FOURNIER J.-I am of opinion that the appeal should be dismissed.
TASCHEREAU J.-I think that the plaintiffs action was rightly dismissed.
He is estopped from taking *PRESENT.-Sir Henry Strong C.J. and Fournier, Taschereau, Gwynne, Sedgewick and King JJ.
(1) 24 N. S. Rep. 526.
the position he would now take.
I would dismiss the appeal.
- GWYNNE J.-I am of opinion that this appeal should allowed with costs and that the judgment of the court of first instance in favour of the plaintiff should be restored. The only real defence to the action urged before us was that the plaintiff's cause of action was estopped and barred by ajudgment rendered in favour of the defendant in a former action at suit of the plain tiff which, as was contended, operated as resjudicata upon the matter of the present action; but concurring herein with the learned judge of first instance, I am of opinion that there is nothing in the former action which operates as a bar or estoppel in the present. KING J.-I concur in the allowance of this appeal Appeal allowed with cost