Estoppel by res judicata operates as against both parties and privies; Emhden v. Lisherness, 59 Me. 581, 36 Atl. 1101, 56 Am. St. Rep. 442.
Privity may be by succeeding to the posi tion of another in respect of the subject of the estoppel (as an assignee), or by holding in subordination to that other (as landlord and tenant). It is a property, and not a personal relation. Big. Est. 158.
Besides privity arising out of property in terests, there is a common instance of privity created by joining in the conduct of litiga tion. Where a third party has control of the litigation between other parties, he may be and usually is bound by the judgment; but where a third party successfully defended a patent case, employing counsel and paying the costs, he cannot use the judgment as res judicata without showing clearly that such fact was known to the plaintiff; Singer Mfg. Co. v. Cramer, 192 U. S. 265, 24 Sup. Ct. 291, 48 L. Ed. 437 ; and so if the third party con tributed money for the defense, but had no right to participate in the conduct of the case ; Rumford Chemical Works v. Chemical Co., 215 U. S. 156, 30 Sup. Ct. 45, 54 L. Ed. 137.
Where a bank agreed with the attorney of a city that the suit to be brought by it against the city should abide the judgment in a test case it may claim the benefit of the judgment subsequently rendered against the city therein ; Bank of Commerce v. Louis ville, 88 Fed. 398.
Where there is concurrent jurisdiction at law and in equity, a decision in one court is res judicata as to the other; Ross v. Wood, 70 N. Y. 11. Where there is jurisdiction both of the cause and the parties a judg nient of a court of general jurisdiction is conclusive, even though erroneous, .until it is reversed upon appeal or vacated; 7 Co.
76 ; Fox v. Bldg. Fund Ass'n, 81 Va. 677; Adams v. Franklin, 82 Ga. 168, 8 S. E. 44. See Wiese v. Musical Fund Ass'n, 82 Cal. 645, 23 Pac. 212, 7 L. R. A. 577; •Shores v. Hooper, 153 Mass. 228, 26 N. E. 846, 11 L. R. A. 308.
A decree on a bill by a stockholder for the benefit of himself and all other stockholders who come in, to enjoin the consummation of an agreement by the corporation, is con clusive in a subsequent suit by another stockholder for the same purpose and in volving the same question, in the absence of fraud or collusion; Willoughby v. Stockyards Co., 50 N. J. Eq. 656, 25 Atl. 277, citing Hill v. Bain, 15 R. I. 75, 23 Atl. 44, 2 Am. St. Rep. 873; Dewey v. Trust Co., 60 Vt. 1, 12 Atl. 224, 6 Am. St. Rep. 84; Harmon v.
Auditor of Public Accounts, 123 111: 122, 13 N. E. 161, 5 Am. St. Rep. 502.
The fact that a court is composed of several divisions does not prevent the judg ment of one of the divisions from being res judicata; a change in a person holding an office does not destroy the effect of a judg ment against such officer as res judicata; New Orleans v. Bank, 167 U. S. 371, 17 Sup. Ct. 905, 42 L. Ed. 202.
The United States cannot be estopped by a judgment against its agent even though the suit was conducted by and at the expense of the government ; Carr v. U. S., 98 U. S. 433, 25 L. Ed. 209; Tindai v. Wesley, 167 U. S. 223, 17 Sup. Ct. 770, 42 L. Ed. 137 ; nor is the state estopped by a judgment against its agent ; Peck v. State, 137 N. Y. 376, 33 N. E. 317, 33- Am. St. Rep. 738; contra, Cunning ham v. Shanklin, 60 'Cal. 118. But it is held that the state may be estopped by a judg ment for taxes; Newport & C. B. Co. v. Douglass, 12 Bush (Ky.) 673.
One who Is not a party and only technical ly bound by a judgment, but who is fully cognizant of the proceedings and stands by and takes the benefit of them, is estopped by his conduct; [1896] 2 Ch. 788; L. R. 2 P. & D. 327.
"Estoppel is a rule of evidence; you can not found a suit upon it;" [1891] 3 Ch. 82, per Bowen, L. J.
Where one of two joint tort-feasors is sued, a judgment in his favor cannot be set up as res judicata in a suit against another of them ; Bigelow v. Copper Co., 225 U. S. 111, 32 Sup: Ct. 641, 56 L. Ed. 1009, Ann. Cas. 1913E, 875.
In N. Y. Life Ins. Co. v. Chittenden, 134 Iowa, 613, 112 N. W. 96, 11 L. R. A. (N. S.) 233, 120 Am. St. Rep. 444, 13 Ann. Cas. 408, a life insurance company paid a policy to the administrator of the insured, who had disappeared more than seven years before; upon his reappearing, the company brought an action against the administrator for the proceeds of the policy, but it was held that the judgment was res judicata on the ques tion of the death of the insured and of the liability of the defendant.
If the effect of res judicata be disregarded in a case, it is held that the party may file a bill in equity ; Monmouth Electric Co. v. Eatontown Tp., 74 N. J. Eq. 578, 70 Atl. 994.
See, generally, Wells, Res Judicata, etc.; Herman, Estoppel and Res Adjudicata; Chand, Res Judicata; Van Fleet, Former Adjudication; Duchess of Kingston's Case, 3 Sm. L. Cas., 2008; JUDGMENT; AUTREFOIS ACQUIT; COMITY.