ment must be final (u). Thus no action can be brought on an interlocutory order of an inferior court, e.g., an interlocutory order for costs (x).

Estoppel by verdict and pleading.---The authorities differ as to whether a verdict of itself can operate as an estoppel. Thus it is laid down by some old authorities that a record cannot operate as an estoppel, unless judgment was actually given in the proceedings relied on by way of estoppel (y); and that a verdict, without judgment given, not being a perfect record, works no estoppel (2). On the other hand, it is laid down elsewhere as follows: "A verdict whereupon an attaint lies, estops all parties and their privies. An estoppel on a verdict goes a great way. Issue in tail shall never falsify it" (a). And Lord Coke says that a verdict is itself an estoppel upon the same matter of fact afterwards arising between the same parties, unless it has been reversed by attaint (b).

But where issues on matters of title in a Chancery

(u) Hume v. Burton, 1 Ridgway's P. R. 565.

(x) Emerson v. Lashley, 2 H. Bl. 248; Fry v. Malcolm, 4 Taunt. 705. For the proper remedy is by attachment.

(y) Vin. Ab., Former Action B. Pleadings, p. 497, citing Bro. Estop. pl. 137.

(2) Bro. Estop. pl. 189; Vin. Ab. Record, p. 171, citing Bro. Repleader, pl. 61.

(a) Trevivian v. Lawrence, 1 Salk. 276.

(4) Co. Litt. 227 b; Vin. Ab. Estop. p. 424; Bro. Estop. pl. 132; Peake's Evidence (3rd ed.), p. 39; Eastmure v. Laws, 5 Bing. N. C. 450. In order, however, for the verdict to operate as an estoppel on any matter, the matter must have been actually in issue between the parties, Vin. Ab. Estop. p. 480. It need not, however, have been the only one in issue, R. v. St. Pancras, Peake's N. P. Cases, 219.

suit were directed to be tried by a jury, it was held in a subsequent action between successors in title, that the verdict on the issues in the suit between the predecessors in title, did not itself create an estoppel, but that the decree and pleadings in the suit must also be taken into consideration (c). A verdict upon matters in issue is, however, evidence for and against all parties and privies, upon the same matters in issue between them in subsequent proceedings (d); but in order that it may be evidence for or against any one claiming under a party to the verdict, the claim must have been acquired through such party, subsequently to the verdict (e).

A judgment obtained by a compromise of the parties to an action, cannot be considered as res judicata so as to bind persons not parties to the action (ƒ).

And judgment given for plaintiff by consent, before declaration filed, was held to be no estoppel against defendant, at common law in a subsequent suit (g).

But where plaintiff gave defendant notice that he might inspect a document, and that he would be required

(c) Robinson v. Duleep Singh, L. R. 11 Ch. D. 798.

(d) Com. Dig. Tit. Evidence A. 5; Gilbert on Evidence, p. 18; R. v. Warden of Fleet, Holt's Rep., 134; Outram v. Morewood, 3 East, 346; Mondel v. Steele, 8 M. & W. 872; Carter v. James, 13 M. & W. 137; Rigge v. Burbidge, 15 M. & W. 598; Hutt v. Morrell,3 Ex. 240; Whittaker v. Jackson, 2 H. & C. 926.; Blakemore v. Glamorganshire Canal Co., 2 C. M. & R. 133.

(e) Doe d. Foster v. Derby, 1 A. & E. 783. And a verdict inter partes is not as a rule evidence against strangers, except where it is evidence of custom or general reputation. Roscoe's Nisi Prius (14th ed.), pp. 191, 192.

(f) Jenkins v. Robertson, L. R. 1 H. L., Sc. 117; but, as to compromises by counsel, see Keane v. O'Brien, 5 Ir. R. C. L. 531.

(g) Per V.-C. Wood in Goucher v. Clayton, 11 Jur. N. S. 107.

to admit it at the trial, and the judge, on summons, made an order, by consent, for the same to be admitted; held, that defendant was estopped from raising any objection to the document at the trial (7).

And where plaintiff confessed a defence under Rules 22, 23, of T. T. 1853; such a confession was final as to everything that had been, or might have been, controverted in the action; and plaintiff was estopped from raising the same point in a subsequent action between the same parties (i). But the confession did not operate as an estoppel with respect to any matters which did not arise until after the termination of the action in which the plea was confessed, and which therefore could not have been in controversy in such action (j). And this still appears to be the law with respect to confessions under the Rules of the Supreme Court, 1883 (k).

Similarly a judgment for plaintiff by default may estop defendant with respect to matters which he might have set up as a defence to the action (kk). And judgment against an executor or administrator by confession or default is an admission of assets, and he is estopped from afterwards denying the fact (7).

If an action were discontinued, the proceedings therein

(h) Doe d. Wright v. Smith, 8 A. & E. 255.

(i) Newington v. Levy, L. R. 6 C. P. 180; cf. Bennett v. Gamgee, L. R. 2 Ex. D. 11.

(j) Hall v. Levy, L. R. 10 C. P. 154.

(k) Order XXIV. rule 3.

(kk) Williams v. Richardson, 36 L. T. 505; and as to judgments by default in ejectment in Ireland, see ante, p. 23, note (d).

(1) Rock v. Leighton, 1 Salk. 309; Erving v. Peters, 3 T. R. 685; Leonard v. Simpson, 2 Bing. N. C. 176.

did not operate as an estoppel at common law (m). And it is now expressly provided by the Rules of the Supreme Court, 1883, that the plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants, or withdraw any part or parts of his alleged cause of complaint, and that such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action (n).

Nonsuits did not, generally speaking, at common law, raise an estoppel in a subsequent suit: for after nonsuit the record was null (o). But a plaintiff who had been nonsuited might nevertheless be estopped in a subsequent suit, from pleading matters which he had omitted to plead in the former action, but which he might and ought to have pleaded in such action (p).

By the Judicature Act, 1875, a judgment of nonsuit, unless the Court or a judge otherwise directed (and unless set aside in the manner therein provided), had the same effect as a judgment upon the merits for the

(m) Bro. Estop. pl. 215; Massam v. Thorley's Cattle Food Co., L. R. 14 Ch. D. 748.

(n) Order XXVI. rule 1.

(0) Bro. Estop. pls. 37, 108, 192, 194; Vin. Ab. Estop. p. 440; Level v. Hall, Cro. Jac. 284. But, for an instance of an estoppel in case of a non-suit, see Bro. Estop. pl. 162, and Vin. Ab. Estop. p.

451. Moreover, in the action of assize, which was a real action, an acknowledgment by plaintiff operated as an estoppel after nonsuit, Vin. Ab. Estop. p. 439. And as to the effect of dismissal of proceedings in Equity, see post, pp. 58, 59.

(p) Bro. Estop. pl. 39; Fitz. Ab. Estop. pl. 96.

defendant (q); and therefore estopped plaintiff from bringing a fresh action against defendant for the same cause ("). And a similar provision is contained in the County Court Acts, with respect to nonsuits in actions in the County Courts (77).

But the above provision contained in the Judicature Act, 1875, has now been annulled (s), and the Rules of the Supreme Court, 1883, contain no provision with respect to nonsuits in actions in the High Court. It is however provided that the Court or a judge may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out: and that the Court or a judge may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out (t). It is presumed therefore that, in consequence of the above provision, an order for discontinuance or that the plaintiff's claim be struck out, with leave to plaintiff to bring a fresh action, will henceforward take the place, in actions in the High Court, of a judgment of nonsuit at common law.

The record in an action wrongly brought is no bar to an action rightly brought, unless title was pleaded in the

(7) Order XLI., rule 6, of Judicature Act, 1875.

(r) Lampen v. Kedgewin, 1 Mod. 207; Buckmaster v. Meiklejohn, 8 Ex. 634; Burkitt v. Blanshard, 3 Ex. 89; Marianski v.

Cairns, 1 Macq. 212.

(rr) Poyser v. Minors, L. R. 7 Q. B. D. 329.

(s) Wilson's Judicature Acts (4th ed.), p. 382.

(t) Order XXVI. rule 1.