trial of the trover case, the judge, in effect,
charged the jury that the plaintiff, being a
party to the decree, was estopped from de-
nying the right of the defendant to hold the
negroes during the lifetime of his wife.
This court held such charge to be erroneous,
upon the ground that, in order for the de-
cree in the equity cause to be rendered, "it
was not a matter of necessity that the court
should first determine the question" which
was involved in the trover suit. Benning,
J., who, delivered the opinion, said: "Was
the right asserted in the action of trover
such that it had, of necessity, to be deter-
mined by the court in the equity suit before
it could render the decree which it did ren-
der in that suit?" Then, after discussing
this question, he concluded that "it was at
least not a matter of necessity that the
court, before making the decree,
should have determined" this question, and
that therefore the decree could be no bar to
the action of trover.

payable to the order of Medlock, upon the indorsement of which he is sued in the present case, had been accepted by Moore, Marsh, & Co. 3 payment pro tanto of his indebtedness to them, for which he was entitled to a credit upon the notes on which they were then suing him, and that he had subsequently paid to them the balance left due thereon in cash. It is obvious that, if this defense was found by the jury to be sustained by the evidence, their verdict, finding generally in his favor, and that his three individual notes and the deed which he had given to secure them be surrendered and canceled, and Moore, Marsh, & Co. be required to execute a deed reconveying the property described in the security deed to him, naturally followed; and it was wholly unnecessary for them to pass upon the merits of his other defenses. It is impossible to tell, from the record introduced in support of the plea of estoppel by judgment, upon which of the defenses set up by Medlock in his equitable proceeding against Moore, Another case which is equally in point is Marsh, & Co. the verdict therein was ren- Bradley v. Johnson, 49 Ga. 412. In that dered, as the verdict was general. It is evi-case the complainant, as the widow and heir dent that, if that verdict was based upon the above-stated defense, the decree founded thereon is no bar to the present action against him, for the verdict would then mean no more than that Medlock, after paying his three individual notes which he had given to Moore, Marsh, & Co., with the two notes of Zachry and Richmond, indorsed by him, and a certain sum in cash to cover the balance, was entitled to have these individual notes surrendered to him, and the deed which he had given to secure them canceled, and the property therein described reconveyed to him.

A case decided by this court which is directly in point is Hunter v. Davis, 19 Ga. 413, where it was held: "A judgment is not a technical estoppel as to any matter, if the matter is not such that it had, of necessity, to be determined by the court and jury before the court could give the judgment." In that case the original trustee named in a deed which conveyed certain negroes and other property in trust for specified purposes and beneficiaries had been removed for cause, and another trustee appointed in his stead; and the new trustee had brought an action of trover for the recovery of four of these negroes, against the person who had them in possession, who was the husband of one of the beneficiaries. Upon the trial of this action the defendant introduced in evidence a transcript of the record of a suit in equity against him and his wife and the original trustee, brought by the other beneficiaries of the trust, and relied upon the decree therein rendered as an estoppel upon the plaintiff in the trover suit. Upon the

at law of Bradley, filed a bill against the defendant, as the administrator of Bradley, for an accounting and distribution of Bradlev's estate, with a prayer for injunction. On the trial of the case, Johnson, the defendant administrator, introduced in evidence an exemplification from the court of ordinary of the county, from which it appeared that he had made application to that court for letters of administration upon such estate, to which the complainant had entered a caveat, claiming that she, as the widow of Bradley, was entitled to the administration; that the ordinary had granted letters of administration to her; that an appeal had been entered to the superior court; and that the trial in that court resulted in a judgment that the appellant, Johnson, was entitled to administration upon Bradley's estate, which judgment had been certified to the court of ordinary and made the judgment of that court. The administrator relied upon this evidence as showing that the question whether the complainant was the widow of Bradley had been made in the case in the court of ordinary, and there determined against her; and, upon such evidence, under the charge of the court, he obtained a verdict and judgment in his favor. This court, in reversing the judgment, held that the judgment in the court of ordinary "was conclusive as to the fact that letters of administration had been granted to Johnson on Bradley's estate, when offered in evidence on the trial of the equity cause, but it was not conclusive on that trial upon the point as to whether the complainant was the widow of Bradley;"

that it was not an adjudication directly out indicating which of them was thus litupon that point, and did not purport to de-igated and upon which the judgment was cide that question. In the opinion of the rendered,—the whole subject-matter of the court, Chief Justice Warner, after saying this much, continued as follows: "Moreover, it does not affirmatively appear from the verdict and judgment thereon that the fact of her being the widow of Bradley was the only question made and decided by the judgment of the court of ordinary. The judgment itself is not directly upon that point, and, unless the judgment of the court of ordinary was rendered directly upon that point, as shown by the record, the complainant was not estopped by that judgment from proving that she was the widow of Bradley, on the trial of the equity cause." Upon a subsequent trial of the case in the superior court, the trial judge held that the complainant was estopped by the judgment in the court of ordinary, and the jury, under his charge, found in favor of the administrator; and, upon writ of error to this court, the judgment was again reversed. This court then held: "A judgment in the court of ordinary, on an issue as to the grant of administration on an estate, that the letters do issue to one Johnson, does not estop a woman claiming to be the widow of the deceased from the assertion of her right to the estate by bill in equity, though she was a party to the suit in the ordinary's court, and the question there was as to her marriage to deceased, and though Johnson was contesting with her at the instance of the heirs at law of deceased." [55 Ga. 354.] Judge Jackson, delivering the opinion, said that the facts in the record did not affect the principle ruled in 49 Ga., and that it was "immaterial for what reason the ordinary granted Johnson the administration; he was not bound to pass upon the question of the marriage,”—and quoted the headnote in Hunter v. Davis. 19 Ga. 413. To the same effect, see Henderson v. Fox, 80 Ga. 479, 6 S. E. 164.

A leading case in this country, which has been often approvingly cited and followed, is Russell v. Place, 94 U. S. 606, 608, 24 L. ed. 214, 215, in which it was held: "It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to this operation of the judgment it must appear, either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record,-as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, with

action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined." This case was followed in De Sollar v. Hanscome, 158 U. S. 221, 39 L. ed. 959, 15 Sup. Ct. Rep. 816, the facts of which case make the decision there rendered peculiarly in point in the case with which we are dealing. In that case De Sollar filed a bill against Hanscome for the specific performance of an agreement for the sale of certain real estate, made with him by an agent of the defendant. The defendant claimed that the agent had exceeded his authority, but the plaintiff contended that the defendant, after full knowledge of the agreement made by his agent, had ratified it. De Sollar also contended that, by a judgment which had been rendered in his favor in a common-law action which Hanscome had instituted against him to recover damages alleged to have been sustained in consequence of his having placed this agreement and a certain letter written by Hanscome to his agent upon record, Hanscome was estopped to deny that he had ratified the act of his agent in making the contract in dispute. Mr. Justice Brewer, in delivering the opinion, said: "The plaintiff insists-and that is the burden of his contention-that the judgment in the law action is conclusive as to the fact of defendant's assent to the contract as executed by his agent, while the defendant claims that it settles only that this plaintiff, acting under the advice of counsel in placing the papers on record, was guilty of no wilful or malicious wrong, and therefore not liable in damages." Then, after showing from the charge of the court in the action for damages that the jury trying that case "were at liberty to find for the defendant if they thought that in fact the plaintiff had suffered no damages by the filing for record of the letter and agreement,” notwithstanding the judge had charged them that "the chief question" was whether the plaintiff had ratified what had been done in his name by his agent, he said: "There is in this case no extrinsic testimony tending to show upon what the verdict of the jury was based. We have simply the record of the former judgment, including therein the testimony and the charge of the court, from which to determine that fact; and, in the light of the charge, it is obviously a matter of doubt whether the jury found that the agreement made by the agent was ratified by the principal, or that no damage had in fact been sustained by placing the papers upon record. We are not now concerned with the inquiry

whether the instructions of the court were | might have been based upon the lack of nocorrect or not. We look to them simply to see what questions were submitted to the jury, and, if they left it open to the jury to find for the defendant upon either of the two propositions, and the verdict does not specify upon which the jury acted, there can be no certainty that they found upon one rather than the other. The principal contention therefore, of the plaintiff, fails." The principle ruled was stated both in the opinion and the headnote as follows: "It is of the essence of estoppel by judgment that it is certain that the precise fact was determined by the former judgment."

stance tending to show that the court did not then consider that the question of Medlock's liability as indorser on the Zachry and Richmond notes was involved in that case, and that it was not determined by the judgment which is relied upon in the present case as an estoppel. We are clearly of opinion that the mere fact that this paper was no part of the record in the case of Medlock v. Moore, Marsh, & Co. did not render it inadmissible in evidence. Butler v. Tifton, T. & G. R. Co. 121 Ga. 817, 49 S. E. 763.

of Medlock, and indorsed by him, in part | not parties to that case. This was a circumpayment of the three individual notes of Medlock, upon which they were suing him in the city court of Lawrenceville, then they should have judgment against him for the amount of the Zachry and Richmond notes. While this paper could not be introduced as a part of the record in the case of Medlock v. Moore, Marsh, & Co., yet it showed upon its face that in that case Moore, Marsh, & Co. had sought to have the question as to their right to recover against Medlock as indorser upon the very two notes now sued on determined, in the event the jury should find that they, as alleged by him, had accepted these notes as payment pro tanto of his three individual notes upon which they were then suing him, and that they were not allowed to do so because Zachry and Richmond were

Judgment reversed.

All the Justices concur, except Cobb, J., disqualified.

PENNSYLVANIA SUPREME COURT.

City of NEW CASTLE, Appt.,

v.

Julia Maria KURTZ et al.

(210 Pa. 183.)

1. A municipal corporation which has imposed the duty проп property owners of keeping the sidewalks in front of their property free from ice under penalty, and has provided that, in case of their neglect to remove the ice, it will be removed by the city at their expense, assumes the duty of keeping the walks clear; and, in case it is held liable for injury to one falling upon the walk, it cannot recover over against the property owner on the theory that he was primarily liable for the injury.

are

2. Owners of property in Possession
of tenants
not bound to keep
watch to see that ice dangerous to
travel does not form on the walks
in front of it which are properly constructed
and in proper repair, where their negligent
construction of their buildings does not con-
tribute to its formation; and therefore they
cannot be held liable for injuries to a trav
eler by falling upon ice of the existence of
which they have no notice.

3. Placing a conductor pine so as to
lead water from the roof of a build-
ing adjoining a sidewalk and empty
it upon the walk in the manner customary

in the community is not a nuisance per se, where it does not ordinarily interfere with travel; and the property owner cannot be held liable to one who is injured by ice formed upon the walk many years after the con

A

struction of the pipe, as the result of a severe and unusual storm.

(Mestrezat and Potter, JJ., dissent.)

(December 31, 1904.)

PPEAL by plaintiff from a judgment of

the Court of Common Pleas for Lawrence County in favor of defendants in an action brought to hold them liable for damages which plaintiff had been compelled to pay because of an injury to a traveler who fell upon the sidewalk in front of their property. Affirmed.

The facts are stated in the opinion. Messrs. James A. Gardner and Robert K. Aiken, for appellant:

Defendants created and maintained a public nuisance, an obstruction upon the sidewalk, a hindrance and a danger to public travel.

The primary duty of keeping the sidewalk in repair is upon the abutting property

owner.

Lohr v. Philipsburg, 156 Pa. 249, 27 Atl. 133; Duncan v. Philadelphia, 173 Pa. 554. 51 Am. St. Rep. 780, 34 Atl. 235; Pittsburg use of Flanagan v. Fay, 8 Pa. Super. Ct. 275; Pittsburg use of Flanagan v. Daly, 5 Pa. Super. Ct. 532; Mintzer v. Greenough, 192 Pa. 144, 43 Atl. 465; Dutton v. Lansdowne, 198 Pa. 563, 53 L. R. A. 469, 82 Am. St. Rep. 814, 48 Atl. 494.

Where a municipality has been sued, and has paid a judgment for injuries sustained NOTE. As to liability for permitting water either by a defective sidewalk, or by reason

to accumulate and freeze on sidewalks to the injury of travelers, see also note to Brown v. White, 58 L. R. A. 321.

of a nuisance caused or maintained by the property owner, recovery over can be had

by the municipality against the property | 523, 53 L. R. A. 805, 61 S. W. 859; 2 Shearm. & Redf. Neg. § 709a.