property sold in a foreclosure sale. Nat. Foundry & Pipe Works V. O'Conta City Water-Supply, C. C. A., 113 Fed. 793. That where a controversy has arisen between the lessor and the lessee of certain cars, as to the right of ownership and possession thereof upon the termination of a sublease, and a suit to which the lessor, lessee and sublessee were parties has been brought to determine their rights, in which it was adjudged that the lessor owned and had the right of possession of the cars, and compensation for storage of them after the end of his lease was awarded to the sublessee; the decree was res adjudicata as to the lessee's right to recover damages from the sublessee for the detention of the cars after the end of the sublease. O'Hara v. Mobile & O. R. Co., 75 Fed. 130: But see Chicago, R. I. & P. Ry. Co. v. St. Joseph Depot Co., 92 Fed. 22. That a decision, that a tax for one year was void because the property taxed was exempt, was conclusive as to the exemption of the property when taxed for another year. New Orleans v. Citizens' Bank, 167 U. S. 371, 42 L. ed. 202; Gunter v. Atlantic Coast Line, 200 U. S. 273, 291, 50 L. ed. 477, 486; Goodenow v. Litchfield, 59 Iowa, 226. But see Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 315, 38 L. ed. 450, 456; Davenport v. Chicago, R. & P. R. Co., 38 Iowa, 633; Memphis City Bank v. Tennessee, 161 U. S. 186, 40 L. ed. 664. Cf. Baldwin v. Maryland, 179 U. S. 220, 45 L. ed. 160. Otherwise, where it was the settled rule of the State courts that such an adjudication was not an estoppel between the parties, as to taxes for any other year. Covington v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963. As to stamp taxes, see Rutan v. Johnson, C. C. A., 231 Fed. 369. Where in a suit attacking the constitutionality or ordinances fixing the charges for gas and imposing an occupation tax, the District court upheld the rates but declared the tax to be void; upon an appeal by the gas company, the ruling as to the tax was not assigned as error nor was reference thereto made in the opinion or mandate of the appellate court directing further proceedings, after which the rate was again sustained and the bill dismissed without further mention of the tax; held: that the earlier adjudication should be considered to be part of the final decree establishing beyond collateral attack that the tax was void; but that the later decree might be modified to reiterate the earlier adjudication. Lincoln Gas Co. v. Lincoln, 250 U. S. 256. That the judgment of a Circuit Court of the United States, in an action for the recovery of excessive duties, brought by importers against a collector, was res adjudicata against the importers in subsequent proceedings before the Board of General Appraisers. U. S. v. J. G. Johnson & Co., 145 Fed. 1018; East Tennessee Tel. Co. v. Board of Councilmen, 190 Fed. 346. As to internal revenue cases, see Johnson v. Herold, 161 Fed. 563; supra, § 96g. For a case where a prior decree was held to conclusively establish the sufficiency of maps filed by a railway company, see So. Pac. R. Co. v. U. S., 168 U. S. 1, 42 L. ed. 355. For a case where a decree declaring stock to be invalid was said to substantially establish the invalidity of the claim to pay which the stock was issued, see Townsend v. St. L. & S. C. & Min. Co., 159 U. S. 21, 40 L. ed. 61. Where a director was one of the defendants to a stockholder's suit, in which the complainant succeeded, and the decree directed that the costs and expenses of litigation be paid out of the fund that was there recovered; it was held that such decree was conclusive against her right to recover in a subsequent suit against such director the proportion thereof which represented her stockholding interest. Singer-Bigger v. Young, C. C. A., 166 Fed. 852. That a decree of a court of equity dismissing a bill to remove a cloud on title is not so far res adjudicata as to prevent the plaintiff from succeeding in a subsequent action of ejectment against the same defendant, although the court of equity in its opinion stated that the title of plaintiff was bad. Phelps v. Harris, 101 U. S. 370, 25 L. ed. 855. But see State v. Buller, 47 Fed. 415. That a judgment in favor of defendants for costs in a replevin suit, where one of the defenses was that plaintiff owned only on undivided interest in the property was no bar to a subsequent action by plaintiff against one of these defendants for the conversion of the same property. Benjamin Schwarz & Sons v. Kennedy, 142 Fed. 1027. That a judgment adjudicating that certain parties had no property rights in a railroad switch on the land of another, but that they were entitled to car service thereupon during the continuance of a contract between the land owner and the railroad, was res adjudicata in a subsequent suit between the parties, or their privies, on the question of their property rights in the switch; but did not affect the question as to whether the right to use the switch had been lost by the abrogation of the contract between the land owner and the railroad company. Bedford-Bowling Green Stone Co. v. Oman, 134 Fed. 441. That a decree denying the prayer of a petition of intervention, which sought to establish and enforce a landlord's lien for the rent of terminal facilities, did not preclude the intervenor from filing a second petition asking for the payment of rent, which accrued within six months prior to the receivorship, out of the earnings of the road while in the hands of the receivers. Manhattan Trust Co. v. Sioux City & N. R. Co., 102 Fed. 710. That an order made by a referee on a motion directing a trustee to return to the purchaser of certain casks of whisky sold by the trustee a part of the purchase money on account of a shortage in the quantity, where the amount involved was small, the shortage very large and no defense was made, does not constitute an adjudication of the terms of the contract of sale which will bind the trustee when a much larger claim is filed involving other packages. In re Drumgoole, 140 Fed. 208. That a judgment in favor of a defendant in a suit brought against him and others, as partners, is not a bar to a subsequent action on the same contract against him individually, when no statute au thorized the affording of such relief in the former action. Millie is only conclusive of the matters which were actually decided.2 There is a distinction between the effect of a judgment as a bar to a second action for the same cause, and its effect as an estoppel in another action between the same parties upon a different cause of action. In the former case, when a judgment of the merits is pleaded, and only then, it is an absolute bar and concludes the parties, not only as to all matters offered and received in the former case, but also as to any other matter which might have been offered for that purpose in the latter. In the latter case the judgment cannot be pleaded but may be offered in evidence. It then operates as estoppel only as to those matters which were directly in issue and either admitted or tried. In the former case, the refusal of the former court to permit an amendment stating additional grounds for the relief prayed does not enable the plaintiff to urge these grounds in a second suit for the same relief. In general, a judgment is a bar to a second attempt to reach the same result by a different medium concludendi.5 Iron Min. Co. v. McKinney, C. C. A., 172 Fed. 42. 2 Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 39 L. ed. 859; Cromwell v. County of Sac, 94 U. S. 351, 24 L. ed. 195; So. Pac. R. R. Co. v. U. S., 183 U. S. 519, 533, 46 L. ed. 307, 314; Grider v. Groff, 202 Fed. 685; Kemmerer v. St. Louis Blast Furnace Co., C. C A., 212 Fed. 63; United States v. Naldrett, 214 Fed. 895; Northwestern Port Huron Co. v. Babcock, C. C. A., 223 Fed. 479; Smith v. Smith, C. C. A., 224 Fed. 1; T. B. Harms & Francis, Day & Hunter v. Stern, C. C. A., 229 Fed. 42; Birge-Forbes Co. v. Heye, C. C. A., 248 Fed. 636; Horner v. Hamner, C. C. A., 249 Fed. 137; Officer v. J. L. Owens Co., C. C. A., 252 Fed. 337. In the following cases, amongst others, the previous judgment was held to be conclusive: Re Wm. S. Butler & Co., C. C. A., 207 Fed. 705; Byrd v. Hall, 211 Fed. 182; Swift v. McFarland, 215 Fed. 452; Breeden v. Breeden, C. C. A., 230 Fed. 49; Masters v. City of Rainier, 238 Fed. 827; Watts v. Weston, 238 Fed. 149; Sucesores De L. Villamil & Co., S. En C., v. Merced, C. C. A., 239 Fed. 86; Crewdson v. Shultz, 254 Fed. 24; Srere et al. v. Gottesman et al., 254 Fed. 217; Guzzi v. Delaware & Hudson Co., 256 Fed. 719. 3 Sutton v. Wentworth, C. C. A., 247 Fed. 493. 4 Nat. Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 216, 234; Bates v. Brodie, 245 U. S. 524, 526; Miller v. Belvy Oil Co., C. C. A., 248 Fed. 83. 5 U. S. v. Dalcour, 203 U. S. 408, 423, 51 L. ed. 248, 251. See U. S. v. California & Oregon Land Co., 192 U. S. 355, 48 L. ed. 476. To find the matters in issue the pleadings must be examined. To ascertain the controverted points upon which the former determination was made, they must be compared with the judgment and each may furnish a definition of the other.6 If these then show that the verdict could not have been rendered without deciding the particular matter subsequently questioned, it will be considered as settling that matter in all future actions between the parties and those in privity with them. Where they do not show that the matter was necessarily and directly decided by the court and jury, evidence aliunde consistent with the record may be received to prove what was actually done. To what extent there may be specification and limitation by evidence aliunde the Supreme Court has not yet decided. Even when it appears from the extrinsic evidence that the matter was properly within the issues in the former suit, if it be not shown that the verdict or findings and the judgment necessarily involved the consideration and determination thereof, the question will not be concluded. If, upon the face of the record, anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence; 10 but, where, on the face of the record, it appeared that the judgment might have proceeded, upon one of several grounds, evidence was admitted to show aliunde upon which of these grounds it did proceed, so as to make it effectual as an estoppel.11 It seems also that the opinion may be considered. 12 It has 6 Bates v. Brodie, 245 U. S. 524, 526. 7 Packet Co. v. Sickels, 5 Wall. 580, 593, 594; National Foundry & Pipe Works v. Oconto Water-Supply Co., 183 U. S. 216, 46 L. ed. 157; U. S. ex rel. Coffman v. Norfolk & W. Ry. Co., 114 Fed. 682, 686. 8 Bates v. Brodie, 245 U. S. 520, 526. 9 Packet Co. v. Sickels, 5 Wall. 580, 594; Clark v. Scovill, 198 N. Y. 279, 283; Wood v. Jackson, 8 Wendell, N. Y. 936. 10 Russell v. Place, 94 U. S. 606, 610, 24 L. ed. 214, 215, McCarty v. Lehigh Valley R. Co., 160 U. S. 110, 120, 40 L. ed. 358, 362. 11 Benjamin Schwarz & Sons v. Kennedy, 142 Fed. 1027. 12 National Foundry & Pipe Works v. Oconto Water-Supply Co., 183 U. S. 216, 46 L. ed. 157; Mack v. Levy, 60 Fed. 751; U. S. ex rel. Coffman v. Norfolk & W. Ry. Co., 114 Fed. 682; Millie Iron Min. Co. v. McKinney, C. C. A., 172 Fed. 42; Murphy v. M'Loughlin, C. C. A., 247 Fed. 385; Cline v. Southern Ry. Co., 231 Fed. 238; Blue Goose Min. Co. v. Northern Light Min. Co., C. C. A., 245 Fed. 727. been said that evidence of remarks by a judge during a trial is not admissible to show the grounds of his decision. 13 The opinion of the court upon a question not within the issues is not binding in subsequent litigation.14 The scope of the decision upon an appeal is ascertained and determined by the mandate 15 and, it has been said, by the opinion 16 of the appellate court; and the parties are not concluded as to questions left open by the mandate and opinion, although they were passed upon by the court below.17 That the first judgment or decree in the matter in dispute was too small to permit its review by an Appellate Court does not prevent it from being a bar to a subsequent suit which can be brought up by appeal or error. 18 A decree for a perpetual injunction is not conclusive upon the right to commit the act enjoined under subsequent legislation 19 or possibly when under changed conditions.20 A decree enjoining the enforcement of a statutory system of rates for transportation of freight and passengers, because it resulted in confiscation, was held not to be res adjudicata of a subsequent contention that the statutory rate for passengers, when put into operation with higher freight rates and under changed traffic conditions, was reasonable.21 § 186q. Res adjudicata in patent and trade mark cases. Α judgment in an action for royalties causes an estoppel against the same defendant in a suit for royalties accruing subsequently, although he pleads a defense different from that set up in the first suit.1 A decree in a suit to enjoin the infringement of a patent, |