Effect of Parliamentary Journals.

The Journal of the House of Lords, containing an address of the Lords to the King, and the King's answer, in which certain differences were stated to exist between the Kings of England and Spain, was admitted to prove the fact of such differences. R. v. Francklin, 17 How. St. Tr. 627; R. v. Holt, 5 T. R. 445. But the resolutions of either House of Parliament are not evidence of extrinsic facts therein stated; thus the resolution of the House of Commons, stating the existence of the Popish Plot, was held to be no evidence of that fact. Oates' Case, 10 How. St. Tr. 1165, 1167.

Effect of Judgments, &c., as Estoppels, or as Evidence.

Effect of judgments and verdicts in the superior courts, with regard to the parties.] The judgment of a court of concurrent jurisdiction directly upon a point is, as a plea, a bar, and, as evidence, conclusive upon the same matter between the same parties; but it is also a general principle that a transaction between two parties in a judicial proceeding ought not to bind a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he might think erroneous. Therefore the depositions of witnesses in another cause in proof of a fact; the verdict of a jury finding a fact; and the judgment of the court on facts so found, although evidence against the parties and all claiming under them, are not in general to be used to the prejudice of strangers. Per De Grey, C. J., Kingston's (Ds. of) case, 20 How. St. Tr. 538. The language of the judges on the first proposition enunciated above, has been thus explained, viz., that the judgment is conclusive (i. e., an estoppel) if pleaded, where there is an opportunity of pleading it; but that where there is no such opportunity, then it is conclusive as evidence; but if the party forbear to rely upon an estoppel when he may plead it, he is taken to waive the estoppel, and to leave the prior judgment as evidence only for the jury. See 2 Smith's L. Cases, note on Ds. of Kingston's case. And this view is confirmed by the opinion of the court in Freeman v. Cooke, 2 M. & W. 654; Litchfield v. Ready, 5 Exch. 939; R. v. Blackmore, 2 Den. C. C. 419; R. v. Haughton, 1 E. & B.501; 22 L. J., M. C. 89. See further, as to the effect of a judgment as an estoppel, or as evidence only, Outram v. Morewood, 3 East, 365; and Vooght v. Winch, 2 B. & A. 662. Where the actual grounds of the judgment can be clearly discovered from the judgment itself, it is conclusive as to the grounds, as well as with reference to the actual matter decided. Alison's case, L. R., 9 Ch. 1, 25; Priestman v. Thomas, 9 P. D. 70, 210, C. A.

In order to bind a party, he must have sued or been sued in the same character in both suits. Thus, in an action against an executor suggesting a devastavit, he is estopped by a prior judgment against him finding assets. Jewsbury v. Mummery, L. R., 8 C. P. 56, Ex. Ch. See further, post, Part III. Actions against executors. But in an action by an executor on a bond, he will not be estopped by a judgment in an action brought by him as administrator on the same bond, but he may show the letters of administration repealed. Robinson's case, 5 Rep. 32 b. In considering the effect of judgments the court will, it seems, look to the real, and not only to the nominal, parties to the suit. Thus, a verdict in trespass against a person who justified as servant of J. S., was allowed to be given in evidence against the defendant, who also acted under J. S., J. S. being shown to be the real defendant in both causes. Kinnersley v. Orpe, 2 Doug. 517. Where, in a replevin suit between A. and the bailiff of B., it was found that A. was tenant of B., the judgment was received as

conclusive evidence against A. of his tenancy in a suit by B. against A. for subsequent rent. Hancock v. Welsh, 1 Stark. 347. But where in trespass, q. c. f., the defendant pleaded lib. ten. in P., and it appeared that P. had sold and conveyed to plaintiff, and afterwards conveyed, without a covenant for title, to defendant, who had mortgaged to P.: it was held that P. was a competent witness for the defendant, because the verdict would not be evidence for him as between him and the plaintiff. Simpson v. Pickering, 1 C. M. & R. 527. A former judgment in ejectment was evidence on another ejectment, where the lessor of the plaintiff and the defendant were the same. Doe d. Strode v. Seaton, 2 C. M. & R. 728. In ejectment on the demise of a mortgagee, a verdict and recovery in a former ejectment brought by the defendant against the mortgagor since the mortgage, is not evidence against the plaintiff. Doe d. Smith v. Webber, 1 Ad. & E. 119.

Where a party could not have been prejudiced by a verdict if it had gone against him, a verdict in his favour in a former action will not be available as evidence for him, even against one who was a party to it. Wenman v. Mackenzie, 5 E. & B. 447; 25 L. J., Q. B. 44.

Lock v.

Effect of judgments and verdicts in the superior courts with regard to privies.] Privies stand in the same situation as to those to whom they are privy. Thus, a privy in blood, as an heir, may give in evidence a verdict for, and is bound by a verdict against, his ancestor. Norborne, 3 Mod. 141; Outram v. Morewood, 3 East, 346; Whittaker v. Jackson, 2 H. & C. 926; 33 L. J., Ex. 181. So, of privies in estate; therefore if there be several remainders limited by the same deed, a verdict for one in remainder may be given in evidence for one next in remainder. Pyke v. Crouch, 1 Ld. Raym. 730. See Doe d. Ld. Teynham v. Tyler, 6 Bing. 390; Doe v. Harlow, 12 Ad. & E. 42 (d). But a verdict against tenant for life or years is inadmissible for or against the reversioner. B. N. P. 232; Rees v. Watts, 3 M. & W. 527; see Wenman v. Mackenzie, supra; and the proposition to the contrary in Com. Dig. Testm. (A. 5) cannot be maintained. A verdict for or against A. is admissible against a party claiming under A. where the claim originated since the verdict. Semb. per Littledale, J., in Doe d. Foster v. Derby, El. of, 1 Ad. & E. 790. So a verdict against one defendant, in case for a nuisance, is evidence of the plaintiff's right in a second action against the same and other defendants, if the latter claim under the first defendant. Strutt v. Bovingdon, 5 Esp. 58. A. and B. sued defendant for diverting water from their works; they were allowed to give in evidence a former recovery by A. alone against the same defendant for a similar injury, although B. had been a witness for A. in the first action; and it was held that the possession by A. and B. of the same works was evidence of privity of estate. Blakemore v. Glamorgan Canal Co., 2 C. M. & R. 133. Privity in law is sufficient; thus, a verdict against an intestate or testator binds his representatives. R. v. Hebden, Andr. 389. In the same manner, a judgment against the schoolmaster of a hospital, concerning the rights of his office, is evidence against his successor.

Travis v.

Chaloner, 3 Gwill. 1237. The estoppel must be mutual. De Mora v. Concha, 29 Ch. D. 268, C. A., affirm. sub nom. Concha v. Concha, 11 Ap. Ca. 541, D. P. As to the effect of judgment recovered under the Married Women's Property Act, 1882, see Beck v. Pierce, 23 Q. B. D. 316, C. A., cited post, Part III.

Effects of judgments and verdicts in the superior courts with regard to strangers.] There are several exceptions to the general rule that no one shall be bound or prejudiced by judgments to which he is not party or privy. They are admissible where they relate to public matters. Thus,

in the case of customs or tolls, verdicts, whether recent or ancient, respecting the same custom or toll, are evidence between other parties. London, City of v. Clerke, Carth. 181; B. N. P. 233. So in the case of customary commoners, a verdict in an action for or against one is evidence for or against another claiming the same right. Per Lord Kenyon, Reed v. Jackson, 1 East, 357. So a verdict with regard to a public right of way. Id. 355. And it seems that in all cases where general reputation is evidence, a verdict upon the right claimed will also be evidence, even as between strangers to the former record. Id. So also where judgment went by default for want of a plea. Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P. See further ante, pp. 49, 50. And a verdict may be evidence, though not delivered according to modern forms, if the record be old. Thus, where the Bishop of L. was presented in the sheriff's tourn for not repairing a bridge, and the presentment, being removed into K. B. by certiorari, was tried at Nisi Prius, 20 Edw. 3, the jury found that the bishop was not liable to repair, that the bridge was built by alms within sixty years, and that they knew of no one liable to repair: held that, although the only material finding was the non-liability of the then defendant, yet it was not to be assumed that the functions of the jury were so limited tempore Edw. 3 as now, and that the record was evidence in favour of the defendant (a stranger to the record), who was charged with a prescriptive liability to repair ratione tenure, especially when followed by a grant of pontage by the same king, reciting that no one was bound to repair the bridge. R. v. Sutton, 8 Ad. & E. 516. A judgment in favour of a lord of a manor on a quo warranto for usurping a franchise is evidence of the right even against copyholders of inheritance. Carnarvon, El. of v. Villebois, 13 M. & W. 313. So, allowances in eyre as against strangers. Per Parke, B., ib. The record of a former action of indebitatus assumpsit for work and labour by an officer, coupled with oral proof of the point in issue, is evidence of the customary rights of a public corporate officer. Laybourn v. Crisp, 4 M. & W. 320. But the verdict in such cases is not conclusive. Biddulph v. Ather, 2 Wils. 23. And a prosecution by the Crown for usurping tolls resisted, and not carried on to judgment, is not admissible on a trial of the same right. Per Tindal, C. J., Lancum v. Lovell, 6 C. & P. 437.

A judgment of ouster against a municipal officer is evidence inter alios upon issue joined in a quo warranto whether he was such officer at the time of defendant's election. R. v. Hebden, Stra. 1109; S. C., more fully in 2 Selw. N. P. 13th ed. 1136. And the record of ouster will be conclusive if the ouster avoid the election and the judgment was without fraud; R. v. York, Mayor of, 5 T. R. 66, 72; otherwise not. 2 Selw. ubi supra; R. v. Grimes, 5 Burr. 2598. Such judgments are in the nature of judgments in rem. See post, p. 193.

Where a judgment is produced merely for the purpose of proving the fact of such recovery and judgment, and not with a view to prove the truth of the facts upon which the judgment was founded, it may be evidence for or against a stranger. Thus, a verdict against a master in an action for the negligence of his servant is evidence in an action by the master against the servant to prove the amount of damages, though not of the fact of the injury. Green v. New River Co., 4 T. R. 590. Plaintiff became surety for a collector on having an indemnity bond from defendant. In an action on it, the breach was, that the plaintiff had been forced to pay a large sum in consequence of the collector's default, and the issue was on a traverse of the plaintiff's being forced to pay it. On the trial a judgment for 5007. recovered without contest against the plaintiff as surety was given in evidence: held that the judgment could

not be used as evidence to show the amount which the plaintiff had been forced to pay; the amount for which the collector was liable ought to have been shown as against the defendant. King v. Norman, 4 C. B. 884.

The proceedings and verdict of the jury in a suit in the Divorce Court are not admissible in evidence in an action inter alios, unless there has been a sentence altering the status of the parties to the suit. Needham v. Bremner, L. R., 1 C. P. 583.

Effect of judgments and verdicts with regard to the subject-matter of the suit.] A judgment between the same parties and upon the same cause of action is conclusive, although the form of action is different. Thus, a verdict in trover is a bar in an action for money had and received, brought for the value of the same goods. Hitchin v. Campbell, 2 W. Bl. 827. So a judgment in debt was a bar in an action of assumpsit on the same contract. Slade's case, 4 Rep. 94 b. So a judgment in trespass, in which the right of property is determined, is a bar to trover for the same taking. Com. Dig. Action (K. 3). But where the party mistook his form of action and failed on that account, the judgment in such action did not conclude him. Ferrers v. Arden, Cro. Eliz. 668; Godson v. Smith, 2 B. Moore, 157. If the plaintiff omitted to give any evidence under one of two distinct counts in a former action, under which he might have recovered the amount, he was not precluded from giving it in a subsequent action. Seddon v. Tutop, 6 T. R. 607; and see Eastmure v. Laws, 5 Ñ. C. 444; Thorpe v. Cooper, 5 Bing. 116, Ex. Ch., and the observations of the court in Henderson v. Henderson, 3 Hare, 115. See also Widgery v. Tepper, 7 Ch. D. 423. So where separate injuries arise from the same wrongful act, recovery for one such injury is no bar to a recovery for another. Brumsden v. Humphrey, 14 Q. B. D. 141, C. A.; Mitchell v. Darley Main Colliery Co., Id. 125, C. A.; 11 Ap. Ca. 127, D. P. So, although an order of removal quashed at the sessions, is evidence between the same parishes that there is no settlement in the appellant parish, yet a subsequent cause of removal may be shown. R. v. Wick St. Lawrence, 3 B. & Ad. 526. Judgment for the defendant in an action on part of one connected libel, is a bar to an action brought in respect of another part. Macdougall v. Knight, 25 Q. B. D. 1, C. A. Where the declaration in the second action was framed in such a manner that the causes of action might be the same as those of the first, it was incumbent on the party bringing the second action to show that they were not the same. Bagot, Ld. v. Williams, 3 B. & C. 239.

It is a general rule that a judgment is only evidence where it is direct upon the point which it is offered in evidence to prove. It has been denied to be evidence of any matter which came collaterally in question; or of any matter incidentally cognisable; or of any matter to be inferred by argument from the judgment. Kingston's (Ds. of) case, 20 How. St. Tr. 533; Blackham's case, 1 Salk. 290. It seems, however, that this rule, as laid down in the above terms, has not been strictly adhered to, and requires qualification. Thus, in settlement cases, an order of removal, unappealed against or confirmed, has been always held to be conclusive evidence not merely of the fact directly denied, but also of those facts which are necessary to arrive at the decision; any fact on which the judgment of the court must have been based cannot be considered as merely collateral. R. v. Hartington, 4 E. & B. 780, 790; 24 L. J., M. C. 98, and the cases there referred to. A verdict with judgment is not evidence of an immaterial allegation, although included in a general traverse. Shearm v. Burnard, 10 Ad. & E. 593.

As to judgments in rem, and their effect as against strangers, see the next head.

Effect of Judgments in rem.

There are various legal proceedings, not being suits inter partes merely, which bind all mankind, until set aside in due course. The most remarkable examples occur in proceedings brought on the revenue side of the Court of Exchequer in rem; by revenue officers; in the Courts of Admiralty, in the Courts for Probate and Divorce, and in the Spiritual Courts. Instances of some of those will be given under future heads. Judgments for the Crown on scire facias for the repeal of patents (vide infra), and informations in the nature of quo warranto for seizure of franchises, or ouster from offices, are also of the same nature. A judgment of condemnation of goods in the Exchequer, upon a proceeding in rem, is conclusive as to all the world; and therefore, after such judgment, trespass will not lie against the officer who seized the goods to try the point again. Scott v. Shearman, 2 W. Bl. 977. But if the proceeding were in personam merely, as a conviction for penalties, the judgment is not evidence (except of the fact of conviction) in any case in which the parties are different. Hart v. M'Namara, 4 Price, 154, n. A conviction by commissioners of excise on an information for an offence against the excise laws, is conclusive; Fuller v. Fotch, Carth. 346; and binds a stranger. Roberts v. Fortune, Hargr. Law Tracts, 468, n. It has been said that an acquittal in the Exchequer upon a seizure made for want of a permit is conclusive evidence in an action of trespass that the permit was regular; per Ld. Kenyon, Cooke v. Sholl, 5 T. R. 255; Vin. Ab. Evid. (A. b. 23); but this opinion has been questioned; for the acquittal does not, like a conviction, ascertain any precise fact, and may have proceeded on the ground of insufficient evidence. 1 Phill. Ev. 338. A conviction in rem was evidence, though obtained by the evidence of the very party who used it. Davis v. Nest, 6 C. & P. 167. A decree of the Court of Probate granting probate and declaring the domicile of the testator is not as a judgment in rem conclusive as to domicile, unless the declaration was essential to the grant. De Mora v. Concha, 29 Ch. D. 268, C. A.; affirmed sub nom., Concha v. Concha, 11 Ap. Ca. 541, D. P.

By the J. Act, 1873, s. 34, the jurisdiction of the revenue side of the Court of Exchequer was vested in the Exchequer Division of the High Court of Justice, and that of the Admiralty, and of the Probate and Divorce Courts in the Probate, Divorce, and Admiralty Division. The Exchequer Division was merged in the Queen's Bench Division of the High Court by Order in Council made 16 December, 1880, under the J. Act, 1873, s. 32.

The Patents, &c. Act, 1883 (46 & 47 Vict. c. 57), s. 26, now substitutes a petition to revoke letters patent for an invention, for proceedings by scire facias.

When a judge has, under the Parliamentary Elections Act, 1868 (31 & 32 Vict. c. 125), tried an election petition, his certificate under sect. 11, sub-sect. 13, as to who is duly elected, is a decision in rem and conclusive. Waygood v. James, L. R., 4 C. P. 361. But his report under sub-sects. 14, 15, has not this effect. Stevens v. Tillett, L. R., 6 C. P. 147.

A judgment in rem of a competent foreign tribunal is conclusive, and cannot in the absence of fraud be questioned in our courts. Cammell v. Sewell, 3 H. & N. 617; 27 L. J., Ex. 447; affirmed on another ground in 5 H. & N. 728; 29 L. J., Ex. 350, Ex. Ch.; Castrique v. Imrie, 8 C. B., N. S. 405; 30 L. J., C. P. 177, Ex. Ch.; L. R., 4 H. L. 414; Castrique v. Behrens, 3 E. & E. 709; 30 L. J., Q. B. 163. A foreign sentence of condemnation is not evidence of capture, but after other proof of capture

VOL. I.