Page:Federal Reporter, 1st Series, Volume 9.djvu/197

182 FEDERAL REPORTER. �clusive to this effect. In the latter case the defendants, being sued on two of a batch of ten promissory notes, all of which they had indorsed and transferred to the plaintiff at the same time, defended solely upon the ground that their liability as indorsers had not been fixed by due prosecution against the makers of the notes. This defence was not sustained, and judgment went against them. In a subsequent suit by the same plaintiff on others of the notes, the same defendants rested their defence on a written agreement of the plain- tiff, made at the time all of the notes were transferred, that they should not be held liable for ahy of them. This, the supreme court decided, they had a right to do, and on page 428 of the opinion it is said : �" Where a judgment is offered in evidence in a subsequent action between the same parties upon a different demand, it operates as an estoppel only upon the matter at issue and determined in the original action, and such matter, when not disclosed by the pleadings, must be shown by extrinaic evidence." �But it is plain that no new defence against the claim of the bank has been made, and that no different matter has been put in issue in the present case. The controversy is the same and the issues are the same. �It is, however, urged that the testimony is not the same, and that there is now more evidence for the eomplainant than in the case which went up to the Maryland court of appeals. Particularly, that there is now evidence tending to show that Mr. Planagin had no authority from his wif e to pledge the mortgages, but only to sell them ; and that, although she knew of and ratified his pledging them for the note of December 16, 1872, she did not know of and did not ratify his acts as to any renewals of that note. �The obvions answer to this is : First, that as the court of appeals determined that the first note was never paid and that the collaterals pledged for its payment were still bound for it, the want of authority to pledge for the renewals, or the absence of ratification by the wife in respect to such renewals, are now entirely immaterial matters, and that finding of the court of appeals is conclusive of the complainant's whole case; second, that the question of the husband's authority over the bonds and mortgages, and his right to pledge them for the renewals, was in fact put in issue and was decided by the court of appeals. The husband did testify in that case as to his authority, and the purpose for which the bonds and mortgages were indorsed in blank and given to him, so that it appears that matter was in ��� �