can be charged to the defendant, or to his physician, and no artifice is used on the part of the tort feasor to prevent the injured person from ascertaining the true nature of the injury, will not avoid an accord and satisfaction."4 A mistaken opinion as to the cure of the injury, expressed in good faith by the physician of the wrongdoer, is not a fraud which will avoid the release."5 But where false representations are made to a person suffering from an accident, as to the medical opinion given as to his state, inducing him to accept an almost nominal sum for satisfaction, he can recover, notwithstanding." A case of personal injury already begun may be settled by the injured person, without the consent of the attorney of record; 7 but such settlements are scrutinized severely, and will be set aside where there is any appearance of fraud or undue influence.98 Undue influence may vitiate a release for torts on much the same principle as it would a will. Thus, upon the commencement of a suit by a married woman against a railroad company for injuries sustained by her through its negligence, the company's station agent, assisted by a physician, who was also a lawyer, induced her uncle to interview her regarding a settlement. He told her it would be a great disgrace to be brought into court, that the suit would be repeatedly put off, and that she would get nothing in the end. Her husband was absent, her children were sick, and she was very poor. The court set aside the release

on the ground of undue influence."

nois Cent. R. Co. v. Welch, 52 Ill. 187; Mulber v. Old Colony Ry., 127 Mass. 86; Linington v. Strong, Chi. Leg. News (April 7, 1883) 243; Sheanon v. Pacific Mut. Life Ins. Co., 83 Wis. 507–527, 73 N. W. 878.

94 Hayes v. East Tennessee, V. & G. Ry. Co., 89 Ga. 264, 15 S. E. 361; Eccles v. Union Pac. Ry. Co., 7 Utah, 335, 26 Pac. 924.

95 Doty v. Chicago, St. P. & K. C. Ry. Co., 49 Minn. 499, 52 N. W. 135; Vandervelden v. Chicago & N. W. R. Co., 61 Fed. 54-56.

96 Stewart v. Great Western Ry. Co., 2 De Gex & S. 319.

97 Dolloff v. Curran, 59 Wis. 332, 18 N. W. 266.

98 Voell v. Kelly, 64 Wis. 504, 25 N. W. 536; Bussian v. Milwaukee, L. S. & W. Ry. Co., 56 Wis. 325, 14 N. W. 452..

And see

99 Stone v. Chicago & W. M. Ry. Co., 66 Mich. 76, 33 N. W. 24. Flummerfelt v. Flummerfelt, 51 N. J. Eq. 432, 26 Atl. 857. As to what is not sufficient, see Alabama & V. Ry. Co. v. Turnbull, 71 Miss. 1029, 16 South. 346; In re Rockey's Estate, 155 Pa. St. 453, 26 Atl. 656.

Where the settlement of the wrong done was induced by fraud, it is not necessary for the plaintiff to return to the defendant what he has recovered under the terms of the settlement before he is entitled to pursue his action. Thus, if the defendant obtains a signature of the plaintiff to a paper, purporting to be a settlement and discharge of the cause of action, by fraudulent representations that it is merely a receipt for a gratuity, the plaintiff may maintain his action without returning the money paid him, and the jury will deduct from its award the amount already received.100 But on this point the authorities are not agreed.101 This principle applies, a fortiori, where the cause of action sued on was not included in the release, 102

A court will not readily set aside a formal settlement of a matter in dispute. The burden to avoid a satisfaction or discharge of a tort rests on the party attacking it.10 A party defrauded is bound to use active diligence to allow no avoidable delay in com plaining of the wrong done him in fraudulently procuring a settlement. Any delay which is not reasonably necessary under the circumstances is fatal.10

100 Mullen v. Old Colony Ry., 127 Mass. 86. Cf. Bliss v. New York Cent. & H. R. R. Co., 160 Mass. 447, 36 N. E. 65; Cleary v. Municipal Electric Light Co., 65 Hun, 621, 19 N. Y. Supp. 951 (distinguishing McGlynn v. Railway Co., 93 N. Y. 655; Dixon v. Railway Co., 100 N. Y. 170, 3 N. E. 65); Shaw v. Webber, 79 Hun, 307, 29 N. Y. Supp. 437; Girard v. St. Louis Car-Wheel Co., 46 Mo. App. 79; Id., 123 Mo. 358, 27 S. W. 648; O'Brien v. Railway Co. (Iowa) 57 N. W. 425; Butler v. Richmond & D. R. Co., 88 Ga. 594, 15 S. E. 668. And see Knoxville, C. G. & L. R. Co. v. Acuff, 92 Tenn. 26, 20 S. W. 348. See Duff v. Hutchinson, 57 Hun, 52, 10 N. Y. Supp. 857.

101 However, where an accord and satisfaction is fully executed, the party receiving money from the other cannot rescind on the ground of fraud, or of his own mental incompetency to make a contract, without refunding, or offering to refund, the money received. Strodder v. Stone Mountain Granite Co., (Ga.) 19 S. E. 1022. But see Vandervelden v. Chicago & N. W. R. Co., 61 Fed. 54-56, citing Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311; Billings v. Smelting Co., 3 C. C. A. 69, 52 Fed. 250.

102 Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182, 31 N. E. 1104. 103 Addyston Pipe & Steel Co. v. Copple, 94 Ky. 292, 22 S. W. 323; Pederson v. Railway Co., 6 Wash. 202, 33 Pac. 351; Helling v. United Order of Honor, 29 Mo. App. 309.

104 Lewless v. Detroit, G. H. &. M. Ry. Co., 65 Mich. 292-302, 32 N. W. 790, citing cases. International & G. N. Ry. Co v. Brazzil, 78 Tex. 311, 14 S. W.

DISCHARGE OR LIMITATION BY OPERATION OF LAW.

108. Liability for torts may be discharged by operation of

law by-

(a) Judgment;

(b) Death of either party;

(c) Statutes of limitation;

(d) Compliance with statutory provisions.

SAME-DISCHARGE BY JUDGMENT.

109. A tort is discharged by a judgment rendered in a former action, although the form of action may have been different, provided

(a) The court had jurisdiction;

(b) The action was between the same parties, and on the same cause of action; and

(c) The judgment was on the merits, and final.

Reason.

When an action is brought, and the plaintiff recovers judgment, the original right in respect to which he sues is merged in the higher and better right which he attains by his judgment. It being gone, the party may proceed to obtain its fruits by execution, or to revive it by a fresh action on his judgment. "For you shall not bring the same cause of action twice to a final determination; 'Nemo debet bis vexari pro eadem causa;' and what is the same cause of action is where the same evidence will support both actions." 105 "Interest reipublicæ ut sit finis litium." 106

The judgment of a foreign court is not in force, in the sense that it destroys the cause of action, although it may estop the party from disputing the matter of facts it has decided.107 If the judgment be

609; Chicago, St. P. & K. C. Ry. Co. v. Pierce, 12 C. C. A. 110, 64 Fed. 293; Fist v. Fist, 3 Colo. App. 273, 32 Pac. 719.

105 Kitchen v. Campbell, 3 Wils. 304. The principle does not apply to ejectment. Eichert v. Schaffer, 161 Pa. St. 519, 29 Atl. 393.

106 Broom, Leg. Max. 331, 343: 2 Co. Litt. 303.

107 Higgen's Case, 3 Coke, 344; Smith v. Nicolls, 5 Bing. N. C. 208; AusLAW OF TORTS-21

satisfied, however, this is otherwise.108 In America a domestic judgment on the merits is conclusive between the same parties on all issues actually tried and passed on.109

But a judgment rendered without jurisdiction does not establish the plea res judicata.110 A judgment in another suit must be pleaded specially.111

tralasia Bank v. Harding, 9 C. B. 661. But see Dunstan v. Higgins, 63 Hun. 631, 17 N. Y. Supp. 887. As to effect of foreign judgment in rem, see Castrique v. Imrie, L. R. 4 H. L. 414; Wright v. Omnibus Co., 2 Q. B. Div. 271. In England a judgment in a county court is a bar to an action for the same cause of action in any other court. Austin v. Mills, 9 Exch. 288. Compare Brunsden v. Humphrey, 14 Q. B. Div. 141.

108 Barber v. Lamb, 8 C. B. (N. S.) 95. The judgment of a state supreme court reversing a judgment in favor of a railway employé for personal injury, and granting a new trial, does not preclude such employé, on subsequently taking a nonsuit, from maintaining a like suit in a federal court, or from offering therein evidence tending to show a like state of facts to that which was shown by the evidence before the state supreme court. Gardner v. Michigan Cent. R. Co., 150 U. S. 349, 14 Sup. Ct. 140. The finding and judgment made by the church in the trial of the clergyman on the charges is not competent evidence for either party, in a suit for damages for the libel, and is properly stricken out of the answer of the deacons. Piper v. Woolman, 43 Neb. 280, 61 N. W. 588.

109 Lord v. Thomas (Cal.) 36 Pac. 372; Johnson v. Johnson (Minn.) 58 N. W. 824. The constitution of the United States ordains that full faith and credit shall be given in each state to the judicial proceedings of every other state, and also that congress may prescribe the effect which judicial proceedings had in one state shall be given in each of the others. Congress, in the exercise of this power, after prescribing how such proceedings shall be authenticated to render them admissible in evidence, has declared that, when so authenticated, they "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." Rev. St. U. S. p. 170, § 905. As to judgment in state court which has been transferred to United States circuit court, see Roberts v. Railway Co., 48 Minn. 521, 51 N. W. 478. As to judgment of courts of same state, see Johnson v. Johnson (Minn.) 58 N. W. 824.

110 Attorney General for Trinidad & Tobago v. Eriché [1893] App. Cas. 518; Reed v. Chilson, 142 N. Y. 152, 36 N. E. 884; Wright v. Wright, 99 Mich. 170, 58 N. W. 54; Winchester v. County Com'rs, 78 Md. 266, 27 Atl. 1075. Cf. In re Ellis' Estate, 55 Minn. 401, 56 N. W. 1056.

111 Norton v. Norton (Ky.) 25 S. W. 750; Spargur v. Romine, 38 Neb. 736, 57 N. W. 523; Field v. Sims, 96 Ala. 540, 11 South. 763; McCreary v. Jones

Identity of Parties and Cause of Action.

It is only when the causes of action in two suits are identical that the recovery of judgment in one can be a bar to the other.112

A judgment in an action against the lessee for a breach of the covenant to pay rent is not a bar to an action for damages for negligence in the care of the premises.113

It is generally true that where a party, claiming to have been injured, has an option of using one of several modes of legal redress, elects to take one, which is adequate, and prosecutes the same to a final judgment, he cannot subsequently resort to another legal proceeding for the same wrong. 114 But if he seek in vain to rescind

a contract, for fraud, he may subsequently sue for damages.115 However, the subject-matter may be the same, but the causes of action (and not merely the forms of procedure) may be different.118

96 Ala. 592, 11 South. 600; Dunklee v. Goodenough, 65 Vt. 257, 26 Atl. 988; Lynde v. Columbus, C. & I. C. Ry. Co., 57 Fed. 993; Bryson v. St. Helen, 79 Hun. 167, 29 N. Y. Supp. 524; Kilpatrick v. Railroad Co., 38 Neb. 620, 57 N. W. 664; David Bradley Manuf'g Co. v. Eagle Manuf'g Co., 7 C. C. A. 442, 58 Fed. 721.

112 Where a physician sues for services and defendant confesses judgment, the latter cannot subsequently sue the former for malpractice. Bellinger v. Craigue, 31 Barb. 534; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 N. Y. 150. And, generally, see Cromwell v. County of Sac, 94 U. S. 351; Featherston v. President, etc., of Newburgh & C. Turnpike Road, 71 Hun, 109, 24 N. Y. Supp. 603. A judgment, on the other hand, may be conclusive evidence against parties. Thus, in an action against a city for personal injuries caused by an obstruction placed in the street by a contractor who was constructing a sewer therein, notice was given to the contractor to defend. It was held that a judgment for plaintiff was an adjudication that the contractor's wrongful act caused the injury, and was conclusive on defendant in an action by the city on the contractor's bond to recover the amount of such judgment. City of New York v. Brady (Sup.) 30 N. Y. Supp. 1121.

113 Wright v. Tileston (Minn.) 61 N. W. 823.

114 Thomas v. Joslin, 36 Minn. 1, 29 N. W. 344; Sanger v. Wood, 3 Johns. Ch. 416; Washburn v. Insurance Co., 114 Mass. 175; Terry v. Munger, 121 N. Y. 161, 24 N. E. 272; Conrow v. Little, 115 N. Y. 387, 22 N. E. 346.

115 Cf. Marshall v. Gilman, 47 Minn. 131, 49 N. W. 688; Savings Bank of St. Paul v. Arthier, 52 Minn. 98, 53 N. W. 812. And see Strong v. Strong, 102 N. Y. 69, 5 N. E. 799.

116 Spear v. Tidball, 58 N. W. 708; Ahl v. Goodhart, 161 Pa. St. 455, 29 Atl. 82. A recovery by wife for personal injury to herself does not bar her