merely declaratory of the common-law rule.185 A judgment in a justice's court for damages caused by the alleged diversion of a stream of water is a bar to a subsequent action in the supreme [superior] court involving the same issues. 188 Adjudication in a former suit is conclusive as to the defense then existent, but not so as to another subsequently arising, and which could not then have been interposed.187 § 514. Former judgment-When not a bar.-A judgment in a former action is not a bar in a subsequent action, although the pleadings present the same matter, if it appears either by the record, or, it seems, by extraneous evidence, that the matter in question was not litigated, and actual evidence was not given as to it, and it was not submitted to the court, but that the trial and verdict proceeded upon other grounds.188 The estoppel is created by the judgment, but not by preliminary determination of court or jury in findings or verdict.189 A decree dismissing a bill for matters not involving merits is no bar to a subsequent suit.190 A judgment against one of two several obligors without satisfaction is no bar to an action against the other. 191 When parties to the second action are in privity with parties to the first action, and the same issue is presented for determination, the former adjudication is a bar.192 In an action against an infant for damages, a judgment of discontinuance in a former action for the same cause brought in the court of a justice of the peace, the judgment being rendered on the ground that the defendant was an infant and no guardian had been appointed, is no bar. A justice has no jurisdiction to proceed against an infant defendant, after the return of process, until a guardian has been appointed. 193 When the court rendering judgment has failed to acquire jurisdiction over the person or subject-matter in con 185 Lamb v. Wahlenmaier, 144 Cal. 91, 103 Am. St. Rep. 66, 77 Pac. 765. 186 Boyer v. Schofield, 2 Keyes, 628. 187 Smith v. McCluskey, 45 Barb. 610. See Cal. Code Civ. Proc., § 1908, declaring the effect of a judgment or final order in an action or speical proceeding. Consult Miller v. Van Tassel, 24 Cal. 466; Boggs v. Clark, 37 Cal. 238; Leese v. Sherwood, 21 Cal. 164; Ford v. Doyle, 44 Cal. 635. 188 Burwell v. Knight, 51 Barb. 267. troversy, its action is null, and no bar to future proceeding.194 So, also, where such court has not exercised its jurisdiction within the limits imposed by statute.195 § 515. Former judgment-When an estoppel. If on the case made by the complaint, the defendant is not called upon or has no opportunity to plead a former judgment as an estoppel, it may be received in evidence as matter of estoppel without having been pleaded.19 A judgment to operate as an estoppel must be a judgment of a court of competent jurisdiction, upon the same subject-matter, in a cause regularly tried on its merits, upon issue duly joined by proper pleadings in such court, between the same parties or their privies.197 Suffering judgment for whole amount claimed by plaintiff held to estop defendant from bringing subsequent suit for an omitted credit, which he might have set up as a defense; 198 and recovery of part of an entire demand estops any suit being brought for the residue.19 Disallowance of claim, as set-off in one action, estops another being brought for it.200 A judgment obtained pendente lite in an action previously brought may operate as an estoppel.201 § 516. Fraudulent misrepresentations. To set aside for fraud a decree signed and enrolled, actual, positive fraud must be shown. Mere constructive fraud is not sufficient, at all events after long delay.202 An answer seeking to avoid a contract, by reason of fraudulent misrepresentations of the plaintiff in procuring it, must state in what the misrepresentations consisted, and they must be of matter of fact of which defendant was ignorant, and not of law. 203 False representations in respect to the 194 Sagendorph v. Shult, 41 Barb. 102; Gage v. Hill, 43 Barb. 44; Porter v. Bronson, 29 How. Pr. 292, 19 Abb. Pr. 236. See Hardy v. Beaty, 84 Tex. 562, 31 Am. St. Rep. 80, 19 S. W. 778. 195 Bloomer v. Merrill, 29 How. Pr. 259. 196 Jackson v. Lodge, 36 Cal. 28; Clink v. Thurston, 47 Cal. 29. See Wixson v. Devine, 67 Cal. 341, 7 Pac. 776. 197 Boggs v. Clark, 37 Cal. 236. 198 Binck v. Wood, 43 Barb. 315. 199 Hopf v. Myers, 42 Barb. 270; Bancroft v. Winspear, 44 Barb. 209. 200 Rogers v. Rogers, 1 Daly, 194. See, also, as to similar effect of setting up demand by way of counterclaim, Collyer v. Collins, 17 Abb. Pr. 467. 201 Bank of Beloit v. Beale, 7 Bosw. 611. See, on the other hand, as to course to be pursued when judgment relied upon as an estoppel is reversed pendente lite, Gilchrist v. Comfort, 26 How. Pr. 394. 202 Patch v. Ward, L. R. 3 Ch. App. 203. 203 People v. Supervisors of San Francisco, 27 Cal. 656; Holdredge v. Webb. 64 Barb. 9. profitable nature of a business carried on upon leased premises, whereby defendant was induced to guarantee the rent, may he set up as a defense to an action on his guarantee.204 The answer may be held fatally defective in not charging the representations to have been fraudulently made, or that there was a warranty of some particular quantity.205 Where an answer contains a general allegation of fraud, and plaintiffs go to trial upon the issue thus joined, without taking any exception to the answer on the ground of sufficiency, and there is no objection made by the plaintiffs to the testimony introduced by defendants in support of the issue of fraud, an objection to the answer on the ground that it does not contain a statement of the particular facts and circumstances constituting the alleged fraud, cannot be entertained by the supreme court on appeal.206 Fraud must be specially pleaded, and the circumstances constituting fraud must be set up. 207 An answer setting up fraud or deceit as a defense to an action on a promissory note should show damage therefrom and the extent thereof.20 So where a chattel mortgage, made the basis of an action, is fair upon its face, it cannot be impeached for fraud unless the facts relied on to constitute the fraud are pleaded in the answer.20 209 In an action to foreclose a chattel mortgage, a plea that the mortgage was obtained by fraud and misrepresentation, without specifying in what it consisted, is faulty.210 An allegation in answer that conveyance was made with intent to delay 204 Mendelson v. Stout, 37 N. Y. Super. Ct. (5 J. & Sp.) 408. For other cases involving fraud and illegality, see Dorris v. French, 4 Hun, 292; Kowing v. Manley, 13 Abb. Pr. (N. S.) 276; Swords v. Owen, 43 How Pr. 176; Donovan v. The Compagnie Generale, 39 N. Y. Super. Ct. (7 J. & Sp.) 519; Leszinsky v. White, 45 Cal. 278. See, also, Cal. Civ. Code, §§ 1571 et seq. 205 Kinney v. Osborne, 14 Cal. 112. 206 King v. Davis, 34 Cal. 100; Sukeforth v. Lord, 87 Cal. 399, 25 Pac. 497. See Hughes v. Wheeler, 76 Cal. 230, 18 Pac. 386. 207 People v. Supervisors of San Francisco, 27 Cal. 656; Gifford v. Carville, 29 Cal. 589; Lamott v. Butler, 18 Cal. 32; Rasmussen v. Mc Knight, 3 Utah, 315, 3 Pac. 83, 4 208 Parker v. Jewett, 52 Minn. 514, 55 N. W. 56. 209 Brereton v. Bennett, 15 Colo. 254, 25 Pac. 310; West Coast Grocery Co. v. Stinson, 13 Wash. 255, 43 Pac. 35. Title resting upon fraud how pleaded in answer, see De Votie v. McGerr, i5 Colo. 467, 22 Am. St. Rep. 426, 24 Pac. 923. 210 Bennett v. Reef, 16 Colo. 430, 27 Pac. 252. and defraud the grantor's creditors is sufficient.211 An answer alleging that a judgment relied on by the plaintiff was obtained by fraud and collusion between parties named is sufficiently definite and certain, without specifying the acts which show fraud and collusion.212 An answer presents a good defense to an action which is brought on the ground of fraud, if it states circumstances from which it can be reasonably inferred that the fraud charged could not have been practiced.213 § 517. Fraud-Essential allegations. In all this class of actions, where the disability of defendant is claimed, such as infancy, lunacy, etc., the facts causing such disability should be in all cases specially pleaded; for, in general, such disability cannot be proven unless pleaded.214 215 § 518. Wife as plaintiff-Effect of divorce.-When the wife is living separate and apart from her husband by reason of his desertion of her, or by agreement, in writing, entered into between. them, she may sue or be sued alone.2 Where the disability of the plaintiff, who is a married woman, does not appear upon the face of the complaint, the defendant, if he intends to avail himself of the coverture as a defense to the action, should set it up in his answer. Such objection is waived by a general denial.216 The objection that the husband is not a party plaintiff and the plaintiff is not living apart from her husband must be raised by demurrer or answer.217 In an action on contract against a married woman, in those states in which she may enter into any contract the same as if she were feme sole, a plea of coverture, without more, is not sufficient in law as a defense.218 In plea of coverture in abatement, the allegations recognized as necessary 211 See Probert v. McDonald, 2 S. Dak. 495, 39 Am. St. Rep. 796, 51 N. W. 212; Reese v. Kinkead, 20 Nev. 65, 14 Pac. 871. 212 Culver v. Hollister, 17 Abb. Pr. 405. 213 Burk v. Stewig, 21 Tex. 418. 214 See Young v. Bell, 1 Cranch C. C. 342, Fed. Cas. No. 18152; Roe v. Angevine, 7 Hun, 679; Mott v. Burnett, 2 E. D. Smith, 50; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142. As to disabilities of minors, their rights, the disaffirmance of contracts by them, their contracts for necessaries, and obligations entered into under the express authority of a statute, see Cal. Civ. Code, §§ 3337, 264 et seq. 215 Cal. Code Civ. Proc., § 370. subd. 3; Muller v. Hale, 138 Cal. 163, 71 Pac. 81. 216 Dillaye v. Parks, 31 Barb. 132; Beville v. Cox, 109 N. C. 265, 13 S. E. 800. See Cal. Code Civ. Proc., § 370. 217 Baldwin v. Second St. R. R. Co., 77 Cal. 390, 19 Pac. 644. 218 Rose v. Otis, 18 Colo. 59, 31 Pac. 493. See Brice v. Miller, 35 S. C. 537, 15 S. E. 272; Hansee v. Fiero, are that of coverture at the time of the commencement of the action and its continuance by the continued life of the husband up to the time of filing the plea.21 An action brought in the names of husband and wife, to recover wife's separate estate, does not abate in consequence of divorce and subsequent marriage of wife with another.220 Where the husband and wife are joined as plaintiffs, and the contract sued on and set forth in the complaint was made between the husband only and the defendants, the name of the wife was mere surplusage, and not a defect of parties under the code, and might have been stricken out on notice, if insisted upon.221 § 519. Marriage. The marriage of a female defendant does not abate an action.222 But at common law the marriage of a female complainant abates the suit, and it must be revived either in favor of or against her husband.223 § 520. Arbitration and award. The plea of coverture, and that the defendant's husband did not consent to the arbitration upon the award in which a judgment was founded, is not sufficient in proceeding by scire facias to revive the judgment. Though this plea might be a good defense to an action on the judgment, yet, until such judgment is set aside, the defendant cannot resist the scire facias, the object of which is to enforce process upon such judgment.224 Negligence of the husband is imputable to the wife, and will prevent recovery for injuries to her.225 § 521. Wife's separate estate. In an action brought to charge the separate estate of a married woman, when the coverture is alleged in the complaint, a defense that the defendant is a married woman is bad on demurrer, for it sets up no new matter; and such an answer is insufficient.226 A married woman may answer separately, where homestead or her separate estate is involved.227 223 Quackenbush v. Leonard, 10 Paige, 131. 224 Taylor v. Harris, 21 Tex. 438. 225 McFadden v. Santa Ana etc. St. R. R. Co., 87 Cal. 464, 25 Pac. 681, 11 L. R. A. 252. 226 Aiken v. Clark, 16 Abb. Pr. 328, note. 227 MOSS v. Warner, 10 Cal. 296; Phillips v. Burr, 4 Duer, 113. See, also, Cal. Code Civ. Proc., §§ 370, 371. |