#### Fanning *v.*Insurance Company.

1. The plaintiff may, in reply to new matter set up in the answer by way of defense, allege any new matter, not inconsistent with the petition, which in law constitutes an answer to the new matter relied on by the defendant.

2. If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer, as an estoppel, he should plead suuh former *345judgment. It is not admissible in evidence under a general or special denial of the new matter contained in the answer.

Error to the District Court of Cuyahoga County.

This case was taken out of its order to he heard with *Mary Fanning*v. *Hibernia Insurance Co.,*j ust reported. That action was to recover on a note and mortgage given for stock in said company, while its promoters were engaged in placing the amount of stock required by its charter, as preliminary to its organization. This action is to recover upon a note executed by said Mary Fanning to said company to pay an assessment upon said stock, made some two years after the company commenced doing business, on account of losses incurred in the Chicago fire.

This note, in addition to an assessment of 33 per cent, on the $3,000 of capital stock, included one year’s interest on the note involved in the case just reported, and was for $1,170. The same defenses were made to the payment of this note, as to the former one of $3,000.

At the time the case was tried, final judgment had been rendered in the former case, and a petition in error was pending to reverse the same. The record in that case was offered in evidence in this case without being pleaded, as a bar to the defenses set up in this action. It was admitted against the objection of defendant below. The court charged the jury that the record in that case was conclusive evidence that there was a consideration for that note, and that, if there was no fraud in obtaining the former note, there was none in obtaining the one now sued on. The trial resulted in a verdict for the plaintiff below, followed by the overruling of a motion for a new trial. Some of the errors assigned are, the overruling of the motion for a new trial; the admitting in evidence the record of the former case, and in charging that it was conclusive in this case as to the alleged want of consideration, and as to fraud in obtaining it, and the rendition of the judgment on the verdict. The bill of exceptions sets out all the evidence. The district court affirmed the judgment of the common pleas. This proceeding is to obtain a reversal of the judgments of the courts below.

*346
      *Arnold Green,*for plaintiff in error.

*W. S. Kerrnish,*for defendant in error.

Johnson, J.

The petition was upon a promissory note for the recovery of money only. The answer set up new matter as defenses, among them facts showing want of consideration, and fraud in procuring the note. The reply denied each of the allegations contained in the answer.

On the trial, and as a bar to the defenses above stated, the record in the former suit was introduced, and the court charged the jury that it was conclusive upon the defendant, both as to the question of fraud and want of consideration.

The code (section 101), provides, that the plaintiff may demur to an answer, or where, as in this case, it contains new matter, “ he may reply to such new matter, by denying, either generally or specifically, each allegation controverted by him, and he may allege . . . any new matter not inconsistent with his petition constituting an answer in law to such new matter.” To this reply the defendant may demur. The answer contained new matter by way of defense.

If the former adjudication was a bar to this new matter of defendant, it was new matter, not inconsistent with the petition, which could have been set up by reply.

The defendant could then have demurred. In this way there would been presented to the court a question of law. The code, therefore, furnishes an opportunity to plead the former adjudication. The object of requiring pleadings in wilting is, to advise the opposite party of the facts constituting their respective claims and defenses. This object is defeated by allowing the record to be offered in evidence without notice by pleading, that it is relied on, after the defendant had offered in evidence the facts constituting his defense.

The former adjudication is *new matter,*which the code practice requires should be pleaded. It is matter *expost facto,*and should be specially pleaded, so that the court may, as matter of law, determine as to its effect. This was the settled rule at common law, whenever there was an opportunity to plead such former adjudication. The code having furnished that *347opportunity to plead it, we think the record was inadmissible as evidence. *Vooight*v. Winch, 2 B. & Ald. 662; *Brazil*v. *Isham,*12 N. Y. 9, 17; Pomeroy on Rem. § 702; *Clink*v. *Thurslin,*47 Cal. 21; *Ransom*v. *Stanberry,*22 Iowa, 334; *Phillips*v. *Van Shaick,*37 Iowa, 229; 2 Smith Lead. Cas. notes 629, 630, 631; *Gray*v. *Massie,*17 Vt. 419 ; *Lockwood*v. *Wildman,*13 Ohio, 430.

*Judgment reversed.*