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ceptions, founded upon particular reasons, which will be stated in the course of the present chapter.
But although justice requires that third persons, who had no opportunity of examining witnesses in a suit, or of making a defence, should not be prejudiced by the verdict or judgment, it is on the other hand equally just, that the parties to the suit should be subject to a different rule. "From the variety of cases," said Ch. J. De Grey, in delivering his celebrated judgment in the case of the Duchess of Kingston, "relative to judgments being given in evidence in civil suits, it seems to follow as generally true, that the judgment 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 (1)." Here Ch. J. De Grey was about to consider the effect of judgments pronounced in other courts of concurrent jurisdiction: but the same principle and the same rule appear with still greater force to apply to judgments in the same court.
First, then, a judgment directly upon the point, is, as a Between plea, a bar between the same parties. A party may be """f"v"estopped by a 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 plaintiff against the defendant, the same prescription was found against the plaintiff. (2)
Upon the same principle, it is presumed, a judgment will be, as evidence, conclusive between the same parties, in those cases where it can be given in evidence without
(1) Judgment of De drey C. J. in good estoppel as ng.iinst a co-plaintiff, s
Duchess of Kingston's case, II Stale stranger to the former action; and the
Tr. 161. Court gave judgment on another poi'st.
fz) Com Dig. tit. Estopicl, (A. 1.) On this subject, see ihe judgment in the
p 73. citing I Show. 18. The case is esse of Outram v. Morcwood, 3 East,
In tied on and another v. Buries The J54,Jdoubt there was, whether this was 4
being specially pleaded. The rule has been expressly so declared with reference to the judgments of courts of concurrent jurisdiction (1), and it seems to be equally applicable in principle to a former judgment of the same court, t. Thus, in an action of assumpsit, the defendant may either plead a judgment recovered, or give it in evidence under the general issue (2); and it is difficult to assign a reason, why the judgment should not have the same conclusive operation, if given in evidence without pleading, as it would be admitted to have, if pleaded in bar. 2. In an action of trespass for mesne profits, the judgment in ejectment is conclusive against the defendant on the right of possession at the time of the demise laid in the declaration (3). 3. A judgment of the quarter sessions discharging an order of removal, on an appeal, is conclusive evidence between the respondent and appellant parishes, that, at the time of the first order of removal, the settlement of the pauper was not with the appellants. 4. So, a record of conviction, on an indictment against a parish for not repairing a road will be conclusive evidence, on a plea of not guilty to a second indictment, of the liability of that parish to repair (4). "If the parish can shew fraud, it will vitiate this or any other judgment; but, unexplained, it will be conclusive evidence V 5. So, if the defendant, in an action of trespass, plead his soil and freehold, and give in evidence a verdict on the same plea in a former ac
(1) See ante, p. 213. (3) Aslin v. Parkin, 2 Burr. 666.
(a) Per Lord Mansfield in Bird v. (4) R. v.St. Pancras.peakeN. P. C. Randall, 3 Burr. 1353. 219.
• Fraud, as it has been observed (1), is only put for an example. If the parish consists of several districts, which lute immemorially repaired the respective high, ways lying within them, and if the districts, in which the road indicted is not situate, can shew that they had no notice of the former indictment, (the defence hating been made ami conducted entirely by the district, within which the road lies,) the Court will consider the indictment as being substantially against that district, aud give the other districts leave to plead the prescription to a subsequent indictment for not repaiiing the highways in the parish. R. v. Townsend, 1 Doug. 421.
(1) 2 Saund. i_co a. note by the editor.
tion between the same parties, this probably would be conclusive, that the right to the soil and freehold was at the time as found. If, indeed, the defendant in the former action had pleaded not guilty together with the plea of liberum tenementum, and a general verdict had been found, and this should afterwards be given in evidence, (as in the case supposed,) such a general verdict would not be conclusive evidence of the right, as if there had been a verdict on the pica of liberum tenementum, though it would be material evidence; and the defendant would be admitted to prove, that on the former occasion no evidence was offered except on the general issue (i). But if this general verdict were pleaded by way of estoppel, it would estop the plaintiff. (2)
In the case of Moses v. Macferlan (3)) indeed, the Court of King's Bench held, that the plaintiff might recover back money, which he had paid under a judgment obtained against him by the defendant in an action in a court of conscience, which action the defendant brought against him as indorser of a bill of exchange, in breach of a written agreement. They admitted it, however, to be a clear principle, that the merits of a judgment can never be over-ruled by an original suit either at law or in equity; and that the judgment is conclusive, as to the subjectmatter, until it is set aside or reversed. The ground of the decision hi that case was, that the breach of the agreement was no defence to the action in the court of conscience, being a collateral matter not within their cognizance. But this has been since questioned (4); and it has been thought, that the breach of the agreement went to the essence of the debt demanded, and was necessarily as much a defence in that court, as it would have been in the Court of King's Bench. The case of Moses v. Macferlan>
(1) See 3 East, 364,5. 6 T. R. 609. (4) By Eyre C. J. in Philips v. Hun(i) 3 East, 36,$. ter, »H. BL 414. And see Marriott v.
(3) a Burr. I00<, 9. Hampton, 7 T. R. 169. Brown v.
M'Kinnally, 1 J:.sp. N. P.C. 179.
Q theretherefore, does not in any manner infringe, but rather confirms, the general rule, that the merits of a question, which has been directly determined by a court of competent jurisdiction, cannot be tried over again, between the same parties, in any shape whatsoever.
The authority of a former adjudication of the right prevails between the same parlies, that is, between the same persons suing or sued in the same quality or character. A woman is not estopped, after coverture, by an admission upon record by her husband and herself, during coverture (i). So an heir, who claims as heir of his father, shall not be estopped by an estoppel upon him as heir to his mother (2). So a party suing as executor, 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 shew that the letters of administration have been since repealed. (3)
Between Estoppels by verdict, admissions on record, &c. bind trivia. 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 also evidence for or against privies in blood, privios in estate, and privies in law, as well as for or against the parties to the suit . Thus, if an ancestor has obtained a verdict, the heir may give it in
(1) Com. Dig. tit Estoppel, (C). (4) Co Lit. 352. *. Com. Dig. tit.
(l) ,b. Estoppel, (B). Outran v. Morewood,
13) Robinsos's Cmc, 5 Rep. 3i.b, 3 Eist, 346.
evidence, as privy to it(i). So, if several estates in remainder be limited in a deed, and one of the parties in remainder obtain a verdict in an action brought against him for the same land, that verdict may be given in evi.■ dence, for 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 (2). So, a verdict for or against a lessee is evidence for or against the rever* sioner (3). And a decree in the Court of Exchequer, in a cause 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 school-master of a hospital, 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 a 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 cases fully establish the rule above laid
(1) Per Cur. in Lock v. Norbcrone, (4) Carr v. Heaton, 3 Gwillim, 1261. 3 Mod. Rep. 141. See Bishop of Lincoln v. Ellis and an
(2) Fyke v. Crouch, 11,4 Ray. 730. other, 2 Gwill. 631.
Com. Dig. tit. Evidence, (A. 5.). Bull. (5) Lord Brounker v. Sir R. Atkins,
N. P. 232. Ski". I5.
(3) Per Cur. in Ru..hworth v. Coun- (6) R. v. Hebden, Andr. 388; 1 Str. tess of Pembroke and Currier, Hardr. 1109, S. Cs Hull. N. P. 231, S, C.5 472. Com. Dig. ib. Bull. N. P. 232. a Selw. N. P. 1047, cited from MS. Cilb. Ev. 35, 6. R. v. Grimes, 5 Burr. 2601. S. P.
• Judgment of ouster has been considered in the nature of a judgment in rem. In the cast of the King v. the Mayor of York, 5 T. R. 72, where the cases of R.
Q a v. Hebden