mer action on the same bond, he averred it to have been ade at B. (1) So, in the case of a conviction for a felony, here the jury had given a general verdict, the record will not conclusive that the offence was committed on the day menned in the indictment, for the time is not of the substance the charge; and therefore a party interested to dispute the feiture, (which in the case of real property relates to e time of the offence), may show that the offence was comtted on a different day from that alleged in the record. (2)

used.

To

prove fact of judgment.

The record of a judgment or verdict not being liable to con- Judgment how
diction as to the truth of it's contents, the question as to it's
missibility or effect in evidence must depend on the inferences
empted to be drawn from it. These inferences are sometimes
essary and conclusive, and sometimes optional with juries.
here a judgment is produced merely for the purpose of
wing that such a proceeding actually took place, (as, with a
to disqualify a witness, by shewing that judgment was
ally passed upon him), the record is conclusive of the
of conviction; the fact of conviction being by the law
the criterion of incompetency. (3)

judgment may be used for the purpose of shewing, that a To shew com-
plaint deter-
on has already obtained satisfaction, or has failed in an
mined.
apt to obtain satisfaction for what he is claiming. In such
the judgment is conclusive, at least, if pleaded by way of
pel, as to what it clearly purports to decide; but evidence
metimes admissible in regard to the connection between
udgment and the particular claim, as, where, in answer
plea of judgment recovered, the plaintiff replies, that it did

not relate to the same matters as the action in which it is pleaded.

Thus, where 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. (1) But if the plaintiff had given any evidence at all on the count for goods sold, and the judgment had included this with the rest of the plaintiff's demand, the judgment might then have been pleaded as a judgment recovered upon the same identical causes of action. For if a plaintiff, having several causes of action against a defendant on a trial, offers evidence of these causes, and fails for want of sufficient evidence to establish some of them, he cannot bring another suit for those causes of action in which he has failed. (2)

A plaintiff, having a claim against the defendant for rent, and also for stone taken from a quarry, declared in debt, and for use and occupation, with a count for money had and received, and by the particulars it appeared that the plaintiff'sought to recover a stated sum for the value of certain described

(1) Seddon . Tutop, 6 T. R. 607. If the plaintiff fails to recover all that he is entitled to, for want of sufficient proof on the first trial, he should move to set aside the verdict he has obtained, per Best, Ch. J., in Stafford v. Clark, 2 Bing. 382. Hall v. Stone, 1 Str. 515. Markham v. Middleton, 2 Str. 1259. The like principle, as in Seddon v. Tutop, has been applied to awards of all matters in difference, Ravee v. Farmer, 4 T. R. 146. Thorpe v. Cooper, 5 Bing. 129. But in other authorities it has been considered, that where all matters in difference are referred, the party ought to come forward with his whole case, Dunn v. Murray, 9 B. & C. 788. Smith v.

Johnson, 15 East, 213.

(2) Per Best, Ch. J., in Stafford v. Clark, 2 Bing. 382. Where a plaintiff, knowing that he has a claim upon an account for a greater amount, elects to sue for less in an inferior Court, it was said to be the same, as if a plaintiff at Nisi Prius had a demand of 60l., consisting of three sums of 201., and consented to take a verdict for 40l., he could not afterwards bring a second action for 20., Lord Bagot v. Williams, 3 B. & C. 235. A nolle prosequi, as to part of a sum recovered, entered up after judgment for the whole, is a bar to any future action for the same cause, Bowden v. Horne, 7 Bing. 716.

quantities of stone before the trial, the plaintiff commenced another action against the defendant for improperly quarrying stone, with a count in trover for stone, and delivered particulars, claiming the same sum as before for similar quantities of stone: at the first trial the plaintiff confined his evidence to the claim for rent, and recovered a general verdict: at the second trial he had a verdict for the stone taken away. It was held, that the plaintiff having distinct demands against the defendant, one of which was not advanced by him at the trial of the first action, the tort was not thereby waived, and consequently that the second action was not barred by any former recovery. (1)

Explanatory evidence of this nature is required, when a former recovery has been obtained by a suit in a different form. One great criterion for trying whether the matter or cause of action be the same, is, that the same evidence would sustain both actions. Thus, a judgment for a defendant in trespass, when the right of property is determined, is a bar in trover for the same taking. (2) So a verdict for the defendant in trover is a bar in an action of money had and received for the money arising from the sale of the same goods :—and this, although the former action was brought against the creditor and the sheriff, and the latter against the creditor alone. (3) 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. (4)

In such cases, where a judgment is used, in order to shew that the identical complaint has been already determined by course of law, it should seem that substantially the judgment would be regarded as conclusive, though not pleaded by way

(1) Hadley v. Green, 2 Tyrw. 390. In this case the decisions of Sedden v. Tutop, Bowden v. Horne, Bagot v. Williams, and Dunn v. Murray, were reviewed.

(2) Com. Dig. ibid. Putt v. Rawsterne, 2 Mod. 319; 3 Mod. 1; Sir T. Raym. 472; S. C. 2 Bl. 831. See Slade's case, 4 Rep. 94;

Com. Dig. tit. Action, K. 3.

(3) Hitchin v. Campbell, 2 Bl. Rep. 827.

(4) Robinson's case, 5 Rep. 33; 6 Rep. 8 a.; Com. Dig. tit. Action. Ferrars v. Arden, Cro. Eliz. 668. Godson v. Smith, 2 B. Moore, 157.

To shew right determined.

of estoppel. It must be presumed, for example, that if a jury were to give a plaintiff damages for the same demand for which he had already recovered damages, a new trial would be granted. The importance of the point is, however, greatly diminished in consequence of the new rules of pleading. (1)

A verdict and judgment may be used to shew that the particular right in dispute has been decided between the parties upon a different complaint, which has been the subject of previous litigation. In such a case, if the former proceedings be pleaded by way of estoppel, they will, according to a rule of law, be conclusive in their effect. (2)

On the other hand, where previous proceedings are adduced, in order to shew the opinion of a former jury respecting the particular right upon which a new cause of action depends, there, if they be not pleaded by way of estoppel, they are not conclusive. (3) The effect of a former verdict in such a case may be supposed to vary very much with the nature of the inquiry, and the circumstances attending both investi gations. (4)

The most important questions, which have arisen respecting the admissibility and effect of verdicts and judgments of the superior courts, have reference to their application for the last

(1) It has been seen, in treating of admissions, that certain admissions are always considered as estoppels, though they be not pleaded as such. And so it should seem that an award, upon the specific point in issue, would be conclusive in evidence. The use of the judgment is different from that which will presently be considered, where the same right has been determined, but not the same complaint.

(2) Vooght v. Winch, 2 B. & A. 662. Trevivian v. Lawrence, 3 Salk. 276, cited by Holroyd, J., 2 B. & A. 672. Rawlins's case, 4 Rep. 52. Per Lord Ellenborough, in Outram, v. Morewood,

3 East, 354, 365. Incledon v. Bur gess, 1 Show. 28. Hooper Hooper, M'Clel. & Y. 509.

(3) Vooght v. Winch, 2 B. & A. 662, and cases in the last note. It is the verdict, rather than the judgment which is important, for the purpose in the text. Thus it is said by Lord Ellenborough, in Outram v. Morewood, 3 East, 354, "It is not the recovery, but the matter alleged by the party and upon which the recovery proceeds, which creates the estoppel."

(4) In Jones v. Reynolds, 7 C. & P. 335, the attention of the jury was directed by the learned Judge to the circumstance, that the former judgment was by cognovit.

mentioned purpose.

The rule which has been stated, that a verdict is not conclusive in such cases, is derived from the doctrine of estoppels, according to which a jury is not bound to pay regard to an estoppel. (1)

It may be observed, with reference to this rule, that most of Pleading estoppel. the ancient cases, from which the doctrine of estoppels is to be collected, relate to estoppels by the deed of a party: (2)--as to which, it can rarely happen, that where a deed is produced in evidence by a party to it against another party, though it be not specially pleaded by way of estoppel, a jury would not consider a party bound by the recitals in so solemn an instrument executed by himself, or that if they did not, a new trial would not be granted. So that, perhaps, the difference in point of effect between pleading a deed by way of estoppel, and giving it in evidence, is merely nominal. But in the case of verdicts, to which the doctrine of estoppels has been applied chiefly in modern times, where it is not known upon what evidence a former jury came to a decision, the second jury may be very likely, in many instances, upon the evidence before them, to come to a different conclusion. As regards verdicts, therefore, the rule, that an estoppel must be pleaded, is of great practical importance.

The apparent reason for not allowing a conclusive effect to a verdict confirmed by a judgment, when not pleaded by way of estoppel, appears to be founded on the rules of pleading, and with a view to prevent surprise; but the same reason would be sufficient to preclude it from being given in evidence at all. In ancient times, when the doctrine of estoppels was established, it could rarely happen that there was not an opportunity of re

(1) Goddard's case, 2 Co. 4 b. B. N. P. 298. It would seem, that this doctrine must be taken, with many qualifications, since the practice has existed of granting new trials.

(2) Com. Dig. Estoppel (A. 2). The estoppels by matter of record, mentioned by Comyns,

relate

chiefly to the pleadings of parties
and acts done by them in Courts
of Record, and not to verdicts and
judgments. On the application of
estoppels to judgments and ver-
dicts, see per Lord Ellenborough,
in Outram v. Morewood, 3 East,
353.