In many cases a defendant will be precluded, by the nature of Act, when to be pleaded. the pleadings, from taking advantage of a public act of parliament. Thus, in an action of debt upon a bond, the defendant cannot, under the plea of non est factum, avail himself of the statute 13 Eliz. c. 8, s. 4, (1) which makes usurious contracts utterly void. (s) But if he pleads, that the bond was void on account of usury, he may insist upon the statute, though he has not formerly recited it. (2) In an action of assumpsit, indeed, where the defendant may give in evidence any thing that discharges the debt, or proves nothing due, he may show under the general issue, that the contract was usurious, (3) or founded on an illegal consideration, which makes the contract void. (4) (t)

If an action or information be brought upon a penal statute, Penal act. and there is another statute which exempts or discharges the defendant from the penalty, this latter act, as some books lay down the rule, cannot be given in evidence under the general issue, but ought to be pleaded; for the general issue is but a denial of the plaintiff's declaration, and the plaintiff, it is said, has proved him guilty, when he has proved him within the law, upon which he founds his declaration. (5) It is, indeed, enacted, by statute 21 Jac. 1, c. 4, s. 4, that in actions on penal statutes, it shall be lawful for the defendant to plead not guilty, or that he owes nothing, and to give in evidence such special matter, which, if pleaded, would have discharged the defendant at law; but this statute has been generally considered to attach only on antecedent penal laws, and not to extend to those subsequently enacted. (6) However, with respect to these also, it should seem, according to the modern practice, the defendant may plead nil debet, and give in evidence the statute; which would show that he does not owe the penalty. Thus, on a prosecution for exercising a trade contrary to the provisions of a statute, the defendant may show, under the general issue, that he is exempted from penalties by a subsequent statute. (7) And on the trial of

* 23.

(1) See also 12 Ann. st. 2, c. 16.
(2) Com. Dig. tit. Pleader, 2 W.

(3) Ld. Bernard v. Saul, 1 Str. 498. Bull. N. P. 152, S. C.

(4) Adm. per Cur. in Hussey v. Jacob, 1 Ld. Raym. 89.

(5) 2 Roll. Ad. 683, pl. 13. Bull. N. P. 225.

(6) Gaul's case, 1 Salk. 372, Hicks's case, ib. 4 Burr. 2467. Bull. N. P. 196. French, q. t. v. Coxon, 2 Str. 1081. S. C. more fully stated in 2 Selw. N. P. 562, n. (117.)

(7) R. v. Pemberton, 1 Black. Rep. 230.

(a) See Note 555, p. 803. (t) See Note 556, p. 803.

an indictment against a parish for not repairing a highway, the defendants may, on the general issue, give in evidence an act of parliament, which exempts them from the repair, and transfers it to commissioners. (1) If the same act, which imposes the penalty, contains also the proviso of exemption, it is quite clear, that this proviso may be shown under the general issue. (2)

In treating of judicial proceedings, and enquiring in what cases they are admissible in evidence, it is proposed to consider, first, the verdicts and judgments of courts of record; secondly, the judg ments of courts of exclusive jurisdiction; and, thirdly, certain other proceedings of an inferior kind.

The admissibility of verdicts and judgments of courts of record is the subject of the present chapter, in which will be considered, first, their admissibility, with reference to the parties in the suit; secondly, their admissibility, with reference to the subject-matter of the suit; thirdly, the admissibility, in civil cases, of verdicts, which have been given in criminal prosecutions.

SECT. I.

Of Verdicts and Judgments, with reference to the Parties in the Suit.

THE general principles, which govern this subject, are clearly laid down in the celebrated judgment delivered by the Chief Justice De Grey, on a question referred to the Judges in the prosecution of the Duchess of Kingston. (1)

"It is true, as a general principle," said the Chief Justice De General rule. Grey, in delivering the opinion of the Judges, "that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person, who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he might think erroneous. Hence the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding a fact, and the judgment of the court on facts found, although evidence against the parties and all claiming under them, are not in general to be used to the prejudice of strangers."(1)(u) To this general rule there are some exceptions, founded upon particular reasons, which will be stated in the course of the present chapter.

"From the variety of cases," continued Ch. J. De Grey, "relative to judgments being given in evidence in civil suits, these two deductions seem to follow, as generally true: first, that the judg ment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive between the same parties, upon the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter coming incidentally in question in another court, between the same parties, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter, which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." (2)

ment when

First, then, a judgment directly upon the point, is, as a plea, Effect of judga bar between the same parties. A party may be estopped by pleaded. verdict on record: as, in an action of trespass, if the defendant prescribes for common, and the plaintiff traverses the prescription, the defendant may say, that in a former action by the

(1) Judgment of De Grey, C. J. in Dutchess of Kingston's case, 11 State Tr. 261. 20 lowell's St. Tr. 538.

(2) 20 Howell's St. Tr. 538. 2 B. & C. 8S7. Vide infra, p. 329.

(u) See Note 557, p. 803.

VOL. I.

41

Effect, when not pleaded.

Verdict for

same cause of action.

Estoppel, when.

Effect of verdict as evi

dence.

plaintiff against the defendant, the same prescription was found against the plaintiff. (1)

A recovery in any suit, upon issue joined on matter of title, is conclusive upon the subject-matter of such title, if pleaded by way of estoppel; but, unless so pleaded, it will not be conclusive. (2) In Trevivan v. Lawrence, (3) it was held, that if a party will not rely on the estoppel, when he may, but takes issue on the fact, the jury shall not be bound by the estoppel, for they are to find the truth of the fact.

In the late case of Vooght v. Winch, (4) an action on the case for widening a water-channel to the damage of the plaintiff's mill, the Court of King's Bench held, that a verdict obtained by the defendant in a former action, which had been brought by the plaintiff for the same cause, was admissible in evidence under the general issue, though not conclusive; the judgment would have been conclusive, if pleaded in bar by way of estoppel. When a judgment is pleaded as an estoppel, the plaintiff will not be allowed to discuss the case with the defendant, and for the second time to disturb and vex him by the agitation of the same question: but if the defendant plead not guilty in the second action, he has thereby elected to submit his case to the jury, who are to give their verdict upon the whole evidence submitted to them. (5) (v) The jury, upon the general issue, are to consider, not whether the plaintiff is estopped from trying the question, but whether the defendant be guilty of the wrongful act imputed to him. (6)

When a judgment is pleaded, it is proposed as something decisive and conclusive, as res judicata.

(1) Com. Dig. tit. Estoppel, (A. 1.) citing 1 Show. 28. The case is, Incledon and another v. Burgess. The doubt there was, whether this was a good estoppel as against a co-plaintiff, a stranger to the former action; and the Court gave judgment on another point. On this subject see the judgment of Lord Ellenborough in the case of Outram v. Morewood, 3 East, 354, 355.

(2) 3 East, 354, 365.

(3) Salk. 276, cited by Holroyd J. Barn. & Ald. 672.

When a verdict is

offered in evidence, it is proposed on the same footing as the rest of the evidence in the cause, only as a medium of proof; and the credit due to it must dépend upon the nature and circumstances of the particular case. It is merely the opinion of a former jury, upon the facts then laid before them, and with reference to the strength or weakness of the proofs on each side. But how their opinion was formed, upon what grounds it proceeded, or what means they had of judging, it is impossible to ascertain. No succeeding jury can be placed precisely in the situation of a former jury. In general, it may be remarked, we are apt to take this kind of proof too much in the gross, and give it too much weight in the scale of evidence. (w)

ties, who.

A judgment is not to be used as an estoppel against a party, who The same pardoes not stand in the same relation or character, as in the former suit. (x) A woman is not estopped, after coverture, by an admission upon record by her husband and herself during coverture. (1) An Heir. heir, claiming as heir of his father, shall not be estopped by an estoppel upon him as heir to his mother. (2) A party suing as exec- Executor. utor, in an action of debt upon a bond, will not be estopped by having been barred in an action upon the same bond, when he sued

as administrator; but he may show that the letters of administra

tion have been since repealed. (3) For the same reason, an ac- Accessary. quittal of a person as accessary cannot be pleaded by him in bar, on a charge against him as principal; for the quality and nature of the offence are quite different. (4)

A verdict against two defendants will be evidence in an action Evidence upon the same subject-matter, against one of the defendants against one of several parties, alone, if he alone was substantially interested in the former when. action, and the other defendant was joined with him merely for form. Thus, where a person brought an action of trover against a creditor and the sheriff, for goods levied under an execution, in which action the plaintiff failed, and afterwards be brought an action of assumpsit against the creditor alone, to recover the pro

(1) Com. Dig. tit. Estoppel, (C.) (2) Ibid.

(3) Robinson's case, 5 Rep. 32, b.

(4) 2 Hale, P. C. 244. Fost. Disc. 361.

(w) See Note 559, p. 811. (x) See Note 560, p. 811.