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Of Verdicts and Judgments, [Ch. 2.

A judgment in one action of ejectment is not conclusive in another, in consequence of the fictitious nature of the proceedings. However, it is conclusive evidence of the plaintiff's title, against the tenant in possession, in an action for mesne profits; for the plaintiff to entitle himself to recover in an ejectment, must show a possessory right not barred by the statute of limitations. This judgment, like all others, only concludes the parties, as to the subjectmatter. It proves nothing, beyond the time laid in the demise; because, beyond that time the plaintiff has alleged no title, nor could be put to prove any. As to the length of time also, during which the tenant has occupied, or as to the value, the judgment proves nothing, for the same reason (4) (d).

*There is a diference, it has been said, between real actions and personal actions, as to the conclusiveness of a judgment. "In a personal action, as debt, account, &c. the bar is perpetual; for the plaintiff cannot have an action of a higher nature, and has no remedy but by error or attaint (1). But if the plaintiff be barred, in a real action, by judgment on a verdict, demurrer, confession, &c. yet he may have an action of a higher nature, and try the same right again; because it concerns the freehold and inheritance (2)." Now, although it is true that the same matter may be thus tried again, yet the former judgment is no less conclusive upon the immediate right then in demand, as far as that former judgment purports to bind, and against all such persons, as it is competent by law to bind (3). A judgment is final for its own proper purpose and object, and no further. A recovery in any suit, upon issue joined on matter of title, is conclusive upon the subiectmatter. Thus, a finding upon title in trespass not only operates as a bar to the future recovery of damages for

(4) Aslin v. Parkin, 2 Burr. 6681 (1) 1st Resol. Ferrer's case, 6 Rep. 7.

(2) See the judgment in Outram v. Morewood, 3 East 359. (3) Ib. 354.

(d) Vide Baily and others v. Fairplay, 6 Binney 450.

a trespass founded upon the same injury, but operates also
as an estoppel to any action for an injury to the same sup-
posed right of possession (3).

:

SECT. III.

Of the Admissibility, in Civil Cases, of Verdicts in Crimi-
nal Proceedings.

It does not appear to be clearly settled, whether verdicts, which have been given in criminal proceedings, can be admitted as evidence in civil cases. In the case of Hillyard and Grantham (4), which was an issue directed by the Court of Chancery to try a question of legitimacy, a sentence, against the supposed father and mother, upon a proceeding against them in the Consistory Court of Lincoln, for living together in fornication, was offered *in evidence, to prove that they were not married; but the whole Court of King's Bench were of opinion, on a trial at bar, that the sentence could not be given in evidence; "because, first, it was a criminal matter, and could not be given in evidence in a civil cause; next, because it was res inter alios acta, and could not affect the issue: but they held, that, if it had been a sentence on the point of marriage in a question on the lawfulness of the marriage, it might have been given in evidence, being the sentence of a court having proper jurisdiction."

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:

And in the case of Gibson v. Maccarty (1), on an issue to try the genuineness of some promissory notes, depositions of a deceased witness having been read on the part of the plaintiff, (in which depositions the witness swore, that the defendant had acknowledged the notes in question and also another note,) it was proposed, on the part of the

(3) See the judgment in Ou-
tram v. Morewood, 3 East 359.
(4) Cited by Lord Hardwicke in

Brownsord v. Edwards, 2 Ves. 246.
and in Rep. temp. Hard. 311.
(1) Rep. temp. Hard. 311.

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defendant, to show by a record of conviction, that the plaintiff had since been convicted of forging this other note, mentioned by the deponent; for such evidence, it was said, would go to the credit of the deponent's evidence, as to the acknowledgment of the notes in question; and, secondly, because there is at all times a liberty given to examine into the plaintiff's character. But this evidence was opposed on the part of the plaintiff, (on the ground, that no record of a criminal action can be given in evidence in a civil suit, because such a conviction might have been upon the evidence of a party interested in the civil action,) and Lord Hardwicke is reported to have said, "that the general rule was as had been stated by the plaintiff's counsel (2), and that it had been so strictly kept, that in the case of the Hillyards, on a question of legitimacy, the Court refused to admit a sentence of excommunication in the spiritual court for fornication between the father and mother of the party, whose legitimacy was impeached."

*In a third case (1) to be found on this subject, upon an issue to try the question of devise or no devise, á coroner's inquest, finding the deceased a lunatic, was offered in evidence against the plaintiff, who claimed as executrix, for the purpose of showing, that the deceased was incompetent to make a will; this evidence was objected to on the part of the plaintiff, and the court were equally divided in opinion. The Chief Justice (Parker) was of opinion that the inquest ought to be admitted, "because it was for the plaintiff's advantage, as the personal estate would be saved by the finding of lunacy," and he added, that in Lord Derby's case an inquest post mortem was allowed to be given in evidence. Mr. Justice Powys agreed with the Chief Justice. Mr. Justice Eyre said, "This is a criminal matter, and ought not to be given in evidence in a civil proceeding. A verdict on an indictment for battery can-' not be read in an action for the same battery. An inquest

"

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post mortem is in the nature of a civil proceeding, but this
is criminal, for it might induce a forfeiture of the goods,
if he had been found felo de se." And Mr. Justice Pratt
said, "If a verdict be given in evidence it must be be-
tween the same parties, and, therefore, an indictment at
the suit of the king cannot be read in an action at the suit
of the party.

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The objections, then, against the admissibility of such evidence, seem to be, first, that the parties are not the same in the civil suit as in the criminal case; and secondly, that the party in the civil suit, on whose behalf the evidence is supposed to be offered, might have been a witness on the prosecution. On the other hand, it may be said, that, although the prosecution was conducted in the name of the king, no kind of injustice can be done to the defendant in admitting the record of conviction as evidence against him on the points there in issue, since he had a • full opportunity at the trial of defending himself, and, if he *could, of disproving the charge: and, with regard to the second objection, it cannot, at least, apply to cases where the party, who offers the judgment in evidence, was not in fact a witness on the prosecution, or where from the nature of the case he could not have been admitted.

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Mr. Justice Buller lays down the rule generally (1), "that a conviction in a court of criminal jurisdiction is conclusive evidence of the fact, if it afterwards come collaterally in controversy in courts of civil jurisdiction. As, suppose the father convicted on an indictment for having two wives, this, he says, would be conclusive evidence in an action of ejectment, where the validity of the second marriage is in dispute*". However, it seems very ques

* 241

tionable whether the verdict, in such a case, would be admitted as conclusive. In the Duchess of Kingston's case (2), Lord Ch. J. Eyre, in delivering his judgment, said, that if an offender is convicted of felony on confession, or is outlawed, not only the time of the felony, but the felony itself may be traversed by a purchaser, whose conveyance would be affected, as it stands; and even after a conviction by verdict, he may traverse the time.

If the rule is, as Mr. Justice Buller has laid down, that a record of conviction may be given in evidence, on the same matter in a civil suit, it must be understood at least *with this limitation, that the party aggrieved was not a witness on the prosecution. To admit the record as evidence on any other condition, would be in effect to allow the party to a suit to give evidence for himself. The record, in such a case, seems upon every principle inadmissible; and the rule must be the same, whether the conviction was founded solely on the prosecutor's testimony, or whether his testimony was corroborated by other evidence. Thus, on a trial for perjury committed in an answer to a bill of injunction, the person who was sued by the defendant in an action then pending, and who in consequence filed the bill, was thought to be a competent witness (1), on the ground that a conviction, procured by his testimony, could not be used by him for obtaining relief in equity against the defendant's action at law (2). So a conviction for an assault before a magistrate, on the information of the injured party, is not evidence in an action for the same assault (3). Ch. B. Gilbert seems indeed to have been of opinion, that, where the verdict in the criminal

(2) 11 St. Tr. 261.
(1) R. v. Boston, 4 East 581. Bur-
don v. Browning, 1 Taunt. 521.

J