this subject, which is generally referred to, is that laid down by Chief Justice De Grey, in the Duchess of Kingston's case, (1) that "the judgment of a Court of Concurrent Jurisdiction, directly upon the point, is, as a plea to a bar, or, as evidence, conclusive between the same parties, upon the matter directly in question in another Court. But it is not evidence of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment." Where a verdict is offered, to prove a right to tithes, the Same matter. right not being of a general nature, it is necessary to shew that the former proceedings related to the same lands as those, concerning which the right to tithe is in dispute. Thus, in Benson v. Olive, (2) where a bill by an impropriator was filed, demanding tithes, a decree obtained by a former impropriator, and a verdict obtained by himself, were rejected, on the ground that it was not proved that they related to the same lands, which were in the occupation of the defendant to the suit. And Lord Ellenborough, in commenting on the case of Evelyn v. Haines, in his judgment in Outram v. Morewood, (3) says, that the verdict in the former case could not be conclusive upon the right, because no issue was taken, in the first trial, upon any precise point. But it is sufficient, though no issue has been taken on the former trial, upon the precise point which is material in the second trial, if that point was essential to the finding of the (1) 2 Howell's St. Tr. 538. an (2) Bunb. 284; Gwill. 701; 2 E. & Y. 24; and see Scott v. Allgood, Gwill. 1372. In Benson v. Ölive, the defendant insisted upon exemption for his lands, as being parcel of one of the greater abbies. It would seem, that if the defence had been a modus, the decree and verdict would have been admissible, Travis v. Chaloner, 3 Gwill. 1237. Ashby v. Power, Gwill. 1239. (3) East, 364. This subject of the identity of the matter deter mined is particularly illustrated by LL Same parties. former verdict. Thus, a conviction upon an indictment for nonrepair of a road, is evidence against the parish convicted, and in favor of another parish, although the general issue was pleaded, and the prosecutor must have proved other matter besides the precise point of liability, viz. that the road was out of repair. (1) Although the form of action be changed, yet, if the same matter be determined, the former verdict and judgment will be admissible in evidence upon a second trial. Thus, a verdict in replevin, upon an issue on the plea of non tenuit, to an avowry for rent, has been held admissible in a subsequent action of assumpsit, to recover the rent which was accruing at the time of the distress. (2) On a plea of usury to an action on a bond, a verdict of acquittal in an action for penalties for usury on the same bond, between the same parties, is admissible for the plaintiff. (3) In the next place, it is a rule applicable to the evidence of verdicts and judgments, that they are, in general, not evidence for or against a stranger to the judicial proceeding, in which they were obtained. It was resolved by Chief Justice Holt and the other Judges of the Court, upon a trial at bar, that no record of a 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 for the plaintiff or for the defendant. (4) And Chief Baron Gilbert lays it down, "that no body can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary." (5) (1) Rex v. St. Pancras, Peake, 219; 2 Saund. 159. In like manner, where, before the new rules, the general issue was pleaded in actions of trespass, it has been doubted, whether the former recovery could be pleaded by way of estoppel; but it would seem, that with apt averments, it might be so pleaded. (2) Hancock v. Welsh, 1 St. 347. Questions respecting the identity of the matter determined, when the form of action is changed, more frequently arise, where an attempt is made to enforce the same complaint or demand, vide supra. (3) Cleve v. Powell, 1 M. & Ro. 228. (4) Rex v. Warden of the Fleet, Rep. temp. Holt, 134. B. N. P. 233, S. P. It is a rule of estoppels, that they must be reciprocal, Co. Litt. 352; Com. Dig. Estoppel. Gaunt. v. Wainman, 3 Bing. N. C. 69. (5) Gilb. Ev. 28; B. N. P. 232; Ward v. Wilkinson, 4 B. & A. 412. It seems obviously unjust, that proceedings should be evidence against a stranger, inasmuch as he had no opportunity of calling witnesses, or of cross-examining those on the other side, or of appealing against the judgment. (1) And it may perhaps be thought a sufficient reason for not allowing verdicts and judgments as evidence for a stranger, even against a party who was engaged in the former suit, that if the stranger had been party to that suit, instead of the person who succeeded in it, 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 inadmissibile, 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 or judgment as evidence would be giving a party indirectly the benefit of testimony, which he might be precluded from using directly in his own suit. But in the same manner as admissions may be used against the real parties to a suit, though they be not the nominal parties to the record, it has been held that verdicts and judgments are receivable in evidence against the parties, on whose account the suits, in which the judgments were obtained, were instituted or defended. Thus, in the case of Kinnersley v. Orpe, (2) which was an action for a penalty incurred by destroying fish in the plaintiff's fishery, a verdict and judgment for a plaintiff in a former action, for a trespass committed in the same fishery against one who justified as servant, was allowed to be evidence against the defendant. For the defendant in the second The same principle is adopted by Eyre, Ch. J., in his judgment in the Duchess of Kingston's case, 20 Howell's St. Tr. 538. The case of Whateley v. Manheim, Esp. 608, in which it appears, that a verdict on an issue directed by the Court of Exchequer, was used by a stranger, does not appear consistent with principle. (1) By De Grey, Ch. J., Duchess of Kingston's case, 20 Howell's St. Tr. 538. (2) 2 Doug. 517. This case appears to be doubted by Lord Ellenborough, in Outram v. Morewood. It appears to be sanctioned by the Judges, in Simpson v. Pickering, 1 Cr. M. & R. 529, where it was held, that it was not sufficient to shew that a party to the former suit might possibly be really interested in the subsequent suit. And see Hitchen v. Campbell, supra. Real and nominal parties. Parties in ejectment. suit acted by the command of the same person under whom the defendant in the first action had justified, who was considered to be the true party in both causes. In Strutt v. Bovingdon, (1) in an action on the case for the diversion of a watercourse against the same and two other defendants who justified under the defendant Bovingdon, a former verdict in a similar action against Bovingdon alone was held to be admissible as evidence of the plaintiff's right. In Hancock v. Welsh, (2) it was held, that a record in replevin between a tenant and the bailiff of his landlord making cognizance under him, was admissible evidence in a subsequent action between the tenant and the landlord himself. Upon the ground that the lessor of the plaintiff and the tenant are substantially the real parties to an ejectment, a judgment in ejectment is admissible evidence in an action for mesne profits, and this whether the action be brought by the nominal plaintiff, or by the lessor of the plaintiff, and whether the judgment be upon verdict or by default. (3) And notwithstanding (1) 5 Esp. 56. The case appears to have been decided, on the ground that the defence in the second action was substantially the defence of Bovingdon alone; and not on the ground, that whatever is evidence in the nature of an admission against one defendant, is evidence against other defendants. Though it is said in B. N. P. 40, that a verdict on an issue out of Chancery, to which only one of the defendants was a party, may be read against all the defendants, to prove the time of an act of bankruptcy. (2) 1 St. 347. (3) Doe v. Huddart, 2 Cr. M. & R. 322. Doe d. Lewes v. Preece, 1 Tyrw. 410. B. N. P. 87, 232. Aslin v. Parker, 2 Burr. 665, Hardr. 472; Gilb. Ev. 33; Bac. Ab. Ev. (F.) 616. When the judgment is against the casual ejector, the landlord must have had notice of the ejectment, or it will not be evidence against him, Hunter v. Britts, 3 Camp. 455. The judgment in an action of ejectment on the several demises of two or more In some former opinions to the contrary, it seems now settled, that a judgment recovered by the defendant in a former ejectment is admissible in evidence against the lessor of the plaintiff on the trial of a second ejectment, where the lessor of the plaintiff and the defendant are the same parties.(1) Though the individual be the same in two suits, yet if he stood in a different character on the two occasions, he will not be effected by a verdict or judgment in the first suit. This doctrine has been established in regard to estoppels. A party suing as executor, in an action of debt upon a bond, will not be estopped by having been barred in an action upon the same bond, when he sues as administrator; but he may shew, that the letters of administration have been since repealed. (2) Same parties. It is another rule derived from the doctrine of estoppels, Verdicts binding on privies. that verdicts and judgments are admissible between persons who are in privity with the parties to the former proceedings; such privity is of three kinds, by blood, in law, and by estate. A privy in blood, as an heir, may give in evidence a ver- Privy in blood. dict for his ancestor, and is bound by a verdict against the ancestor. (3) The examples given of privies in law by Lord Coke are Privy in law. "lords by escheat, tenant by the curtesy, tenant in dower, the incumbent of a benefice, and others that come in by act of law, or in the post." (4) A verdict against an intestate or testator binds his representatives. (5) A verdict against an unmarried woman is admissible against herself and a husband, to whom (1) Doe d. Strode v. Seaton, 2 Cr. M. & R. 731. B. N. P. 232; 4 Bac. Ab. Ev. (F) See also Wright v. Doe d. Tatham, 1 A. & E. 19. (2) Robinson's case, 5 Rep. 32, b. A woman is not estopped, after coverture, by an admission on record by her husband and herself during coverture, and an heir, claiming as heir of his father, is not estopped by an estoppel upon (3) Locke v. Norborne, 3 Mod. 141. (4) Co. Litt. 352, b. Outram v. Morewood, 3 East, 353. (5) Rex v. Hebden, Andr. 389. |