Hibshman v. Dulleban

The opinion of the Court was delivered by Gibson, C. J. —-The defendants having pleaded a release to the plaintiff’s declaration for a'legacy and the plaintiff having replied per fraudem, the defendants rejoin that, the release was exhibited by them in the orphan’s court, and allowed by that court as a decisive bar to exceptions taken by the plaintiff to their. administration account ; and the question raised by the demurrer is, whether the validity of the release has passed in rein judicatam. The law of the [191] case, with its distinctions, has been, compressed into the dimensions of a nutshell, by Chief Justice De Grey, in the Duchess of Kingston’s case, 11 St. Tr. 261; and though the passage is a trite one, yet as it could not otherwise be so well expressed, it is proper to repeat it in his own words. “ From the variety of cases in respect to judgments being given in evidence,” said the chief justice, “these two distinctions seem to follow as being generally true: first, that the judgment of a court of concurrent jurisdiction directly upon the point, is, as a plea, a bar—or as evidence, conclusive, between the same parties on the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point, is in like manner conclusive upon the same matter between the same parties coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction, is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgmenL.” This brief but comprehensive summary furnishes a rule for every case that any complication of circumstances can produce. Now, did the question of fraud come before the orphan’s court directly or incidentally'? Not directly certainly; for that court had jurisdiction of it but incidentally, and not to entertain an action whose immediate object should be to ascertain the fact. In Blackham’s case, 1 Salk. 290, the defendant proved that the goods, for the conversion of which the action was brought, had belonged to Mrs Blackham, whose administrator he then was; to rebut which, the plaintiff proved that he was her husband ; whereupon the defendant contended that the marriage was conclusively negatived by the grant of administration to himself, in preference to the plaintiff, her pretended husband. But lord Holt said, that though a matter directly determined by the sentence could not be gainsaid, yet that the principle has regard but to a point directly tried, and not to a matter collaterally inferable from it. The same principle was recognized by the king’s bench, in Clues v. Bathurst, Ca. Temp. Hardw. 12. The case of Rex v. Vincent, Stra. 481, in which it was held, that the production of a probate by a prisoner indicted for forging a will, is conclusive for him, has been repeatedly overruled. And the judgment must not only have been direct, but conclusive of the matter adjudged,in the court where it was rendered; for, as is justly remarked by Mr Starkie, part two, section sixty-five, if it did not decide the point there, it ought not to decide it elsewhere. On all these grounds the decree of the orphan’s court was incompetent to affect the plaintiff in his common law action. The validity of the release was drawn into contest incidentally ; and the point being thus incidentally decided against him, can no more prejudice his title in another court, than can the decision of a surrogate or register prejudice the title of an unsuccessful claimant of administration to the estate of a decedent. Again, the point was not actually, or at least necessarily, decided. The plaintiff’s exceptions to the [192] administration account, were also the exceptions of Henry Dulieban’s trustees; and whether the release were good or bad, was a question whose decision could not supplant a decision of them on the merits. It did not supplant it; and the gratuitous determination of a point involving the question of fraud, which had no effect there, ought to have no effect here, especially to deprive the plaintiff of a trial by jury. Judgment affirmed.