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a party to do any act against his will is a duress, and the act done may be avoided.14 140 It is not legal duress to threaten to or actually take advantage of the usual remedy by suit for the enforcement of a debt or obligation, even if the claim be illegal.111 It has been held that a restraint of goods under circumstances of hardship will avoid a contract.142 In the case of violence or threats, the age, sex, state of health, etc., must be taken into consideration; and they are grounds of avoiding the contract not only when they are exercised on the contracting party in person, but when the wife, the husband, or the descendants or ancestors of the party are the object of them. Duress cannot be pleaded by a stranger.143 An answer setting up duress must, in general, aver the facts constituting the duress. Thus, if a trust is executed by a deed made in pursuance thereof, the execution of which is admitted, it cannot be proved that it was made under duress, unless the duress is specially pleaded as affirmative matter in avoidance of the deed.1 Duress, as defined by the California code, consists in-1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; 2. Unlawful detention of the property of any such person; or confinement of such person, lawful in form, fraudulently obtained, or fraudulently made unjustly harassing or oppressive.1

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507. Dismissal of suit.-A dismissal of the complaint upon. the merits bars a fresh action, especially where the complaint is in equity.146 Dismissal of suit to obtain probate of a will is no bar to introduction of evidence to show its fraudulent destruction, to establish title in partition.147 But judgment of dismissal of premature suit is no bar to a fresh action on the demand, when matured.148 So, also, dismissal on ground of want of capacity to sue is no bar to subsequent action legally

140 Breck v. Blanchard, 22 N. H. 303. 141 Holt v. Thomas, 105 Cal. 273, 38 Pac. 891.

142 Craig v. Ward, 9 Johns. 201; Elliott v. Swartwout, 10 Pet. 137, 9 L. Ed. 373. But see Hazelrigg v. Donaldson, 2 Metc. (Ky.) 445; Maisonnaire v. Keating, 2 Gall. 337, Fed. Cas. No. 8978.

148 McClintick v. Cummins, 3 McLean, 158, Fed. Cas. No. 8699.

144 Nordholt v. Nordholt, 87 Cal. 552, 22 Am. St. Rep. 268, 26 Pac. 599. 145 Cal. Civ. Code, § 1569. As to menace, see Cal. Civ. Code, § 1570.

146 Bostwick v. Abbott, 40 Barb. 331, 16 Abb. Pr. 417; Weighley v. Coffman, 144 Pa. St. 489, 27 Am. St. Rep. 667, 22 Atl. 919.

147 Harris v. Harris, 26 N. Y. 433. 148 Wilcox v. Lee, 26 How. Pr. 418,. 1 Abb. Pr. (N. S.) 250.

instituted.149

And when dismissal of complaint is relied upon in bar, it must be shown that it was a judicial determination of the same point.150 Ordinarily, when an action is dismissed without any judicial determination of the controversy, it is no bar to another suit.

§ 508. Former judgment. Where a court in a former action between the same parties had jurisdiction over the subject and the parties, and the questions of fact were the same as in the subsequent action, and were necessary to its decision, and either were or might have been litigated in the suit, and the final hearing was upon its merits, the judgment is res adjudicata as to all those things that were, or under the pleadings might have been, controverted in that action whose adjudication was necessary to the final disposition of the case.151 A judgment in

a former action is well pleaded as a bar in a second action, provided the cause of action is the same, though the form of action had been changed.15 The cause of action is said to be the same as that in a former suit, where the same evidence would

support both actions.153 Recovery of judgment against a firm upon a contract fraudulently induced by one member is no bar to an action against that member for the fraud.154 If parties go to trial on a plea of former recovery in an attachment execution, with a replication, this does not amount to a confession of the truth of the facts stated in the plea.155

§ 509. Former judgment-Essential allegations. It is generally necessary to allege that the former judgment is in full force, but it may sufficiently appear by implication.156 A plea of former adjudication need not state that the former judgment. had not been appealed from, nor that it had become final.157 In Iowa and Indiana, such a plea must be accompanied with an

149 Robbins v. Wells, 26 How. Pr. 15, 18 Abb. Pr. 191.

150 Smith v. Ferris, 1 Daly, 18. See Bell v. Merrifield, 109 N. Y. 202, 4 Am. St. Rep. 436, 16 N. E. 55; Gallagher v. Moundsville, 34 W. Va. 730, 26 Am. St. Rep. 942, 12 S. E. 859; Solly v. Clayton, 12 Colo. 30, 20 Pac.

351.

151 Keene v. Clarke, 5 Robt. 38; Graham v. Culver, 3 Wyo. 639, 31 Am. St. Rep. 105, 29 Pac. 270, 30 Pac. 957.

152 Taylor v. Castle, 42 Cal. 367.

153 Id.; Gayer v. Parker, 24 Neb. 643, 8 Am. St. Rep. 227, 39 Pac. 845.

154 Goldberg v. Dougherty, 39 N. Y. Super. Ct. (7 J. & Sp.) 189. In actions ex delicto, see Atlantic Dock etc. Co. v. Mayor etc., 53 N. Y. 64.

155 Tams v. Bullitt, 35 Pa. St. 308. 156 Southern Life Ins. etc. Co. v. Davis, 4 Edw. Ch. 588.

157 In re Baird, 84 Cal. 95, 24 Pac. 167.

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exhibit of the record.158 A plea cannot contradict the record of a former suit. Errors in the original suit should have been corrected as they occurred.159 Where a judgment in a prior suit is set up in defense to an action, a complete record of all the pleadings and proceedings in the case in which it was rendered should be made part of the answer.160 Either the term of the court at which the former judgment was recovered, or the exact date of the entry of the judgment, should be stated, and when taken in vacation, the time of its entry by the clerk should be stated.101 The rule that a decree must be enrolled before it can be pleaded in a bar of a second bill for the same matter is not applicable to a case where the bill is filed to impeach a decree on the ground of fraud.10 A judgment in a former suit between the same parties, for the same cause, and in the same form is a bar to any other suit.103 But such judgment must be specially pleaded." For evidence of a former recovery for the same cause of action cannot be given in any action whatever, under an answer containing only denials of the complaint, or an allegation of the pendency of another action.165 The rule of the old practice, permitting such evidence to be given under the general issue in actions of ejectment and trover,166 is abrogated by the code.167 If there is no opportunity to plead it, it may be put in evidence." It may be pleaded in an equity suit.169 Under California practice, a decree in equity may be pleaded in bar of a subsequent action at law.170 Whether pleaded or not, it must be proved in evidence.171 It may be waived,172

164

168

158 Adkins v. Hudson, 19 Ind. 392; Lee v. Keister, 11 Iowa, 480.

159 Hall v. Singer, 3 McLean, 17, Fed. Cas. No. 5946.

160 Williamson v. Foreman, 23 Ind. 540, 85 Am. Dec. 475; Ringle v. Weston, 23 Ind. 588.

161 Mount v. Scholes, 120 Ill. 394, 11 N. E. 401.

162 Pearse v. Dobinson, L. R., 1 Eq.

244.

163 McKnight v. Taylor, 1 Mo. 282.

164 Love v. Waltz, 7 Cal. 250; Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Vance v. Olinger, 27 Cal. 358; Marshall v. Shafter, 32 Cal. 176; Brazil v. Isham, 12 N. Y. 17; Richardson v. Hickman, 22 Ind. 244.

See Welsh v. Lindo, 1 Cranch C. C. 508, Fed. Cas. No. 17409.

165 N. Y. Code, 1877, § 500; Hendricks v. Decker, 35 Barb. 298.

166 Young v. Runnell, 2 Hill, 478, 38 Am. Dec. 594, 5 Hill, 61; Miller v. Manice, 6 Hill, 125; Wright v. Butler, 6 Wend. 284, 21 Am. Dec. 323; Denison v. Seymour, 9 Wend. 9 167 Hendricks v. Decker, 35 Barb. 298. 168 Flandreau v. Downey, 23 Cal. 358; Clink v. Thurston, 47 Cal. 29.

169 City & County of San Francisco v. Spring Valley W. W., 39 Cal. 482. 170 Wolverton v. Baker, 86 Cal. 591, 25 Pac. 54.

171 People v. De La Guerra, 24 Cal. 78.

172 Semple v. Ware, 42 Cal. 621.

§ 510. Former judgment-Parties.-If the parties are not the same, allegations to show their privity with the present parties must be inserted. 178 A judgment is conclusive of the issues involved as between the parties thereto, though in the action in which it is pleaded only some of the parties are litigants.174 Whese the plaintiff assigned to S. and R. a certain promissory note given by the defendants for the purpose of bringing suit with other claims thereon, and S. and R. brought suit thereon and recovered judgment against one defendant, it was held that such recovery could be set up in answer to a suit on the note by the plaintiff against all the defendants.175

§ 511. Foreign adjudication-Essential allegations.-If defendant relies upon proceedings under the statute of another state, he must set out the statute, that the court may see whether the proceedings were warranted by the statute or not; and the general allegation that the proceedings were pursuant to the statute is not sufficient.176 A plea which sets up a foreign judgment must contain an allegation that the court had jurisdiction, or so much of the proceedings must be spread on the record as will show affirmatively that the court has jurisdiction.177 Judgment of a foreign tribunal having full cognizance of the same controversy held conclusive upon the merits, and only impeachable for want of jurisdiction or fraud.178 A plea which sets up in bar of an action upon a contract that property was attached in a previous suit to answer for the same demand, and was lost, should show how the loss occurred. 179

173 Goddard v. Benson, 15 Abb. Pr. 191.

174 Nave v. Adams, 107 Mo. 414, 28 Am. St. Rep. 421, 17 S. W. 958.

175 Anderson v. Yosemite Min. Co., 9 Utah, 420, 35 Pac. 502.

176 Walker v. Maxwell, 1 Mass. 104; Holmes v. Broughton, 10 Wend. 75, 25 Am. Dec. 536.

177 Burnham v. Webster, Davies, 236, Fed. Cas. No. 2178.

178 Lazier v. Westcott, 26 N. Y. 146, 82 Am. Dec. 404; Phillips v. Godfrey, 7 Bosw. 150; Jarvis v. Sewall, 40 Barb. 449. See Taylor v. Shew, 39 Cal. 539, 2 Am. Rep. 478. For a

plea of adjudication that the assignment under which plaintiffs claimed was fraudulent and void, see Southern Life Ins. etc. Co. v. Davis, 4 Edw. Ch. 588. Under what plea former adjudication may be presented as a defense, see Welsh v. Lindo, 1 Cranch C. C. 508, Fed. Cas. No. 17409. For an insufficient plea of attachment in former action, see New England Screw Co. v. Bliven, 3 Blatchf. 240, Fed. Cas. No. 10156. Compare Stone v. Stone, 2 Cranch C. C. 119, Fed. Cas. No. 13488

179 Starr v Moore, 3 McLean, 354, Fed. Cas. No. 13315.

§ 512. Former judgment-Offer of testimony in.-The judgment or decree of a court of competent jurisdiction is not only final as to the matter actually determined, but as to every other matter which the parties might have litigated and had decided under the pleadings.180 The rule is, however, more properly and less broadly stated by the New York court of errors in a case where the general declaration embraced several causes of action.180a It was held that the plaintiff in a second suit may show that he "offered" no evidence as to one of the causes, and that the cause went to the jury upon a different part of his claim from that for which his second suit is brought, in which case the judgment in the first will be no bar for the second. But where he attempts to give evidence, and submits the question to the jury without withdrawing any part of his claim, the defendant may insist upon the first judgment as a bar. 181

§ 513. Former judgment-When a bar.-A former judgment rendered in an action tried upon its merits, between the same parties, and upon the same subject-matter, is, if properly pleaded, an effectual bar to another action between the same parties on the same cause; but it is no defense to a cause of action accrued after the rendition of said judgment.182 Where the same subjectmatter has been fairly put in issue and once tried upon the merits, it cannot be again litigated, and a former judgment is a bar so long as it remains unreversed.183 The fact that a judgment in a former action between the same parties, which determined the same points as those raised in the latter action, was erroneous under the law as subsequently declared by the appellate court in other cases between other parties, does not affect its force as an adjudication of the rights of the parties thereto and those in privity with them.184 The statutes upon finality of judgment are

180 La Guen V. Gouverneur, 1 Johns. Cas. 436, 1 Am. Dec. 121; approved in Bruen v. Hone, 2 Barb. 586; Southgate v. Montgomery, 1 Paige, 47; Simson v. Hart, 14 Johns. 77.

180a Miller v. Manice, 6 Hill, 121. 181 Barnum v. Reynolds, 38 Cal. 643. 182 Jones v. City of Petaluma, 36 Cal. 230; Barnum v. Reynolds, 38 Cal. 643, White v. White, 130 Cal. 597, 80 Am. St. Rep. 150, 62 Pac. 1062.

183 McKnight v. Taylor, 1 Mo. 282; City and County of San Francisco v. Spring Valley W. W., 39 Cal. 473; Etcheborne v. Auzerais, 45 Cal. 121; Rahm v. Minis, 40 Cal. 422; Ambler v. Whipple, 139 Ill. 311, 32 Am. St. Rep. 202, 28 N. E. 841.

184 People v. Holladay, 93 Cal. 241, 27 Am. St. Rep. 186, 29 Pac. 54; Case v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004.

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