CHESHIRE.

#### Ashuelot R. R. *v.*Cheshire R. R.

A final decree in a bill in equity is conclusive upon all the parties in respect to all matters of claim and defence determined by it, and as to all incidental matters which the parties were hound to litigate and bring to decision.

Neglect to present a claim, which might have been litigated in a hill in equity, until after a final decree, on a motion for a rehearing, is a. waiver 'of the claim, and after such decree leave will not ordinarily be given to file a supplemental bill to enforce it.

Bill in Equity, supplemental to the suit of the plaintiffs against Elliot and others, — reported in 52 N. II. *387*— S. *0.,*57 N. II. *410397 — /S'. *0.,*58 N. H. 451, — praying for an accounting by tbe defendants for tbe income of tbe plaintiffs’ railroad from December 1, 1876, to April 21, 1877.

Tbe bill alleges, that at the bearing before tbe master in tbe principal suit, the accounts were made up to December 1, 1876; that tbe defendants retained possession of tbe road, taking tbe income, up to April 21, 1877, which was tbe date of tbe final decree ; and that they have never accounted for tbe income between those dates.

Tbe defendants deny their liability to account, alleging that tbe matters for which relief is now asked were matters of substance in tbe original bill; that tbe decree was left open, under tbe former bill, for tbe settlement of all questions which might arise in favor of either party, in order to have tbe decree of the court made final; that there was a motion for a rehearing, and, at tbe time that motion was considered, it appeared from tbe records of tbe court that tbe plaintiffs were in possession of tbe road; that tbe court denied the motion for a rehearing, and ordered that, upon tbe plaintiffs’ paying to tbe defendants $5,000, tbe decree should be final; and that this order was not for tbe correction of any particular error, but for tbe purpose of correcting all errors, and removing nil difficulties in tbe way of a final decree. Tbe case was beard on tbe bill and answer.

*Lane $ Dole,*for the plaintiffs.

*Batchelder Faulkner,*for tbe defendants.

Stanley, J.

Tbe relief asked in this suit might have been granted in the original action. There was a prayer for an account, and under it an accounting up to December 1, 1876, long after tbe filing of tbe original bill. Tbe cause of complaint and the parties in tfiis bill are tbe same as in tbe original. Tbe facts on whichtbe present prayer for an accounting is founded were all known to and accessible by tbe plaintiffs when tbe final decree in tbe original bill was made. Moreover, after this decree there was a motion for a-rehearing by tbe defendants, on tbe alleged ground that there were errors and mistakes which ought to be corrected; but tbe motion was denied. On these facts this bill should be dismissed. It is in tbe nature of a supplemental bill, and it is only by leave of court that such a bill can be filed. *Tappan*v. *Evans,*12 N. H. 330; *Gove*v. *Lyford,*44 N. H. 525.

Whenever a matter is considered and finally determined by a competent tribunal, it is considered forever at rest. This principle not only embraces what actually was determined, but it extends to every other matter which tbe parties might and should have litigated in tbe case. *Fischli*v. *Fischli,*1 Blackf. 360.

An adjudication is final and conclusive, not only as to tbe matter *411actually determined, but as to every other matter which the parties were bound to litigate and bring to a decision, as an incident to or essentially connected with the subject-matter of litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defence. Freem. Judg., s. 249; Story Eq. Pl., *ss.*790, 791; Story Eq. Juris., *s.*547; *Clemens*v. Clemens, 37 N. Y. 59, 74; *Malloney*v. *Horan,*49 N. Y. 111, 116; *Cromwell*v. *County of*Sac, 94 U. S. 351; *Case*v. *Beauregard,*101 U. S. 688; *King*v. *Chase,*15 N. H. 9, 15.

But, apart from the general doctrine applicable to this case, we are of opinion that this claim should have been presented on the motion for a rehearing, or during the year and a half that the motion was pending. The decree ordered, when the motion for a rehearing was disposed of, was intended to be and was final in every respect ; and as this claim was not presented before that motion was decided, it must now be regarded as waived, and

*The MU must he dismissed.*

Clabk, J., did not sit: the others concurred.