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down, that a verdict or judgment, directly upon the point, is good evidence, not only lor or against the parlies to the suit, but also for or against any persons standing in thr relation before mentioned, of privies in blood, privies in estate, or privies in law.
Not evi- The general rule is, that a verdict cannot be evidence for nana a either party, in an action against one who was a stranger to stranger. ^he former proceeding, who had no opportunity to examine witnesses, or to defend himself, or to appeal against the judgment. Thus a verdict in an action between A and B is npt 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 (i}, 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 action 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 shew the amount of what the master was by process of law compelled to pay in the action brought against himself.
It is not easy to reconcile with this general rule the case of Kinnersley v. Orpe(2), where a verdict for the plaintiff in an action for a trespass, committed in the plaintiff's fishery, against one who justified as servant, was allowed to be evidence against another defendant, in a subsequent action for a penalty incurred by destroying fish in the same fishery. At the trial of the cause this was admitted, after
(l) 4T1 R.5oo. And see 2 Eart, (1) 2 Doug. 517. The Court of 459. K 13. thought the evidence eJmiiiitle,
but not conclusive.
v. Helxien and lA. v. Grimes were cited in argument, in order to shew that such 1 judgment cannot be conclusive against third persons, Lord Kenyon is reported to hai c said, " If y ou derive title to a corporate office through A, and the prosecutor shew a judgment of ouster against A, it is ttnclmivc against you, unless you can hn5io*ch the judgment as obtained by fraud."
arguargument to be 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 considered by the judge to be the true party in both causes. "It is extraordinary," said Lord Ellenborough (i), commenting on this case, "that it should ever have been for a moment supposed, that there could be an estoppel in such a case. It was not pleaded as such; neither were the parties in the second suit the same as those in the first. The doubt seems rather to be, whether the former record in the action of trespass was at all admissible in evidence upon the subsequent action, against the defendant, who was not a party to the former action, rather than as to any conclusive effect which it could have had."
Another case, which does not come strictly within the general rule, is where a record of conviction for felony is admissible in evidence against an accessary, to shew that the felony has been committed. "The only questions," says Mr. Justice Foster (2), "in which the accessary can have any concern in common with the principal, are, first, whether the felony was committed, and, secondly, whether it was committed by the principal. These facts the conviction of the principal hath established with certainty, at least sufficient to put the accessary to his answer. The rule is founded on a legal presumption, that every thing in the former proceeding was rightly and properly transacted. Another weighty reason is, that the witnesses against the principal may be dead, or not to be found, when the ac? cessary is brought upon his trial, especially after a long interval between the trials." Mr. Justice Foster admits, that the record of conviction is not conclusive evidence against the accessary, because it is as to him, res inter alios
(1) In Outram v. Moiewood, 3 East, 165; R. v. Smith, I Leach. Cr. C 366. 188, 4th Ed.
(2) Post. Disc. iii. c. a. t. 2. p. 364, 5, 7. And 1ee R. v, Baldwin, 3 Campb.
Q 3 acta. acta. "If, therefore, it shall come out in evidence upon the trial of the accessary, as it sometimes hath, and frequently may, that the offence, of which the principal was convicted, did not amount to felony in him, or not to that species of felony, with which he was charged, the accessary may avail himself of this, and ought to be acquitted. And if it shall manifestly appear in the course of the accessary's trial, that in point of fact the principal was innocent, common justice requires that the accessary should be ac-r quitted." Mr. Justice Foster then puts the following case. "A is convicted upon circumstantial evidence, strong as that sort of evidence can be, of the murder of B; C is afterwards indicted as accessary to this murder; and it P comes out, upon the trial, by incontestable evidence, that
B is still living, (Lord Hale somewhere mentions a case of this kind,) is C to be convicted or acquitted? The case is too plain to admit of a doubt. Or suppose B to have been in fact murdered, and that it should come out in evidence, to the satisfaction of the Court and Jury, that the witnesses against A were mistaken in his person, (a case of this kind I have known,) that A was not nor could possibly have been present at the murder. It must be admitted," continues Mr. Justice Foster, "that mere alibi evidence lies under a great and general prejudice, and ought to be heard with uncommon caution: but if it appears to be founded in truth, it is the best negative evidence that can be offered; it is really positive evidence, which in the nature of things necessarily implies a negative; and in many cases it is the only evidence, which an innocent man can offer. What in the case above put, are a court and jury to do? If they are satisfied upon this evidence that A was innocent, natural justice and common sense will suggest, what is to be done in the case of C."
Wot, for a Farther, it is laid down as a general rule, that a verdict is evidence only between the same parties, or between such as claim under the same parties; and, that a stranger cannot give a verdict in evidence against one, who was 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 (i). And Ch. B. Gilbert lays it down(2), "that no body can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary." The same rule applies to depositions as 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. (3) have been considered as conclusive in favour of a third parish (1); at least, it is strong evidence.
A judgment in rem in the Exchequer is conclusive as to all the world (4). And a judgment by the quarter sessions, confirming an order of removal, is conclusive upon the appellant parish, as to all the world, and may be given in evidence against them by a third parish on any subsequent appeal (5). Here it may be observed, the party, against whom the judgment was pronounced, had an opportunity of discharging themselves by proving the liability on a third parish; and this not having been done, and the court of quarter sessions having confirmed the order of removal, the last settlement is adjudged to be in the appellant parish; and, this point being once determined, the judgment must be final, that there may be some end to litigation (6). So a conviction on an indictment against a parish for not repairing a road, will not only be conclusive evidence against that parish on a second indictment, but it seems also tq
(1) R. v. Warden of the Fleet, Rep. (4) See infra, c. 3. s. 3.
temp. Holt, 134. BulLN. P. 133. S. P. (5) Admitted, R. v. Rislip, 2 Bott,
(2) Gilb. Ev. a8. BuU. N. P. 132. 700; R. v. Bentley, a Bott, 704; R. The same principle is adopted by Eyre v. Siirat, 2 Bott, 702. C.J. in hit judgment in the Duchess of (6) Per Holt C. J. in R. <s. Rislip,
Kingston's case, 11 St. Tr.
(3) Rushworth v. Countess of Pembroke and Currier, Hardr. 472.
It is more difficult to explain the two following nisi prius cases, which appear not to be consistent with the general rule. The first is the case of Whateley v. Menheim and Levy (2). That was an action of assumpsit for goods sold and delivered against two defendants, (one of whom suffered judgment by default, and the other defended,) and the question at the trial was, whether the defendants were partners at the time, when the goods had been delivered. To prove the partnership, a verdict, on an issue directed by the Court Clf Exchequer to try that fact, was offered in evidence, and objected to by the counsel on the other side, on the ground, that the plaintiff was not a party to the suit in the Exchequer, so that the verdict there given was res inter alios acta. But Lprd Kenyon ruled "that the verdict was conclusive evidence of a subsisting partnership, and that it could not properly be deemed res inter alios acta, as both the defendants had been the parties on record in that suit, and it was open to cither of them by any evidence to rebut the idea of a partnership." The other case is that of Tyley v. Cowling (3), where it is said to have been ruled by Lord Ch. J. Itolt, " that a verdict with the evidence given, in an action brought by the carrier for goods delivered to him to be carried, shall be given in evidence in an action brought by the owner against the carrier for the same goods; for it is a strong proof against him, that he had the plaintiff's goods; and, in case the witness be dead, or cannot be ibund, is the best evidence that can be had, for it amounts t;o a confession in a court of record,"
The reason why a verdict is not evidence against a person, who was neither a party to the former suit, nor claims
(1) R. v. St. Fancras, Feake N. P. (.?) Bull. N. P. 1143, cited Com. Dif. C. 119. tit Evidence, (A. }.) p. 86. I hi. Raj.
(a) Whateley v. Menheim and Len, ^44. 1 Esp. N. P. C. 608. See Lowficld v. Bancroft, Bull. N. P. 40.