Harris v. Water & Light Co. recognized in the jurisprudence of this State as the legal entity of a partnership, but that the suit by a firm was nothing more than the suit of the invidual members of the firm; the court adding, "It is apparent that, in the face of this rule, neither one of the members, nor any number less than all, could maintain the present suit." So that it was there held that the corporation of Cole Bros. was an indispensable party to that action, and, being disqualified under our statutes to enter into contracts in this State, the action by the firm of which this corporation was a member could not be maintained. It would seem manifest that, if a firm so constituted could not recover upon a contract averred in that case, it equally could not on the one which is set up in the present; it being a contract between wholly different parties. In section 536, volume 2, of his work on Judgments, the author, Mr. Black, says: "It is not only necessary that the person sought to be bound by the former judgment should have been a party to both actions, but he must have appeared in both in the same capacity or character." The author embodies in his text a paragraph from the opinion in Rathbone v. Hooney, 58 N. Y., 463, which is as follows: "A judgment against a party sued as an individual is not an estoppel in a subsequent action in which he sues or is sued in another capacity or character. In the latter case he is, in contemplation of law, a distinct person, and a stranger to the prior proceedings and judgment." Harris v. Water & Light Co. This rule which is announced as one of the fundamentals of both civil and common law jurisprudence on the subject is illustrated by Mr. Black by a reference to a great variety of cases from many different courts. Among these supporting the text are cited McBurnie v. Seaton, 111 Ind., 56, 12 N. E., 101; Caruth v. Grigsby, 57 Tex., 259; Landon v. Townshend, 112 N. Y., 93, 19 N. E., 424, 8 Am. St. Rep., 712; McNutt v. Trogden, 29 W. Va., 469, 2 S. E., 328. In addition to the authorities supporting this rule cited by this author, reference may be made to Morrison v. Clark, 89 Me., 103, 35 Atl., 1034, 56 Am. St. Rep., 395; First Nat. Bank v. Shuler, 153 N. Y., 163, 47 N. E., 262, 60 Am. St. Rep., 601; Beals v. Cone, 27 Colo., 473, 62 Pac., 948, 83 Am. St. Rep., 92; Loftis v. Marshall, 134 Cal., 394, 66 Pac., 571, 86 Am. St. Rep., 286. A corollary of this rule is thus stated by Mr. Freeman in his work on Judgments, in volume 1, section 266: "A judgment given because of misjoinder or nonjoinder of plaintiffs or defendants, or because of the want of capacity of the party plaintiff or defendant to sue or to be sued, establishes nothing but such defect or incapacity, and cannot defeat a subsequent suit in which the vice causing the former suit does not exist." The author cites the following cases, which upon examination are found to support his text: McCall v. Jones, 72 Ala., 368; Tierney v. Abbott, 46 Wis., 329, 1 N. W., 94; Tiffany v. Stewart, 60 Iowa, 207, 14 N. W., 241; Smith v. 114 Tenn-22 Harris v. Water & Light Co. Auld, 31 Kan., 262, 1 Pac., 626; and Richardson v. Richards, 36 Minn., 111, 30 N. W., 457. Our own reports furnish illustrations of this rule, and all it implies. In the case of L. & N. R. R. v. Atkins, 2 Lea, 248, Atkins sued the railroad for killing a horse; and the defendant pleaded a former suit by Atkins and wife against it for killing the same animal, and a judgment in his favor. It was ruled, however, by this court, that the defense was not maintainable. On this point it was said that the "authorities are uniform that, to make a judgment a bar, the former must be between the same parties. Ordinarily a judgment in the suit would not be a bar to a suit brought by either of those two, for the obvious reason that a joint cause of action in favor of two cannot possibly be a cause of action in favor of one of those two." In Melton v. Pace, 103 Tenn., 484, 53 S. W., 939, the rule was recognized that, in order to make a judgment effective as res adjudicata, it is essential that the party sought to be concluded thereby should have sued or been sued in both cases in the same capacity or character, and to enforce the same right. And so it was there held that children inheriting from both father and mother were not estopped to set up title to the whole of a tract of land inherited from their mother by reason of the fact that a part of it had been by inadvertence embraced in the description of a tract which they, as heirs of their father, had brought to sale by decree of foreclosure of a Harris v. Water & Light Co. mortgage. See, also, Bank v. Smith, 110 Tenn., 339, 75 S. W., 1065. Another one of the essentials to this plea, as we have already seen, is that the former judgment must have been upon the merits of the case. In Hughes v. U. S., 4 Wall., 232, 18 L. Ed., 303, it is said: "If the first suit was dismissed for defect of pleading or parties or a misconception of the form of the pleading, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit." The rule is thus stated by Mr. Black in section 693 of volume 2 of his work on "Judgments": "A former judgment will not operate as a bar to a subsequent suit upon the same cause of action unless the proceeding and judgment in the first case involved an investigation or offered full legal opportunity for an investigation and determination of the merits of the suit. Or as otherwise expressed, the judgment must be upon the merits in a competent action; the plaintiff having sued in his proper character, and the pleading having been correct." Among the cases in which this rule has been recognized and applied by this court we will refer to two: In Hoggatt v. White, 2 Swan, 265, the facts were that one B. executed a mortgage of a slave to W. to secure a note which upon its face called for ten per cent interest per annum. After maturity W. filed a bill to foreclose the mortgage, which was dimissed by the chancellor upon the ground that the contract sought to be enforced was, Harris v. Water & Light Co. upon its face, illegal. Subsequently the mortgagor brought suit against the mortgagee, who, being in possession of the slave, was proceeding to sell under the mortgage, and sought to recover the same, insisting that the decree in the suit for foreclosure was a determination of all the rights of the mortgage; but it was held that, the complainant having been repelled upon the ground of illegality, the decree pronounced in the first suit could not be relied upon by the mortgagor as an adjudication of the facts in controversy in the second suit. In Hurst v. Means, 2 Sneed, 546, it was held that where the plaintiff had brought his action to recover the amount of purchase money paid by him for land, the title to which had failed, but from which he had not yet been evicted, and there was verdict and judgment against him on that ground, this was no bar to subsequent suit for the same cause of action after he had lost possession of the land. So we hold that the doctrine of res adjudicata cannot be relied upon in this case, because, first, there is a lack of identity between the parties plaintiff in the first action and the complainants in this cause; and, second, for the reason that the merits of the suit were not determined in the first action. In ruling otherwise the chancellor was in error. The defendants, however, insist that the complainants are estopped by the admission made in this former judicial proceeding that Cole Bros, was a corporation.This defense is equally unavailing to preclude the complain |