principle a judgment is not void, even by reason of interest in the judge, but voidable only by proper proceedings being taken to set it aside (). As illustrating the principle that records are conclusive evidence of the facts therein contained, we may, besides the authorities referred to in the note (s), cite the case of Ex parte Newton (t), where a prisoner was tried and convicted at the Central Criminal Court. After sentence, an application was made to the Court of Common Pleas, for a writ of habeas corpus for his discharge, on the ground that the offence was not committed within the jurisdiction of the Central Criminal Court, as alleged in the indictment. Held, that the record was an estoppel and the writ refused.

Another illustration of the above principle is furnished by the well known rule of law, that what a party recovers from another by legal process without fraud, the loser shall never recover back by virtue of any facts which would have availed him in the former proceedings (u).

Allen, L. R. 2 Ex. 15. But a reversed judgment does not raise an estoppel, Riche's Case, 3 Leon. 52 pl. 75.

(r) Dimes v. Grand Junction Canal Co., 3 H. L. Cas. 785; referred to in Wildes v. Russell, L. R. 1 C. P. 744. See, however, as to the judgment of a referee appointed by the agreement of the parties, Ranger v. Gt. West. Rail. Co., 5 H. L. Cas. 172.

(8) Wildes v. Russell, L. R. 1 C. P. 722; Groenvelt v. Burwell,

Ld. Raymond, 454: 12 Mod. 386; Green v. New River Co., 4 T. R. 589; R. v. Hebden, Buller's N. P. 231; Pritchard v. Hitchcock, 6 M. & G. 151; Phillipps on Evidence, vol. ii., p. 2, et seq.; Reed v. Jackson, 1 East, 355.

(t) 24 L. J. C. P. 148.

(u) Per Ld. Denman, C. J., in Wilson v. Ray, 10 A. & E. 82, at p. 88, referring to the principle established in Marriott v. Hampton, Smith's L. C. (8th ed.) vol. ii. p. 421.

Thus, where money was paid by a bankrupt under compulsion of law, his assignees in bankruptcy were bound by it and could not recover it back (x); but the law appears to have been otherwise, where the legal proceedings under compulsion of which the money had been paid, had been taken in a foreign country (y).

Again, on a similar principle, in an action of trespass against a magistrate, a conviction by him, if no defect appears on the face of it, is conclusive evidence of the facts contained therein (z).

So also, if one party brings an action against another for maliciously and without probable cause signing judgment and issuing execution against him, he is estopped from denying the correctness of the judgment and of the execution (a).

Again, if A. brings an action against B. in England, and it is in issue between the parties whether or not a judgment was obtained against them by some third party, not a party to the present action; and to prove that it was, one of the parties puts in evidence a foreign judg

(x) Belcher v. Mills, 2 C. M. & R. 150; Reynolds v. Wedd, 4 Bing. N. C. 694; Le Chevalier v. Lynch, 1 Dougl. 170: and the references in the judgments in Philips v. Hunter, 2 H. Bl. 402, 414; contra, Follett v. Hoppe, 5 C. B. 226. But it was otherwise where the debtor had committed a secret act of bankruptcy, Balme v. Hutton, 9 Bing. 471.

(y) See judgment of majority in Philips v. Hunter, 2 H. Bl. 402; Hunter v. Potts, 4 T. R.

182; and Cooke's Bankrupt Laws, vol. i. (ed. 1823).

() Brittain v. Kinnaird, B. & B. 432; referred to in Re Clarke, 2 Q. B. 633; and see post, pp. 49, 50.

(a) Huffer v. Allen, L. R. 2 Ex. 15. The same principle appears to apply to an action brought in England for unlawfully and maliciously conspiring to obtain a foreign judgment in rem, sce Castrique v. Behrens, 30 L. J. Q. B. 163.

ment, then this is conclusive evidence against the other party, and he is not at liberty to shew that the proceedings were erroneous (b).

The old fictitious action of ejectment serves as a good illustration of the matters on which a judgment is, and on which it is not conclusive. Generally speaking, a judgment in one action of ejectment was not conclusive in another, in consequence of the fictitious nature of the proceedings. However, it was conclusive evidence of the plaintiff's title against the tenant in possession, in an action for mesne profits, for it concluded the parties as to the right to the immediate possession; but it proved nothing beyond the time laid in the demise (c); nor did it prove anything as to the length of time during which the tenant had occupied, or as to the value of the land (d).

So also a judgment may be used to prove the fact that a party had, by process of law, been compelled to pay damages to a certain amount, but not to prove the circumstances under which they were paid (e).

Averments which stand with the record are allowed.Thus, although a man may not aver anything against the purport of a record (f), he may against its operation (g).

(b) Tarleton v. Tarleton, 4 M. & S. 21.

(c) See Harris v. Mulkern, L. R. 1 Ex. D. 31, at p. 36; and per Cleasby, B., in Pearse v. Coaker, L. R. 4 Ex. 92, at p. 101.

(d) Phill. Ev. vol. ii. pp. 9, 10; Aslin v. Parkin, 2 Burr. 665. And as to judgments by default in ejectment in Ireland, see Kenna v. Nugent, Ir. R. 7 C. L. 464;

Le Clerc v. Greene, Ir. R. 7 Eq. 371.

(e) Phill. Ev. vol. ii. p. 4, citing Green v. New River Co., 4 T. R. 589; and Pritchard v. Hitchcock, 6 M. & G. 151.

(f) Sir T. Howard's Case, Owen 138; Gibbons v. Maltyard & Martin, Popham, 8.

(g) Hynde's Case, Co. Rep. vol. ii. p. 456; Vin. Ab. Estop. pp. 420,

Moreover, evidence may be offered to explain a judgment given in evidence or pleaded by way of estoppel (7). Thus a mistake in the record does not prejudice a party to the action, by way of estoppel in a subsequent action, if the mistake was no fault of his, even if he takes no steps to correct it (₹).

But

But there is a difference between the effect of a mistake in the record itself, and a mistake of the party (k). Thus merely putting in bail by a wrong name was considered to be the act of the court, and not of the party, and did not estop the party from pleading in an action that his or her name was a different one from that in which the bail was put in. if the party appeared to the bail by a wrong name, that might have worked an estoppel (7). And on the same principle entry and acceptance on a less quantity of land than had been actually recovered in an action of dower, was held to be a bar to proceedings of scire facias against the terre tenant for the recovery of the remainder (m).

Records coram non judice raise no estoppel (n).—

423; Pelham's Case, 2 Leon. 65; Ro. Ab. Tit. Estop., p. 862; Hubert's Case, Cro. Eliz. 531; Howlett v. Tarte, 10 C. B. N. S. 813. In some of the above cases a distinction is drawn for purposes of estoppel between a record and a deed enrolled. See further Holland v. Donne, Savile 91; Holland v. Bonis, 3 Leon. 175.

(h) Flitters v. Allfrey, L. R. 10 C. P. 29.

(i) Boyle v. Scarborough, Style's Rep. pp. 395 & 440.

(4) Lutwyche's Rep., 524 (Appendix).

(1) Stroud v. Lady Gerrard, 1 Salk. 8, pl. 19.

(m) Moo. 679, Tit. Dower, pl.

928.

(n) Bro. Ab. Estop. pl. 215; Fitzherbert, Estop. pl. 18; see also Vin. Ab. Estop. p. 462; and Com. Dig. Tit. Estop., p. 196.

Thus judgments of courts of inferior jurisdiction of a thing out of their jurisdiction are absolutely void, and advantage might be taken thereof in pleading without reversal by writ of error (o). And such judgments are not even admissible in evidence (p).

So also judgments have no operation by way of estoppel, respecting matter as to which the court had no authority to adjudicate directly and immediately between the parties (q). For instance, an inquisition under the compensation clauses of the Lands Clauses Consolidation Act, 1845, has only reference to the amount of compensation, and not to the right of the party to demand compensation. Therefore a verdict and judgment under these clauses does not estop the company from alleging, in an action brought against them on the judgment, that the lands were not injuriously affected by their works ("). And a coroner's inquisition not taken super visum corporis would be a record coram non judice (s).

Besides having the proper jurisdiction the court must be legally constituted in order that the judgment relied on as res judicata may be conclusive (t). And the judg

(0) Frumpton v. Pettis, 3 Levinz, 23; cited in Briscoe v. Stephens, 2 Bing. 213.

(p) See the cases cited in Archbishop of Dublin v. Lord Trimleston, 12 Ir. Eq. 251, 268.

(1) See the judgment of Lord Selborne in R. v. Hutchins, L. R. 6 Q. B. D. 300.

(r) Read v. Victoria Station Co., 1 H. & C. 826; R. v. London & N. W. Rail. Co., 3 E. & B. 443;

Chapman v. Monmouthshire Rail. Co., 2 H. & N. 267; In re Newbold & Metropolitan Rail. Co., 14 C. B. N. S. 405; Barber v. Nottingham &c. Canal Co., 15 C. B. N. S. 726; Beckett v. Midland Rail. Co., L. R. 1 C. P. 241.

(s) As to decisions coram non judice, see R. v. Bowman, 6 C. & P. 337.

(t) Rogers v. Wood, 2 B. & Ad.

245.