Page:Federal Reporter, 1st Series, Volume 9.djvu/855

8e0 FEDERAL REPORTER. which the decision could not have been rendered.(?-) AVlien it is said, as it often has been said, that a judgment is conolur,ive, not only of everything necessary to it, but also of everything that mi'jht liave been litigated, it is clear that this can be true only so far as it relates to particular issues actually joined or necessarily implied. Even in New York, where the courts have gone to a great extreme in applying the rule of necessary facts.it is held that a judgment will not bar a counter-right of action of an independant nature, (s) The real difilculty is in regard to the meaning of "necessary facts;" but the weight of authority appears to be that facts which constitute a counter-right of action cannot be deemed to be barred by judgment for the plaintifC, unless the defendant put them in issue in the first suit ; and this, though they are conneeted with the same subject-matter as that upon which the first suit was brought.(i) Melyillb M. Bigelow. Boston, January 13, 1882. The Anchoru. [District Court, S. D. New York. January 6, 1882.) 1. Ldbbl— Exceptions — Insurehs — Collision. The libellant may sue for himself and for the use of another where both are entitled to recover upon the same state of facts and the interest of the latter has arisen from subrogation to part of the right of the former. Where goods are injured by collision at sea, and the insurers pay part of the loss, the owner of the goods may flle a libel for bis own loss uupaid, and for the use of the insurers to the extent of the loss paid by them. The libellant's authority to represent the Insurers must appear to entitle him to recover for their use ; but this will not be considered, upon an exception to the general want of power, to maintain a libel for the use of another. Upon exceptions, Tidd, that the libel, for the purpose of a sufflcient identifi- cation of the goods, must state at least the description of them givon by the bills of lading, and the date thereof, and also the essential elements of the con- tract of insurance upon which the rights and habilities of the parties may depend. In Admiralty. Exceptions to libel. Butler, Stillman e Huhbard, for libellant. Jas. K. Hill and Wing e SJioudy, for claimanta. (r)Leonard V. Whitri'y, 109 Mass. 265, 268; Crofton T. Cincinnati, 26 Ohio St. 671; Dunham T. jBower, 77 N. Y. 76 ; Wooilgaiev. Flfet,** N.Y. 1; flarit/ V. AfJW», 35 Wls. 141; Hamner y . Pounds, 57 Ala. 348 ; Bradley y. BHgga. 63 Ga. 354; Supples y. Cannon, 44 Conn. 424; Blgelow, Estoppel, 103, (3d Ed.) (,s)Brown T. Gallandet, 80 N. Y. 413. (OSee Bodurtha, V. Phelon, 13 Gray, 413; Baicom v. Manning, 52 N. H. 132; SylCM v. Bonner, Cin. Snp. Ct. Bep, 464; Mondsl v. Steel, 8 Meeg. & W. S)8; Davin v. Hedges, h. R. 6 Q. B. 687; BarTcer v. Cleveland, 19 Mich. 230. The New York cases contra ara Gates v. Preston. 41 N. Y. 113 ; WMte v. Mer- ritt, 7 N. y. 352; Davis v. Tallrot, 12 N. Y. 184 ; Dunham v. Bower, 77 N. Y. 76; Blair y. Bartlett, 75 N.Y.150; Bemngerv.Craigue.3lBavb.a3i; Collim v. Bennett,46 N .Y.iOO. See Sc/iwinger x . Ray- mond, 83 N. Y. 193. The subject Is further cousidered in the writer's work ou Kstoppel, pp. 118-ia9.