CHILTON, 0. J. —
William Johnson, as survivor of the late firm of McCoy & Johnson, brought an action of trover against the appellants to recover thirty-eight bales of cotton, alleged to have been converted by them.
It appears that these thirty-eight bales were a portion of a lot of cotton which had previously been recovered by McCoy & Johnson in an action of detinue against the firm of Holmes, Bott& Earle, (see the case reported in 20 Ala. 518,) and that the sheriff, in taking replevy bonds from Holmes, Bott & Earle in that suit, liad omitted to insert these thirty-eight bales, but had returned the whole of the cotton to H. B. & E. upon their giving bonds only for sixty-five bales. After the cotton was thus replevied, and pending the suit, that now in controversy, with other portions or the whole of it, was delivered by H. B. & E. to Tarleton & Pollard, the appellants, who employed an attorney, and defended the first suit for the defendants, who occupied the position of warehouse-men or bailees to them. It further appeared that the replevy bond was given by the procurement of the present appellants, and that after the final judgment was rendered, and one of [310]*310the obligors in said bond had paid the alternate value of forty bales of the cotton, Tarleton & Pollard had repaid this money. All this, however, was made to appear by proof de hors the record, and which was excepted to in the court below, the record itself furnishing no evidence that Tarleton & Pollard were parties or privies to that controversy.
The first and main question for consideration is, whether it was permissible to introduce parol proof, to show the connection of Tarleton & Pollard with that suit, and if so, whether the verdict and judgment then rendered are to be conclusive upon them in this action.
There are a number of cases, which seem to discountenance the doctrine of aiding a- record by extrinsic parol proof (see them referred to in 3 Phil. Ev., Cowen & Hill’s Notes, pp. 838, 839, n. 590); but the great preponderance of American authority is in favor of its admission. — See Parker v. Thompson, 3 Pick. 429; Kilheffer v. Herr, 17 Serg. & Rawle 319; 3 Phil. Ev., supra, and cases cited in note 590. Whether any matter has been tried before between the same parties, and judicially decided, must, in most cases, necessarily depend upon parol evidence in part. The identity of the parties, and of the subject-matter, can only be shown in this way.— Cist v. Zeigler, 16 Serg. & Rawle 282; Crotzer v. Russell, 9 ib. 81. So, the record of a judgment-against James E. is admissible in an action against Joseph E., if it is made to appear that the latter was the same person, and in fact a party to the suit, and defended it. — Stevelie v. Read, 2 Washington’s Cir. Court Rep. 274.
We are aware that it has been held by the Court of Appeals of Kentucky, that no persons can be considered parties to a suit, so as to be bound by the judgment, unless they appear by the record to be such, and that extrinsic evidence is not admissible to prove that persons not named in the record were parties (Allen v. Hall, 1 Mar. 526); but this strictness does not accord with the current of American decisions, nor indeed with the text-writers on the subject. — See cases collated in 3 Phil. Ev. (C. & H. notes) 974-5.
Mr. Peake, in his work on Evidence, p. 74, says : “ But where it is said a verdict is not evidence for or against one who is not a party to a cause, it is not to be understood that [311]*311a man who merely uses the name of another for his own benefit, is not bound, by the verdict which is given against him. Courts of justice will take notice, in these cases, who is the real plaintiff or defendant in a cause,” &c.
Mr. Starkie (vol. 1, p. 219, marg.) says : “ It is not essential that either the parties, or the form of action, should be the. same, if they are substantially the same.”
Mr. Phillips (vol 1, p. 324) says: “ In considering the effect of verdicts and judgments, courts of justice will always take notice of the real parties to the suit.” See, also, Gilbert’s Law of Ev. p. 35.
Mr. G-reenleaf (vol. 1, p. 672, § 523) says: “All persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings.”
An application of the doctrine asserted by the text-writers will be found in the case of Kennersley v. Orpe, 2 Doug. 517, where an action of trespass was brought by the owner of a fishery against William Orpe; and the defendant justified as the servant of Doctor Cotton. The evidence showed that a previous action had been tried between Kennersley and Thomas Orpe, another servant of Cotton, involving the same right, and had been decided for the plaintiff, and that both the Orpes had acted by the command of Cotton, who ordered the defendant to fish in the same place, that he might try the right over again, of which he gave notice to the plaintiff.— The question came up, whether the verdict and judgment in the first case should be received as evidence in this, the parties appearing on the'record to be different. Upon the trial at the assizes, Baron Perkyn overruled the objection to the admission of the record, and held the judgment to be conclusive. Upon motion for a rulo to show cause why a new trial should not be granted, the court of King’s Bench held the record of the former judgment admissible, but that it was not conclusive.
The authority of this case was questioned by Lord Ellen-borough in Outram v. Morewood, 3 East 366, but it is cited without disapprobation by the elementary writers, and, when rested on the ground that both actions were substantially between the same parties, it is clearly defensible. See opinion [312]*312of Spencer, C. J., in Case v. Reeves, 14 John. 82; also, Shelton v. Barbour, 1 Wash. 64; Calhoun’s Lessee v. Dunning, 4 Dallas 120.
In the case last cited, an action had been tried between Dunning and Carutliers, involving the right to the locus in quo claimed by Calhoun in this suit.. It appeared that Caru-thers, the then defendant, was the person now really inter-’ ested in the land, and that Calhoun was a mere trustee for him, and that an action might be brought in the name of the cestui que trust. It was objected that the former judgment in favor of Dunning was not between the parties to this suit, and should not, therefore, be allowed to affect their rights ; but the court said : “ We can never acquiesce in an attempt so manifestly calculated to evade the truth and justice of the case. Shall it be in the power of a party, by suppressing a deed, or by employing the name of a trustee, to avoid the legal effect of a judgment rendered against him?” They add: “ It is plain the name of Calhoun is now employed for the use of Caruthers ; and that the parties are really, though not nominally, the samo in both suits.” — 1 Mon. 253; 4 Gill & John. 407; 10 Pick. 166; 4 Rawle 273; 4 Wash. Circuit Court Rep. 503.
Applying these principles to the case before us, we find but little difficulty in the solution of the question as to the admissibility of the record of the former judgment. Holmes, Bott & Earle, it is true, wrero defendants, as shown by the record, but they were the bailees of the appellants. The latter carried on the suit in their names, and employed counsel, and made a full defence.
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CHILTON, 0. J. —
William Johnson, as survivor of the late firm of McCoy & Johnson, brought an action of trover against the appellants to recover thirty-eight bales of cotton, alleged to have been converted by them.
It appears that these thirty-eight bales were a portion of a lot of cotton which had previously been recovered by McCoy & Johnson in an action of detinue against the firm of Holmes, Bott& Earle, (see the case reported in 20 Ala. 518,) and that the sheriff, in taking replevy bonds from Holmes, Bott & Earle in that suit, liad omitted to insert these thirty-eight bales, but had returned the whole of the cotton to H. B. & E. upon their giving bonds only for sixty-five bales. After the cotton was thus replevied, and pending the suit, that now in controversy, with other portions or the whole of it, was delivered by H. B. & E. to Tarleton & Pollard, the appellants, who employed an attorney, and defended the first suit for the defendants, who occupied the position of warehouse-men or bailees to them. It further appeared that the replevy bond was given by the procurement of the present appellants, and that after the final judgment was rendered, and one of [310]*310the obligors in said bond had paid the alternate value of forty bales of the cotton, Tarleton & Pollard had repaid this money. All this, however, was made to appear by proof de hors the record, and which was excepted to in the court below, the record itself furnishing no evidence that Tarleton & Pollard were parties or privies to that controversy.
The first and main question for consideration is, whether it was permissible to introduce parol proof, to show the connection of Tarleton & Pollard with that suit, and if so, whether the verdict and judgment then rendered are to be conclusive upon them in this action.
There are a number of cases, which seem to discountenance the doctrine of aiding a- record by extrinsic parol proof (see them referred to in 3 Phil. Ev., Cowen & Hill’s Notes, pp. 838, 839, n. 590); but the great preponderance of American authority is in favor of its admission. — See Parker v. Thompson, 3 Pick. 429; Kilheffer v. Herr, 17 Serg. & Rawle 319; 3 Phil. Ev., supra, and cases cited in note 590. Whether any matter has been tried before between the same parties, and judicially decided, must, in most cases, necessarily depend upon parol evidence in part. The identity of the parties, and of the subject-matter, can only be shown in this way.— Cist v. Zeigler, 16 Serg. & Rawle 282; Crotzer v. Russell, 9 ib. 81. So, the record of a judgment-against James E. is admissible in an action against Joseph E., if it is made to appear that the latter was the same person, and in fact a party to the suit, and defended it. — Stevelie v. Read, 2 Washington’s Cir. Court Rep. 274.
We are aware that it has been held by the Court of Appeals of Kentucky, that no persons can be considered parties to a suit, so as to be bound by the judgment, unless they appear by the record to be such, and that extrinsic evidence is not admissible to prove that persons not named in the record were parties (Allen v. Hall, 1 Mar. 526); but this strictness does not accord with the current of American decisions, nor indeed with the text-writers on the subject. — See cases collated in 3 Phil. Ev. (C. & H. notes) 974-5.
Mr. Peake, in his work on Evidence, p. 74, says : “ But where it is said a verdict is not evidence for or against one who is not a party to a cause, it is not to be understood that [311]*311a man who merely uses the name of another for his own benefit, is not bound, by the verdict which is given against him. Courts of justice will take notice, in these cases, who is the real plaintiff or defendant in a cause,” &c.
Mr. Starkie (vol. 1, p. 219, marg.) says : “ It is not essential that either the parties, or the form of action, should be the. same, if they are substantially the same.”
Mr. Phillips (vol 1, p. 324) says: “ In considering the effect of verdicts and judgments, courts of justice will always take notice of the real parties to the suit.” See, also, Gilbert’s Law of Ev. p. 35.
Mr. G-reenleaf (vol. 1, p. 672, § 523) says: “All persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings.”
An application of the doctrine asserted by the text-writers will be found in the case of Kennersley v. Orpe, 2 Doug. 517, where an action of trespass was brought by the owner of a fishery against William Orpe; and the defendant justified as the servant of Doctor Cotton. The evidence showed that a previous action had been tried between Kennersley and Thomas Orpe, another servant of Cotton, involving the same right, and had been decided for the plaintiff, and that both the Orpes had acted by the command of Cotton, who ordered the defendant to fish in the same place, that he might try the right over again, of which he gave notice to the plaintiff.— The question came up, whether the verdict and judgment in the first case should be received as evidence in this, the parties appearing on the'record to be different. Upon the trial at the assizes, Baron Perkyn overruled the objection to the admission of the record, and held the judgment to be conclusive. Upon motion for a rulo to show cause why a new trial should not be granted, the court of King’s Bench held the record of the former judgment admissible, but that it was not conclusive.
The authority of this case was questioned by Lord Ellen-borough in Outram v. Morewood, 3 East 366, but it is cited without disapprobation by the elementary writers, and, when rested on the ground that both actions were substantially between the same parties, it is clearly defensible. See opinion [312]*312of Spencer, C. J., in Case v. Reeves, 14 John. 82; also, Shelton v. Barbour, 1 Wash. 64; Calhoun’s Lessee v. Dunning, 4 Dallas 120.
In the case last cited, an action had been tried between Dunning and Carutliers, involving the right to the locus in quo claimed by Calhoun in this suit.. It appeared that Caru-thers, the then defendant, was the person now really inter-’ ested in the land, and that Calhoun was a mere trustee for him, and that an action might be brought in the name of the cestui que trust. It was objected that the former judgment in favor of Dunning was not between the parties to this suit, and should not, therefore, be allowed to affect their rights ; but the court said : “ We can never acquiesce in an attempt so manifestly calculated to evade the truth and justice of the case. Shall it be in the power of a party, by suppressing a deed, or by employing the name of a trustee, to avoid the legal effect of a judgment rendered against him?” They add: “ It is plain the name of Calhoun is now employed for the use of Caruthers ; and that the parties are really, though not nominally, the samo in both suits.” — 1 Mon. 253; 4 Gill & John. 407; 10 Pick. 166; 4 Rawle 273; 4 Wash. Circuit Court Rep. 503.
Applying these principles to the case before us, we find but little difficulty in the solution of the question as to the admissibility of the record of the former judgment. Holmes, Bott & Earle, it is true, wrero defendants, as shown by the record, but they were the bailees of the appellants. The latter carried on the suit in their names, and employed counsel, and made a full defence. Whether, in strictness of law, their title could have been properly adjudicated in an action against their bailees, is not material now, since it is shown by the record that it was set up, and was decided upon, on the submission of an agreed state of facts, and held subordinate to the title of McCoy & Johnson. They had the sole management of the case by their counsel. It was tried apon their agreed state of facts, in which their title was set up b}r their counsel, and the case was brought to this court, where it was affirmed. Finally, after the judgment was rendered against their bailees, they proceed to make satisfaction of it, so far as to relieve the persons whom they procured to become sureties [313]*313on the replevy bond. Under this state of facts, to hold that they were strangers to that proceeding, would be to shut our eyes to the truth of the case, and' to look alone to the nominal, rather than the real, substantial parties to the litigation. Indeed, under the agreed state of facts, the conflicting claims of these respective bailors to the cotton, were as fully adjudicated and decided upon, as they would or could have been under the old common-law practice in actions of detinue, where the bailee, a mere stakeholder, by process of ga.Triislirvip.rit. compelled the two claimants of the subject-matter of the bailment to interplead. This the claimants have substantially done in the first case that was tried; and after an express adjudication adverse to their claim, it is not for them to say that nothing has been decided which should bind them. See, as to the common-law practice of interpleader in detinue, Yiner’s Abr., titles, Detinue and Interpleader.
Our conclusion is, that there was no error in admitting the parol proof showing who were the real parties in interest in the former suit, and that the judgment was properly received as evidence against the appellants. — Clark v. Dignam, 3 Excheq. Rep. 478.
As respects the testimony of Haig to prove himself competent : we think the court erred in its rejection. True, if his interest had been made to appear independent of his own evidence, he should not by his testimony be allowed to render himself competent. But the counsel for the appellee examined him upon his voir dire, and proved that he was a member of the late firm of Bower & Co., who sold the cotton to the appellants. This was a fact — his being a member of that firm — which went directly to show his interest, and without which it was not made out. Having charged himself, he could in the same way discharge or balance his interest. In Butcher’s Co. v. Jones, 1 Esp. 160, the witness, in answer to a similar question, stated that he was a member of a chartered company, which made him interested, and this would seem, as in the case before us, to be an inquiry merely as to Ms identity ; 'yet he was allowed to proceed and prove that he had been disfranchised, and thereby render himself competent.
So, in a suit by an administrator, a witness introduced on [314]*314bis bebalf was asked if he were not one of the heirs-at-law, and answering in the affirmative, was held competent to discharge himself by proving a release of all his interest in the estate.- — Ingram v. Ward, cited in 1 Greenleaf’s Ev. p. 572, § 422, n. 6.
Note by Beporeeb. — Mr. Semple, of counsel for the appellants, afterwards filed a written petition asking a modification of that part of the foregoing opinion which asserts, that if the appellants were connected with the former suit, “ so as to make them the real defendants, then the judgment becomes conclusive as to the title adjudicated in that suit, but not as to a title subsequently acquired from persons not parties or privies to that judgment.” He contended that the judgment would be conclusive on the appellants only as to all defences which could have been made by them in that suit ; that Pollard, at the commencement -of that suit, had a title which could not, under the rules of law, hare been made available in that case, because Bott & Earle were estopped from setting up an outstanding title in a third person by the relation which they occupied towards McCoy & Johnson— that of warehouse-men; and yet his title could be made available as a complete defence in an action by McCoy against him directly. To show that Pollard’s title could not not have been set up as a defence in that case, however good it might be in an action against him directly, he cited Story on Bailments, §§ 266, 450, 582 ; Cowp. R. 244, 344; 6 Ad. & El. 515 ; 2 B. & 0. 540 ; 7 Bing. 339 ; 10 ib. 246 ; 9 Price 269 ; 44 Law Lib. 353-4. And to show that, although a defence was attempted by way of recoupment, and sustained, yet the party might bring an action for the same matter, if there was any part of his cause of action which could not have been used as a defence in the former suit, he cited 8 Mees. & W. 858 ; 2 Johns. 30 ; 7 ib. 22; 6 Cowen 26'2.
[314]*314The charge that the judgment was conclusive, was likewise erroneous. It depended upon the parol proof for its connection with the appellants, which the jury might or might not think sufficient to establish such connection. If the plaintiff had replied the judgment by way of estoppel, he must needs have averred the facts connecting the appellants with it, or it would have amounted to nothing ; for, prima facie, it is res inter alios. These facts, then, should have been submitted to the jury in connection with the record; so that, when the court held the record conclusive, it must needs have been assumed that the proof showing the appellants’ connection with it was conclusive. We are of opinion, that if the appellants are connected so as to make them (or rather Pollard, the party beneficially interested) the real defendants, then the judgment becomes conclusive as to the title adjudicated in that suit, but not as to a title subsequently acquired from persons not parties or privies to that judgment. The case óf Kennersley v. Orpe, supra — the strongest case which we have seen for the appellee — held that the judgment was not conclusive.
As the case must go back for another trial, it is not necessary to discuss the other questions argued at the bar. What we have said will be sufficient to govern its future conduct.
Let the judgment be reversed, and the cause remanded.
[315]*315To this application the court responded as follows:
CHILTON, C. J. —
¥e have examined this petition, and re-examined the opinion; and we are satisfied the modification asked for should not be made.