1819. VOOGHT against WINCH. stream than the defendant's wharf, and between them. was substantially the same as in this. A The defendant. there pleaded not guilty, and the jury found a verdict for him. It was insisted at the trial that that verdict. was conclusive evidence against the plaintiffs, and that it operated as an estoppel. The learned Judge received it in evidence, but refused to nonsuit the plaintiff, giving liberty to the defendant to move to enter a nonsuit. The jury found a verdict for the plaintiff. rule nisi having been obtained by Marryat in last Michaelmas term on this ground, and also for a new trial on the ground of a misdirection by the learned Judge, it now appeared from the report that the learned Judge had directed the jury, that in the case of all streams of water the use of which furnished beneficial enjoyment to any individual, the material thing to be attended to was, what had been the actual possession and enjoyment by such person for the last twenty years; and that if water had in fact been enjoyed during that And he period to a certain extent of supply, or at a certain The Court, after hearing the report read, asked the counsel for the plaintiff whether they could support that part of the direction of the learned Judge in which he stated to the jury, that each party was bound to use the water in the state it had been found to be for the last twenty years, even although it had been a public navigable river. Gurney, Curwood, and Bolland, for the plaintiff, stated that that had hardly been made a question at the trial. The material question then was, not whether Potter's Ditch had been a public navigable stream; but whether it had ever been a navigable stream at all. The Court said, that it was impossible to estimate the influence that that part of the learned Judge's direction might have had upon the minds of the jury, and that there must consequently be a new trial. 1819. VOOGHT against WINCH. 1 1819. VOOGHT The It Marryat, Lawes Serjt., and Comyn, contrà. defendant is entitled to judgment of nonsuit, the judgment recovered by the defendant in the former action being conclusive evidence as against the plaintiff, even upon the general issue. If pleaded by way of estoppel it would be a bar to the action, because it is a judgment directly upon the point, and between the very same parties; and if it be a legal answer to the plaintiff's claim in one case, its effect cannot be varied by the mode in which it was brought before the Court. was clearly admissible here in evidence under the plea of not guilty; for in an action on the case, that plea puts every thing in issue: it negatives, among other things, that the act done was wrongfully done, and therefore to shew that it was not wrongfully done, the judgment of a Court upon that very question may be given in evidence, and when it is given in evidence the facts disclosed afford a complete answer to the action. In The Duchess of Kingston's case (a), Lord Chief Justice De Grey lays it down, 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; and Mr. Philipps in his Treatise on Evidence (b) considers that a judgment will be conclusive evidence between the same parties in those cases where it can be given in evidence without being specially pleaded; and he gives as an instance, among others, that in an action of trespass for mesne profits, the judgment in ejectment is conclusive against the defendant as to the right of possession at the time of the demise laid in the declaration. (a) 11 St. Tr. 261. (b) P. 223. 2d edit. So 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, of the liability of that parish to repair, Rex v. St. Pancras. (a) They also cited Strutt v. Bovingdon (b), Kitchen v. Campbell (c), and the judgment there delivered by Lord Chief Justice De Grey and, the judgment of Lord Mansfield in Bird v. Randall (d), where it is laid down that a judgment recovered need not be pleaded in an action on the case, but may be given in evidence under the general issue. ABBOTT C. J. I am of opinion that there ought to be a new trial in this case, but that there ought not to be judgment of nonsuit. The learned Judge left it to the jury, on the evidence, to consider whether the stream called Channel Sea River was navigable, and in what way, whether as a public navigable river or for the convenience of the adjoining occupiers; and he further added, that whether navigable or not, he thought each party was bound to use the water in the state in which it was found to be for the space of twenty years invariably, and that a certain benefit so long enjoyed could not afterwards be disturbed. In that direction, it appears to me, the learned Judge was mistaken; for if it be admitted that this is a public navigable river, and that all his majesty's subjects had a right to navigate it, an obstruction to such navigation for a period of twenty years would not have the effect of preventing his majesty's subjects from using it as such. It has been said that the evidence shews plainly that this never had been a navigable river; that fact, however, is not found (a) Peakes N. P. C. 219. (b) 5 Esp. 57. by 1819. VOOGHT against WINCH. 1819. VOOGHT against WINCH. by the jury, and I cannot now decide it. I find upon the report that the jury were misdirected in point of law; and it is impossible for me to say what weight that direction had on their minds, and therefore I think there ought to be a new trial. Upon the second point I am of opinion that the verdict and judgment obtained for the defendant in the former action was not conclusive evidence against the plaintiff upon the plea of not guilty. It would indeed have been conclusive if pleaded in bar to the action by way of estoppel. In that case the plaintiff would not be allowed to discuss the case with the defendant, and for the second time to disturb and vex him by the agitation of the same question. But the defendant has pleaded not guilty, and has thereby elected to submit his case to a jury. Now if the former verdict was proper to be received in evidence by the learned Judge, its effect must be left to the jury. If it were conclusive indeed, the learned Judge ought immediately to have nonsuited the plaintiff, or to have told the jury that they were bound, in point of law, to find a verdict for the defendant. It appears to me, however, that the party, by not pleading the former judgment in bar, consents that the whole matter shall go to a jury, and leaves it open to them to inquire into the same upon evidence, and they are to give their verdict upon the whole evidence then submitted to them. I am aware that in Bird v. Randall Lord Mansfield is reported to have said that a former recovery need not be pleaded but will be a bar when given in evidence. I cannot, however, accede to that; for the very first thing I learnt in the study of the law was that a judgment recovered must be pleaded: that has so strongly engrafted itself on my mind as a general principle, that nothing I have heard |