By the Court. —

delivering the opinion.

Conceding that Susan, the negro in dispute) was given to *670Adeline Lynch, by Barnard F. Eickling, in trust for his granddaughter, Ellen R. Lynch, and that the trust vested in Edward E. Lynch, the husband of Adeline, and father of Ellen R., which is exceedingly questionable, was the judgment in the former suit between Archibald M. Jackson, executor of Barnard W. Fielding and Edward F. Lynch, a bar to the present action ?

That was an action of trover brought by the executor of Fielding against Edward E. Lynch, individually. The plea of the defendant is not in the record. It is admitted that it set up an outstanding title to the girl Susan in Ellen R. Lynch, under a parol gift from her grandfather in 1850. So far as appears, defendant, Lynch, did not, by his plea, put himself in privity with Ellen R.’s titles, if, indeed, he did or could legally represent that title; and will it be seriously contended that if a defendant in trover or ejectment sets up a paramount outstanding title in another, and a recovery is had against the defendant, that the proceeding will es-top that third person, in whom defendant set up title, from suing ?

The judges in convention in Crockett vs. Benton (Dudley’s Rep. 254), held, and we think very properly, that to determine whether a former recovery is a b,ar to a subsequent action, a good test is, “whether the same evidence will support both actions.” And the application of this rule to this case, will show the injustice that would be done the present plaintiff, by excluding the truth of this transaction from the jury. In the former case, against Edward E. Lynch, his wife’s testimony was inadmissible, whereas, in the present suit, the testimony of the mother is competent, and if credible, is conclusive as to the gift from her father-do her daughter. If there were nothing else wanting, then, the same evidence will not support both of these actions, and therefore, the former recovery is no bar.

There is another better reason still why the judgment in the first case is no bar in this. Ellen R. Lynch was not only not represented by Edward F. Lynch, as trustee, when sued individually for the slave Susan, but she was over twenty-one years óf age when the first judgment was rendered. If her father represented her as trustee, the trust terminated before the final trial of the first case. And she having no notice whatever of the pendency of the litigation, she *671was not bound by the result. The proof is, that Mr. Eickling gave the girl to his granddaughter, and requested her mother to take charge of her, learning her to sew, etc., until Ellen R. became of age, or was capable of taking care of her herself. The judgment in the first case was in April, 1857, and the plaintiff was twenty-one years of age October, 1856, at which time the trust dropped off, such as it was, and Ellen R. Lynch was sm juris.

For these and other considerations, we feel constrained to award a new trial in this case.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in charging the jury, that the plaintiff was estopped by the record of the former case brought in Warren Superior Court, April, 1852, in which Archibald M. Jackson, executor of the last will of Barnard W. Fielding, deceased, was plaintiff, and Edward F. Lynch, defendant, it being an action of trover.