Subsequently, further benefits accrued, and | he brought this action in the superior court to recover the same. Further facts appear in the opinion. Mr. W. H. L. Barnes, for appellant: The justice's court is not a court of concurrent jurisdiction with the superior court in respect of the subject matter of this action. See Code Civ. Proc. 114. amination and trial, in these courts, of the questions involved in a cause of action which the justice's court could not originally have entertained at all. The money demand sued upon in this action is not the same money demand sued upon in the justice's court. It was not, and could not have been, in litigation in that action. Bigelow, Estop. 3d ed. pp. 37-39; Jones v. Petaluma, 36 Cal. 230; Hughes v. Álexander, 5 Duer, 493. A judgment of a justice's court upon a cause of action within its jurisdiction should not be permitted to control the judgment of the su- In the case of periodically recurring liabilperior and supreme courts and prevent the ex-ity a former judgment cannot be a bar to an to another action for the same cause, in the State where rendered, is, by the Constitution of the United States (art. 4, § 1), and the Acts of Congress of May 26, 1790, equally conclusive in every other State in the Union. This is the declared doctrine of this court. North Bank v. Brown, 50 Me. 214; Sweet v. Brackley, 53 Me. 346. See Peters v. Sanford, 1 Denio, 224; Nicholl v. Mason, 21 Wend. 339. The same doctrine is held by the Supreme Court of the United States. Mutual L. Ins. Co. v. Harris, 97 U. S. 331 (24 L. ed. 959). A decree rendered in a court of one State is controlled by a prior decree rendered between the same parties and upon the same subject matter in another State, although the suit in which the former decree was rendered was instituted first. Memphis & C. R. Co. v. Grayson (Ala.) 7 So. Rep. 122. Previous adjudication of the state court upon the meaning of a statute, in a similar case between the same defendant and the State, where the constitutionality of the Act was not drawn in question,that it constituted a contract between the defendant and the State,-did not estop the State from denying its constitutionality in a subsequent case, or conclude the court upon that question, although the point might have been raised and determined in the first instance. Boyd v. Alabama, 94 U. S. 645 (24 L. ed. 302). Where a prior judgment involved the construction of a statute, no different state of facts will authorize such construction to be subsequently changed as between the parties to it or their privies. Western Teleg. Co. v. Baltimore & O. R. Co. 12 Cent. Rep. 878, 69 Md. 211. While the judgment of the Vermont court, rendered under such circumstances, is of no force against the person of the debtor, it may be binding against his property, as a proceeding in rem, if his property came within the jurisdiction, and was disposed of by the judgment of the Vermont court, according to the laws of that State; and if such judgment is binding and conclusive in the State in which it is rendered, it is binding and conclusive everywhere. If once executed, that execution will be respected. Gray v. Delaware & H. Canal Co. 5 Abb. N. C. 135; Cochran v. Fitch, 1 Sandf. Ch. 142; Embree v. Hanna, 5 Johns. 101; Burrows v. Miller, 5 How. Pr. 51: Donovan v. Hunt, 7 Abb. Pr. 29; Andrews v. Herriot, 4 Cow. 521; 1 Kent, Com. 260, 261, note b; 2 Kent, Com. 119. Judgment must be final and on the merits. A judgment, to be a bar to further litigation, must have been final and rendered as to all the merits of the cause. Garrett v. Greenwell, 10 West. Rep. 351, 92 Mo. 120. Where the court has jurisdiction its judgment is final. Authorities cited in Chicago & N. W. R. Co. v. People, 9 West. Rep. 154, 120 III. 104. A judgment of dismissal in pursuance of agreement, reciting a settlement and that nothing is due the plaintiff, is a bar to a subsequent action. United States v. Parker, 120 U. S. 89 (30 L. ed. 601). complaint, with costs taxed and execution awarded, is a final decree, and disposes of the whole case. Campbell v. James, 31 Fed. Rep. 525. A judgment of dismissal, if set up as a plea in bar to a new bill for the same cause, is conclusive, if the dismissal was upon the hearing and was not in direct terms "without prejudice." Lyon v. Perin & G. Mfg. Co. 125 U. S. 698 (31 L. ed. 839). A decree in these words, "The plaintiff failing to prosecute his suit, it is ordered that the same be dismissed," is a final decree, and therefore, after the end of the term, can be set aside only on appeal or bill of review within the statutory period. Jones v. Turner, 81 Va. 709. In an action for breach of contract before a justice, he cannot, after entering a judgment dismissing the suit for failure to prove execution of the contract, by adding the words, "without prejudice to a new suit," authorize a new suit for the same cause of action; but that matter is res judicata. Parsons v. Riley (W. Va.) 10 S. E. Rep. 806. If the decree is final then its result is to merge the original cause of action, as was remarked in the case of Barnes v. Gibbs, 31 N. J. L. 319. When not final. A dismissal of a suit for want of parties does not make the subject of controversy res judicata. St. Romes v. Levee Steam Cotton-Press Co. 127 U. s. 614 (32 L. ed. 289). A judgment of dismissal without prejudice to another action is no bar to another action upon the same cause. Gunn v. Peakes, 36 Minn. 177; Payne v. Grant, 81 Va. 164. The dismissal of a party defendant, at the instance of plaintiff, before trial, where no counterclaim is made, is not a judgment upon the merits. James v. Leport, 19 Nev. 174. So where plaintiff failed in his first action from the omission of an essential allegation, the dismissal was not a trial on the merits. Gilmer v. Morris, 30 Fed. Rep. 476. As to what matters conclusive. When a matter in issue between the parties has once been judicially determined by a court of competent jurisdiction, it cannot again be the subject of controversy between such parties or those in privity with them, so long as such adjudication remains in force. Magnus v. Sleeper, 69 Wis. 219. A fact which has been directly tried and decided cannot be contested again collaterally between the same parties in the same or any other court. Hopkins v. Lee, 19 U. S. 6 Wheat. 109 (5 L. ed. 218); Penhallow v. Doane, 3 U. S. 3 Dall. 54 (1 L. ed. 507); Elliott v. Piersol, 26 U. S. 1 Pet. 328 (7 L. ed. 164); Ex parte Watkins, 28 U. S. 3 Pet. 193 (7 L. ed. 650); United States v. Nourse, 34 U. S. 9 Pet. 8 (9 L. ed. 31); Bank of U. S. v. Beverly, 42 U. S. 1 How. 134 (11 L. ed. 75), Randall v. Howard, 67 U. S. 2 Black, 585 (17 L. ed. 269); Parrish v. Ferris, 67 U. S. 2 Black, 606 (17 L. ed. 317); Florentine v. Barton, 69 U. S. 2 Wall. 210 (17 L. ed. 783); Cromwell v. Sac Co. 94 U. S. 351 (24 L. ed. An order dismissing a bill and amended bill of 195); Russell v. Place, 94 U. S. 606 (24 L. ed. 214); action for a sum subsequently falling due, when the former judgment was for the plaintiff. Bigelow, Estop. 3d ed. p. 45; Duncan v. Bancroft, 110 Mass. 267. The estoppel, if any, extends only to questions of fact decided, and not to questions of law. Bigelow, Estop. 3d ed. p. 57; Bernard v. Hoboken, 27 N. J. L. 412; Cromwell v. Sac Co. 94 U. S. 351 (24 L. ed. 195); Freem. Judgm. $ 253, 256. Messrs. O'Brien & Morrison, for respondent: A judgment or final order in an action or special proceeding before a court or judge of this State, or of the United States, having jurisdiction to pronounce the judgment or order, is, in respect to the matter directly adjudged, conclusive between the parties. Code Civ. Proc. § 1908. The principle is the same whether the issue is one of law or fact. Bouchaud v. Dias, 3 Denio, 238; Ferrer's Case, 6 Coke, 7a; Aurora v. West, 74 U. S. 7 Wall. 84 (19 L. ed. 42); Stewart v. Stebbins, 30 Miss. 66; Kingsland v. Spaulding, 3 Barb. Hornbuckle v. Stafford, 111 U. S. 389 (28 L. ed. 468); | Cromwell v. Sac Co. 94 U. S. 351 (24 L. ed. 195); Bryan v. Kennett, 113 U. S. 179 (28 L. ed. 908). Davis v. Brown, 94 U. S. 423 (24 L. ed. 204); Russell v. Place, 94 U. S. 606 (24 L. ed. 214). To constitute a bar, it must appear by legal evidence that the matter involved was determined by the former suit. Smith v. Brunswick, 6 New Eng. Rep. 417, 80 Me. 189. It is not sufficient to show that it may have been determined by the former suit. Ibid. If the first judgment involved the whole claim or the whole subject matter, and settled the entire defense to a whole series of claims, then the first judgment operates as an estoppel to the whole. Kilander v. Hoover, 9 West. Rep. 244, 111 Ind. 10. The rule is well settled that a former judgment of a court of competent jurisdiction is final and conclusive between the parties, not only as to the Hence it is settled that a verdict and judgment matter actually determined, but as to every other of a court of record, or a decree in chancery, puts matter which the parties might have litigated and an end to all further controversy concerning the have decided as incident to or essentially connected points thus decided between the parties to the suit. with the subject matter of the litigation within the Hopkins v. Lee, 19 U. S. 6 Wheat. 109 (5 L. ed. 218); purview of the original action, either as matter of Pierson v. Catlin, 18 Vt. 77; Nations v. Johnson, 65 claim or defense. Pray v. Hegeman, 98 N. Y. 351; U. S. 24 How. 195 (16 L. ed. 628); Coit v. Tracy, 8 Jordan v. Van Epps, 85 N. Y. 436; Smith v. Smith, Conn. 268; Foster v. The Richard Busteed, 100 Mass. 79 N. Y. 634: Clemens v. Clemens, 37 N. Y. 74; Griffin | 409; Winans v. Dunham, 5 Wend. 47; 2 Wharton, v. Long Island R. Co. 3 Cent. Rep. 740, 102 N. Y. 449. | Ev. § 774; Freeman, Judgm. § 248. To ascertain what might have been determined in the former action, it is proper to look, beyond what appears on the face of the judgment, to every allegation which, having been made on one side and denied on the other, was at issue and determined in the course of the proceedings. Clemens v. Clemens, supra. The fact that no proof was brought on a certain question, or that point actually ruled, does not prevent it from being res judicata if the precise matter was involved, or had of necessity to be decided in giving judgment. Faust v. Faust (S. C.) 10 S. E. Rep. 262. To constitute an estoppel by judgment, matters in issue and points actually determined must have been identical with those presented as a defense to the second suit. Kilander v. Hoover, 9 West. Rep. 244, 111 Ind. 10. Of what facts conclusive. A judgment rendered, while it remains in force, is conclusive of all the facts properly pleaded by the plaintiffs. Washington, A. & G. Steam Packet Co. v. Sickles, 65 U. S. 24 How. 333 (16 L. ed. 650). It is not necessary, as between parties and privies, that the record should show the question upon which the right of the plaintiff to recover or the validity of the defense depended, but only that the same matter in controversy might have been litigated. lbid. So far as the principal defendant is concerned, it is established that the judgment of a domestic court of record, proceeding according to the course of the common law, is conclusive evidence of all the facts decided in subsequent suits between the same parties; and that the only remedy of a party who has been injured by a judgment erroneously That the cause of action in two cases is the same is the test by which it is determined that the judg-rendered is by review or by proceeding to reverse ment in one is a bar to the other. Brooke v. Logan, 11 West. Rep. 352, 112 Ind. 183; Williams v. Hay, 12 Cent. Rep. 692, 120 Pa. 485. To ascertain what might have been determined it | is proper to look beyond the terms of the judgment | and consider the allegation made and traversed. But the findings and the judgment generally show what was determined, and are conclusive on that subject. Griffin v. Long Island R. Co. supra. A decree does not bar a suit for a different cause of action arising afterward. Chapman v. Goodnow, 123 U. S. 540 (31 L. ed. 235). In such case the inquiry must always be as to the point or question collaterally litigated and determined in the original action. Authorities cited in Riverside Co. v. Townshend, 10 West. Rep. 581, 120 Ill. 9. the same upon a writ of error. The party plaintiff is not allowed to treat a judgment, lawfully obtained by him, from a court of competent jurisdiction, as a nullity, nor to proceed upon his original demand as'if it had not been rendered. While it exists he can only proceed by suit on his judgment or levy of execution. These principles apply to judgments rendered by courts such as the Second District Court of Bristol County. Loring v. Bridge, 9 Mass. 124: Cook v. Darling, 18 Pick. 393; Hendrick v. Whittemore, 105 Mass. 23; Wood v. Mann, 125 Mass. 319; Fogel v. Dussault, 2 New Eng. Rep. 331, 141 Mass. 154. A recital in a judgment that notice has been given to all the persons interested is not conclusive of that fact. Gilman v. Healy, 46 Hun, 310. A recital in a judgment that service was made on In a subsequent suit, parol evidence to show what defendant is not conclusive as to such service, and was tried in the first suit is admissible, if the record defendant may show by extrinsic evidence that no leaves the matter in doubt. Campbell v. Rankin, service was made. Thorn v. Salmonson, 37 Kan. 441. 99 U. S. 261 (25 L. ed. 435); Washington, A. & G. A decree reciting that defendants were duly noSteam Packet Co. v. Sickles, 65 U. S. 24 How. 333 tified by publication is conclusive that the order (16 L. ed. 650); Miles v. Caldwell, 69 U. S. 2 Wall. 35 of publication was duly published in the designated (17 L. ed. 755); Washington, A. & G. Steam Packet newspaper, but is not conclusive that the order Co. v. Sickles, 72 U. S. 5 Wall. 580 (18 L. ed. 550); ❘ was sufficient or that affidavit for publication was Forbes v. Reilly, 57 Cal. 303; Shinn v. Young, Id. 525; Parnell v. Hahn, 61 Cal. 131; Santa Cruz Gap T. Co. v. Santa Clara Co. 62 Cal. 40; McCreery v. Fuller, 63 Cal. 30; Peterson v. Weissbein, 80 Cal. 38. Ch. 341. See Bloodgood v. Grasey, 31 Ala. 575; Goodrich v. Chicago, 72 U. S. 5 Wall. 566 (18 L. ed. 511); 2 Smith, Lead. Cas. 8th ed. pp. 942944; Beloit v. Morgan, 74 U. S. 7 Wall. 619 (19 L. ed. 205); Wilson v. Dean, 121 U. S. 525 (30 L. ed. 980); Bissell v. Spring Valley Twp. 124 U. S. 225 (31 L. ed. 411); Freem. Judgm. SS 246, 253; Love v. Waltz, 7 Cal. 252; Gray v. Dougherty, 25 Cal. 266; People v. San Francisco, 27 Cal. 655; Garwood v. Garwood, 29 Cal. 514; Jackson v. Lodge, 36 Cal. 37; Lynch v. Kelly, 41 Cal. 232; McCullough v. Clark, Bigelow, Estop. 3d ed. p. 20; Freem. Judgm. Id. 299; Linehan v. Hathaway, 54 Cal. 253; | 3d ed. § 524; Wells, Res Adjudicata, § 428; filed. Adams v. Cowles, 14 West. Rep. 779, 95 Mo. 501. Recitals in the record of a court of limited and special authority are prima facie evidence of the facts recited, to show the jurisdiction of the court. Comstock v. Crawford, 70 U. S. 3 Wall. 396 (18 L. ed. 34). If a justice's judgment recites the due service of process, or other facts necessary to give jurisdiction of the person, the general rule will apply that in a collateral proceeding such recital in the record imports absolute verity and cannot be contradicted. Hock v. Martin, 75 Tex. 469. Where a record is perfect on its face, evidence cannot be let in to contradict and overthrow it in a collateral proceeding. Erwin v. Lowry, 48 U. S. 7 How. 172 (12 L. ed. 655). To make a record of a former adjudication evidence in a subsequent case, not only the subject matter, but the parties, must be the same. Goodwin v. Snyder (Wis.) 44 N. W. Rep. 746. It must appear, either upon the face of the record or by extrinsic evidence, that the precise question was raised and determined in the former suit. Russell v. Place, 94 U. S. 606 (24 L. ed. 214); Washington, A. & G. Steam Packet Co. v. Sickles, 65 U. S. 24 How. 333 (16 L. ed. 650); Cromwell v. Sac Co. 94 U. S. 351 (24 L. ed. 195); Davis v. Brown, 94 U. S. 423 (24 L. ed. 204). If there is a total want of jurisdiction, the proceedings are not merely voidable, but void, and may be rejected when collaterally drawn in question. Rose v. Himely, 8 U. S. 4 Cranch, 241 (2 L. ed. 608); Griffith v. Frazier, 12 U. S. 8 Cranch, 9 (3 L. ed. 471); Elliott v. Peirsol, 26 U. S. 1 Pet. 328 (7 L. ed. 164); Thompson v. Tolmie, 27 U. S. 2 Pet. 157 (7 L. ed. 381); Voorhees v. Bank of U. S. 35 U. S. 10 Pet. 449 (9 L. ed. 490); Wilcox v. M'Connell, 38 U. S. 13 Pet. 498 (10 L. ed. 264); Shriver v. Lynn, 43 U. S. 2 How. 43 (11 L. ed. 172); Hickey v. Stewart, 44 U. S. 3 How. 750 (11 L. ed. 814); Williamson v. Berry, 49 U. S. 8 How. 495 (12 L. ed. 1170). A judgment in form procured upon a mere feigned controversy is a nullity, and no writ of error will lie upon it. Lord v. Veazie, 49 U. S. 8 How. 251 (12 L. ed. 1067). As to whom conclusive. An estoppel by judgment is equally conclusive upon all the parties to the action and their privies, and may not be invoked or repudiated at the pleasure of one of them, as his interest may require. Brooklyn City & N. R. Co. v. Nat. Bank of the Republic, 102 U. S. 14 (26 L. ed. 61): Commercial Union Assur. Co. v. Scammon, 10 West. Rep. 340, 126 Ill. 364. But the adjudication to have that effect requires that the questions be identical. Ibid. Only parties and privies in blood or estate are estopped by a judgment. Orthwein v. Thomas, 11 West. Rep. 399, 127 Ill. 554. Privies in blood or estate who are estopped by a judgment are those who derive title to the property by descent or purchase. lbid. The judgments of the ordinary domestic courts of inferior jurisdiction are equally conclusive with the judgments of the superior courts, provided it appears from the record that the court had acquired jurisdiction of the cause. Both parties, having consented to litigate, are bound by the judgment. Helck v. Reinheimer, 7 Cent. Rep. 743, 105 N. Y. 470. The judgment of a state court declaring that a debt is null and void as against a certain party, and equally void as a contract to convey, is conclusive between the parties and those in privity with them in a suit in a circuit court. Minneapolis Agr. & M. Asso. v. Canfield, 121 U. S. 295 (30 L. ed. 962). A judgment is conclusive against a person who was responsible over to defendant, if he had notice of the action and an opportunity to defend. Davis v. Smith, 4 New Eng. Rep. 663, 79 Me. 351. The notice may be implied when he had knowledge of the suit and participated in its defense. Ibid. Where one not named as a party is represented by one who is a party and under whom he claims, and puts in an answer in the name of such party, and pays part of the expenses of litigation, he is bound by a decree therein. Plumb v. Goodnow, 123 U. S. 560 (31 L. ed. 268). The fact that the United States was party to a judgment in reference to a title to land will not make it binding upon a citizen whose connection with the case is not shown. Barton v. Long, 12 Cent. Rep. 818, 45 N. J. Eq. 845. A judgment is only presumptively conclusive against parties in the character in which they sue or are sued. Authorities cited in Adair v. Mergentheim, 13 West. Rep. 853, 114 Ind. 303; McBurnie v. Seaton, 9 West. Rep. 260, 111 Ind. 56; Lord v. Wilcox, 99 Ind. 491; Erwin v. Garner, 6 West. Rep. 903, 108 Ind. 488; Bumb v. Gard, 6 West. Rep. 269, 107 Ind. 575; Freem. Judgm. 156. Who not bound. A judgment is not a bar against a party sought to be defrauded thereby. Biddle v. Tomlinson, 7 Cent. Rep. 838, 115 Pa. 299. But a judgment cannot be assailed on the ground of fraud, by one who was not a necessary party to the action, or a party in fact. Van Gorder v. Hanna, 72 Iowa, 572. In general, judgments and decrees are evidence only in suits between parties and privies. Barr v. Gratz, 17 U. S. 4 Wheat. 213 (4 L. ed. 553); Tappan v. Beardsley, 77 U. S. 10 Wall. 427 (19 L. ed. 974); Litchfield v. Goodnow, 123 U. S. 549 (31 L. ed. 199); Plumb v. Goodnow, 123 U. S. 560 (31 L. ed. 268). As to one not a party, a judgment is an absolute nullity, and casts no cloud on his title, and affords no ground for an action by him to set it aside. Fontaine v. Hudson, 11 West. Rep. 466, 93 Mo. 62. A decree against one not named in the bill, and against whom no process of relief is prayed, and who is in no wise comprehended in its general allegations, is a nullity. Ogden v. Davidson, 81 Va. 757. A judgment is not binding upon persons not cited or made parties to it. Gilman v. Healy, 46 Hun, 310. Where a petition prays for relief and is virtually a cross-bill, decrees based upon it are of no effect against those who were never summoned to answer 1 Herman, Estop. § 352, pp. 403-405; Hal like those in Stohr v. San Francisco M. Fund Solock v. Dominy, 69 N. Y. 238; Mitchell v. Haw-ciety, 82 Cal. 557 (filed January 22, 1890), which ley, 4 Den. 414; Bowyer v. Schofield, 1 Abb. is against the same defendant. After the pasApp. Dec. 181, 2 Keyes, 628; Bachman v. N. Y. sage of the by-law limiting the amount of Deutscher Arbeiter Fund, 12 Abb. N. C. 54, benefits, and the payments in accordance there64 How. Pr. 442; Candee v. Lord, 2 N. Y. with, the defendant refused to pay anything 274; Hall v. Stryker, 27 N. Y. 603; Burgess further; and within a few months thereafter v. Simonson, 45 N. Y. 227; Carpenter v. Os- the plaintiff commenced an action in the jusborn, 102 N. Y. 552, 3 Cent. Rep. 804; Grif- tice's court to recover the installments then fin v. Long Island R. Co. 102 N. Y. 442; Gates claimed to be due. Judgment was given in v. Preston, 41 N. Y. 113; Edwards v. Stewart, his favor, and the Society appealed to the su15 Barb. 67; Doty v. Brown, 4 N. Y. 71, 53 perior court, where, after a trial on the merAm. Dec. 350; Cumberland Coal & Iron Co. v. its, a similar judgment was rendered. The Jeffries, 27 Md. 534; Foster v. Konkright, 70 court below held this judgment to estop the Ind. 123; Cooksey v. Kansas City, S. J. & C. defendant from maintaining the defense preB. R. Co. 74 Mo. 477; Reid v. Spoon, 66 N. sented here, and we think that this ruling was C. 415; Brunhild v. Freeman, 80 N. C. 212; correct. It affirmatively appears that the matMcClelland v. Patterson (Pa.) 5 Cent. Rep. 734; ters which are presented here were litigated Reg. v. Yorkshire, 1 Ad. & El. N. S. 625. and decided in the former action. There, as here, the main defense was that the by-law of 1883 limited the amount of benefits to be paid to the plaintiff. The court decided that the defendant had no power to impose such a limitation. The only difference between the Hayne, C., delivered the following opinion: This was an action to recover certain "sick benefits." The general features of the case are it or who were not properly before the court. Pracht v. Lange, 81 Va. 711. v. Edgerton, 9 Cow. 227; Brown v. Compton, 8 T. R. 424: Hecker v. Jarret, 3 Binn. 410; Prescott v. Hull, 17 Johns. 290; Holmes v. Remsen, 20 Johns. 268, 4 Johns. Ch. 460, and the cases there cited; Homer v. Fish, 1 Pick. 435; Saxton v. Chamberlain, 6 Pick. 422; Minor v. Walter, 17 Mass. 237. See also Livermore v. Herschell, 3 Pick. 33: Whitcomb v. Williams, 4 Pick. 228; Adams v. Pearson, 7 Pick. One not a party, or privy to a party, to an action, cannot, as between himself and the plaintiff, be bound by the result, or claim that the plaintiff is bound by it, on the ground that he was the real defendant in interest and conducted the defense, unless he did so openly and to the knowledge of the plaintiff and for the defense of his own inter-341, 19 Am. Dec. 290; New England Bank v. Lewis, ests. Cannon River Mfrs. Asso. v. Rogers (Minn.) 8 Pick. 113. 43 N. W. Rep. 792. Strangers to a judgment by confession are not concluded by its date or by its recitals. They may, upon a complaint setting forth specific averments of fraud, introduce oral, as well as documentary and record, evidence. Schuster v. Rader (Colo.) 22 Pac. Rep. 505. Judgments bind parties and privies, but they do not bind strangers. Sessions v. Johnson, 95 U. S. 347 (24 L. ed. 596); W. B. v. Latimer, 4 U. S. 4 Dall. Appx. i (Ct. Err. & App. Del.) (1 L. ed. 915); Simms v. Guthrie, 13 U. S. 9 Cranch, 19 (3 L. ed. 642); Hollingswoth v. Barbour, 29 U. S. 4 Pet. 466 (7 L. ed. 922); Gaines v. Relf, 53 U. S. 12 How. 472 (13 L. ed. 1071); Smith v. Orton, 131 U. S. App. LXXV. (18 L. ed. 62); Nichol v. Levy, 72 U. S. 5 Wall. 433 (18 L. ed. 596); Ex parte Howard, 76 U. S. 9 Wall. 175 (19 L. ed. 634; Williams v. Bankhead, 86 U. S. 19 Wall. 563 (22 L. ed. 184); Humes v. Scruggs, 94 U. S. 22 (24 L. ed. 51). A judgment is no evidence as against a stranger to it. Hartman v. Weiland, 36 Minn. 223. Those who are neither parties, privies nor purchasers pendente lite are not bound by a former decree. Kerr v. Watts, 19 U. S. 6 Wheat. 550 (5 L. ed. 328). A judgment of a court of general jurisdiction is conclusive until reversed upon appeal. Authorities cited in People v. New York Catholic Protectory, 9 Cent. Rep. 419, 106 N. Y. 604. So a decree of a court of competent jurisdiction in a suit between proper parties is valid and conclusive until reversed on some proper proceedings in the same suit and in the same court, or on appeal, unless there be some sufficient ground of fraud or surprise to entitle the injured party to relief in some other suit. Fox v. Cottage Bldg. Fund Asso. 81 Va. 677. The fact of being a party to a judgment or decree does not estop a person from obtaining, in a court of equity, relief against fraud in obtaining it. Johnson v. Waters, 111 U. S. 640 (28 L. ed. 547); League v. De Young, 52 U. S. 11 How. 185 (13 L. ed. 657); Webster v. Reid, 52 U. S. 11 How. 437 13 L. ed. 761). A determination in a statutory proceeding for the adjustment of an encroachment upon a public road is, until set aside, a bar to a subsequent investigation before the same tribunal. State v. Briggs, 10 Cent. Rep. 178, 50 N. J. L. 114. A summary conviction by a magistrate is conclusive until reversed on appeal. People v. New York Catholic Protectory, 9 Cent. Rep. 417, 106 N. 604. The appointment of an under tutor is proof of his capacity, and is binding upon third persons until set aside by appeal or in an action of nullity. Keller's Succession, 39 La. Ann. 579. A decree making void an agreement and a judg-Y. ment operates only between the parties to the action, and does not make the agreement and judgment void as to other parties or bar the latter in another action. Graham v. La Crosse & M. R. Co. 70 U. S. 3 Wall. 704 (18 L. ed. 247). Judgments, though erroneous, binding till reversed. Where the court has jurisdiction both of the cause and the parties, and proceeds erroneously, the judgment, notwithstanding the error, is bind- | ing, until it is vacated or reversed. Rodgers v. Evans, 8 Ga. 143, 52 Am. Dec. 391; Gorrill v. Whittier, 3 N. H. 269; The Case of the Marshalsea, 10 Coke, 76: Elliott v. Peirsol, 26 U. S. 1 Pet. 340 (7 L. ed. 164) Smith v. Shaw, 12 Johns. 257, 267; Latham When the record shows that the under tutor was adjudicatee cannot, on the ground of the alleged appointed by a court of competent jurisdiction, an illegality of the appointment of such tutor, set up the nullity of the proceedings leading to the sale. Ibid. Benefit and benevolent associations. See Marsh v. Supreme Council, Am. L. of H. 4 L. R. A. 382, and cases referred to in note, 149 Mass. 512; Supreme Lodge, K. of P. v. Knight, 3 L. R. A. 409, and note, 117 Ind. 489. two cases is that, by mere lapse of time and the continuance of the plaintiff's sickness, new installments have become due.. It is quite true, as stated by Chief Justice De Grey in the Duchess of Kingston's Case [2 Smith, Lead. Cas. #574, 7th Am. ed. 610], that a judgment is not conclusive "of any matter to be inferred by argument from the judgment." But here the invalidity of the by-law was the ultimate point involved, and it was actually litigated and decided, which circumstance distinguishes the case from Cromwell v. Sac Co. 94 U. S. 351 [24 L. ed. 195], cited for the appellant. The preponderance of authority is in favor of the respondent's position that in such a case the judgment is conclusive in an action for subsequent installments. Robinson v. Howart, 5 Cal. 428; Love v. Waltz, 7 Cal. 250; Outram v. Morewood, 3 East, 346; Aurora v. West, 74 U. S. 7 Wall. 96 [19 L. ed. 47]; Bissell v. Spring Valley Twp. 124 U. S. 225 [31 L. ed. 411]; Smith v. Ontario, 18 Blatchf. 454, 4 Fed. Rep. 386; Laird v. De Soto, 32 Fed. Rep. 652; Oregonian R. Co. v. Oregon R. & Nav. Co. 27 Fed. Rep. 278; Kennedy v. McCarthy, 73 Ga. 346; Cleveland v. Creviston, 93 Ind. 31; Furneaux v. First Nat. Bank, 39 Kan. 144; Gardner v. Buckbee, 3 Cow. 120; Doty v. Brown, 4 N. Y. 71; Bouchaud v. Dias, 3 Denio, 238. The fact that the former case was commenced in the justice's court makes no difference. That court had jurisdiction; and, when a court which has jurisdiction renders a valid judgment, such judgment is as binding as any other. But, however this may be, the case was retried on its merits in the superior court, and the judgment relied upon was entered there, and is a judgment of that court. We therefore advise that the judgment and order appealed from be affirmed. We concur : Van Clief, C.; Foote, C. Per Curiam: For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. NOTE.-Telegraph company; damages for neglect, and to render it liable for damages for mental suf to deliver message. Delay in delivering a telegram stating the death and time of burial of a person referred to merely as "Willie," without notice of his relation to the person addressed, will not subject the company to an action for damages based solely on injury to fraternal feelings from inability to attend the funeral. W. U. Teleg. Co. v. Brown, 2 L. R. A. 766, 71 Tex. 723. Telegraph companies are required to take notice of whatever the dispatch suggests, and if fuller information is needed they must seek it, or be held to possess all the knowledge such inquiries could have elicited. Western U. Teleg. Co. v. Edsall, 74 Tex. 329. A telegraph message as follows, "Come on first train. Bring Ferdinand. His father very low."— is not sufficient to suggest a near relationship between the sick man and the person addressed, and will not authorize damages for the mental suffering of the latter's wife, in an action for delay in delivering the message whereby she was unable to reach her father before his death. W. U. Teleg. Co. v. Kirkpatrick (Tex.) 13 S. W. Rep. 7C. Failure to disclose the relationship of the parties to a telegraph company when sending a message stating that a person named is dying, and saying, "Come quick." will not prevent a recovery of damages for suffering on account of the inability of the receiver to be with a dying brother because of delay in delivering the message. W. U. Teleg. Co. v. Adams, 6 L. R. A. 844, 75 Tex. 531. A telegraph message delivered for transmission, saying, "Billie is very low; come at once," is sufficient to reasonably apprise the company of the consequences of a failure to deliver the message, fering in consequence of such failure. Teleg. Co. v. Moore (Tex.) 12 S. W. Rep. 949. Measure of damages for neglect. W. U. Where, by a telegraph company's negligent delay in transmission and delivery to a sister of messages informing her of the serious illness, and, later, of the death, of her brother, she is denied the opportunity of attending him and making preparations for his funeral, the damages may include such sum as will compensate for the grief, disappointment and other injury to her feelings. Wadsworth v. W. U. Teleg. Co. 86 Tenn. 695. In case of breach of contract to deliver a message the company is liable for damages for both mental and physical suffering caused thereby. Stuart v. W. U. Teleg. Co. 66 Tex. 580. In the entire absence of gross or willful negligence in delaying the transmission of a telegram as the result of which a husband is deprived of seeing his wife before death, no punitive damages can be recovered. Beasley v. W. U. Teleg. Co. 39 Fed. Rep. 181. Grief occasioned by the death of plaintiff's wife is no element of damages for neglect to send a telegram, whereby plaintiff is prevented from seeing his wife; but he can only recover for the disappointment and mental anguish occasioned by the fault or negligence of the company. Ibid. In an action against a telegraph company for a failure promptly to deliver a message, damages for mere continued anxiety caused by such failure are not recoverable. Rowell v. W. U. Teleg. Co. 75 Tex. 26. A verdict for $1,000 damages will not be held excessive on appeal, in an action against a telegraphcompany for a mistake in a message sent by a wo |