Who the real parties. Ejectment. ceeds of the sale of the goods, the judgment in the first action was held to be a bar to the second action. (1) (y) In considering the effect of verdicts and judgments, courts of justice will always take notice of the real parties to the suit. (2) In an action of ejectment, the lessor of the plaintiff and the tenant in possession are judicially considered the real parties. (2) (a) For the same reason, in the case of Kinnersley v. Orpe,(3) which was an action for a penalty, incurred by destroying fish in the plaintiff's Plea of justifi- fishery, a verdict for the plaintiff in a former action, for a trespass cation, in right committed in the same fishery, against one who justified as servant, of another. Verdict or judgment between privics. Privies. 1. In blood. was allowed to be evidence against the defendant. At the trial of the cause, this was admitted, as conclusive evidence of the plaintiff's right of fishery; as it appeared, that the defendant in the second suit acted by the command of the same person, under whom the defendant in the first action had justified, and who was con⚫ sidered by the judge to be the true party in both causes. The Court of King's Bench, afterwards, on a motion for a new trial, considered the evidence admissible, though not conclusive. (b) Estoppels by verdict, admissions on record, &c. bind privies in blood, (as the heir,) privies in estate, (as feoffee, lessee, &c.) and privies in law (as lord by escheat, tenant by curtesy, tenant in dower, the incumbent of a benefice, and others who come in by act of law in the post;) in the same manner, persons standing in either of these relations will be bound, equally with the parties themselves, by a judgment in a former action for the same matter, if pleaded in bar. (4) A verdict or judgment in a former action, upon the same matter directly in question, is evidence for or against privies in blood, privies in estate, and privies in law, as well as for or against the parties to the suit. (c). If an ancestor has obtained a verdict, the heir may give it in evidence, as privy to it. (5) (d) If (1) Hitchin v. Campbell, 2 Black. (2) Aslin v. Parkin, 2 Burr. 668. (y) See Note 561, p. 311. V. see (4) Co. lit. 352, a. Com. Dig. tit. Estoppel (B.) Outram v. Morewood, 3 East, 346. Lady Dartmouth v. Roberts, 16 East, 334. (5) Per Cur. in Lock v. Norborne, 3 Mod. Rep. 142. (2) See Note 562, p. 812. (a) See Note 563, p. 812. several estates in remainder be limited in a deed, and one of the 2. In estate. parties in remainder obtain a verdict, in an action brought against him for part of the land, that verdict may be given in evidence by another person in remainder, in an action brought against him for the same land, although he does not claim any estate under the first remainder-man; because they all claim under the same deed. (1) So, a verdict for or against a lessee is evidence for or against a reversioner. (2) (e) A verdict on a question of tithes, between a vicar and an occu- 3. Privy in law. pier of land in the parish, is evidence between him and another occupier, the vicar in both suits claiming the same general right to Vicar, or rectithes. (3) And a decree, in the Court of Exchequer, in a cause tor. between the vicar on one side, and the impropriator on the other, (establishing the vicar's title to small tithes, under an ancient endowment, against the defendant, who insisted that he was only entitled to an annual payment in lieu of tithes,) is evidence in suits between succeeding vicars and patrons; but not conclusive evidence, as it would be, if the ordinary had been a party to the first suit. (4) So, a judgment for or against the schoolmaster of a hospi- office. tal, concerning the rights of his office, has been admitted to be evidence for or against his successor. (5) And so, where, on an information in the nature of quo warranto against the defendant, for acting as bailiff of a corporation, the defendant pleaded, that he had been duly elected under a nomination by two persons, who were bailiffs of the corporation, and the point in issue was, whether they were bailiffs at the time of the election, the record of a judgment of ouster in a quo warranto against them, was adjudged to be good evidence against the defendant, who claimed under them. (6)* These (1) Pyke v. Crouch, 1 Ld. Raym. 730. Com. Dig. tit. Evidence, (A. 5.) Bull. N. P. 232. (2) Per Cur. in Rushworth V. Countess of Pembroke and Currier, Hardr. 472. Com. Dig. tit. Evidence (A. 5) Bull. N. P. 232. Gilb. Ev. 85, 36. Bp. of Lincoln v. Sir W. Ellis, 2 Gwill. 632. (3) Travis v. Chaloner, 3 Gwill. Judgment of ouster has been considered in the nature of a judgment in rem. (e) See Note 567, p. 813. Successor in Verdict, not evidence against a stranger. Evidence, as to damages recovered. Nor, for a stranger. cases fully establish the rule above laid down, that a verdict or judgment directly upon the point is good evidence, not only for or against the parties to the suit, but also for or against any persons standing in the relation before mentioned, of privies in blood, privies in estate, or privies in law. (ƒ) The general rule is, that a verdict cannot be evidence for either party, in an action against one who was a stranger to the former proceeding, who had no opportunity to examine witnesses, or to defend himself, or to appeal against the judgment. (g) Thus a verdict in an action between A. and B. is not evidence against a third person, C., who was neither party nor privy to the first suit. The case of Green v. The New River Company, (1) where Lord Kenyon said, that a verdict obtained in an action against a person for the negligence of his servant, is evidence in a subsequent ac tion by the master against the servant, as to the quantum of damages, is not an exception to the general rule. Such a verdict would not be evidence of the fact of the injury, but admissible only as evidence of special damages, to show the amount of what the master was by process of law compelled to pay in the action brought against himself. (h) It is laid down, also, as a general rule, that a verdict is not evidence for a stranger, against one who was a party to the former suit. Thus, it was resolved by Ch. J. Holt and the other Judges of the Court, on a trial at bar, that no record of conviction, or verdict, can be given in evidence, but such whereof the benefit may be mutual, that is, such as might have been given in evidence either by the plaintiff or the defendant. (2) And Ch. B. Gilbert lays it down, "that no body can take benefit by a verdict, who had not been prejudiced by it had it (1) 4 T. R. 590. And see 2 East, 459. As to the general principle, see 2 Price, 434. (2) R. v. Warden of the Fleet, Rep. temp. Holt, 134. Bull. N. P. 233, S. P. the case of R. v. Hebden and R. v. Grimes were cited in argument, in order to show, that such a judgment cannot be conclusive against third persons, Lord Kenyon is reported to have said, "If you derive title to a corporate office through A., and the prosecutor show a judgment of ouster, against A., it is conclusive against you, unless you can impeach the judgment as obtained by fraud. gone contrary." (1) (i) The same rule applies to depositions as Depositions. well as to verdicts. Thus, if A. prefers his bill against B., and B. exhibits his bill against A. and C. in relation to the same matter, and a trial at law is directed, C. cannot give in evidence the depositions in the cause between A. and B., but the trial must be entirely as of a new cause. (2) (j) rule. The reason why a verdict is not evidence against a person, who Reason of the was neither a party to the former suit, nor claims under one of the parties, is, because he had no opportunity of calling witnesses, or of cross-examining those on the other side, nor of appealing against the judgment. (k) And the reason why the verdict would not be evidence for a stranger, even against a party who was engaged in the former suit, seems to be, because, if he had been party to that suit, instead of the person who gained the verdict, the result might have been different; for, as the parties would in that case have been constituted differently, the evidence might have varied; part of the evidence might then have appeared inadmissible, or of a doubtful character, or, perhaps, other evidence might have been produced by the party who lost the verdict. Under such circumstances, to admit a verdict as evidence would be giving a party indirectly the benefit of testimony, which he might be precluded from using directly in his own suit. (¿) But this reason, it is evident, only applies where the verdict is offered in evidence by a third person, against the party who failed in the former action, and not where it is produced against the party who succeeded. (m) There are several exceptions to the general rule, above laid Exceptions to down, which requires that verdicts or judgments should be admit- the rule. ted in evidence only between the original parties to the suit, or their privies. 1. On a question of custom, or toll, a verdict is evidence, 1. Verdict as although between other parties; (3) for the custom or toll is (1) Gilb. Ev. 28. Bull. N. P. 232. Ward v. Wilkinson, 4 Barn. & Ald. 412. The same principle is adopted by Eyre C. J. in his judgment in the Dutchess of Kingston's case, 11 St. Tr. 261. (2) Rushworth v. Countess of Pembroke and Currier, Hardr. 472. (3) City of London v. Clarke, Carth. 181. Bull. N. P. 233. to customs, tolls, &c. (i) See Note 571, p. 818. (1) See Note 574, p. 819. (j) See Note 572, p. 818. (k) See Note 573, p. 819. On question of pedigree. 2. Judgment of courts of ex lex loci, and it is as reasonable to give in evidence a verdict between other parties, as to prove a payment of the duty by strangers. So, on a question of customary right of common, (1) or a public right of way, (2) (n) or on the liability to repair a highway,(3) (0) or on manorial or other customs, (4) or on the public right of election to a parochial office, (5) a verdict in a former action between any other persons is admissible in evidence. The common reputation of the place would be evidence of the right; a fortiori the finding of twelve men upon their oath's is evidence. (6) (P) On such questions, therefore, a verdict in an action between A. and B. is evidence of the point, there directly determined, in an action between C. and D., where the same point comes in issue; but it is clearly not conclusive evidence for or against A. or B., in an action between either of them and a third person, C.; (8) it could not be pleaded in such a case, by way of estoppel. Another exception to the general rule, says Mr. Justice Buller, is in a question of pedigree, where a special verdict between other parties, finding a pedigree, would be evidence to prove a descent; for in such case, what any of the family, who are dead, have been heard to say, or the general reputation of the family, entries in family books, &c. are allowed. (9) (q) 2. A judgment in rem in the Exchequer is conclusive as to clusive juris- all the world. (10) The sentence of a Court of Admiralty is equally conclusive upon all persons. So is the sentence of ecclesiastical courts in some few particular instances, in which they diction. (1) 1 East, 357. 5 T. R 413, n. (4) By Holt, Ch. J., Carth 181. (5) Berry v. Banner, Peake, N. P. C. 156. (6) By Lawrence J., 1 East, 357. (7) Biddulph v. Ather, 2 Wils. 23. (9) Bull. N. P. 233. “ Of this opinion," the writer adds, "was Mr. Justice Wright, in the Duke of Athol's case, which opinion is generally ap proved, though the determination of the rest of the Court was contrary.' The other Judges considered the special verdict inadmissible, as res inter alios acta; and, for any thing they knew to the contrary, the same evidence, that was laid before the former jury, might have been then produced. See Neal v. D. of Athol, Str. 1151. (10) See infra, c. 3, s 3. R. v. Hebden, supra, p. 325. And see (n) See Note 576. p. 819. (0) See Note 577, p. 819. (p) See Note 579, p. 820. |