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action of assumpsit, indeed, where the defendant may give in evidence any thing that discharges the debt, or proves nothing due, he may shew under the general issue, that the contract was usurious (1), or founded on an illegal consideration which makes the contract void. (2)

If an action or information be brought upon a penal statute, 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 (3). It is, indeed, enacted by statute 21 Jac. I. 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 (4). However, it should seem, according to the modern practice, the defendant may plead nil debet, and give in evidence the statute; which would shew, that he does not owe the penalty. And if the same act, which imposes the penalty, contains also the proviso of exemption, it is quite clear that this proviso may be shewn under the general issue. (5)

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

(2) Adm. per Cur. in Hussey v. Jacob, I Ld. Ray. 89.

(3) 2 Roll. Ab, 683. pl. 13. N. P. 225.

Bull.

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

(5) 4 Burr. 2469. Bull. N. P. 225.

CHAP. II.

On Verdicts, and Judgments of Courts of Record.

N treating of judicial proceedings, and inquiring in what

cases they are admissible in evidence, it is proposed to consider, first, the verdicts and judgments of courts of record; secondly, the judgments 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.

It is a general principle, 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, or the judgment of the court on facts found, although evidence against the parties and all claining under them, are not, in general, to be used to the prejudice of strangers (1). To this general rule there are some ex

(1) Judgment of De Grey C. J. in

Duchess of Kingston's case, 11 State
Tr. 261.

ceptions,

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 same parties. 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 Grey C. J. in Duchess of Kingston's case, 11 State Tr. 261.

(2) Com Dig. tit. Estoppel, (A. 1.) P. 73. citing I Show. 28. The case is Incledon and another v. Burges. 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 in the
case of Outram v. Morewood, 3 East,
354,5

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. 1. 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 *." 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. 223.

(2) Per Lord Mansfield in Bird v. Randall, 3 Burr. 1353

(3) Aslin v. Parkin, 2 Burr. 666. (4) R. v. St. Pancras, Peake N. P. C. 219.

* Fraud, as it has been observed (1), is only put for an example. If the parish consists of several districts, which have 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 having been made and conducted entirely by the district, within which the road lies,) the Court will consider the indictment as being snbstantially against that district, and give the other districts leave to plead the prescription to a subsequent indictment for not repairing the highways in the parish. R. v. Townsend, 1 Doug. 421.

(1) 2 Saund, 159. 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 plea 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 (1). 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 in that case was, that the breach of the agree ment 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. (2) 3 East, 365.

(3) 2 Burr. 1006, 9,

Q

(4) By Eyre C. J. in Philips v. Hunter, 2 H. Bl. 414. And see Marriott v. Hampton, 7 T. R. 269. Brown v. McKinnally, I Esp. N. P. C. 279.

there

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