EFFECT OF INSTRUCTIONS TO AGENTS TO SELL.-A master of a vessel who carries goods to a distant port, with orders to dispose of them for the most he can obtain, will be justified, if he is unable to find a purchaser, in placing the goods in the hands of a merchant in good standing, to be sold for the owner's benefit: Day v. Noble, 13 Am. Dec. 463.

DUNLAP v. GLIDDEN, JUN., ET AL.

[31 MAINE, 435.]

ACTION FOR PROCURING VERDICT AND JUDGMENT BY FRAUD AND PERJURY can not be maintained while such verdict, and judgment remain in force. JUDGMENT UNREVERSED ESTOPS PARTY against whom it has been rendered from proving any allegation inconsistent with it.

ACTION WILL NOT LIE AGAINST WITNESS FOR GIVING FALSE TESTIMONY in another case.

WHEN PLEADINGS OF BOTH PARTIES ARE BAD, judgment must be rendered against the plaintiff as the party who committed the first error in pleading.

CASE. Dunlap claimed that he was the owner of certain parcels of land, and that Glidden, one of the defendants, sued out a writ of entry against the plaintiff, and obtained a verdict and judgment for the same. Plaintiff alleged that such verdict was obtained through fraud on the part of Glidden, and by false testimony on the part of his co-defendants and other witnesses who with Glidden had conspired to cheat the plaintiff out of the land which he claimed. Defendants contended in reply that the charges made by the plaintiff were false, and that he was estopped by reason of the judgment from proving his allegations.

F. Allen, for the defendants.

Lancaster and Baker, for the plaintiff.

By Court, WELLS, J. The cause of action in these suits is the same, but the same defendants are not all joined in each of them. The declarations allege in substance, that Benjamin Glidden, jun., commenced an action against the plaintiff to recover several parcels of real estate, that a verdict was rendered in that action in favor of Glidden, and judgment was entered on the verdict, that all of the defendants fraudulently conspired together to defeat the plaintiff's title, and to aid Glidden in his suit, and that by the false testimony of two of the defendants and others, the verdict was obtained against the plaintiff.

These actions are brought to recover damages arising from the judgment obtained by Glidden against the plaintiff, and if

AM. DEO. VOL. LII-40

they should be sustained, the record would present the anomaly of a judgment remaining in full force, and of another, in which damages were rendered, on account of the existence of the former one. But the judgment against the plaintiff, so long as it remains in force, must be considered as true and just. He can not be permitted to aver the falsity of that judgment, as the ground for the recovery of damages. It constitutes in itself a clear and unequivocal denial of his allegations. He says, that by the fraud and conspiracy of the defendants, he has lost the land, but the judgment imports that it was properly rendered in the ordinary course of judicial proceedings.

It is contended, that the defendants were not all parties to the judgment, and can not avail themselves of it in this suit, and that the plaintiff is not estopped in relation to them, some of whom are neither parties nor privies, to deny the validity of the judgment. That principle would be correct in reference to those who were not parties or privies, in a controversy with them in relation to the land, for the estoppel must be mutual. But it does not apply to these cases. They are not brought for the land, but to recover damages for the loss of it, and the judgment shows that the plaintiff was not entitled to it. He grounds these actions upon the exhibition of a judgment against himself, and claims to maintain them because it was unjustly obtained. Glidden, who was a party to the suit, might avail himself of any estoppel arising from it, in a case where it should become expedient for him to do so, and could not be deprived of the benefit of it by being united with others. The plaintiff himself presents the judgment as the cause of his injury, and the basis of his claim against all of the defendants. He does not seek to pass by it, as res inter alios acta, but in substance admits it to be binding upon him, though he contends it was unjustly obtained, and alleges that his damages have been caused by it.

The suits are analogous to an action of conspiracy, and to an action on the case, in the nature of a conspiracy, at the common law. And in such actions it must appear that the plaintiff has been acquitted or discharged from the prosecution commenced against him: 3 Bla. Com. 126; Case of Conspiracy, 12 Co. 23; Savile v. Roberts, 1 Ld. Raym. 374; Pollard v. Evans, 2 Show. 50; Fisher v. Bristow, 1 Doug. 215. But these actions have been superseded by the modern action for malicious prosecution: 1 Ch. Pl. 136. In which action the plaintiff must show a want of probable cause as one of its essential elements.

It has been held that a conviction before a justice of the peace, having jurisdiction, is conclusive evidence of probable cause, although upon an appeal there was an acquittal: Whitney v. Peckham, 15 Mass. 243. But exceptions have been made to this rule, where the conviction before the magistrate was obtained by the fraudulent conduct of the prosecutor, and the accused was subsequently acquitted upon an appeal: Burt v. Place, 4 Wend. 591; Payson v. Caswell et al., 22 Me. 226.

In Payson v. Caswell et al., the defendants were charged with a malicious prosecution, and also for a conspiracy to injure the plaintiff by a prosecution known to them to be groundless. It is said by Whitman, C. J., that the want of probable cause is essential under either aspect of the case, and however malicious the defendants may have been, if they had probable cause for the prosecution, the policy of the law would shield them from harm, in a suit of this kind, whatever form it might have assumed.

The most satisfactory view which can be taken of these cases, is to class them with actions for malicious prosecution, the principles of which apply to actions to recover damages, for the prosecution of civil suits, that are false and malicious.

But a civil suit in such cases is not considered false, unless it has been defeated, or appears to have been brought for a larger sum than was known to be due, for the purpose of oppressing the defendant, by attaching his property, or arresting him when he would not be liable to an arrest for the sum actually due: Hargrave & Butler's note, 297, to sec. 237 of Lit.; Matthews v. Dickinson, 7 Taunt. 399; Bull. N. P. 13; Savage v. Brewer, 16 Pick. 453 [28 Am. Dec. 255]. And the judgment in favor of Glidden, which was rendered, upon a verdict of a jury, by the highest tribunal in the state, must be considered as conclusive evidence of probable cause.

The plaintiff can not recover upon the ground alleged of false testimony given by some of the defendants. For an action will not lie against a witness for giving false testimony in another case: Damport v. Sympson, Cro. Eliz. 520; Eyres v. Sedgewicke, Cro. Jac. C01. If the judgment was obtained, as is contended, by fraud and perjury, the plaintiff has ample remedy by law. The court which rendered the judgment, upon proof of these allegations, would be bound to grant a new trial, so that, upon a further investigation, justice might be done. The witnesses, if guilty, might be indioted for perjury, and so might all those be indicted who had unlawfully conspired together to deprive

the plaintiff of his rights, and their conviction would afford the most convincing evidence that a review of the action should take place.

It is contended on the part of the plaintiff that the pleas of the defendants are bad. But it does not become necessary to decide that question, for the declarations being bad, judgment must be rendered against the plaintiff as the party who committed the first error in pleading.

The declarations in both actions are adjudged bad.

THE PRINCIPAL CASE IS CITED and affirmed in Smith v. Abbott, 40 Me. 442. WHILE JUDGMENT REMAINS UNREVERSED, it is conclusive upon the parties in every respect, and can not be impeached indirectly or collaterally: Footman v. Stetson, 32 Me. 17; Woodman v. Smith, 37 Id. 21.

JUDGMENT OF COURT HAVING JURISDICTION of the subject-matter, and proceeding according to the course of common law, is conclusive until set aside or reversed, and can not be impeached collaterally: Skinner v. Moore, 30 Am. Dec. 155, and note 168; Ocean Ins. Co. v. Francis, 19 Id. 549; see note to Tarbox v. Hays, 31 Id. 481. As to conclusiveness of former judg ments, see note to Agnew et al. v. McElroy, 48 Id. 774, and note to Douglas' Lessee v. Massie, 47 Id. 377.

SHAW V. BERRY.

[31 MAINE, 478.]

INNKEEPER IS RESPONSIBLE FOR THE WELL AND SAFE KEEPING and cus tody of his guests' goods and chattels, except in cases of inevitable accidents, the acts of public enemies, and the acts of the owners of the goods and their servants.

ABSENCE OF NEGLIGENCE ON PART OF INNKEEPER or his servants will not exempt him from liability.

THE plaintiff's horse was placed in the defendant's stable in the evening, and the following morning the animal's leg was found to have been broken above the gambrel joint. The defendant proved that the utmost care had been exercised, and that the animal was well stabled, and that the injury happened without the fault of any one connected with the inn.

Evans, for the plaintiff.

Paine, for the defendant.

By Court, TENNEY, J. In the case at bar is involved the question, to what extent an innkeeper is responsible for the horse or goods of his guest, whom he entertains for hire. It has been held by some courts and jurists, that his liabilities are similar to those of common carriers; others have considered the law less

rigorous towards him. Calye's Case, reported in 8 Co. 32, has long been regarded as the leading case upon this subject; and in some respects, a difference of opinion has existed as to its doctrines In that case, according to the report, "it was resolved by the whole court, that if a man comes to a common inn, and delivers his horse to the hostler, and requires him to put him to pasture, which is done accordingly, and the horse is stolen, the innkeeper shall not answer for it, for the words of the writ which lieth against the hostler are: 'Cum secundum legem et consuetudinem regni nostri Anglia, hospitatores, qui hospitia communia. tenent ad hospitandos homines per partes ubi hujusmodi hospitia existent transeuntes et in eisdem hospitantes, eorum bona et catalla infra hospitia illa existantia absque substractione seu omissione custodire die et nocte tenentur, ita quod pro defectu hujusmodi hospitatorum seu servientium suorum hospitibus hujusmodi damnum non eveniat ullo modo.""

From parts of the commentary in the report in Calye's Case, upon the language of the writ just quoted, it has been supposed by some that innkeepers are liable only for the want of fidelity,in themselves and their servants. It is therein said: "The words are: Ita quod pro defectu hospitatorum seu servientium suorum, etc., hospitibus hujusmodi damnum non eveniat,' by which it appears that the innkeeper shall not be charged, unless there be a default in him or his servants, in the well and safe keeping and custody of their guests' goods and chattels, within his common inn; for the innkeeper is bound by law to keep them safe, without any purloining or stealing."

Judge Story, in his treatise upon bailments, on the authority of Calye's Case, as well as other decisions, says: "But innkeepers are not responsible to the same extent as common carriers. The loss of the goods while at an inn will be presumptive evidence of negligence on the part of the innkeeper or of his do-mestics. But he may, if he can, repel this presumption, and show that there has been no negligence whatsoever; thus, although a common carrier is liable for all losses occasioned by an armed mob (not being public enemies), an innkeeper would not be liable for such a loss:" Story on Bail., sec. 472. But the commentator thinks that this doctrine should be stated with some hesitation, in view of the case of Richmond v. Smith, 8 Barn. & Cress. 9, where a different view of the law seems to be entertained. Again, in section 482, he says: By the common law, as laid down in Calye's Case, an innkeeper is not chargeable, unless there is some default in him or in his servants, in the