cable in principle to a former judgment of the same court. 1. Thus, in an action of assumpsit, the defendant may either plead a judgment recovered, or give it in evidence under the general issue (2); and it is difficult to assign a reason, why the judgment should not have the same conclusive operation, if given in evidence without pleading, as it would be admitted to have, if pleaded in bar. 2. In an action of trespass for mesne profits, the judgment in ejectment is conclusive against the defendant on the right of possession at the time of the demise laid in the declaration (3). 3. A judgment of the quarter sessions discharging an order of removal, on an appeal, is conclusive evidence between the respondent and appellant parishes, that, at the time of the first order of removal, the settlement of the pauper was not with the appellants. 4. 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 to a second indictment, of the liability of that parish to repair (4). "If the parish can show fraud, it will vitiate this or any other judgment; but, unexplained, it will be conclusive evidence*." 5. So, if the defendant, in an action of trespass, plead his soil and freehold, and give in evidence a verdict on the same plea in a former ac*tion between the same parties, this probably would be conclusive, that the right to the soil and freehold was at the time as found. If, indeed, the defendant in the former

(2) Per Lord Mansfield in Bird v. Randall, 3 Burr. 1353.

(3) Aslin v. Parkin, 2 Burr. 666.

(4) R. v. St. Pancras, Peake N. P. C. 219.

Fraud, as it has been observed (1), is only put for an example. If the parish consists of several districts, which have immemorially repaired the respective highways lying within them, and if the districts, in which the road indicted is not situate, can show that they had no notice of the former indictment, (the defence having been made and conducted entirely by the district, within which the road lies,) the Court will consider the indictment as being substantially against that district, and give the other districts leave to plead the prescription to a subsequent indictment for not repairing the highways in the parish. R. v. Townsend, 1 Doug. 421.

(1) 2 Saund. 159. a. note by the editor.

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action had pleaded not guilty, together with the plea of liberum tenementum, and a general verdict had been found, and this should afterwards be given in evidence, (as in the case supposed,) such a general verdict would not be conclusive evidence of the right, as if there had been a verdict on the plea of liberum tenementum, though it would be material evidence; and the defendant would be admitted to prove, that on the former occasion no evidence was offered except on the general issue (1). But if this general verdict were pleaded by way of estoppel, it would estop the plaintiff (2).

In the case of Moses v. Macferlan (3), indeed, the Court of King's Bench held, that the plaintiff might recover back money, which he had paid under a judgment obtained against him by the defendant in an action in a court of conscience, which action the defendant brought against him as indorser of a bill of exchange, in breach of a written agreement. They admitted it, however, to be a clear principle, that the merits of a judgment can never be overruled by an original suit either at law or in equity; and that the judgment is conclusive, as to the subjectmatter, until it is set aside or reversed. The ground of the decision in that case was, that the breach of the agreement was no defence to the action in the court of conscience, being a collateral matter not within their cognizance. But this has been since questioned (4); and it has been thought, that the breach of the agreement went to the essence of the debt demanded, and was necessarily as much a defence in that court, as it would have been in the Court of King's Bench (a). The case of Moses v. Macferlan,

(1) See 8 East 364, 5. 6 T. R. 609. (2) 3 East 365.

(3) 2 Burr. 1006. 9.

(4) By Eyre, C. J. in Philips v. Hunter, 2 H. Bl. 414. And see Marriott v. Hampton, 7 T. R. 269. Brown v. M'Kinnally, 1 Esp. N. P. C. 273.

(a) Matter, which would have been a good defence in an action by A. against B., cannot afterwards be made the subject of a suit

by B. against A. White v. Ward & Aylesworth, 9 Johns. Rep. 232.

Jones v. Scriven, 8 Johns. Rep. 453,

*therefore, does not in any manner infringe, but rather confirms, the general rule, that the merits of a question, which has been directly determined by a court of competent jurisdiction, cannot be tried over again, between the same parties, in any shape whatsoever (a).

The authority of a former adjudication of the right prevails between the same parties, that is, between the same persons suing or sued in the same quality or character. A woman is not estopped, after coverture, by an admission upon record by her husband and herself, during coverture (1). So an heir, who claims as heir of his father, shall not be estopped by an estoppel upon him as heir to his mother (2). So 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 sued as administrator; but he may show that the letters of administration have been since repealed (3).

Estoppels by verdict, admissions on record, &c. bind Between privies in blood, (as the heir,) privies in estate, (as feoffee,

(1) Com. Dig. tit. Estoppel, (C). (3) Robinson's case, 5 Rép. 32. b. (2) Ib.

(a) Vide Cobb v. Curtiss, 8 Johns. Rep. 470. White v. Ward & Aylesworth, 9 Johns. Rep. 232. Moor v. Ames, 3 Caines' Rep. 170. So, an action on the case will not lie for obtaining a decree by false and forged evidence, such decree being still in force. Peck v. Woodbridge, 3 Day 30. So, where an action on the case was brought in the Supreme Court of New-York against a defendant for suborning a witness to swear falsely in a cause in Connecticut, whereby judgment was given against him, contrary to the truth and justice of the case, it was held that the action would not lie. Of the two judges who delivered their opinions in this case, Spen⚫ cer, J. placed the decision on the ground that no action would lie for an injury occasioned by perjury, but Kent, Ch. J. relied on the conclusiveness of the judgment in Connecticut, which it was attempted to open in a collateral action. Smith v. Lewis, 3 Johns. Rep. 157. Money paid under an award cannot be recovered back in an action for money had and received: for the action of indebiTatus assumpsit, though governed by equitable principles, and not

privies.

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lessee, &c.) and privies in law, (as lord by escheat, tenant by curtesy, tenant in dower, the incumbent of a benefice, and others who come in by act of law in the post); in the same manner, persons standing in either of these relations will be bound equally with the parties themselves, by a judgment in a former action, for the same matter, if pleaded in bar (4).

A verdict or judgment, in a former action, upon the same matter directly in question, is also evidence for or against privies in blood, privies in estate, and privies in law, as well as for or against the parties to the suit. Thus, if an ancestor has obtained a verdict, the heir may give it in *evidence, as privy to it (1). So, if several estates in remainder be limited in a deed, and one of the parties in remainder obtain a verdict in an action brought against him for the same land, that verdict may be given in evidence, for another person in remainder, in an action brought against him for the same land,, although he does not claim any estate under the first remainder-man; because they all claim under the same deed (2). So, a verdict for or against a lessee is evidence for or against the reversioner (3). And a decree in the Court of Exchequer, in a cause between the vicar on one side and the impropriator on the other, (establishing the vicar's title to small tithes under an ancient endowment against the défendant, who insisted that he was only entitled to an annual payment in lieu of tithes,) is evidence in suits between succeeding vicars and patrons; but not conclusive evidence, as it would be, if the ordinary had been a party to the first

(4) Co. Lit. 352. a. Com. Dig. tit. Estoppel, (B). Outram v. More wood, 3 East 346.

(1) Per Cur. in Lock v. Narbonne, 3 Mod. Rep. 142.

(2) Pyke v. Crouch, 1 Ld. Ray.

730. Com. Dig. tit. Evidence, (A. 5). Bull. N. P. 232.

(3) Per Cur. in Rushworth v. Countess of Pembroke and Currier. Hardr. 472. Com. Dig. ib. Bull. N. P. 252. Gilb. Ev. 35, 6.

to be sustained in opposition to equity, cannot be substituted for that mode of relief which belongs only to chancery. Bulkley v. Stewart, 1 Day 130.

suit (4). So, a judgment for or against the school-master of a hospital, concerning the rights of his office, has been admitted to be evidence for or against his successor (5). And so, where, on an information in the nature of a quo warranto against the defendant for acting as bailiff of a corporation, the defendant pleaded that he had been duly elected under a nomination by two persons, who were bailiffs of the corporation, and the point in issue was, whether they were bailiffs at the time of the election, the record of a judgment of ouster in a quo warranto against them, was adjudged to be good evidence against the defendant, who claimed under them (6)*. These cases fully establish the rule above laid *down, that a verdict or judgment, directly upon the point, is good evidence, not only for or against the parties to the suit, but also for or against any persons standing in the relation before mentioned, of privies in blood, privies in estate, or privies in law (a).

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against a

The general rule is, that a verdict cannot be evidence Not evifor either party, in an action against one who was a stranger dence to the former proceeding, who had no opportunity to exa- stranger. mine witnesses, or to defend himself, or to appeal against

(4) Carr v. Heaton, 3 Gwillim 1261. See Bishop of Lincoln v. Ellis and another, 2 Gwill. 632.

(5) Lord Brounker v. Sir R. Atkins, Skin. 15.

rem.

* Judgment of ouster has been considered in the nature of a judgment in In the case of the King v. the Mayor of York, 5 T. R. 72, where the cases of R. v. Hebden and R. v. Grimes were cited in argument, in order to show that such a judgment cannot be conclusive against third persons, Lord Kenyon is reported to have said, "If you derive title to a corporate office through A., and the prosecutor show a judgment of ouster against A. it is conclusive against you, unless you can impeach the judgment as obtained by fraud."

(a) A recovery against an executor for a debt due from his testator is not evidence in an action brought against the heirs or devisees to charge the real estate, for there is no privity between the executor and the heirs or devisees, admitting that there may be (a point not decided) between the executor and a legatee of the personalty. Mason's Devisees v. Peter's Adn'rs, 1 Mun. 437.