trial of his action, to prove a demand against the defendant, and fail, he cannot set it up again on a second action; but if he can clearly show that he omitted to give any evidence of his demand in the action, he is not concluded from doing so afterward': Seddon v. Tutop, 6 Term Rep. 607; Thorpe v. Cooper, 5 Bing. 116; Deacon v. Great Western Ry. Co., 6 U. C. C. P. 241; Hadley v. Green, 2 Tyrw. 390. In the case from which this quotation is made, a plaintiff having two demands, clearly distinct, sued upon both, and obtained a default. In executing the writ of inquiry he gave evidence upon but one of his demands, and recovered judgment accordingly. In rendering a decision permitting a second action to be maintained for the demand not allowed in the first, Lord Kenyon said: 'In truth, this is a question of great delicacy. We must take care not to tempt persons to try experiments in one action, and when they fail to suffer them to bring other actions for the same demand. The plaintiff who brings a second action ought not to leave it to nice investigation to see whether the two causes of action are the same. He ought to show, beyond all controversy, that the second is a different cause of action from the first, in which he failed. In this case it is clearly shown that this demand was not inquired into in the former action: Seddon v. Tutop, 6 Term Rep. 607; Newell v. Carpenter, 118 Mass. 411. But if plaintiff, having several causes of action against the defendant, on the trial offers evidence on these causes, and fails, for want of sufficient evidence, to sustain some of them, he cannot bring another action for those causes of action on which he failed. Where the plaintiff fails to recover all that he is entitled to for want of some proof on the first trial he should move to set aside the verdict he has obtained': Stafford v. Clark, 2 Bing. 377; Brockway v. Kinney, 2 Johns. 210; McGuinty v. Herrick, 5 Wend. 240. But, so far as the plaintiff is concerned, most of the American cases go further. They declare that he will not be allowed to bring another action, because in the first he gave no evidence of his de mand: Ramsey v. Herndon, 1 McLean, 450; that he will not be permitted to reserve, or from any cause not to produce, part of his evidence, and that the judgment will be conclusive as to every matter which he could have proved in the first suit, and which was not proved or withdrawn: Baker v. Rand, 13 Barb. 152; Fisk v. Miller, 20 Tex. 579; Tate v. Hunter, 3 Strob. Eq. 136; Barrett v. Failing, 8 Or. 152. The defendant, however, although his pleadings present a claim, need not give evidence in its support, unless it is one which he is compelled to present and litigate in that action. Thus where a defendant, sued for the price of a horse, set up as a defense a breach of warranty of soundness of the horse, and failed to appear at the trial, and judgment was rendered against him, he was allowed afterward to recover of the plaintiff for the same breach of warranty, because this was an affirmative cause of action which defendant had a right to litigate as a plaintiff. In cases like this the question whether the claim was presented and submitted as a defense may be settled by proof at the trial of the second action. But, if the claim is specifically embraced in the pleadings, the presumption is, that it was presented at the trial, and considered in the rendition of the judgment: Burwell v. Knight, 51 Barb. 267; McDaniel v. Fox, 77 Ill. 343. If a court erroneously rejects evidence offered to prove a claim or defense, on the ground that it is inadmissible, such claim, nevertheless, on rendition of the judgment, becomes res judicata, and so remains until the judgment is vacated or reversed by some appropriate proceeding: Beall v. Pearre, 12 Md. 550; Burnett v. Smith, 4 Gray 50; Grant v. Button, 14 Johns. 377. If such evidence was offered

to establish a cause of action stated in a particular count of the plaintiff's declaration, and the plaintiff, failing to strike out or withdraw that count, suffers a general verdict on the whole cause, the judgment will be a bar to another action on the claim so attempted to be established: Smith v. Whiting, 11 Mass. 445.

"A judgment of a court possessing competent jurisdiction is final, not only in reference to the matters actually or formally litigated, but as to all other matters which the parties might have litigated and had decided in the cause: Bellinger v. Craigue, 31 Barb. 534; Davis v. Tallcot, 12 N. Y. 184; Marriott v. Hampton, 7 Term Rep. 265; Bruen v. Hone, 2 Barb. 596. A party cannot try his action in parts. The judgment is conclusive, not only of the matters contested, but as to every other thing within the knowledge of the complainant which might have been set up as a ground for relief in the first suit: Hamilton v. Quimby, 46 Ill. 90; Scuddy v. Shaffer, 14 La. Ann. 576. If the determination of a question is necessarily involved in the judgment it is immaterial whether it was actually litigated or not: Barker ▼Cleveland, 19 Mich. 230. Where in fact items of account were specifically set forth in the statement of the causes of action in a former suit, and, though known to exist, were for some reason overlooked and not considered, they cannot in law be the ground of a second action: Keokuk v. Alexander, 21 Iowa, 377; nor can they be made the ground of such action, though they were omitted, owing to an error of the justice before whom the case was tried, in rendering his judgment: Town v. Smith, 14 Mich. 348. The omission of the court to award relief prayed for is an adjudication, in effect, that the complainant is not entitled thereto: Thompson v. McKay, 41 Cal. 221. Hence if, in an action on a note and mortgage, judgment is rendered on the note, without any order of sale, this is conclusive that the plaintiff has no lien, and he cannot afterward maintain an action to foreclose his mortgage: Johnson v. Murphy, 17 Tex. 216. From the decisions cited in this section, the conclusion is irresistible that a judgment or decree is conclusive upon all causes of actions and all matters of defense presented by the pleadingą, and not withdrawn before or during the trial, except: 1. Where the plaintiff claims upon several and distinct causes of action, in which case he may, according to some of the authorities, maintain a second action upon any one of those causes upon which he can show that he offered no evidence at the trial of the former case: 2 Smith's Lead. Cas. 669; Wood v. Corl, 4 Met. 203; Southside R. R. Co. v. Daniels, 20 Gratt. 366; Allebaugh v. Coakley, 75 Va. 628; Parks v. Moore, 13 Vt. 183; 37 Am. Dec. 589; Cunningham v. Foster, 49 Me. 68; Merchants' Bank v. Schulenburg, 48 Mich. 102; Paine v. Schenectady I. Co., 12 R. I. 440; Converse v. Colton, 49 Pa. St. 346; Hunger. ford's Appeal, 41 Conn. 322; Dickinson v. Hayes, 31 Conn. 423; Sweet v. Maupin, 65 Mo. 65. 2. Where the defendant pleads a matter as a defense which he might have successfully employed as a cause of action against the plaintiff, in which case it appears that the right to such cause of action is not lost by the defendant, unless he followed up his pleading by offering evidence upon it in the former suit. With the possible exceptions here stated, a judgment is conclusive upon all the material issues made by the pleadings, and also upon every material allegation, whether of claim or of defense, which the party against whom such allegation is made does not choose to controvert."

The Character of the Evidence.-Hitherto we have spoken of the reception of evidence either to show that a matter has or has not been decided without referring to the character of the evidence which is admissible for this

purpose. Upon this subject the decisions are exceedingly meager. That the judgment record is admissible is beyond question, and there is also but little doubt that where it speaks clearly it is conclusive. There are also other writings which, though they have not the verity of a judgment record, are also admissible. Among these are the report of the judge who tried the former action, stating the proceedings there taken before him: Eastman v. Cooper, 15 Pick. 276; 26 Am. Dec. 600; Duren v. Kee, 41 S. C. 171; the statement of the case and the opinion of the court as contained in the printed volume of the reports: Hood v. Hood, 110 Mass. 463; the opinion of the trial judge filed in the cause and stating the grounds of his decision: Legrand v. Rixey, 83 Va. 862; New Orleans etc. Ry. v. New Orleans, 14 Fed. Rep. 373; Serong v. Grant, 2 Mackey, 218; the finding of the referee apon which the decision of the court was based: White v. Chase, 128 Mass. 158; the charge of the judge at the trial, by which it appeared that he restricted the attention of the jury to certain issues: Duren v. Kee, 41 S. C. 171, 172. While the evidence taken in the former action should not all be submitted to the jury on the trial of a subsequent controversy, if it would be prejudicial to one of the parties, yet so much of it may be received as will prove upon what issues testimony was offered and admitted in the trial of the action: Stone v. St. Louis S. Co., 155 Mass. 267. Briefs of counsel having been offered for the purpose of showing that but one point was contested, and having been rejected, the action of the trial court was determined not to have been erroneous, because it was said that there were often points in. volved in a case which were not discussed in the briefs of the counsel: Greenlee v. Lowing, 35 Mich. 63.

Jurors cannot be Examined as to Their Conclusion.-Upon an examination of the cases in which extrinsic evidence has been received to prove what had become res judicata by virtue of a former decision and judgment, it will be found that such evidence, at least unless contained in some writing exe. cated at the time for the purpose of explaining the decision or stating the views upon which it was based, has not, properly speaking, been admitted for the purpose of determining what was decided, but merely to show what was submitted for decision. For this purpose evidence not inconsistent with the record may doubtless be properly admitted to show what testi. mony was or was not given upon some issue, and thereby to create a presumption that, if evidence was submitted respecting it, it had been decided by the jury in favor of the party for whom they returned their verdiot; and, on the other hand, if no evidence was received upon it, that it was not considered nor determined by them. It is not, we think, permissible to go further and to undertake to establish what conclusion the jurors actually reached upon any issue concerning which evidence was submitted to them, where their conclusion has not been expressed in the form of a special verdict. "The rule never has extended to the introduction of evidence show. ing the action taken by the jury, or what matters were considered by them": Crum v. Boss, 48 Iowa, 433. The court will never go into an examination of the jurors in a former cause to ascertain upon what grounds their verdict was pronounced": Wood v. Jackson, 8 Wend. 23; 22 Am. Dec. 611. "The jury are not to be examined as to the grounds of their verdict ": Lawrence v. Hunt, 10 Wend. 81; 25 Am. Dec. 538. "Some of the jurors in the former trial were permitted to testify as to the particular ground upon which they found the verdict. This testimony was not objected to, and therefore is not available as error here. But it is proper to say that the secret deliberations of the jury, or grounds of their proceedings while engaged in making up their

verdict, are not competent or admissible evidence of the issues or finding. The jurors oftentimes, though they may concur in the result, differ as to the grounds or reasons upon which they arrive at it. The evidence should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury for their consideration, and then the record furnishes the only proper proof of the verdict ": Packet Co. v. Sickles, 5 Wall. 580, 593.

It is apparent from the cases last cited that while it is proper to receive evidence consistent with the record for the purpose of showing that testimony upon a particular matter was or was not submitted to the consideration of the court or jury, yet it is not permissible to prove by extrinsic oral evidence what was the effect of the testimony thus submitted, and therefore, after all competent evidence has been received, it may still remain uncertain whether or not the court or jury, in making a general finding or verdict in favor of a defendant, did or did not decide in his favor all the issues tendered by him. Whether in such a case the decision must still be regarded as uncertain and not supporting the plea of estoppel, is a question which we believe the decisions have not fully settled. Our own judgment is that, upon proof that evidence was offered in behalf of the defendant in support of all the defenses urged by him, a verdict or finding in his favor ought to be regarded as equivalent to a special finding of the existence of all the material defenses specially alleged in his answer, or, if not specially alleged, of all defenses admissible in his behalf under the general issues presented by his pleadings: Rhoads v. Metropolis, 144 Ill. 580; 36 Am. St. Rep. 468; Merchants' etc. Co. v. Lyon, 12 Fed. Rep. 63.

STATE V. NOMLAND.

[8 NORTH DAKOTA, 427.]

CONSTITUTIONAL LAW.-A CONSTITUTIONAL PROVISION REQUIRING THAT EACH BILL SHALL EMBRACE BUT ONE SUBJECT which shall be expressed in its title will be construed liberally so as not to embarrass the legislature by a construction whose stricture is unnecessary to the accomplishment of the beneficial purposes for which the provision was adopted.

CONSTITUTIONAL LAW.-THOUGH A CONSTITUTION FORBIDS ANY BILL TO EMBRACE MORE THAN ONE SUBJECT, yet if such subject be properly expressed, the act may create the means and instrumentalities required for its own accomplishment.

CONSTITUTIONAL LAW-TITLE OF ACT.-If a statute entitled "An act to create the office of state board of auditors, and prescribe their duties," in addition to creating the board and directing it to examine certain books and vouchers, required that moneys of the state must be deposited monthly in some bank to be designated by the state board, such act, in so far as it requires such deposit in bank, is unconstitu tional, because that part of the subject is not expressed in the title. Frank V. Barnes, for the appellant.

William H. Standish, attorney general, and J. B. Wineman for the respondent.

428 BARTHOLOMEW, C. J. Chapter 48 of the Session Laws of 1893 is entitled "An act creating the office of the state board of auditors and prescribing the duties thereof." The first section constitutes the secretary of state, the state auditor, and the attorney general such state board of auditors, and directs that as such board they shall examine the books and vouchers of the state treasurer, and ascertain the kind and amount of funds in the treasury, at least twice in each year, and make report of their doings in the premises to the governor; and they shall also witness 429 and attest the transfer of books, property, and funds by an outgoing to an incoming treasurer, and report to the governor. The second section directs that all funds belonging to the state shall be deposited monthly by the state treasurer in one or more national or state banks in the state, such banks to be designated by such board of auditors and the governor, and such banks shall pay to the state interest on the monthly balances for funds so deposited at the rate of not less than three or more than four per cent per annum. Section 3 provides what bond shall be given by such banks, and that the same shall be approved by the governor and said board; and section 4 exempts the state treasurer and his bondsmen from liability for all money so deposited by reason of the failure, bankruptcy, or other act of such bank. It is conceded that the board of state auditors, after strict compliance with all the provisions of the statute, designated certain banks within the state wherein the public funds should be deposited, and so notified the defendant, who is state treasurer, and requested him to deposit the public funds accordingly. The treasurer declined to comply with such request, and it is sought in this action to compel compliance by mandamus. The defendant bases his refusal upon two grounds, the first being that the act above mentioned was never passed by the legislative assembly of this state; and second, that, if so passed, the act is unconstitutional and void. The trial court ruled both points adversely to defendant, and he appealed the case to this court.

We shall notice but one ground of reversal. The act is assailed as in violation of section 61 of our constitution, which reads: "No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed." The equiva