cross-examine upon the entries referred to by the witness; but if he cross-examines as to other entries in the same book, he makes them part of his own evidence; per Gurney, B., in Gregory v. Tavernor, 6 C. & P. 281. Where a paper is put into witness's hand only to prove handwriting and not to refresh his memory, the opposite party is not entitled to see it. Sinclair v. Stevenson, suprà.

EFFECT OF DOCUMENTARY EVIDENCE.

We have already seen in what manner various written instruments of a public or private nature are to be proved. Antè, p. 72., et seq. Under the present head will be collected some of the most material cases relating to the effect and authority of such instruments when duly proved, and the circumstances under which they are admissible evidence of the facts which they purport to prove.

Where a document, inadmissible as evidence, has been in part read at the instance of counsel, he cannot afterwards object to the admissibility of the whole of it. Laybourn v. Crisp, 4 M. & W. 320.

Effect of Acts of Parliament.

The preamble of a public general act of parliament, reciting the existence of certain outrages, is evidence to prove that fact; because, in judgment of law, every subject is privy to the making of it. R. v. Sutton, + M. & S. 532. But it seems that allegations of fact in a public statute are not conclusive; therefore a place, named as a borough or corporation in the Municipal Reform Act, may be proved not to be one. R. v. Greene, 6 A. & E. 548. And a private statute, though it contains a clause requiring it to be judicially noticed as a public one, is not evidence at all against strangers, either of notice, or of any of the facts recited. Ballard v. Way, 1 M. & W. 520. Brett v. Beales, M. & M. 421. Taylor v. Parry, 1 M. & G. 604.

Effect of Proclamations, Gazette, State Papers, &c.

The King's proclamation, being an act of state of which all ought to take notice (per Treby C. J., Wells v. Williams, 1 Ld. Raym. 283.), is evidence to prove a fact of a public nature recited in it, viz. that certain outrages had been committed in different parts of certain counties. R. v. Sutton, 4 M. & S. 532.

The Gazette is evidence of all acts of state published therein; as where it states that certain addresses have been presented to the King, it is evidence to prove that fact. R. v. Holt, 5 T. R. 436. So proclamations may be proved by production of the Gazette. Ibid. 443. Att. Gen. v. Theakstone, 8 Price, 89. But the Gazette is not evidence of matters therein contained which have no reference to acts of state, as a grant by the King to a subject of a tract of land, or of a presentation; R. v. Holt, 5 T. R. 443.; or of the appointment of an officer to a commission in the army. Kirwan v. Cockburn, 5 Esp. 233. R. v. Gardner, 2 Camp. 513. So where a declaration for simony alleged the division of a parish into distinct parishes by an order in council under 58 G. 3. c. 45., the Gazette, purporting to contain a copy of such order,

was rejected as evidence of it.

Rob. 363.

Greenwood q. t. v. Woodham, 2 M. §

A paper from the secretary of state's office, transmitted by the British Ambassador at a foreign court, and purporting to be a declaration of war by the government of that country against another foreign state, is evidence of the precise period of the commencement of that war. Thelluson v. Cosling, 4 Esp. 266. The existence of a war between this country and another requires no proof. Fost. Cr. L. 219. R. v. De Berenger, 3 M. & S. 67. The articles of war, printed by the King's printer, are evidence of such articles; R. v. Withers, cited 5 T. R. 446.; of which, it seems, the court will take judicial notice; per Abbott C. J., Bradley v. Arthur, 4 B. & C. 304.

Effect of Parliamentary Journals.

The Journal of the House of Lords, containing an address of the Lords to the King, and the King's answer, in which certain differences were stated to exist between the Kings of England and Spain, was admitted to prove the fact of such differences. R. v. Francklin, 17 How. St. Tr. 637. R. v. Holt, 5 T. R. 445. But the resolutions of either House of Parliament are not evidence of facts therein stated; thus the resolution of the House of Commons, stating the existence of the Popish plot, was held to be no evidence of that fact. Oates's s case, 10 How. St. Tr. 1165, 1167.

Effect of Judgments, Verdicts, and other Records.

Effect of judgments in the superior courts, with regard to the parties.] It is a general principle that a transaction between two parties in a judicial proceeding ought not to bind 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. Therefore the depositions of witnesses in another cause in proof of a fact; the verdict of a jury finding a fact; and the judgment of the court on facts so found, although evidence against the parties and all claiming under them, are not in general to be used to the prejudice of strangers. Per De Grey C.J., Duch. of Kingston's case, 20 How. St. Tr. 538. In order to bind the party he must have sued or been sued in the same character in both suits. Thus in an action by an executor on a bond, he will not be estopped by a judgment in an action brought by him as administrator on the same bond; but he may show the letters of administration repealed. Robinson's case, 5 Rep. 32 b. In considering the effect of judgments the court will look to the real parties to the suit. Thus a verdict in trespass against a person who justified as servant of J. S., was allowed to be given in evidence against the defendant, who also acted under J. S.; J. S. being considered the real defendant in both causes. Kinnersley v. Orpe, 2 Doug.517. But where, in trespass q. c. f., the defendant pleaded lib. ten. in P., and it appeared that P. had sold to plaintiff, and afterwards conveyed, without a covenant of title, to defendant, who had mortgaged to P.; it was held that P. was competent for the defendant, because the verdict would not be evidence for him as between him and the plaintiff. Simpson v. Pickering, 1 C. M. & R. 527. A former judg ment in ejectment is evidence on another ejectment, where the lessor of

the plaintiff and the defendant are the same. Doe v. Seaton, 2 C. M. & R. 728. So a verdict against one defendant, in case for a nuisance, is evidence of the plaintiff's right in a second action against the same and other defendants, if the latter claim under the first defendant. Strutt v. Bovingdon, 5 Esp. 58. On a plea of usury to an action on a bond, a verdict of acquittal in an action for penalties for usury on the same bond between the same parties, is admissible for the plaintiff. Cleve v. Powel, 1 M. & Rob. 228. In ejectment on the demise of a mortgagee, a verdict and recovery in a former ejectment, brought by the defendant against the mortgagor since the mortgage, is not evidence against the plaintiff. Doe v. Webber, 1 A. & E. 119. Evidence of a former judgment is not conclusive, except where it is an estoppel, and is so pleaded. Outram v. Morewood, 3 East, 366. Per Ld. Ellenborough C. J., Curtis v. Daniel, 10 East, 277.

Effect of judgments and verdicts in the superior courts, with regard to privies.] Privies stand in the same situation as to those to whom they are privy. Thus a privy in blood, as an heir, may give in evidence a verdict for, and is bound by a verdict against, his ancestor. Lock v. Norborne, 3 Mod. 141. Outram v. Morewood, 3 East, 346. Sɔ of privies in estate; therefore, if there be several remainders limited by the same deed, a verdict for one in remainder may be given in evidence for one next in remainder. Pyke v. Crouch, 1 Ld. Raym. 730. See Doe v. Tyler, 6 Bing. 390. antè, p. 108. So a verdict for or against a lessee is said to be evidence for or against him in reversion; Com. Dig. Ev. (A. 5.); Rushworth v. Lady Pembroke, Hardr. 472.; but this, as a general rule, seems questionable. A verdict against tenant for life is inadmissible against the reversioner; B. N. P. 232.; and it seems that a verdict for or against A. is admissible against a party claiming under A. only where the claim originated since the verdict. Semb. per Littledale J., in Doe v. Earl of Derby, 1 A. & E. 790. A. and B. sued defendant for diverting water from their works; they were allowed to give in evidence a former recovery by A. alone against the same defendant for a similar injury, although B. had been a witness for A. in the first action; and it was held that the possession by A. and B. of the same works was evidence of privity of estate. Blakemore v. Glamorgan Canal Co., 2 C. M. & R. 133. Privity in law is sufficient; thus a verdict against an intestate, or testator, binds his representatives. R. v. Hebden, Andr. 389. In the same manner a judgment against the school-master of a hospital, concerning the rights of his office, is evidence against his successor. Travis v. Chaloner, 3 Gwill. 1237. A judgment of ouster against a municipal officer was allowed to be given in evidence inter alios, upon issue joined in a quo warranto whether he was such officer at the time of defendant's election. R. v. Hebden, 2 Stra. 1109. S. C., more fully, in 2 Selw. N. P. 1187. And the record of ouster will be conclusive, if the ouster avoids the election and the judgment was without fraud; R. v. Mayor of York, 5 T. R. 66. 72.; otherwise it is not conclusive. 2 Selw. ubi suprà. R. v. Grimes, 5 Burr.

2598.

Effect of judgments or verdicts in the superior courts, with regard to strangers.] There are several exceptions to the general rule, that no one shall be bound by a judgment to which he is not party or privy.

In the case of customs or tolls, verdicts, whether recent or ancient, respecting the same custom or toll are evidence between other parties. City of London v. Clerke, Carth. 181., B. N. P. 233. So in the case of customary commoners, a verdict in an action for or against one, is evidence for or against another claiming the same right. Per Lord Kenyon, Reed v. Jackson, 1 East, 357. So a verdict with regard to a public right of way. Id. 355. And it seems that in all cases where general reputation is evidence, a verdict upon the right claimed will also be evidence, even as between strangers to the former record. Id. Ibid.; Richards v. Bassett, 10 B. & C. 663. See further, antè, p. 28, 29, 30. The record of a former action of indebitatus assumpsit for work and labour by an officer, coupled with parol proof of the point in issue, is evidence of the right to a public office. Laybourn v. Crisp, 4 M. & W. 320. The verdict in such cases is not conclusive. Biddulph v. Ather, 2 Wils. 23. The decree of an incompetent court, unknown to the law of the realm, is inadmissible, except where the voluntary submission of the parties gives it the effect of an award. Rogers v. Wood, 2 B. & Ad. 245. And a prosecution by the Crown for usurping tolls, which was resisted and not carried on to judgment, is not admissible on a trial of the same right. Per Tindal C. J., Lancum v. Lovell, 6 C. & P. 437. Where a judgment is produced merely for the purpose of proving the fact that such a judgment has been obtained, and not with a view to prove the facts upon which the judgment was founded, it may be evidence for or against a stranger. Thus, a verdict against a master in an action for the negligence of his servant, is evidence in an action by the master against the servant to prove the amount of damages; Green v. New River Company, 4 T. R. 590.; unless the servant's name was indorsed as a witness on the former record. See antè, p. 111.

Effect of judgments and verdicts, with regard to the subject-matter of the suit.] A judgment between the same parties, and upon the same cause of action, is conclusive, although the form of action is different. Thus, a verdict in trover is a bar in an action for money had and received, brought for the value of the same goods. Hitchin v. Campbell, 2 W. Bl. 827. So a judgment in debt is a bar in an action of assumpsit on the same contract. Slade's case, 4 Rep. 94b. So a judgment in trespass, in which the right of property is determined, is a bar to trover for the same taking. Com. Dig. Action (K 3.). If the party mistake his form of action and fail on that account, the judgment in such action will not conclude him. Ferrers v. Arden, Cro. Eliz. 668., Godson v. Smith, 2 B. Moore, 157. If the plaintiff omitted to give any evidence of a demand which he might have recovered in a former action, he will not be precluded from giving it in a subsequent action, provided the form of the issue admits of such evidence. Seddon v. Tutop, 6 T. R. 607. And see Eastmure v. Laws, 5 New Ca. 444.; Thorpe v. Cooper, 5 Bing. 129. So, although an order of removal, quashed at the sessions, is evidence between the same parishes that there is no settlement in the appellant parish, yet the order of sessions may be explained by parol, and a subsequent cause of removal may be shewn. R. v. Wick, St. Lawrence, 5 B. & Ad. 526. Where the declaration in the second action is framed in such a manner that the causes of action may be the same as those in the first, it is incumbent on the party bringing the

second action to show that they are not the same. Williams, 3 B. & C. 239.

Lord Bagot v.

A judgment is only evidence where it is directly upon the point in question. It is not evidence of any matter which came collaterally in question; or of any matter incidentally cognizable; or of any matter to be inferred by argument from the judgment. Duchess of Kingston's case, 20 How. Št. Tr. 533.; Blackham's case, 1 Salk. 290. See the observations of the court in R. v. Wick, St. Lawrence, suprà, and post, P. 143.

Effect of judgments and verdicts in the superior courts, with regard to the manner in which they are taken advantage of.] A judgment upon the same point between the same parties, will operate as an estoppel, if so pleaded in the second action; but if only offered in evidence, and not so pleaded, it is not conclusive. Outram v. Morewood, 3 East, 365.; Stafford v. Clark, 2 Bing. 381. Thus, where an action was brought for a nuisance to the plaintiff's mill, it was held that a verdict obtained by the defendant on a former action brought by the plaintiff for the same act, but not pleaded as an estoppel, was not conclusive, but only pregnant evidence; for by declining to plead it, the defendant waives the benefit of the maxim nemo debet bis vexari, &c., and submits the fact of guilt again to a jury. Vooght v. Winch, 2 B. & A. 662. The principle is that where the form of pleading refers the case to a jury, they are not estopped. Per Cur. in Doe v. Huddart, 2 C. M. & R. 316. 320. The same rule applies to ejectment; therefore a judgment in ejectment is not conclusive of the title in trespass for mesne profits, unless pleaded. S. C. See also Magrath v. Hardy, 4 New Ca. 782. 797., where it appears that in certain cases, as where an estate or interest arises by estoppel, the jury are bound by it.

Admissibility, in civil cases, of verdicts in criminal cases.] It has been said that a conviction in a court of criminal jurisdiction is evidence of the same fact coming collaterally into controversy in a court of civil jurisdiction. Thus a conviction for bigamy is said to be admissible on an ejectment where the validity of the second marriage is in dispute ; B. N. P. 245. ; and see Gilb. Ev. 30. In other cases this evidence has been excluded on the ground that the conviction was procured on the testimony of the party who offers it in evidence. Smith v. Rummens, 1 Camp. 9. Hathaway v. Barrow, Id. 151. But the better opinion seems to be that such a record is inadmissible as res inter alios, without reference to the witnesses on whose testimony the conviction was obtained. See the judgment in Blakemore v. Glamorgan Canal Co., 2 C. M. & R. 139. Brook v. Carpenter, 3 Bing. 300. Hillyard v. Grantham, cited 2 Ves, sen. 246. Gibson v. M'Carty, Hardw. 311. If, on an indictment for an assault, the defendant pleads guilty, the record is said to be evidence against him in an action for damages for the same assault. Tr. per Pais. 30. Anon. 1 Phill. Ev. 320. But the contrary was ruled by Lord Tenterden C. J. at Nisi Prius. 2 Phill. Ev. 203. 7th ed.

Where convictions operate in rem they are admissible in a suit inter alios; see post," Effect of Judgments in rem," p. 138.; even though they were obtained on the testimony of the party who gives them in evidence; per Tindal C. J. Davis v. Nest, 6 C. & P. 167. See further, "Effect