was further agreed that Stratton should promptly furnish the necessary material for finishing all uncompleted work in the city of Brooklyn and in the District of Columbia, previously contracted for by Evans; and for keeping in repair the work already finished. The plaintiff then read in evidence a bill of sale from Evans to Stratton, dated December 8, 1873, transferring the business at Brooklyn and the machinery, &c., "as per schedule hereunto annexed and made part of this bill of sale;" and also another bill of sale from Evans to Stratton, dated December 5, 1873, of all the machinery, material, &c., in the city of Washington, described in the agreement. "And in further support of said issues and to establish his title to the goods and chattels mentioned in the declaration," he offered in evidence another bill of sale, from Stratton to the plaintiff Langdon, dated December 29, 1873, in these words:

"For and in consideration of the sum of sixty thousand dollars to me in hand paid by Philando C. Langdon, and for other valuable considerations, the receipt whereof is hereby acknowledged, I do hereby assign, transfer and set over unto the said Philando C. Langdon, his executors, administrators and assigns, the business at Brooklyn, Kings county, State of New York, and Washington, D. C., known as the Evans Concrete Paving Company,' and the 'Evans Roofing Company,' with all the machinery, tools, implements and personal property, the same property which was conveyed, sold, delivered and transferred to me by Chas. E. Evans by bill of sale dated the eighth day of December, A. D. 1873, and which will more fully appear by the schedule annexed to the bill of sale made by said Evans, and which is made part of this bill of sale."

To the introduction in evidence of this paper writing, the defendant, by his counsel, objected, and the court sustained his objection; and this ruling constitutes the subject of the first exception.

In our opinion, this decision of the court was correct. The property which was the subject of this suit was situated in Washington, and was quite distinct from the personal prop

erty in Brooklyn. But the bill of sale so offered in evidence expressly declared that the property thereby conveyed was the same property which was conveyed, sold and transferred by Evans to Stratton by bill of sale of the 8th of December, 1873, "and which will more fully appear by the schedule. annexed to the bill of sale made by said Evans, and which is made part of this bill of sale." This bill of sale of the 8th of December, and the annexed schedule, comprehended only the Brooklyn property, and had no reference whatever to the personal property in Washington city. It was, therefore, irrelevant to the issue before the jury, since it could not conduce to prove that Stratton had conveyed the Washington property to Langdon. The construction of the paper was, of course, for the court; and we think no other interpretation could be given to it than that it related solely to the property in Brooklyn. It was insisted, however, that the plaintiff should have been allowed, as his counsel asserted he could have done, to introduce testimony to show that it was designed by the parties that the bill of sale of December 29th should also convey the Washington property; and the propriety of the admission of such parole evidence was claimed upon the ground that a latent ambiguity existed in the paper which could thus be made the subject of explanation. Even if this offer had been made at the trial below, which was not the case, we cannot see that the court could possibly have held that any latent ambiguity, authorizing such explanation, existed. The trouble with the plaintiff's case was that the paper was too free from ambiguity; for the reference to the property designed to be passed was so plain as not to admit of question. It was the Brooklyn property, and none other. An offer, then, to show that the Washington property had been referred to in the bill of sale, instead of the Brooklyn property, or that it should also have been included along with the other, would have been inadmissible under the plainest principles of law. The case is exactly within the decision of this court, in the case of Patch vs. White, 1 Mackey, 468, where we refused to allow the plaintiff in ejectment to introduce testimony to

show that a devise of "lot No. 6 in square 403," should be read as a devise of "lot No. 3 in square 406."

But the rejection of this evidence, even if erroneous, became immaterial in the further progress of the case, as the bill of sale objected to was subsequently read in evidence without objection.

2d exception. The plaintiff then offered evidence tending to prove that, about the 30th of December, 1873, Stratton, being then in actual possession of all the property so conveyed to him by Evans, delivered to the plaintiff an inventory of the tools and materials of the Evans Concrete Co., on Seventeenth street, in the city of Washington, and at the same time gave him manual possession of said goods and chattels. After the witness had been turned over to the defendant for cross-examination, the plaintiff offered in evidence, during the cross-examination of the witness (who was the plaintiff Langdon), as an estoppel, an exemplified copy of a record of the Supreme Court of New York for the county of Kings, in a cause there tried and determined, in which the plaintiff in this suit was plaintiff, and the defendant in this suit was defendant. This record consisted of a complaint filed by Langdon against Evans, in which he claimed to recover possession of a quantity of personal property, consisting of engines, wagons, materials, &c., about the yard at the corner of Fourth avenue and Water street, in the city of Brooklyn; and of three pleas interposed by the defendant, Evans, asserting property in the goods on his part. Then followed the entry of a verdict of the jury for $6,000 in favor of Langdon, and of the judgment that the plaintiff retain possession of the property, and recover his costs of suit. "To the introduction in evidence of the said exemplified copy of the said record, the defendant, by his counsel, objected, on the ground that it was not an estoppel, and on the ground of the time at which it was offered;" and the court sustained his said objection, and would not permit the said record to be read or given in evidence. And this constitutes the second exception.

Apart from every other objection, the judge was right in

refusing to allow the cross-examination to be broken in upon. by this new matter, offered out of season by the plaintiff. But if his action was of questionable propriety, it is well settled that all rulings as to the order in which evidence shall be offered during the trial, are within the discretion of the presiding judge, and are not the subject of appeal. If authority were needed for this reasonable proposition, it may be found in Bannon vs. Warfield, 42 Maryland, p. 26.

3d exception. When the plaintiff resumed his testimony, he offered, as part of his evidence in chief, testimony to prove that on December 30, 1873, he went into possession of the property in Washington, mentioned in the schedule, and remained in actual possession until the 5th day of February, 1874, when it was forcibly taken out of his possession by the defendant. And the plaintiff again offered the bill of sale of December 29, 1873, which was admitted by the court and read to the jury; and he then again offered in evidence the said record of the Supreme Court of King's county; "and in connection therewith, he offered as matter of estoppel upon defendant, to show by parol proof that the issues in that case were identically the same as the issues in this case, that the validity of the title derived by Langdon from Evans, which is in issue in this case, was at issue in that case, and that the verdict and judgment in that case was between the same parties that are plaintiff and defendant in this case; that the subject-matter and evidence in that case were the same as in this case; and that all the paper writings offered and proved in this case, excepting the judgment record, were offered, proved, and read in evidence in that cause.'

"To the introduction of evidence of the last named record, and of the said parol proof in connection therewith, as matter of estoppel, the defendant, by his counsel, objected; and the court sustained his objection, and would not permit the said record to be read, or the said parol proof to be given in evidence, to the jury."

This exception involves the examination of the principles governing the introduction of a judgment record as an

estoppel, or as conclusive evidence in a case. It is well settled that it is not essential that an estoppel should be specially pleaded. The judgment may be offered in evidence equally under the general issue. But it is also well settled that if the record of the judgment so offered does not, on its face, demonstrate the identity of the parties of the subject-matter, and of the pleadings, it is requisite, before it can be admitted as evidence, to establish that identity by extrinsic proof. And it has been equally well determined, that if the plaintiff offers such evidence, it is competent for the defendant to adduce evidence in reply. The law of this subject is very clearly expounded in the case of Sickles vs. Packet Co., 5 Wallace, 580. The plaintiff, the patentee of the Sickles Cut-off, sued the defendant in the Supreme Court of this District to recover for the use of the invention on its steamboats, for a designated period. The declaration averred that the parties had made a contract by which the company agreed to pay the patentee for the privilege, a certain proportion of the saving of fuel resulting from its use; the amount of this saving to be ascertained by the steamboat company feeding the engines from two equal piles of wood, one to be used with, and the other without, the cut-off. The defendant pleaded the general issue. On the trial, the plaintiff, without otherwise proving the contract declared on, offered to read in evidence the record of a previous recovery in the same court in an action brought by the same plaintiff against the company, for the use of the cut-off for a period preceding that comprehended in the pending suit. The declaration in the suit thus offered in evidence contained four counts. The first described the contract precisely in the language of the declaration in the pending suit; the second and third were the money counts for a quantum valebat, and the fourth was a special count' alleging a similar contract, but not describing the mode in which the saving was to be ascertained. The verdict in that first action was rendered generally in favor of the plaintiff; but subsequently the judgment was entered upon the first count only of the declaration. The trial court admitted this