Some courts refuse to give effect to a judg ment by consent as a judgment in invitum, and admit the judgment record only as eyi dence of the agreement reached by the par ties ; Jenkins v. Robertson, L. R. 1 H. L. 117, 122. The position is based on the theory that no matter upon which the court has not exercised its judicial mind by determining the respective rights of the litigants and pronouncing judgment accordingly can be considered res judicata. As a matter of def-' inition, this proposition is scarcely open to question. But the parties have caused the court to place their deliberate agreethent up on the record as a formal judgment ; and except in case of mistake or fraud, it would seem that they should be estopped from later denying it, even though the strict principles of res judicata are not applicable; Kelly v. Town of Milan, 21 Fed. 842, 863. In fact the majority of jurisdictions disregard the argument of definition and hold the judg ment binding upon the parties according to its terms ; Nashville, C. & St. L. Ry. Co. v.
U. S., 113 U. S. 261, 5 Sup. Ct. 460, 28 L. Ed: 971. The original cause of action is con sidered merged in the judgment, and to a later suit between the same parties on the same subject-matter a plea of res judicata is a complete defense. Where, however, the ac tion is simply dismissed by the consent of the parties, there is not the same ground for the argument of estoppel; Lindsay v. Allen, 112 Tenn. 637, 82 S. W. 171. It states only that the parties have agreed to a dismissal and nothing more.
A judgment is conclusive as to all the me dia concludendi and it cannot be impaired ei ther in or out of the state by showing that it was based on a mistake of law ; Fount leroy v. Lum, 210 U. S. 230, 28 Sup. Ct. 641, 52 L. Ed. 1039 ; but when the matter decided is not embraced within the issue, it avoids the judgment ; Munday v. Vail, 34 N. J. L. 418, followed in Reynolds v. Stockton, 140 U. S. 268, 11 Sup. Ct. 773, 35 L. Ed. 464.