SECT. II. Of Judgments, with reference to the Subject-matter of the Suit. THE judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive, upon the same matter directly in question in another court (6). And it is a bar to any other action of the same nature as the first (7). By actions of the same *nature, is meant, actions in a similar degree; not merely those which have a similitude of form. All personal ac * 235 tions are of the same degree; therefore each is a perpetual bar (1). Thus, a judgment in an action of debt, is a bar in assumpsit on the same contract (2). And a judgment in trespass, when the right of property is determined, will be a bar in trover for the same taking (3). So, a verdict for the defendant in trover is a bar in an action for money had and received, for the money arising from the sale of the (6) See ante, p. 223. (7) Ferrer's case, 6 Rep. 7; Cro. El. 667., S. C. Sparry's case, 5 Rep. 61. Hitchin v. Campbell, 2 Black. 827.831. (1) 2 Black. 831. (2) Slade's case, 4 Rep. 94. Com. Dig. tit. Action, K. 3. (3) Com. Dig. Ib. Putt v. Roster, 2 Mod. 319; 3 Mod. 1. S. C.; Sir T. Raym. 472, S. C. 2 Black. Rep. 831. liberties of the gaol granted to a prisoner in execution was sued for an escape, of which suit the sureties had notice, and a judgment recovered against him; in an action by the sheriff on the bond against the prisoner's sureties it was held that the former judgment was conclusive evidence. Kip v. Brigham & others, 6 Johns. Rep. 158. S. C. 7 Johns. Rep. 168. So, in an action against an attorney for the loss of the evidence of a debt, the defence was that the plaintiff had another remedy for the recovery of his debt which he had successfully pursued, and it was held that the record of such recovery was evidence of the fact although the attorney was no party to it. Huntington v. Rumnill, 3 Day 390. Vide ante, 46, 47. n. 48. 65. 96. same goods (4) (a). One great criterion for trying, whether the matter or cause of action be the same, is that the same evidence will maintain both the actions (b). But where the plaintiff failed in his first suit on account of some defect in pleading, or from having mistaken the form of action, the judgment will not be conclusive, 'and he may bring another action to try the same right (5) (c). If the plaintiff, on the trial of his action, attempted to prove a demand against the defendant, and failed in the attempt, he cannot set it up again in a second action (d). But, if he omitted to give any evidence of the demand on the former occasion, though he had an opportunity of doing so, he is not precluded from doing it afterwards. Thus, when the plaintiff in a former action declared on a promissory note and for goods sold, but, upon executing a writ of inquiry after judgment by default, gave no evidence on the count for goods sold, the judgment was not a bar to his recovering for the goods in another action (6) (e). So, it has been held, that an award, made on a reference of all matters in difference between the parties, is no bar to any (4) Hitchin v. Campbell, 2 Black. 827. (5) Robinson's case, 5 Rep. 33. 6 Rep. 8. a. Com. Dig. tit. Action, L. 4. 2 Black. 831. (6) Soddon v. Tutop, 6 T. R. 607. (a) So, a verdict in trespass de bonis asportatis, is a bar to an action of assumpsit for the price of the same goods. Rice v. King, 7 Johns. Rep. 20. (b) Vide Rice v. King, 7 Johns. Rep. 20, Johnson v. Smith, 8 Johns. Rep. 383. R. v. Emden, 9 East'sRep. 436. (c) Vide Benton v. Duffy, Rep. Court of Conf. 98. (d) Vide Brockway v. Kinney, 2 Johns. Rep. 210. Platner v. Best, 11 Johns. Rep. 530. Irwin v. Knox, 10 Johns. Rep. 365. (e) So, if the plaintiff in a former action joined two trespasses in the same count, and the court on motion of the defendant compelled him to elect for which trespass he would proceed, and that he should not go for both, and the jury found damages accordingly, it will not be a bar to a subsequent action, brought for the trespass which he was obliged to abandon. Snider & Van Vechten v. Croy, 2 Johns. Rep. 227. cause of action, which the plaintiff had against the defendant at the time of the reference, if it appear that the subject-matter *of the action was not inquired into before the arbitrator (1) (a). In considering the effect of a former judgment, it is to be observed that the judgment, whether it be pleaded in bar, or given in evidence where special pleading is not required, can be final only for its own proper purpose and object, with reference to the subject-matter of the suit, and upon the points there put in issue and directly determined (b). Therefore, in an action for obstructing a watercourse, where a verdict for the plaintiff in a former action, which had been brought against the defendant for another obstruction to the same watercourse, was offered in evidence under the general issue, Lord Mansfield held, that the plaintiff had not obtained such a determination of his right, by the former verdict, as the law considered conclusive (2). And this decision has been recognized and confirmed in a very elaborate judgment, before referred to, on the nature of estoppels (3) (c). (1) Ravee v. Farmer, 4 T. R. 146. (2) Sir F. Evelyn v. Haynes, cited in Outram v. Morewood, 3 East, 365. (a) Contra. De Long v. Stanton, 9 Johns. Rep. 38. Wheeler v. Van Houten, 12 Johns. Rep. 311. (b) Vide Ryer v. Atwater, 4 Day 431. In that case Swift, J. says, that when there are several distinct facts which constitute the points contested between the parties, no authority can be found that will warrant the admission of a verdict as evidence to prove one of the several facts put in issue. In the cases reported the verdict goes to the whole point in issue, and not to a part of the facts: and this distinction is founded in reason; for where the facts are different, the same points precisely cannot be in evidence. (c) In order to make a record evidence to conclude any matter, it should appear that that matter was in issue, which should appear from the record itself; nor should evidence be admitted that under such a record any particular matter came in question. Sintzenick v. Lucas, 1 Esp. Rep. 43. Manny v. Harris, 2 Johns. Rep. 24. * 236 *237 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 difference, 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 of 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 subjectmatter. 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. 668. (2) See the judgment in Outram v. (1) 1st Resol. Ferrer's case, 6 Morewood, 3 East 359. Rep. 7. (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 supposed right of possession (3). SECT. III. Of the Admissibility, in Civil Cases, of Verdicts in Criminal 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 à 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." 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 Outram v. Morewood, 3 East 359. (4) Cited by Lord Hardwicke in Brownsord v. Edwards, 2 Ves. 246. * 238 |