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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 jbi- 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 mentioned, of Tyley v. Cowling.

There are several exceptions to the general rule, which Escepti 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 (i); 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 ofLondon v.Clarke, Carth. (.5) Per Holt C.J., Cirth.i8r. Case

181. Bull. N. I'. 233. of the Manchester Mills, cited in Cort

(1) 1 East,357. 5T. R. 413.0. v. Birkbeck, iDmig. n. (13.)

(3J Reel v. Jackson, I E.ijt, 3.55. (6) Berry v. Banner, Pcake, N. P.

(4) R. v. St. Paneras, l'eake, N. P. C. I56. C.219.

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a former action between any other persons is admissible in evidence. The common reputation of the place would be evidence of the right; a 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 AthoFs 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. \l.

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

(1) Per Lawrence J., I East, 357. C Wb.S.r.31. See ante, p. 181.

(a) Biddulph v. Ather, 2 Wik 23. {3) See the cases above cited, and

»ee Mayor of Hull v. Horner, Cowp.

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(5) Neal d. Duke of Athol t. Wilding and another, 2 Str. njt,

(6) See ante, p. 223.

(7) Ferrer's case, 6 Rep. 7; Cro. El . 667, S. C. Sparry'a case, 5 Rep. 61. Hitchin v. Campbell, 1 Black. 827. 85i.

nature, nature, h 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 .1 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 trover is a bar in an action for money had and received, for the money arising from the sale of the 6ame 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 .1 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 defendanc at the time of the reference, if it appear that the subject

(1) 1 Black. 831. (4) Hitchin v. Campbell, * Black.

(2) Slade's case, 4 Rep. 94. Com. 8z7.

Dig. tit. Action, K. 3. (5) Robinson's c.ise, 5 Rep. 33.

(3) Com. Dig. Ib. Putt v. Roster, 6 Rep. 8. a. Com. Dig. tit. Action, a Mai. 319; 3 Mod. 1, S. C; Sir L. 4. 1 Black. 831.

T. Riym. 471, b. C. a Black. Rep. (6) Seddon v. Tutop, 6 T. R. 607.

in.

matter matter of the action was not inquired into before the arbitrator. (1)

In considering the effect of a former judgment, it is to be observed that the judgment, whether it be pleaded in bar, or given in evidence where special pleading is not required, 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 determined. 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 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 (2). And this decision has been recognized and confirmed in a very elaborate judgment, before referred to, on the nature of estoppels. (3)

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 shew a possessory right not barred by the statute of limitations. This judgment, like all others, only concludes the parties, as to the subjectmatter. 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. (4)

(i) Ravee v. Farmer, 4 T. R. 146. (3) Per Ld. Ellenborough in Outre ra (%) Sir F. Evelyn v. Haynes, cited in v. Morewood, ih. Ontram v. Morewood, 3 East, 365. (4) Asliu v, Parkin, 2 Burr. 668.

There

There is a difference, it has been said, between real actions and 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 (1). 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 (2)." Now, although it is true that the same matte* 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 (3). A judgment is final for its own proper purpose and object, and no further. A recovery in any suit, upon issue joined on matter of title, is conclusive upon the subject-matter. Thus, a finding upon title in trespass 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. (3)

Sect. III.

Of the Admissibility, in Civil Cases, of Verdicts in Criminal Proceedings.

It does not appear to be clearly settled, whether verdicts, which have been given in criminal proceedings, can be admitted as evidence in civil cases. In the case of Hillyard and Grantham (4), 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

(i)istResol. Ferrer's case, 6 Rep. 7. (4) Cited by Lord Hardwickc in 12) See the judgment in Outram v. Brownsord v. Ed»«rds, 2 Ves. 846. and Morcwood, 3 Kast, 350. in Ren. ttmi\ Hard. 311.

(3) lb-354

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