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 (1). 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) 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 to (1) R. v. Warden of the Fleet, Rep. temp. Holt, 134. Bull. N. P. 233. S. P. (2) Gilb. Ev. 28. Bull. N. P. 232. The same principle is adopted by Eyre C. J. in his judgment in the Duchess of Kingston's case, 11 St. Tr. (3) Rushworth v. Countess of Pembroke and Currier, Hardr. 472. (4) See infrà, c. 3. s. 3. (5) Admitted, R. v. Rislip, 2 Bott, 700; R. v. Bentley, 2 Bott, 704; R. v. Sarrat, 2 Bott, 702. (6) Per Holt C. J. in R. v. 2 Salk. 524. 2 Bott, 705. Rislip, Q 4 have have been considered as conclusive in favour of a third parish (1); at least, it is strong evidence. 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 of 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 Lord 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 either 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. Holt, "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 found, is the best evidence that can be had, for it amounts to 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. Pancras, Peake N. P. C. 219. (2) Whateley v. Menheim and Levy, 2 Esp. N. P. C. 608. See Lowfield v. Bencroft, Bull. N. P. 40. (3) Bull. N. P. 243, cited Com. Dig. tit Evidence, (A. 5.) p. 86. 1 Ld. Ray. 744. under under one of the parties, is, because he had no opportunity of calling witnesses, or cross-examining those on the other side, nor of appealing against the judgment. 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 availing himself of 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. It does not therefore apply to the case, above menționed, of Tyley v. Cowling There are several exceptions to the general rule, which Exceptions. requires, that verdicts or judgments should be admitted in evidence only between parties to the suit or privies. On a question of custom, or toll, a verdict is evidence, although between other parties (1); for the custom or toll is 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 (2), or a public right of way (3), or on the liability to repair a highway (4), or on manorial or other customs (5), or on the public right of election to a parochial office (6), a verdict in (1) City of London v. Clarke, Carth. 181. Bull. N. P. 233. (2) 1 East, 357. 5 T. R. 413. n. (3) Reed v. Jackson, 1 East, 3.55. (4) R. v. St. Paneras, Peake, N. P. C.219. (5) Per Holt C. J., Carth. 181. Case a for a former action between any other persons is admissible in evidence. The common reputation of the place would be evidence of the right; à fortiori, the finding of twelve men upon their oaths is evidence (1). 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 (2). And it seems not to be conclusive evidence for or against A or B, in an action between either of them and a third person C (3); it could not be pleaded, in such a case, by way of estoppel. Another exception to the general rule, says Mr. Just. Buller, is in a question of pedigree, where a special verdict, between other parties, finding a pedigree, would be evidence to prove a descent (4). "Of this opinion," he adds, "was Mr. Just. Wright, in the Duke of Athol's case, which opinion is generally approved, 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." (5) SECT. II. Of Judgments, with reference to the Subject-matter of the Suit. THE judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive, upon the same matter directly in question in another court (6). And it is a bar to any other action of the same nature as the first (7). By actions of the same (1) Per Lawrence J., 1 East, 357. Gilb. Ev. 31. See ante, p. 182. (2) Biddulph v. Ather, 2 Wils. 23. (3) See the cases above cited, and see Mayor of Hull v. Horner, Cowp. III. ad fin. (4) Bull. N. P.233. (5) Neal d. Duke of Athol v. Wilding and another, 2 Str. 1151. (6) See ante, p. 223. (7) Ferrer's case, 6 Rep. 7; Cro. El. 667, S. C. Sparry's case, 5 Rep. 6r. Hitchin v. Campbell, 2 Black. 827. 831. nature, nature, is meant, actions in a similar degree; not merely those, which have a similitude of form. All personal actions are of the same degree; therefore each is a perpetual bar (1). Thus, a judgment in an action of debt, is a bar in assumpsit on the same contract (2). And a judgment in trespass, when the right of property is determined, will be a bar in trover for the same taking (3). So, a verdict for the defendant in troyer is a bar in an action for money had and received, for the money arising from the sale of the same goods (4). One great criterion for trying, whether the matter or cause of action be the same, is that the same evidence will maintain both the actions. But where the plaintiff failed in his first suit on account of some defect in pleading, or from having mistaken the form of action, the judgment will not be conclusive, and he may bring another action to try the same right. (5) 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 inquiry after judgment by default, gave no evidence on the count for goods sold, the judgment was not a bar to his recovering for the goods in another action (6). 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 (1) 2 Black. 831. (2) Slade's case, 4 Rep. 94. Com. Dig. tit. Action, K. 3. (3) Com. Dig. Ib. Putt v. Roster, 2 Mod. 319; 3 Mod. 1, S. C; Sir T. Raym. 472, S. C. 2 Black. Rep. 831. (4) Hitchin v. Campbell, 2 Black. 827. (5) Robinson's case, 5 Rep. 33. 6 Rep. 8. a. Com. Dig. tit. Action, L. 4. 2 Black. 831. (6) Seddon v. Tutop, 6 T. R. 607. matter |