defendants was within the boundaries of the plaintiff Beckwith's land.

The evidence also proved all the facts stated hypothetically in the fourth instruction given by the court. The evidence did not show, that when this suit was commenced, the defend-. ants, W. P. Thompson and W. N. Chancellor, were in possession of any part of the land in controversy or claimed at that time any title thereto, though they had claimed title to a portion of this land, claiming under the patent of Daniel R. Neal, but before the institution of this suit, on April 2, 1871, they had conveyed all their interest to the defendant W. T. Poole. There was no evidence to show, that the defendants, N. A. Poole, John Coonan, Patrick Welsh or James Hardin ever were in possession of or claimed title to any part of the land in controversy.

In our view of the case it is unnecessary to state the evidence, which tended to prove the location of the sugar-tree, the beginning corner of the James Neal four hundred acre survey and the John Stokeley twelve hundred acre survey. There was some evidence tending to show, that its true locaon was twenty-two poles below the mouth of the Little Kanawha, and some other tending to show, that it was eighty poles below the mouth of this river.

The defendants obtained a writ of error and supersedeas to the judgment of the circuit court. The case was tried in that court by Hon. A. I. Boreman as special judge.

J. B. Jackson, for plaintiff in error, cited the following authorities: Code ch. 90 §§ 5, 77, 14, 23; Tillingshast's Adm'rs 262, 275, note; 9 Serg. & R. 26; 1 Marsh. (N. S.) 236; 1 Vt. 244; 3 Vt. 448; 9 Com. 661; 13 Barb. 526; 2 Greenl. Ev. § 304; 24 How. 276; 15 Cal. 27; 18 Cal. 219; 2 Johns. 438; 1 Greenl. 53; 10 W. Va. 250; Acts 1877 ch. 100.

John A. Hutchinson, for the defendant in error, cited the following authorities: 10 Gratt. 396; Id. 513; 4 Gratt. 235; 10 Pick. 250; Id. 98; 5 Pick. 395; Iả. 181; 4 Cush. 54; 18 Johns. 420; 3 Ohio St. 241; 20 Ohio St. 478; 2 Rep. 74; 5 Burr. 2764; Vent. 279; Co. Litt. 146 b.; Chy. Cas. 716;

*

Vin. Abr. 138 pl. 15; 9 Dana 209; 11 Vt. 221; Read v. Field, 15 Vt.; 6 N. H. 401, § 24; 4 Rand. 74; Yeates 292; 2 Rand. 356; 2 Tuck.; Bish. Con. § 577; 10 W. Va. 250; Code Va. 1849, pp. 483, 467; 46 N. H. 249; 2 Rich. (S. C.) 518 ; 47 N. Y. 327; 8 Ala. 375; 9 Ala. 24; 4 Scam. 561; 4 Metc. 231; 17 Ill. 168, 169; Runn. Ejectmt. 75; Runn. App. 192; Rich Pr. (1792) 210; Code ch. 90 §§ 5, 7, 13, 14, 23; 2 Wall. 348; 40 Barb. 89; 4 How. 358; 15 How. 358; 29 Ala. 542; 43 Me. 280; 4 Jones L. 371; 13 Pa. St. 433; 5 W. Va. 214; 5 Ired. 569; 10 N. Y. 280; 36 N. Y; 513; 2 Munf. 453; 9 Serg. & R. 26; 6 Barn. & Cress. 703; 24 How. 268; 10 N. Y. 280; 3 Rand. 462; 4 Rand. 74; 1 Marsh. 107; 2 Harr. & J. 182; 1 Harr. & J. 167; 13 Gratt. 587; 9 Dana 452; 7 Watts. 406; 7 Cal. 409; 19 Cal. 28.

GREEN, PRESIDENT, announced the opinion of the Court: The most important question in this case is: What part or parts are to be regarded as conclusively determined by the verdict and judgment in the caveat-case.

As was said in the case of Corville & Garber v. Gilman et al., 13 W. Va. 327: "It is thoroughly well settled, that matters which have been once determined by judicial authority, cannot be again drawn in controversy by the same parties and privies in the decision. See Smith v. Whiting, 11 Mass. 446; Young v. Black, 7 Cranch. 567; Embury v. Conner, 3 Coms. 522; Simson v. Hart, 14 Johns. 77; Edwards v. Stewart, 15 Barb. 67; Bellinger v. Craigue, 31 Barb. 54.

"All the authorities agree, that if it appears from the record, that a point in controversy was necessarily decided in the first suit, it cannot be again considered in any subsequent suit. Burke v. Miller, 4 Gray 114; Whelan v. Hill, 2 Whart. 118; Marsh v. Pier, 4 Rawle 273; Rice v. King, 7 Johns. 20; Betts v. Starr, 5 Conn. 550; Aslin v. Parkins, 2 Burr. 666.

"When the record discloses the exact point in controversy, the rule above laid down is universally admitted; but when by reason of the generality of the issue it embraces many issues, and it is not possible to determine on what issue the verdict was rendered, the question, whether the real issue tried by the jury, and on which their verdict was rendered,

can be proven by parol evidence, has given rise to decisions which are not harmonious. The weight of authority however as well as reason is, that in such case the issue actually tried by the jury may be proven by parol; and when so proven it is as conclusive as if shown by the record alone. Doty. Brown, 4 Coms. 71; Washington, Alexandria and Georgetown S. P. Co. v. Sickles et al., 24 How. 344; Babcock & Co. v. Camp et al., 12 Ohio St. 11; Wood v. Jackson, 8 Wend. 10. But it is the verdict and judgment on the issue actually made, which is thus conclusive, and while it establishes the right conclusively, it does not establish the facts, on which that right depends, unless they are set forth definitely in the record. See opinion of the Supreme Court delivered by Justice Catron in Aspden et al. v. Nixon, How. 499; Bennett v. Holmes, 1 Dev. & Bat. 486; Haight v. The City of Keokuk, 4 Clarke (Iowa) 199; Washington, Alexandria and Georgetown S. P. Co. v. Sickles et al, 24 How. 314; Hibshman v. Dulleban, 4 Watts 183."

That we may comprehend clearly the law thus stated, we will give from the adjudged cases a few examples of its applicaution.

In Doty v. Brown, 4 Coms. 71, A. took from B. a bill of sale of certain personal property; and C. afterwards levied on all this personal property by virtue of an attachment in favor of B.'s creditors; and after the levy A. took and converted to his own use a part of this property. C. sued him therefor in a justice's court claiming in his declaration, that A. had taken and converted to his own use the whole of this property. It was found on the trial before the justice, that A. had only converted a portion of this property, and thereupon the plaintiff, C., stated he only claimed to recover the value of the property, which A. had converted to his own use, and he withdrew any other claim in his declaration. The defendant recovered $25.00 damages, the justice adjudging the bill of sale, under which A. claimed the property, fraudulent and void as to creditors. The questions controverted in this trial before the justice were proved by parol evidence. The defendant in this suit, A., then brought an action against the plaintiff in the said court to recover the residue of the property; and it was decided, that

the judgment of the justice was in this last suit to be regarded as conclusive upon the question of fraud in the bill of sale which A. had taken from B.

On the contrary in King v. Chase, 15 N. H. 15, K. sued the sheriff in an action of trover for taking certain oats, which had been conveyed to him by a mortgage. The jury found for the defendant, the sheriff. The plaintiff then afterwards sued the sheriff on an action of trespass for taking certain hay. The defendant, the sheriff, proved by one of the jury in the former case, the action of trover, that the verdict of the jury in the former case was based only on the ground, that the mortgage conveying the oats to King was fraudulent and void. And as the only title the plaintiff in the action of trespass had to the hay (for the taking of which he brought the suit) was the same mortgage that conveyed the oats to the plaintiff, the defendant insisted, that the verdict and judgment in the trover suit was conclusive evidence, that this mortgage was fraudulent and void. The court decided, that it was not only not conclusive evidence but was not even admissible evidence on this point. The decision is based on the ground that the validity or invalidity of this mortgage was not a question directly or indirectly in issue in the trover suit. It was only a fact in controversy in the trial of the former suit before the jury. And what the verdict of the jury and the judgment of the court did conclude in that case were the facts directly or indirectly in issue by the pleadings, and not the facts in controversy before the jury in the trial of the case, even though those facts, if determined in one way, would lead to a conclusion on the facts really in issue by the pleadings directly or indirectly. The reasoning of the court in this last case was cited approvingly by this court in Coville & Garber v. Gilman et al., 13 W. Va., 329. The case is not easily reconcilable with the decision in Doty v. Brown, 4 Coms. 71, unless we can base that decision on the fact, that the justice adjudged the bill of sale was fraudulent and void in that case, and in the statement of the case this is not only said but italicised. It may perhaps be said, that there it was a fact expressly adjudged in the judgment rendered in the first case, and therefore a fact directly or indirectly in issue in that case, and if so, it is consistent with the

New Hampshire case, wherein, I think, the true principle is stated.

In Coville & Garber v. Gilman, 13 W. Va. 314, where A. sued B. in an action of assumpsit for damages for the proceeds of an oil-well pumped by B., which proceeds A. claimed were his— the plea was non assumpsit. One of the questions in controversy before the jury, as appears from an instruction given them by the court, was, whether B. was not a partner with A. in this oil. If he was, then, as the court instructed the jury, they must find for the defendant as for the balance, which might be due on the settlement of the partnership, and which could not be recovered in an action at law, till such settlement had been made by the parties. The jury found for the plaintiff a certain amount, and judgment was rendered therefor. In a chancery suit brought by B. for a settlement of their alleged partnership in the pumping of this oil extend ing over a time prior to as well as subsequent to this judgment A. insisted that there never was by this contract any partnership between him and B., and relied on this verdict and judgment as conclusive evidence, that no partnership ever did exist. Following the decision of the New Hampshire case it was decided by this court, that this verdict and judgment was not only not conclusive evidence, but was not even admissible evidence on the question, whether there was or was not a partnership, though it was conclusive evidence, that none of the items of account specified in the bill of particulars and in the offsets filed in the action of assumpsit were items in any partnership account, if any partnership was proven to exist. This court held, that the question of partnership or no partnership was not a question either directly or indirectly involved in the pleadings in the action of assumpsit; and though it was proven, that it was a fact controverted before the jury, yet that such a fact was not concluded by the verdict of the jury. The conclusion reached in that case by this court is sustained by the weight of authorities elsewhere. See Washington, Alexandria and Georgetown S. P. Co. v. Sickles et al., 24 How. 344; Aspden et al. v. Nixon et al., 4 How. 491; Bennett v. Holmes, 1 Dev. & Bat. 486; Haight v. The City of Keokuk, 4 Clarke (Iowa) 199; Shafer v. Stonebraker, 4 Gill. & J. 345; Hibshman v. Dulleban, 4 Watts 183.