former action upon

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the same bond, he averred it to have been made at B (4). So, in the case of a conviction for felony, &c., where the jury have given a general verdict, the record will not be conclusive, that the offence was committed on the day mentioned in the indictment, for the time is not of the substance of the charge; and, therefore, the party interested to dispute the forfeiture, (which, in the case of real property, relates to the time of the offence,) may falsify the record, and show that the offence was committed on another day (5). But if the jury find specially the precise day, all parties are concluded (6) (a).

The first sort of records, to be considered, are acts of parliament; and these, says Ch. B. Gilbert, are the highest and most absolute proof. Acts of parliament relate either to the kingdom at large, when they are called general acts; or only to particular classes of men, or to certain individuals, in which case they are called private acts. Laws which concern the king, or all lords of manors, or all officers in general, or all spiritual persons, or all traders, &c. are public laws. But such as relate to the nobility only, or to spiritual lords, or to particular officers or particular trades, are private acts (1). This distinction between public and private acts is not applied, in collections of the English statutes at large, to any statutes previous to those of Richard the third. From that period the distinction commences in the several tables prefixed to the respective collections (2).

(4) Com. Dig. tit. Estoppel, E. 6. (5) Ives's case, 3 Inst. 230. Gilb. Ev. 230.

(6) Gilb. Ev. 230.

(1) Gilb. Ev. 39, 40.

(2) See preface to new edit. of Statutes at large.

(a) An entry on the record of the issuing of a writ, is not conclusive; it is a fact triable by the jury and not by the record. Such an entry, the court say, is like a committitur entered of record; it does not estop the party to deny the fact, and it shall be tried per pais, and the record is but evidence and not conclusive. Brown v. Van Deuzer, 10 Johns. Rep. 51.

The general rule is, that public acts of parliament are to be taken notice of judicially by courts of law, without being formally set forth; but particular or private acts are not regarded by the judges, unless formally shown and pleaded (3). In some cases, however, the necessity of pleading a private act has been dispensed with; as, where there is a special clause, enabling the defendant, in answer to any action for matters done under the act, to plead the general issue; or, where the private act has been recognized by some public act of the legislature. Thus, the statute 23 H. 6. c. 9., relative to sheriffs' bonds, (even supposing it to be a private act, as relating only to officers of a certain description,) must now be taken notice of judicially, because the statute 4 & 5 Ann. c. 16. s. 20. enables the sheriff to assign the bond (4).

In many cases a defendant will be precluded, by the nature of the pleadings, from taking advantage of a public act of parliament. Thus, in an action of debt upon a bond, the defendant cannot, under the plea of non est factum, avail himself of the statute 13 Eliz. c. 8. s. 4. (5), which makes usurious contracts utterly void. But if he pleads that the bond was void on account of usury, he may insist upon the statute, though he has not formally recited it (6). In an *action of assumpsit, indeed, where the defendant may give in evidence any thing that discharges the debt, or proves nothing due, he may show under the general issue, that the contract was usurious (1), or founded on an illegal consideration which makes the contract void (2).

If an action or information be brought upon a penal statute, and there is another statute which exempts or discharges the defendant from the penalty, this latter act (as some books lay down the rule) cannot be given in evidence. under the general issue, but ought to be pleaded; for the

Bull. N. P. 222. Saxby v. Kirkus, Bull. N. P. 23. 224. Samuel v. Evans, 2 T. R. 575.

(5) See also 12 Ann. St. 2. c. 16.

(6) Com. Dig. tit. Pleader, 2 W.

(1) Ld. Bernard v. Saul, Ì Str. 498. Bull. N. P. 152. S. C.

(2) Adm. per Cur. in Hussey v. Jacob, 1 Ld. Ray. 89.

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general issue is but a denial of the plaintiff's declaration, and the plaintiff, it is said, has proved him guilty, when he has proved him within the law upon which he founds his declaration (3). It is, indeed, enacted by statute 21 Jac. 1. c. 4. s. 4. that, in actions on penal statutes, it shall be lawful for the defendant to plead not guilty, or that he owes nothing, and to give in evidence such special matter, which, if pleaded, would have discharged the defendant at law; but this statute has been generally considered to attach only on antecedent penal laws, and not to extend to those subsequently enacted (4). However, it should seem, according to the modern practice, the defendant may plead nil debet, and give in evidence the statute; which would show, that he does not owe the penalty. And if the same act, which imposes the penalty, contains also the proviso of exemption, it is quite clear that this proviso may be shown under the general issue (5).

(3) 2 Roll. Ab. 683. pl. 13. Bull. N. P. 225.

(4) Gaul's case, 1 Salk. 372. Hicks's case, ib. Per Lord Mansfield in 4 Burr. 2467. Bull. N. P. 196.

French q. t. v. Coxon, 2 Str. 1081; more fully stated in 2 Selw. N. P. 562. n. (117.)

(5) 4 Burr. 2469. Bull. N. P. 225.

* CHAP. II.

On Verdicts, and Judgments of Courts of Record.

In treating of judicial proceedings, and inquiring in what cases they are admissible in evidence, it is proposed to consider, first, the verdicts and judgments of courts of record; secondly, the judgments of courts of exclusive jurisdiction; and, thirdly, certain other proceedings of an inferior kind.

The admissibility of verdicts and judgments of courts of record is the subject of the present chapter, in which will be considered, first, their admissibility, with reference to

the parties in the suit; secondly, their admissibility, with reference to the subject-matter of the suit; thirdly, the admissibility, in civil cases, of verdicts which have been given in criminal prosecutions.

Of Verdicts and Judgments, with reference to the Parties in the Suit.

It is a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon 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 (a). Hence the depositions of witnesses in another cause in proof of a fact, (b) the verdict of a jury finding a fact, or the judgment of the court on facts found, although evidence against the parties and all claiming under them, are not, in general, to be used to the prejudice of strangers (1). To this general rule there are some exceptions, *founded upon particular reasons, which will be stated in the course of the present chapter.

(1) Judgment of De Grey, C. J. in Duchess of Kingston's case, 11 State Tr, 261.

(a) Vide Jackson d. Schuyler and others v. Vedder, 3 Johns. Rep. 3. Ryer v. Atwater, 4 Day 431. Turpin v. Thomas, 2 Hen. & Mun. 139. But where underwriters agree to be bound by a verdict against a different underwriter on the same policy, the verdict then may be given in evidence against them. Patton v. Caldwell, 1 Dall. 419. Where the parties are really, though not nominally, the same in both suits, as where one suit is in the name of the person beneficially interested, and the other in that of his trustee, it has been held, that the record in the first cause was evidence in the second. Calhoun's Lessee v. Dunning, 4 Dall. 120, (b) Vide Lessee of Lewis v. Stammers, 1 Dall, 2.

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Between same parties.

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said Ch. J. De Grey, in de

But although justice requires that third persons, who had no opportunity of examining witnesses in a suit, or of making a defence, should not be prejudiced by the verdict or judgment, it is on the other hand equally just, that the parties to the suit should be subject to a different rule. "From the variety of cases," livering his celebrated judgment in the case of the Duchess of Kingston, "relative to judgments, being given in evidence in civil suits, it seems to follow as generally true, 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 (1)." Here Ch. J. De Grey was about to consider the effect of judgments pronounced in other courts of concurrent jurisdiction: but the same principle and the same rule appear with still greater force to apply to judgments in the same court.

First, then, a judgment directly upon the point, is, as a plea, a bar hetween the same parties. A party may be estopped by a verdict on record: as, in an action of trespass, if the defendant prescribes for common, and the plaintiff traverses the prescription, the defendant may say, that, in a former action by the plaintiff against the defendant, the same prescription was found against the plaintiff (2).

Upon the same principle, it is presumed, a judgment will be, as evidence, conclusive between the same parties, in those cases where it can be given in evidence without *be- ing specially pleaded. The rule has been expressly so declared with reference to the judgments of courts of concurrent jurisdiction (1), and it seems to be equally appli

(1) Judgment of De Grey, C. J. in Duchess of Kingston's case, 11 State Tr. 261.

(2) Com. Dig. tit. Estoppel, (A. 1.) p. 73. citing 1 Show. 28. The case is Incledon and another v. Burges. The doubt there was, whether this was a good estoppel as

against a co-plaintiff, a stranger to the former action; and the Court gave judgment on another point. On this subject, see the judgment in the case of Outram v. Morewood, 3 East 354, 5.

(1) See ante, p. 223.