plaintiff, but, against its contention, by the Supreme Court of the State, whose judgment was affirmed, also against its contention, by the Appellate Division of that court. This did not take jurisdiction from the state court to proceed against the Construction Company nor make the judgment against it invalid.

It was held in Powers v. C. & O. Ry., 169 U. S. 92, that a case may become removable after the time prescribed by statute, upon the ground of a separate controversy upon the subsequent discontinuance of the action by the plaintiff against the defendants, citizens of the same State with the plaintiff. In Whitcomb v. Smithson, 175 U. S. 635, 637, the Powers case was commented on, and a different effect was ascribed to a ruling of the court dismissing the action as to one of the defendants than to a discontinuance by the voluntary act of the plaintiff. The action was against Whitcomb and another who were receivers of the Wisconsin Central Company and the Chicago Great Western Railway Company for personal injuries received by Smithson while serving the Chicago Great Western Railway Company as a locomotive fireman in a collision between the locomotive on which he was at work and another locomotive operated by the receivers appointed by United States Circuit Court. The case came to trial, and at the close of the testimony counsel for the Chicago Great Western Railway Company moved that the jury be "instructed to return a verdict in behalf of that defendant," which motion the court granted. An application was then made by the receivers to remove the case to the Circuit Court of the United States, which was denied. The court instructed the jury to return a verdict for the railway company, which was done, and thereupon the case went to the jury, who returned a verdict against the receivers, upon which judgment was entered. The judgment was affirmed by the Supreme Court of Minnesota, to which a writ of error was issued from this court. Passing on motions to dismiss or affirm and answering the contention of the receivers that they

acquired the right of removal as though they were the sole defendants, when the court directed a verdict in favor of the railway company, this court said by the Chief Justice: "This might have been so if when the cause was called for trial in the state court, plaintiff had discontinued his action against the railway company, and thereby elected to prosecute it against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all of the defendants. Powers v. Chesapeake & Ohio Railway, 169 U. S. 92. But that is not this case. The joint liability was insisted on here to the close of the trial, and the non-liability of the railway company was ruled in invitum. This was

a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the cause then removable, and thereby to enable the other defendants to prevent plaintiff from taking a verdict against them."

The Whitcomb case and the Powers case are commented on and impliedly approved in Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, 138. And again in Kansas City Suburban Belt Ry. Co. v. Herman, 187 U. S. 63; Fritzlen v. Boatmen's Bank, 212 U. S. 364, 372. See also Alabama Great Southern Ry. v. Thompson, 200 U. S. 206.

It follows from these views that the order of the Circuit Court setting aside the service of the summons on the Construction Company and vacating the judgment against it and dismissing the action must be

Reversed and the cause remanded, with directions to grant the motion of plaintiff to remand the case to the Supreme Court of the State of New York. So ordered.

Argument for Plaintiff in Error.

215 U.S.

VIRGINIA-CAROLINA CHEMICAL COMPANY v.

KIRVEN.

ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA.

No. 18. Argued November 2, 1909.-Decided December 6, 1909.

The claim of plaintiff in error that proper and full credit was not given to a judgment in the Federal court, if seasonably made, raises a Federal question and if the decision of the state court is in effect against such claim this court has jurisdiction. While the bar of a judgment in another action for the same claim or demand between the same parties extends to not only what was, but what might have been, pleaded or litigated in the first action, if the second action is upon a different claim or demand the bar of the first judgment is limited to that which was actually litigated. Under § 914, Rev. Stat., requiring the practice in the Federal courts to conform as near as may be to the practice in the state courts, the defendant in an action in the United States Circuit Court in South Carolina is not required to plead all counterclaims and offsets as the state courts have not so construed the provisions of §§ 170, 171 of the Code of Procedure of that State.

When the question is the effect which should have been given by the

state court to a judgment of the United States Circuit Court, this court is not concerned with the extent to which the state court may have subsequently modified its view if it has not questioned the correctness of its decision in the case at bar.

77 So. Car. 493, affirmed.

THE facts are stated in the opinion.

Mr. P. A. Willcox and Mr. Frederic D. McKenney, with whom Mr. F. L. Willcox and Mr. Henry E. Davis were on the brief, for plaintiff in error:

The question litigated in the present suit was rendered res judicata by the judgment in the Federal court as it was matter that should have been set up as counterclaim. Such is the rule in South Carolina, §§ 170, 171, Code of Procedure, and under § 914, Rev. Stat., the practice of the Federal

215 U.S.

Argument for Plaintiff in Error.

courts must conform thereto. See Simonton, Fed. Courts, §§ 106, 152, 157; Haygood v. Boney, 43 S. Car. 63; Schunk v. Moline, 147 U. S. 500; Pickham v. Manufacturing Co., 77 Fed. Rep. 663; Turner v. Association, 101 Fed. Rep. 308; Partridge v. Insurance Co., 15 Wall. 573; 1 Van Fleet on Former Adjudication, §§ 168, 172; 23 Cyc. 1202; Black on Judgments, $767.

Where a party has an opportunity to litigate an issue in defense and fails to do so the judgment shuts off that defense, and if the same issues are being litigated in two courts the first final judgment will render the issues res judicata in the other court. Boatmen's Bank v. Fritzlein, 135 Fed. Rep. 650; 24 Am. & Eng. Ency., 2d ed., 833; 17 Ency. of P. & P. 265.

In determining the question of res judicata of an issue by judgment in the Federal court this court will be governed by its own decisions and not by those of the courts of the State. The right given by a judgment in the Federal court is one arising under the Constitution and cannot be taken. away by the State, and this court has jurisdiction. Crescent City Co. v. Butchers' Union, 120 U. S. 141; Pittsburg R. R. Co. v. Long Island Trust Co., 172 U. S. 493; Dowell v. Applegate, 152 U. S. 327; Werlein v. New Orleans, 177 U. S. 390; National Foundry v. Supply Co., 183 U. S. 216; Cromwell v. Sac County, 94 U. S. 351.

The estoppel resulting from the thing adjudged does not depend on whether there is the same demand but on whether the second demand has been previously concluded by judgment between the same parties. New Orleans v. Citizens' Bank, 167 U. S. 371, 396; Supply Co. v. Mobile, 186 U. S. 212, 217; Bank v. Frankfort, 191 U. S. 499; Fayerweather v. Ritch, 195 U. S. 276, 301, Gunter v. Atlantic Coast Line, 200 U. S. 273, 290; United States v. California & Oregon Land Co., 192 U. S. 355; Northern Pac. Ry. Co. v. Slaght, 205 U. S. 122; Stockton v. Ford, 18 How. 418; Northern Pacific Ry. Co. v. United States, 168 U. S. 1; and see also Price v. Dewey, 11

Argument for Defendant in Error.

215 U. S.

Fed. Rep. 104; Nemetty v. Naylor, 100 N. Y. 562; Reichert v. Krass, 41 N. E. Rep. 835; Blair v. Bartlett, 75 N. Y. 150; Dunham v. Bower, 77 N. Y. 76; Gibson v. Bingham, 43 Vermont, 410; Rew v. School District, 106 Am. St. Rep. 282.

In reaching its judgment upholding the validity of the note the Federal court necessarily determined there was no failure of consideration, and that is the foundation of the action in the state court; prior to this case the decisions of the state court supported the principle contended for. Willoughby v. Railroad Co., 52 S. Car. 175; Ryan v. Association, 50 S. Car. 187.

This action cannot be sustained without depriving plaintiff in error of the benefit of a judgment of the Federal court.

In further support of the contentions of plaintiff in error see Mooklar v. Lewis, 40 Indiana, 1; Shepherd v. Temple, 3 N. H. 455, and the decision of the Supreme Court of South Carolina rendered since this case was decided. Greenwood Drug Co. v. Bromonia Co., 81 S. Car. 516.

Mr. Charles A. Douglas, with whom Mr. W. F. Stevenson and Mr. E. O. Woods were on the brief, for defendant in error: This court is without jurisdiction. The point that full faith and credit was not given to the judgment of the Federal court does not appear in the record and a general statement is not sufficient, and questions other than Federal are involved.

The first judgment is not res judicata in regard to the question in the second suit. The rule requiring a party to assert all defenses does not apply to defendant's claims against plaintiff by way of counterclaims and set-off. 1 Van Fleet, §§ 168-172; Black on Judgments, §768; Davis v. Hedges, L. R. 6 Q. B. 687; Kennedy v. Davisson, 33 S. E. Rep. 292; Riley v. Hole, 33 N. E. Rep. 491; Conner v. Varney, 10 Gray, 231; Myrian v. Woodcock, 104 Massachusetts, 326; Gilmore v. Williams, 38 N. E. Rep. 976; 19 Ency. P. & P. 731; 24 Am. & Eng. Ency. 785. The questions of failure of consideration and damages to crop were not involved in the