Several causes of action, only part proved. Award. Effect of judg ment or verdcit. But where the plaintiff failed in will maintain both the actions. If the plaintiff on the trial of his action attempted to prove a demand against the defendant, and failed in the attempt, he cannot set it up again in a second action. But if he omitted to give any evidence of the demand on the former occasion, though he had an opportunity of doing so, he is not precluded from doing it afterwards. Thus, when the plaintiff in a former action declared on a promissory note and for goods sold, but, upon executing a writ of enquiry after judgment by default, gave no evidence on the count of goods sold, the judgment was not a bar to his recovering for the goods in another action. (2) (b) So, it has been held, that an award, made on a reference of all matters in difference between the parties, is no bar to any cause of action, which the plaintiff had against the defendant at the time of the reference, if it appear that the subject-matter of the action was not enquired into before the arbitrator. (3) (c) If, in the case of Seddon v. Tutop, above stated, the plaintiff had given any evidence at all on the account for goods sold, aud the verdict had included this with the rest of the plaintiff's demand, the judgment might then have been pleaded as a judgment recov ered upon the same identical causes of action. (4) (d) In considering the effect of a former judgment, it is to be observed, that the judgment can be final only for its own proper purpose and object, with reference to the subject matter of the suit, and upon the points there put in issue and directly deter mined. (2) Therefore, in an action for obstructing a watercourse, where a verdict for the plaintiff in a former action, which had been brought against the defendant for another obstruction to the same watercourse, was offered in evidence under the general (1) Robinson's case, 5 Rep. 33. Martin v. Thornton, 4 Esp. N. C.P. 6 Rep. 8, a. Com. Dig. tit. Action, (L. 4.) 2 Black. Rep. 831. (2) Seddon v. Tutop, 6 T. R. 607. (a) See Note 589, p. 834. 180. (4) See Lord Bagot v. Willia ne, 3 Barn. & Cress 235, 240. (b) See Note 590, p. 837. (c) See Note 591, p 840 issue, Lord Mansfield held, that the plaintiff had not obtained such a determination of his right by the former verdict, as the law considered conclusive. It could only be conclusive upon the right, if it could have been used and were actually used in pleading, by way of estoppel, which it could not be in that case. (1) (ƒ) A verdict for the defendant, in an action on the case for widening a watercourse, is admissible evidence, under the general issue in a second suit for the same cause of action, but is not conclusive. (2) (g) And a recovery by the plaintiff in a former action of assumpsit may be given in evidence on the part of the defendant, under the general issue, in a subsequent suit for the same cause of action. (3) (h) actions. There is a difference, it has been said, between real actions and Real, personal, personal actions, as to the conclusiveness of a judgment. In a personal action, as debt, account, &c. the bar is perpetual; for the plaintiff cannot have an action of a higher nature, and has no remedy but by error or attaint. (4) But if the plaintiff be barred in a real action by judgment on a verdict, demurrer, confession, &c., yet he may have an action of a higher nature, and try the same right again; because it concerns the freehold and inheritance." (5) Now, although it is true that the same matter may be thus tried again, yet the former judgment is no less conclusive upon the immediate right then in demand, as far as that former judgment purports to bind, and against all such persons as it is competent by law to bind. A judgment is final for its own proper purpose and object, Judgment, and no further. A recovery in any suit, upon issue joined on mat- when final. ter of title, is conclusive upon the subject-matter. Thus, a finding upon title in tres pass, not only operates as a bar to the future recovery of damages for a trespass founded upon the same injury, but operates also as an estoppel to any action, for an injury to the same supposed right of possession. (6) (i) (1) Sir F. Evelyn v. Haynes, cited in Outram v Morewood, 3 East, 365. And see Cross v. Salter, 3 T. R. 639. Sintzenick v. Lucas, 1 Esp. N. P. C. 43. (2) Vooght v. Winch, 2 Barn. & Ald. 662. (3) Stafford v. Clark, Bing. 377. (ƒ) See Note 594, p. 844. (g) See Note 595, p. 848. (h) See Note 596, p. 849. (i) See Note 597, p. 849. Judgment in ejectment. A judgment in one action of ejectment is not conclusive in another, in consequence of the fictitious nature of the proceedings. However, it is conclusive evidence of the plaintiff's title against the tenant in possession, in an action for mesne profits; for the plaintiff, to entitle himself to recover in an ejectment, must show a possessory right not barred by the statute of limitations. This judgment, like all others, only concludes the parties, as to the subject-matter. It proves nothing beyond the time laid in the demise; because beyond that time the plaintiff has alleged no title, nor could be put to prove any. As to the length of time, also, during which the tenant has occupied, or as to the value, the judgment proves nothing, for the same reason. (1) (j) Sentence in ecclesiastical court. SECT. III. Admissibility in Civil Cases, of Verdicts in Criminal It appears to be a general rule, that a verdict in a criminal proceeding is not admissible in an action as proof of the fact, which is the subject-matter of the suit. The objections against the admissibility of such evidence seems to be, first, that the parties are not the same in the civil suit; as in the criminal case; and, secondly, that the party in the civil suit, on whose behalf the evidence is supposed to be offered, might have been a witness on the prosecution: but the first of these is the principal objection. (k) In the case of Hildyard and Granthamn, (2) which was an issue directed by the Court of Chancery, to try a question of legitimacy, a sentence against the supposed father and mother, upon a proceeding against them in the consistory Court of Lincoln, for living together in fornication, was offered in evidence, to prove that they were not married: but the whole Court of King's Bench were of opinion, on a trial at bar, that the sen (1) Aslin v. Parkin, 2 Br., 668. See Hunter v. Britts, 3 Campb. 455, as to the effect of a judgment against the casual ejector. (2) Cited by Lord Hardwick in Brownsord v. Edwards, 2 Ves. 246, and in Rep. temp. Hard. 311. tence could not be given in evidence; "because, first, it was a criminal matter, and could not be given in evidence in a civil cause; next, because it was res inter alios acta, and could not affect the issue; but they held, that if it had been a sentence on the point of marriage, in a question on the lawfulness of the marriage, it might have been given in evidence, being the sentence of a court having proper jurisdiction." conviction. In the case of Gibson v. Maccarty, (1) on an issue to try the Record of genuineness of some promissory notes, depositions of a deceased witness having been read on the part of the plaintiff, (in which depositions the witness swore, that the defendant had acknowledg ed the notes in question and also another note,) it was proposed, on the part of the defendant, to show by a record of conviction, that the plaintiff had since been convicted of forging this other note, mentioned by the deponent; for such evidence, it was said, would go to the credit of the deponent's evidence, as to the acknowledgment of the notes in question; and, secondly, because there is at all times a liberty given to examine into the plaintiff's character. But this evidence was opposed on the part of the plaintiff, on the ground, that no record of a criminal action can be given in evidence in a civil suit, because such a conviction might have been upon the evidence of a party interested in the civil action; and Lord Hardwicke is reported to have said, "that the general rule was as had been stated by the plaintiff's counsel, (2) and that it had been so strictly kept, that in the case of Hillyards, on a question of legiti macy, the Court refused to admit a sentence of excommunication in the spiritual court, for fornication between the father and mother of the party, whose legitimacy was impeached." Upon an issue to try the question of devise or no devise, a coro- Coroner's inher's inquest, finding the deceased a lunatic, was offered in evi- quest. lence against the plaintiff, who claimed as executrix, for the purDose of showing, that the deceased was incompetent to make will; this evidence was objected to on the part of the plaintiff, and the Court, were equally divided in opinion. The Chief Justice (Parker) was of opinion that the inquest ought to be (1) Rep temp. Hard. 311. 43 Acquittal of assault. Conviction, its effect. admitted, "because it was for the plaintiff's advantage, as the personal estate would be saved by the finding of lunacy;" and he added, that in Lord Derby's case an inquest post mortem was allowed to be given in evidence. Mr. Justice Powys agreed with the Chief Justice. Mr. Justice Eyre said, "This is a criminal matter, and ought not to be given in evidence in a civil proceeding. A verdict on an indictment for battery cannot be read in an action for the same battery. An inquest post mortem is in the nature of a civil proceeding; but this is criminal, for it might induce a forfeiture of the goods, if he had been found felo de se." And Mr. Justice Pratt said, "If a verdict be given in evidence, it must be between the same parties, and, therefore, an indictment at the suit of the king cannot be read in an action at the suit of the party." A verdict of acquittal on an indictment for an assault would not be evidence against the plaintiff in an action for the same assault: nor would a conviction on the plea of not guilty be evidence for the plaintiff. (1) But if a person indicted for an assault plead guilty to the charge, and the record has been considered conclusive against him in an action for damages for the same assault: (1) (m) it seems, at least, to be admissible. (2) (n) A record of conviction is conclusive proof of this fact, that the person charged has been convicted. It is conclusive also of his incompetency as a witness in a court of justice, while the judgment must stand in force against him. (a) It has been stated, indeed, by high authority, that a conviction in a court of criminal jurisdiction is conclusive evidence of the fact, if it afterwards come collaterally in controversy in courts of civil jurisdiction. (3) In the case of a father convicted, on an indictment for having two wives, it is said that the conviction would be conclusive evidence in an action of ejectment, where the validity of the second marriage is in (1) Lamb. Just. B. 2, c. 9, p. 427. cites 9 H. 6, 60, and 11 H. 4, 65. (2) This point was so ruled by Wood, B. in an action for assault and battery, tried at Leicester Lent Ass. 1808. It was an undefended cause; (7) See Note 600, p. 851. (m) See Note 601, p. 851. (n) See Note 602, p. 852. |