proper
salvage award in ease of disabled steamer towed into
port by claimant.— 7%« EHn, U. 8. D. O. (N. Y.). Oct. 16,
1888; 86 Fed. Bep. 712.

2. Admiralty— Collision — Evidence. Facts suf-
ficient to Justify the finding of the district court in the

-case of injury to canal boat.— The Oswego, U. S. O. O. (K.
Y.), Oct. 15, 1888; 86 Fed. Rep. 720.

8. Admiralty— Salvage. Facts reviewed with ref-
erence to question of amount of compensation for
salvage service.— TA* Carondelet, U. 8. D. 0. (N. Y.). Nov.
18. 1888; 86 Fed. Rep. 714.

4. APPBAL— Bill of Exceptions. Where an appeal

-of action tried without Jury the bill of exoeptions does
not state that exception was taken to the finding or
motion for new trial made, the appellate court will
oonsider the question of sufficiency of the evidence. —
Firewtan*$ Int. Co. v. Peck, 8. C. 111.. Nov. 15. 1888; 18 N. B.
Rep. 762.

6. APPBAL— County Commissioners- Public Road.

An appeal from the order of the board of county com-
missioners opening a public road through defendant's
land, under Code N. 0. $ 2088, is not prematurely taken
before the order is executed ; section 2089 providing that
^any person may appeal to the superior court'* from
«ueh order. — Board of Oommre. v. Wettem Atyhun, 8. C.
N. Oar.. Dec. 8, 1888; 88. B. Rep. 120.



6. APPBAL. Where a commissioner, directed by

the ootutto sen goods for cash, sells them on credit,
and then sues the purchaser for the price, the fact that
he had a remedy by motion will not defeat the action
when the objection is first raised in the supreme court.
—Lmokev v, Peanon, 8. O. N. Car., Dec. 8, 1888 ; 8 8. E. Rep.
121.



7. APPBAL— Injunction Bond.



-Code N. C. § 648, al-



lowing appeals to be taken "from every Judicial order
or determination of a Judge of a superior court upon or
involving a matter of law or legal inference," does not
embrace an order adjudging the sufficiency of an in-
junction bond, the right to supervise the bond being
given to the Judge under Code, § 841.— Bywan v. Board of
County Commrt., 8. C. N. Car., Dec. 10, 1888; 8 8. E. Rep.
189.

8. APPBAL— Review— Partnership. Where the con-
trolling question in a case is whether real estate sold
by a surviving partner, as partnership property. Is indi-
vidual or partnership property, and there is nothing
recorded by which such fact can be determined with
certainty, a distribution of the proceeds, made upon
the assumption that the land was partnership property,
will not be disturbed. — Appeal of WiiUamt, 8. C. Penn.,
Oct. 22, 1888; 16 Atl. Rep. 912.

9. Arson— Indictment. An indictment for arson is

good, though redundant in alleging the ownership of
the house in a certain person, and its occupation by de-
fendant for and as the agent of another, who held It
under a lease from the owner. —Rogers v. State, Tex. Ct.
App., Nov. 21, 1888; 9 8. W. Rep. 762.

10. Assumpsit — Common Counts — Commission Mer-
chant. ^Advances made by a commission merchant

in the line of his employment for his principal, who Is
acquainted with the manner of doing business on the
board of trade, are reoovei^ble on the common money
counts as for money advanced to the principal's use at
his request.— P«r4n v. Parker, 8. C. 111., Nov. 16, 1888; 18 N.
E. Rep. 747.

11. A8SIONMBNT — Validity. An assignment of all

the partnership property for the benefit of partnership
creditors is not rendered fraudulent and void by a
failure to Include the Individual property of the part-
ners.- TVum^o V. Hamei, 8. C. 8. Car., Nov. 27, 1888; 8 8. E.
Rep. 88.

12. AssiONMBNT — Partnership. Under statutes

providing for voluntary assignments and requiring
sworn statement of assets and liabilities by '*the person,
firm or corporation" making such assignment. Insolv-
ent firms may assign their property though the part-
ners as individuals are solvent and individual property
of the partner need not be assigned. — Pruokey v. Wetl-
house, 8. C. Ga.. Nov. 9. 1888; 8 8. E. Rep. 40.

14. AssiGNMBNT— Preferences. Under the facts In

this case held illegal preferences for insolvent debtor
to execute notes at a time when he had determined to
assign. — Hide and Leather Nat, Bank v. Rehm, 8. C. IlL.
Nov. 15, 1888; 18 N. E. Rep. 788.

16. AssUMPsrr — Partnership. Assunpsit will lie

by the executor of one member of a firm against a sur-
viving member thereof who assumes all the liabilities
of the firm, it being admitted that the firm was in-
debted to the deceased memher.Schmtdt v. Olade, 8. C.
HI.. Nov. 15, 1888; |18 N. B. Rep. 702.

16. ATTACHMENT— Appeal. In an attachment exe-
cution, where It appears from the record that the con-
troversy was conducted in the trial court on the theory
that the property seized was transferred by the debtor
to the garnishee in fraud of creditors, and the record
contains no requests for charges by either party, the
plaintiff cannot assign as error the failure of the court
to submit to the Jury the rights of the parties. If the
transaction was found to be a sale without conclusion.
•^Stuekslager v. Neel, 8. C. Penn., Nov. 6, 1888; 16 Atl. Rep.
94.

17. Attornby and Clibnt— Evidence. In an action

for professional services as attorney at law in certain
cases, evidence of the value of a "retainer" in the cases



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Is admissible on bebalf of plaintiff, the value of the '
seryioes Including the value of the retainer. — Knight v.
Run, S. 0. Oal., Deo. 4, 1888; 19 Pac. Rep. 608.

18. Bank— Directors— Fraud. The knowledge of

the conspiring directors of the missapproprlatlon of the
funds Is not imputable to the bank, or its agent who
negotiated the loan, as their connection with It was not
In their capacity as directors, but as county officers. —
Mayor t ete. Co, v. Tenth Nat, Bankt N. Y. Ot. App., Not. 27,
1888; 18 N. E. Bep. 618.

19. Bill of Bxobptions — Signing and Filing. A

bill of exceptions, properly allowed, signed and filed,
and ordered to be made a part of the record. Is not void
because the clerk fails to make a general entry thereof.
—State V. Fry, 8. 0. Kan., Nov. 10, 1888; 19 Pac. Bep. 742.

20. Bond— Payment— Construction. A bond exe-
cuted In North Carolina, June 1, 1863, Is presumed to be



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