N. S., whom plaintiff had appointed as his agent for the delivery of the goods, and that the goods arrived at Pictou, and a plea of estoppel on the ground that the damages claimed in this action were in issue as a defence in an action against the present plaintiff at the suit of the defendant in this action for the price of said goods, and that judgment was obtained by the plaintiff in said action. Replication, after traversing pleas, that this is an action for unliquidated damages, and that the other action was for a sum certain, and on equitable grounds, that from unforeseen causes plaintiff was prevented from offering testimony in support of pleas pleaded by him to the other action. There were demurrers to several of plaintiff's replications.

The cause was tried before Mr. Justice MCDONALD, at Arichat, in June, 1876, and a verdict found for plaintiff "for the value of the goods and twenty-five per cent additional.” The verdict was subsequently amended.

A rule nisi to set the verdict aside was granted by the Judge, and argued February 22nd, 1877, before Young, C. J., and DESBARRES, SMITH, and JAMES, J J.

Meagher, in support of rule.-The plaintiff is estopped from bringing this action by the record in the first action, in which he pleaded the same facts. In that action he pleaded that these defendants contracted to deliver the goods in question at Arichat; that issue on the plea was found against him; that issue is raised here as a material part, the turning-point, of the declaration in this action. 7 T. R., 269, is a very strong case on this point.

YOUNG, C. J.-I question whether the doctrine laid down in this case is good law now under an equitable plea.

Meagher, cites also 5 Bingh., N. C. 449. There it was held that a defendant, having put plaintiff to expense to disprove a plea by not withdrawing it, was estopped from raising the matter in a new action. 3 East, 346; Smith's L. C., 776; note to Trevivian v. Lawrence, et al., 2 Smith's L. C., 617, 718. The equitable plea setting up that this plaintiff was prevented by unforeseen circumstances from attending the trial and giving evidence under the plea in question is bad. It should define the circumstances. Taylor on Ev., secs. 1445 and 1454; ib. 1483-9.

There can be no question that these are the same goods, and the agreement the same. The burden of proof is therefore on Marmaud to show that the cause of action here is not the same as the defence raised in the plea in the other action. Bigelow on Estoppel, 2 ed., pp. 41-45, 108-9. If plaintiff can recover in this suit, he could contest this matter over again if the verdict here had been against him. 22 L. T., N. S., 631 ; 2 L. R., Exch., 14; 10 Gray, 23.

As to the contract, the burden of proof was upon plaintiff. The only evidence is that of plaintiff on one side, and on the other a disinterested witness, with corroboration from a written memo., taken down by himself at the time.

The learned Judge misdirected the jury in instructing them that the defendants here were bound by the agreement of their travelling agent to deliver the goods at Arichat. The agent proved that he had no authority to do anything of the kind. His Lordship erred also in submitting to the jury whether the causes of action were the same in this and the previous suits. It is a question of law. It was not contended that the transaction was not the same.

Cites Story on Agency, § 131, 239.

There being no contract under the statute of Frauds, Marmaud could have defeated us in the other action, and cannot recover here, for the same reason.

Thompson, contra.-On the merits, the case that went to the jury was a very clear one. The plaintiff's evidence was clear and consistent with the ordinary course of such transactions. McLinn was not a disinterested witness; he was in defendant's employ, and was the man on whom the responsibility for the mistake in this transaction rests. His own evidence is that the order he sent to these defendants did not contain the memo. that the goods were to be sent to James Ives, Pictou.

As to estoppel, not only an Equity Court, but a Court of Common Law will not hold a party estopped from bringing his action, because the subject matter was pleaded in the former action, if the verdict in the former action was a general verdict, and there was other matter to sustain it. 13 M. & W., 137. We have recovered in this action only damages for loss of profits. The plea off-setting damages in the other suit con

tained no defence, and there is authority to show that such a plea does not estop. Brightly's Dig., N. Y. R., 1486-7; Smith's L. C., (Am. ed.) 769, 771-2-3, 780 to 784, 792 to 794; 8 M. & W., 858; 6 T. R., 607; 10 C. B., N. S., 812. These cases show clearly, particularly the case in 6 T. R., 607, that the Court will go behind the record to see what was tried in the former action.

We did not plead in the other case the identical contract upon which we have now declared. The case in 10 C. B., N. S., 812, shews that the fact that there was a defence which might have been successfully raised to the former action, but was not, constitutes no estoppel. The judgment in the former action here was virtually a judgment by default, no evidence being given on behalf of defendant, with the exception of evidence of his attorney as to a notice.

There is a letter of defendant's in evidence, admitting that the goods had not been forwarded by the steamboat company.

As to the indefiniteness of the verdict, they have given him just what he testified as to the difference between the invoice price of the goods and their market value. Twentyfive per cent. on the invoice is easily calculated.

Cites 2 B. & Ad., 652; 9 Moore, 724; 2 Bingh., 377. The case cited from 2 L. R. is not a case against us. Taylor on Evid., 1510, 1512; 6 L. R., Q. B., 687.

Des Barres, in reply.-Your Lordships cannot go back of the record; you are bound to assume that all the issues on the record were tried. But here the issue raised in this action as to the contract to deliver the goods was the very gist of the former action.

Cites 5 Bingh., N. C., 220; 2 Exch., 665; 1 El. & Bl., 501 ; 1 L. R., C. P., 188; 8 L. R. C. P., 56; 1 L. R. Pro. & Div., 483 ; 2 lb., 230.

In Brightly's Dig., 1486, cited on the other side, there is a citation just below in our favor.

JAMES, J., now, (January 12th, 1878,) delivered the judgment of the Court:

This was an action brought by the plaintiff, who is a trader at Arichat, against the defendants who are merchants at Montreal, for damages for not delivering to the plaintiff at

Arichat certain goods which he alleged were bargained and sold by the defendants to him, and which they contracted to deliver to him at Arichat. It was tried before Judge McDONALD at Arichat, in June term, 1876, and a verdict found for plaintiff.

The defendant, by his fifth plea, sets up an estoppel by a judgment recovered by the now defendants against the now plaintiff, in respect of the same goods in which the now plaintiff who was defendant in that action set up as a defence that they agreed to deliver the goods to him at Arichat, but did not do so, which issue was found against him. This plea also sets up the pleadings in the former action, and avers identity of the causes of action. The sixth plea also sets up estoppel; it is essentially the same as the fifth plea, and avers that the plaintiff had an opportunity of establishing as a defence to the other action the causes of action alleged in his declaration, but wholly failed to do so.

To these pleas there were several replications, among other things attacking the former record, denying the identity of the facts in dispute in the two actions, alleging that the former action was for a debt and this for unliquidated damages, that the defendant (now plaintiff) did not appear at the former trial and did not contest the suit, that he had no opportunity and did not offer evidence at the former trial; and, on equitable grounds, that the judgment in said former action was recovered without his having an opportunity of substantiating by testimony on said trial his said defence, and that no evidence was given by him or his witness on said trial, and that he was prevented by unforeseen causes from being present at such trial, and that therefore, in Equity, he ought not to be estopped from maintaining his present action. There were several other replications, fourteen in all, but those which are material to the opinion I have formed on the 'case have been enumerated. The verdict was for the plaintiff for the value of the goods and twenty-five per cent. additional for damages.

The former suit was brought for the price and value of goods sold and delivered by the plaintiff (now defendant) to the defendant (now plaintiff,) and judgment was recovered and entered of record for the plaintiff (now defendant) upon a special plea of the present plaintiff, denying the delivery of the

goods. The same defendant now appears as plaintiff, claiming damages from the now defendant for the non-delivery of the same identical goods, to which the defendant pleads the former judgment as an estoppel.

It would be a waste of time to attempt to shew from the record and the evidence that the cause of action in the two suits, the one for goods sold and delivered, and the other for non-delivery of the same goods,-were identical. The fact of the identity of the two issues is proved not merely by an inspection of the pleadings but by the very explicit evidence of the present plaintiff at the trial, and the only questions. appear to be whether the plaintiff's not having contested the former action, is a sufficient reason either at Law or in Equity for preventing the former judgment from operating as an estoppel in the present suit.

It appears by the evidence that he wished and fully intended to contest the suit, but that having attended the Court for that purpose, and finding the case not likely, as his Counsel advised him, to be called for some time, he returned to his home and failed to be present with his witnesses when the cause was called for trial; whereupon judgment was given against him by default. It is for this reason, among others, viz. that he failed in making a defence to the former action, that he now questions the applicability of the general and and well defined rule. But his laches in not persisting in his defence is no answer to the plea. A judgment by default is as conclusive as if a trial had been held and a verdict given against him. Howlett v. Tarte, 10 C. B., N. S., 813.

It was contended on the argument that the merits of the case on the evidence were with the plaintiff. This is by no means clear. There was a conflict of testimony on this part of the case which, as far as this point is concerned, was properly left to the jury. Whether their finding was right or not it is unnecessary to enquire, if I am right in the opinion that the estoppel is this case is conclusive. Whatever be the merits as between the parties, it is necessary that there should be some means provided by the law to put an end to litigation between the same parties on the same points of controversy; and our law provides," that the judgment of a Court of concurrent jurisdiction," (and a fortiori of the same Court,) on a