This is an action brought by Stoops against Woods, the Sheriff of the County of Yuba, to recover damages for the taking of certain personal property by the latter.

The Sheriff alleged in his defense that the goods taken were not the property of the plaintiff, but of one Ada J. Clark, and thereupon justified the taking under an execution in his hands, issued upon a judgment rendered against the said Ada and in favor of one Marcuse. “For the purpose of establishing his right to the property, for the taking of which this action was brought,” the plaintiff offered, and against the objections of the defendant, was permitted to; give in evidence the judgment roll of a former action, in which the plaintiff Stoops was plaintiff and the defendant Woods was the defendant, and in which action Stoops had recovered judgment against the defendant for a seizure by him of the same goods or a portion of them. In that case, the defendant, as Sheriff", had set up that the goods were of the said Ada Clark, and had sought to justify their taking by virtue of a writ of attachment then in his hands in favor of one Garber and against the said Ada. The Court below seemed to have held that the judgment rendered in that case, and put in evidence in this, was not only admissible as evidence, but that it conclusively established the title of the plaintiff for the purposes of this action.

In order to determine if the former judgment can be availed of as a bar in a subsequent suit, we must inquire “ whether the former litigation was between the same parties, in the same right or capacity litigating in the subsequent suit,” etc. (Bigelow v. Winsor, 1 Gray, 302.)

Who, then, were the parties in the former action? If this inquiry is to be answered by merely reading the names of the litigants, as written upon the face of the record in each case, it must be admitted that they are the same ia*445both actions. But when a judgment rendered in a former action is to be availed of to conclude rights asserted in a subsequent action, Courts will look behind the face of the record to ascertain the real parties—the parties loho had a right to control the conduct of the former action, and who, having been heard or having had the opportunity to be heard, are therefore to be concluded by the proceedings. (1 Greenl. Ev., Sec. 535.)

Woods, as being Sheriff, claimed nothing in the former action. The litigation and the judgment in that action concerned only the asserted claim of Garber, as against Stoops, to subject the property to the writ of attachment, the defendant, as Sheriff", being a mere stakeholder in the business and bound to account with the successful party. It was Garber, therefore, who was concluded by the judgment, and no one else. Upon any other rule the absurd consequence would follow that no judgment creditor of Ada Clark could successfully assert a claim by a levy upon this property in the County of Tuba, inasmuch as in any action brought against the Sheriff by Stoops—the alleged fraudulent vendee of Ada—the officer would be concluded by the judgment rendered in the Garber case.

We are of opinion that as to the present controversy the judgment in the former suit was not admissible for the purpose for which it was offered and received by the Court below.

Judgment reversed and cause remanded for a new trial.