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 preeluded 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 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 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 (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 355. (4) R. v. St. Pancras, Peake N. P. C. 219. (5) Per Holt, C. J., Carth. 181. Case of the Manchester Mills, cited (6) Berry v. Banner, Peake N. P. (1) Per Lawrence, J., 1 East 357. Gilb. Ev. 31. See ante, p. 182. * 234 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) (a). "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)' (b).” (2) Biddulph v. Ather, 2 Wils. 23. (3) See the cases above cited, and see Mayor of Hull v. Horner, Cowp. 111. ad fin. (4) Bull. N. P. 233. (5) Neal d. Duke of Athol v. Wilding and another, 2 Str. 1151. (a) Vide Pegram v. Isbel, 2 Hen. & Mun. 193. Arnold, 2 Mun. 167. Lovell v. (b) In an action by the vendee of a chattel against the vendor, on the implied warranty of title, the record in a previous action, in which the vendee was evicted, and of the pendency of which action the vendor had notice, is evidence." Blasdale v. Babcock, 1 Johns. Rep. 517. 2 Hayo. 351. So, in an action of covenant against the warrantor in a deed of land, the judgment of recovery against the grantee, with notice of the suit to the warrantor is evidence. Hamilton v. Cutts & others, 4 Mass. Rep. 349. In an action of covenant brought by the grantee against the grantor for the breach of the covenant against incumbrances, the postea in an action of ejectment brought against the grantee by a mortgagee on a prior mortgage of the same land by the grantor, is sufficient evidence to support the action. Waldo v. Long, 7 Johns. Rep. 173. So, where a sheriff who had taken a bond with sureties for the 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 (?). By actions of the same *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 trover is a bar in an action for money. had and received, for the money arising from the sale of the (6) See ante, p. 223. (7) Ferrer's case, 6 Rep. 7; Cro. El. 667., S. C. Sparry's case, 5 Rep. 61. Hitchin v. Campbell, 2 Black. 827. 831. (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. liberties of the gaol granted to a prisoner in execution was sued for an escape, of which suit the sureties had notice, and a judgment recovered against him; in an action by the sheriff on the bond against the prisoner's sureties it was held that the former judgment. was conclusive evidence. Kip v. Brigham & others, 6 Johns. Rep. 158. S. C. 7 Johns. Rep. 168. So, in an action against an attorney for the loss of the evidence of a debt, the defence was that the plaintiff had another remedy for the recovery of his debt which he had successfully pursued, and it was held that the record of such recovery was evidence of the fact although the attorney was no party to it. Huntington v. Rumnill, 3 Day 390. Vide ante, 46, 47. n. 48. 65. 96.. same goods (4) (a). 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 (b). 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) (c). If the plaint 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 (d). 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) (e). 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 (4) Hitchin v. Campbell, 2 Black. $27. (5) Robinson's case, 5 Rep. 33. 6 Rep. 8. a. Com. Dig. tit. Action, L. 4. 2 Black. $31. (6) Soddon v. Tutop, 6 T. R. 607. (a) So, a verdict in trespass de bonis asportatis, is a bar to an action of assumpsit for the price of the same goods. Rice v. King, 7 Johns. Rep. 20. (b) Vide Rice v. King, 7 Johns. Rep. 20, Johnson v. Smith, 8 Johns. Rep. 383. R. v. Emden, 9 East'sRep. 436. (c) Vide Benton v. Duffy, Rep. Court of Conf. 98. (d) Vide Brockway v. Kinney, 2 Johns. Rep. 210. Platner v. Best, 11 Johns. Rep. 530. Irwin v. Knox, 10 Johns. Rep. 365. (e) So, if the plaint:fi in a former action joined two trespasses in the same count, and the court on motion of the defendant compeiled him to elect for which trespass he would proceed, and that he should not go for both, and the jury found damages accordingly, it will not be a bar to a subsequent action, brought for the trespass which he was obliged to abandon. Snider & Van Vechten v. Croy, 2 Johns. Rep. 227. cause of action, which, the plaintiff had against the defendant at the time of the reference, if it appear that the subject-matter *of the action was not inquired into before the arbitrator (1) (a). 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 (b). 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) (c). (1) Ravee v. Farmer, 4 T. R. 146. (2) Sir F. Evelyn v. Haynes, cited in Outram v. Morewood, 3 East, 365. (a) Contra. De Long v. Stanton, 9. Johns. Kep. 38. Van Houten, 12 Johns. Rep. 311. Wheeler v. (b) Vide Ryer v. Atwater, 4 Day 431. In that case Swift, J. says, that when there are several distinct facts which constitute the points contested between the parties, no authority can be found ` that will warrant the admission of a verdict as evidence to prove one of the several facts put in issue. In the cases reported the verdict goes to the whole point in issue, and not to a part of the facts and this distinction is founded in reason; for where the facts are different, the same points precisely cannot be in evidence. (c) In order to make a record evidence to conclude any matter, it should appear that that matter was in issue, which should appear from the record itself; nor should evidence be admitted that under such a record any particular matter came in question, Sintzenick v. Lucas, 1 Esp. Rep. 43. Manny v. Harris, 2 Johns. Rep. 24. * 236 |