Baring v. Fanning.

used equally for the benefit of both, it was not evidence by the settled rules of law.a

That this case could not be brought within any of the exceptions to this general rule of evidence. It was not like the cases of custom, toll, tithes, settlement of paupers, elections, &c. where the rule was dispensed with in favour of the settlement of rights of a public character. Nor was the decree in a court of exclusive jurisdiction, like the Ecclesiastical Courts, or the Admiralty or Exchequer Courts, proceeding in rem, whose judgments directly upon a point, were conclusive upon the same point arising incidentally in another court. That the indebtedness of the defendants to Consequa, as it resulted on the taking of the account, and appears in the decree, was not a matter of fact found ex directo by the Court of Chancery. A matter decided ex directo, is where the question admits of a simple negative or affirmative, such as devastavit vel non, marriage or no marriage, prize or no prize, adultery or no adultery, &c.-Nor does the question of the defendants' indebtedness to Consequa arise incidentally in this It is the very foundation of the suit.

cause.

But if the decree and proceedings are admissible in this cause, they are not conclusive against the defendants; because the bill in that suit was filed for specific claims, and not for a general account, and a general accounting was not gone into.

T. L. OGDEN for the complainants, contended,

That the bill filed in Chancery was to ascertain the state of accounts in reference to the property, of which the partial assignment had been made to Baring & Co. That it did not embrace any transactions subsequent to that assignment, but

a Gilb. Ev: 34.; Cases Temp. Holt, (Farresly,) 135.; Bul. N. P. 233.; 16 John. Rep. 51.; 1 Mumf. Rep. 394. 398.; Phil. Ev. 226 to 234. b 4 Price's Cases in Exch. 154, n.; Phil, Ev. 226. 234.

Baring v. Fanning.

referred exclusively to those which were prior; and that decree therefore precluded the necessity of again litigating the same points which were involved and decided in the suit with Consequa.

The objection that that suit was res inter alios acta cannot be sustained. The decree was of a Court of competent and exclusive jurisdiction, deciding ex directo on the matters in controversy, and conclusive as to the same matters in any other Court. The question was a single one, whether the defendants were debtors to Consequa to some and what amount?

Again, the complainants, Baring & Co. claim under Consequa, and are on that ground entitled to the benefit of the decree. Consequa is a mere trustee for them, and they would be entitled to file their bill claiming the benefit of the decree in his favour.

The account before the Master must be taken on the principles of that taken in the Court of Chancery, without any reference to the pretended counter claims of the defendants; for the existence of such claims was not set up when the assignment was notified to the defendants; no proof has been exhibited of their existence, and the order of reference does not authorize their admission. The result of a new account would therefore be the same as the former.

THOMPSON, J. THE question now presented for decision arises on an exception to the report of the Master, under an order of reference. This order directed an account to be taken of the monies arising from the merchandise, shipped in the Chinese, in 1809, by Consequa, and consigned to the defendants; and of the disposition of the said monies, and of the amount due on said consignment to Baring & Co., by vir

c Bul. N. P. 243, 244, 245.; 2 Bac. Ab. 630.; Amb. 756.; 2 Esp. Rep. 607. d Bul. N. P. 243.; 2 Bac. Ab. 629.; 1 Phil. Ev. 230.

e 2 Mad. Ch. 408.; 4 Br. Parl. Cases, 33.

Baring v. Fanning.

tue of the assignment of Consequa to them, set out in the bill. And if the proceeds, or any part thereof, shall have been remitted to Consequa, or otherwise disposed of prior to the 5th of August, 1811, so that the same have not come to the hands or use of the said Baring & Co., that then an account be also taken, and stated between Consequa and the defendants, down to the 5th day of August, 1811, so far as the same may be necessary to ascertain whether the balance, if any, due by the defendants to Consequa, for monies or merchandise, which may have come to the hands of the defendants, be sufficient with the remaining nett proceeds of the said merchandise, to make up the original invoice value of the same merchandise, amounting to forty-three thousand and twenty-five dollars eighty-seven cents.

Upon the reference, the complainants offered in evidence, a certain decree heretofore obtained in the Court of Chancery of the state of New-York, by Consequa, one of the complainants in this cause, against the above defendants, and the proceedings in the suit in which said decree was obtained. This evidence was objected to on the part of the defendants, but admitted by the Master, as competent and conclusive in the present case. By that decree a balance was found due from the defendants to Consequa, of upwards of one hundred thousand dollars; and the Master has accordingly reported in the present case, that there is due to Baring & Co. the whole balance claimed by them, including interest, amounting to eighty-seven thousand one hundred and forty dollars sixtyone cents, being the amount of the forty-three thousand and twenty-five dollars eighty seven cents, assigned by Consequa to Baring & Co., and the interest on the same.

The objection taken to the admissibility of this decree is, that it was res inter alios acta. The general rule on this subject is, that judgments and decrees are evidence only between parties and privies. But it is contended, that there

Baring v. Fanning.

are exceptions to this general rule, under which the decree in question was admissible, and the broad principle is assumed, that the final decree or judgment of any Court of competent jurisdiction, deciding ex directo on any matter, is conclusive as to that matter, in any other Court, between any other parties.

This position, if admitted to embrace the present case, is not supported by authority, and cannot, I think, be sustained on any sound principle applicable to the rules of evidence. The matters in controversy in the Court of Chancery of this state, related to the mere private rights of the parties. The exceptions to the general rule, (which requires that verdicts or judgments should be admitted in evidence only between parties to the suit, or privies,) which are mentioned in the books, relate generally to some question of custom, right of common, right of way, right of election, &c. In such, and the like cases, a former verdict in an action between any other parties, is admissible in evidence, when the point there directly decided is in issue. But it is not in such case conclusive. The common reputation of the place would, in these cases, be evidence of the right; and the verdict of twelve men, upon oath, is considered at least of equal weight.f

Nor are the cases of judgments, or decrees in rem, or of Courts of exclusive jurisdiction, applicable to the present case. The Court of Chancery of New-York had not exclusive jurisdiction of the matters in controversy, nor was the decree there rendered a decree in rem. There is nothing, therefore, in relation to the subject matter in controversy in that suit, or the nature and operation of the decree, that should take it out of the general rule.

As between the same parties, it is right and proper that the verdict of a jury finding a fact, or the judgment or decree of

f Phil. Ev. 233.

Baring v. Fanning.

a Court on facts found, should be conclusive, and operate as estoppels. But such estoppels should be mutual, and no one be permitted to have the benefit of a judgment or decree, who would not have been prejudiced by it, had it been the other way.h Had the decree been in favour of the defendants, it would not have concluded the rights of Baring & Co. They not having been parties to that suit, had no opportunity to set up and maintain their claim against the defendants. There would, therefore, be no mutuality of benefit to the parties in the present suit.i

The case of Chapman v. Chapman, is very analogous to the present suit. It was there laid down that a record in one suit cannot be read as evidence in another, on the ground that the defendant and one of the plaintiffs in the latter suit, were parties to the former, and that the same point was in controversy in both; another plaintiff, and the person under whom both the said plaintiffs jointly claimed, not having been parties to such former suit.'

But if no well founded objection lay to the admission of that decree in evidence, by reason of the variance of parties in that and the present suit, I am unable to discover that the matters in controversy, in this cause, have been there decided. The bill, in this case, seeks a particular account of the proceeds of the shipment, by the Chinese, on the 2d of December, 1809, consigned to the defendants, and which had been assigned by Consequa to Baring & Co.; the first cost of which cargo amounted to forty-three thousand and twentyfive dollars eighty-seven cents, and also of the payments and remittances on account of the same. And that the defendants might admit funds in their hands belonging to Consequa, to the amount of forty-three thousand and twenty-five

g 6 Wheat. 109. h Gilb. Ev. 34.; Cases Temp. Holt, 135.; Bul. N. P. 233. i 1 Mum. 373. Payne v. Coles.

k 1 Mum. 398.

/ Phil. Ev. 222 to 334, where most of the cases are collected.