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Bradish v. Gee, 1 Amb. 229; French v. Shotwell, 5 Johns. Ch. 555; Ketchum v. Farmer's Trust Co. 4 McLean, 2; Musgrove v. Lusk, 2 Tenn. Ch. 576; Williams v. Neil, 4 Heisk. 279; Raysdale v. Gossett, 2 Lea, 729; Jones v. McKenna, 4 Lea, 630.

But, obviously, it does not follow from this binding force of the decree that it can be always pleaded as res adjudicata. That depends upon other circumstances than its mere binding effect as a decree in the court where it is rendered. For example, a judgment of nonsuit, or a bill dismissed by plaintiff, or for want of jurisdiction, cannot be pleaded as res adjudicata, because not a decision on the merits, while a judgment on demurrer, which is a decision of the court on facts admitted, or a bill dismissed for want of equity, or upon determination of the court in favor of defendant, can be so pleaded. Homer v. Brown, 16 How. 354; Manhattan L. Ins. Co. v. Broughton, 109 U. S. 121; S. C. 3 Sup. Ct. Rep. 99; Gould v. Evansville, 91 U. S. 526; Durant v. Essex Co. 7 Wall. 107; Badger v. Badger, 1 Cliff. 237; Mabry v. Churchwell, 1 Lea, 416; Bankhead v. Alloway, 1 Tenn. Ch. 207. So, in a case like the one we are now trying, again using it as an example, it is plain that the parties have used the agreed statement of facts as a convenient mode of placing the court in possession of the facts, without producing the evidence on which they would be otherwise ascertained; but they have left the decision of the rights of the parties growing out of those facts to the court, and have not by consent of parties determined, by themselves and for themselves, what those rights are. That which they have done is very like what they do when by a demurrer they admit the facts and the court decides the case, or when by a retraxit they confess the facts and the court directs a judgment. What they have not done is more like that which they do when they take a nonsuit or voluntarily dismiss their bill.

In the language of the case of the Manhattan L. Ins. Co. v. Broughton, 109 U. S. 125, S. C. 3 Sup. Ct. Rep. 99, "a trial upon which nothing was determined cannot support a plea of res adjudicata or have any weight as evidence at another trial" and, as decided in Russell 7. Place, 94 U. S. 606, if it appear by the record or aliunde that the matter was not litigated and decided, there could be no estoppel. Now, does it not appear, by what the parties actually did in the state chancery court, that this matter was not litigated and not decided? And here lies a distinction that must not be overlooked in cases like this between a consent to submit a case to the court for its decision and a consent as to what the decision shall be. Again, there is a distinction between that estoppel which the parties put upon themselves by their agreement which may be pleaded and bind them as an estoppel in pais, and that which arises out of the adjudication as an estoppel of record. The agreement is none the less an estoppel because it takes the form of a judicial decree, but not necessarily does it operate as an estoppel of record. The pleas re

spectively setting them up would be essentially different. 2 Daniell, Ch. Pr. (1st Ed.) 175, 187; Id. (5th Ed.) 659, 666. In both, the record would be used as evidence; in one case conclusive in its effect to support the plea of res adjudicata; in the other it would not be conclusive, might be averred against, and would be overcome by countervailing proof of sufficient force.

The text writers agree that in England a consent decree cannot be pleaded as res adjudicata, and is effective when pleaded only so far as the estoppel arises out of the agreement itself. Bigelow, Estop. 17; Freem. Judgm. § 331; Whart. Ev. § 783. They say, however, that the decisions of the American states, generally, are against this doctrine Id.; Wells, Res. Adj. §§ 440-460. We have examined very carefully a great many of the cases cited in support of this supposed distinction between the American and English courts, and find that if critical attention is given to the distinctions to which we have already adverted between a case decided by the court upon an admitted state of facts, and one decided by the parties themselves solely by their own consent, which the court admits of record by registering the agreement, and between the estoppel of the agreement and that of the judgment, and to distinctions arising out of local statutes regulating the subject of judgments by confession and agreed cases, it may be doubtful if there be so much divergence between those courts on this subject.

To illustrate: In Merritt v. Campbell, 47 Cal. 543, a dismissal by consent under the local statute was held equivalent to a judgment upon retraxit at common law, and was a decision on the merits under the act, because, like a retraxit, it was "an open and voluntary renunciation of the suit in court." In Ellis v. Mills, 28 Tex. 584, it does not appear whether it was the compromise agreement which was a bar as a matter of evidence, or the judgment as a matter of record. In Fletcher v. Holmes, 25 Ind. 458, there was an agreement for a judgment not otherwise supported by the complaint, but it was not a plea of res adjudicata at all. Gates v. Preston, 41 N. Y. 113, is more in point, but there was a divided court. In Bank v. Hopkins, 2 Dana, 395, there was in effect a decision on an agreed statement of facts. And so we might go through the cases and distinguish them; but it is not necessary, for we have not found one where a municipal corporation has been held to have validated its bonds, otherwise void, by a consent decreee declaring the bonds valid, and showing on its face that it was so decreed solely because the parties had agreed to it.

Individuals sui juris may agree to almost anything and bind themselves, but corporations must act within their delegated powers. It is undoubtedly within their power to compromise litigation, and they may, when sued, consent to orders and decrees, and if the subjectmatter of the suit be within their authority this consent will bind as it will individuals. As in Board Liquidation v. Louisville & N. R. Co. 109 U. S. 221, S. C. 3 Sup. Ct. Rep. 144, it was held that the

city authorities had "under the statutes of the state" the power to compromise a suit relating to certain property belonging to the city, and in Hillsborough v. Nichols, 46 N. H. 379, the suit compromised was one for injuries by a defective highway which the authorities had a right to compromise, the subject-matter being within corporate jurisdiction. In this last suit, so much relied on here, and cited by the text writers above named, it is to be noted that there was no plea of res adjudicata at all, but it was an action by the town to recover money paid to the plaintiff under the compromise judgment. We cannot say that if the plaintiff in that suit had brought another action for the injuries, the former judgment by consent would have been held to sustain a plea of res adjudicata. These compromise judgments may be binding in other respects, but not necessarily for that reason pleadable as res adjudicata. Whether they are binding in other respects depends on the circumstances of the case; but whether they are binding on a plea of res adjudicata depends on whether the judgment or decree conforms to the rules of law which give it that effect. In Lamb v. Gatlin, 2 Dev. & B. Eq. 37, an exception to the report of a master equivalent to the plea of res adjudicata failed, because the former decree "was not in truth a decree rendered in invitum, and by judgment of the court to which defendant was compelled to submit, and which therefore not only binds him, but those for whose benefit he held the estate, unless it can be impeached for fraud, but it was a voluntary settlement, etc. A decree thus rendered has no force, except so far as seen to be just."

In Allen v. Richardson, 9 Rich. Eq. 53, it is said: "A consent decree is the mere agreement of the parties, under the sanction of the court, and is to be interpreted as an agreement." In Rosse v. Rust, 4 Johns. Ch. 300, where a bill had been dismissed on a former hearing because no one appeared for the plaintiff, the decree was pleaded as res adjudicata, and Chancellor KENT said that to be a bar the merits must be decided, and where the merits were never discussed and no opinion of the court ever expressed upon them, the case does not come within the rule. He was overruled in Ogsbury v. La Farge, 2 N. Y. 113, not upon the principle thus enunciated, but in his application of it, and it was held that a bill so dismissed after publication of proof was the same as a decision on the merits, and not like a voluntary dismissal or a nonsuit at law. But it must be admitted that in French v. Shotwell, 5 Johns. Ch. 555; S. C. 6 Johns. Ch. 235; S. C. 20 Johns. 668, that learned chancellor does decide that a decree by consent dismissing the bill may be pleaded in bar to another bill for the same relief, though, in that case, the agreement itself was likewise pleaded as an estoppel, and, without the decree, would have been just as effectual as with it; for, if the plaintiff had not dismissed the bill according to the agreement, the defendant, by proper pleading, even in that suit, might have called upon the court to dismiss it. In fact, the agreement settled the merits of the controversy, the parv.21F,no.13-55

ties being competent to agree; and the plaintiff, having waived the fraud and expunged the usury, there was nothing to do but dismiss the bill, and all other bills setting up that fraud and usury. All the authorities agree that if the plaintiff had voluntarily dismissed his bill he might have brought another suit. He did voluntarily dismiss it, but upon a valid agreement to do so; and from this it would seem that it was the agreement, at last, that worked the estoppel. But the chancellor did not put his judgment on this ground, and the case is a very strong one for the plaintiffs here, unless there be a distinction to be taken on the want of power in the corporate authorities of Milan to make the agreement. The case seems to have been affirmed; but, it is said in Shufelt v. Shufelt, 9 Paige, 137, not on that point, though the chancellor there followed it as to a confessed judgment. The cases cited by Chancellor KENT are not all of them cases of pleas of res adjudicata, those at page 565 being applications for relief on sci. fa., or direct applications to vacate the judgments, while Loyd v. Mensell, 2 P. Wms. 73, and Wishall v. Short, 2 Eng. Cas. Abr. 177, were original bills to impeach the judgments for fraud, and it was held that the judgments might, in that kind of suit, be pleaded in defense, if accompanied by an answer denying the fraud. In Baird v. Berdwell, 60 Miss. 164, the case establishes that where it is shown by the decree that it was not heard upon its merits, there is no bar to another suit. It was a bill dismissed on motion of defendant for want of prosecution after the case had been set down for final hearing. In Pelton v. Mott, 11 Vt. 148, there was an agreement to dismiss on the merits, which being done it was held to be a bar; and Hicks v. Aylsworth, 13 R. I. 562, was a similar case. The parties, by their agreement in those cases, intended to provide against the distinction between a voluntary dismissal, or a dismissal for want of prosecution, and an adjudication on the merits. In Rollins v. Henry, 84 N. C. 569, 578, the action of the court was more like that in this case than any we have found, except that in that case the decree followed the technical result of the agreement which settled the rights of the parties and formally dismissed the bill, while in this the bill was not technically dismissed, but was retained only so far as necessary to enforce the final execution of the decree. Substantially, the bill was dismissed, as in the North Carolina case, in which it was held that the decree could not be relied on as res adjudicata because "it does not appear that the merits of the dismissed proceeding were considered and passed on; and the mere dismissal of the case is not, in our opinion, followed by the consequences supposed." The case cited by the court calls attention to the fact that in equity courts to "dismiss the bill" is the entry, whether the case is heard on the merits and decided for defendants, or otherwise dismissed; while in courts of law the form of the entry shows for itself whether it was a mere discontinuance or a judgment on the merits. Jenkins v. Johnson, 4 Jones, Eq. 149. Hence, in courts of equity, we must have

a care to find whether the decree was indeed an adjudication in invitum or only the agreement of the parties to act voluntarily.

In Massachusetts the rule seems to be that where issue is joined a decree by consent on that issue is a bar; but where no issue is joined, as where a plea in abatement has been sustained, after which there was a consent judgment, it is no bar. Powers v. Chelsea Bank, 129 Mass. 44; Jordan v. Siefert, 126 Mass. 25. Now, in the case we have in hand there was never any issue joined. After the demurrer was overruled the plaintiffs had a right to an answer from the defendants, and, failing in this, to a decree pro confesso, and ultimately a decree in their favor. Technically, overruling the demurrer was a decision in favor of the bill and an adjudication that the bonds were void; but by agreement of the parties this result was defeated by declaring the bonds valid, dissolving the injunction, and substantially dismissing the bill. There could be no decision on the merits, for there was no issue on the merits. The demurrer may have made an issue, but that was overruled, and this was a decision against the plaintiffs, and not in their favor. This is an anomaly in this class of cases, but it would be stretching the doctrine of this estoppel very far to allow the plaintiffs, in the face of an overruled demurrer, to have the benefit of a decree as if their demurrer had been sustained upon the issues made by it and thereby deciding the merits. Gilman v. Rives, 10 Pet. 298, 301; Aurora v. West, 7 Wall. 82, 99; Gould v. Evansville Railroad, 91 U. S. 526.

The best that can be said for the plaintiffs, after this demurrer was overruled, is that upon a naked bill, without any issues of any kind or any pleading by defendant, the parties agreed to dismiss it, (though the decree does not in fact dismiss it,) upon a stipulation that the facts and law were with the defendants. The declaration by the court that the bonds were valid adds no force to the decree, which should have been simply that the bill be dismissed, if the court so decided. All the authorities, as we have shown, agree that such a decree is not a bar unless it be a decision on the merits, and the inquiry is always to see whether it is such a dismissal or one otherwise procured. Here the bill was dismissed after a decision of the only issue in the case made by the demurrer, in favor of the plaintiff, that the bonds were void. Technically, then, it seems the decree cannot be a bar except upon the theory of a purely consent arrangement to dismiss a bill, before answer filed, by an adjudication without issues, shown upon the face of it to be not the judgment of the court, but the judgment of the parties as to their own rights.

In Jenkins v. Robertson, H. L. 1 Sc. 117, there was a suit by a town for a right of way for foot passengers. The town had a verdict, but afterwards abandoned it and agreed to a judgment absolving the defendants, and to pay the costs and expenses, and the court so declared. That was a case precisely like this, except that the subjectmatter was clearly within the power of the municipality to arrange

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