CHAPTER III. DOMESTIC JUDGMENTS IN PERSONAM. Ir is laid down in the Duchess of Kingston's Case (a) that a record, in order to operate as an estoppel in subsequent proceedings in another court, must be that of a court having either exclusive jurisdiction over the subject-matter of the estoppel, or a jurisdiction concurrent with that of the Court in which it is sought to raise the estoppel. We propose to consider, in this chapter, the effect of domestic judgments in personam or inter partes, and, in the following chapter, the effect of domestic judgments in rem. As to the parties to an action.-As regards judgments in personam or inter partes, the general rule is, that an allegation upon record, upon which issue has been once taken and found, is, between the parties taking it and their privies (b), conclusive according to the finding thereof, so as to estop the parties from again litigating that fact once so tried and found (c). In considering who are the parties bound by a judg (a) Appendix B, pp. 410, et seq. (b) Bro. Estop. pl. 162; Cary v. Dancy, 2 Cro. Eliz. 471; Hudson v. Robinson, 4 M. & S. 475, at pp. 479, 485. (c) Per Ld. Ellenborough in Outram v. Morewood, 3 East, 346; per Parke, B., in Boileau v. Rutlin, 2 Ex. 665; Burrows v. Jemino, 2 Str. 733, Appendix B, p. 415; Flitters v. Allfrey, L. R. 10 C. P. 29. ment in personam, the question to be determined is, who were the real parties to the suit (d). At all events, the parties must be substantially the same (e). And, in order to constitute a person a party so that a judgment may be used against him, he must have taken some part in the proceedings, in which the judgment was given (ƒ). But whenever a person sues, not in his own right, but in the right of another, he must, for the purposes of estoppel, be deemed a stranger (g). And if a man mistook his action by bringing an action as administrator, whereas in truth he was executor, he was not debarred, by judgment for the defendant on demurrer, from bringing a fresh action as executor (h). So also the defendants, in an action brought by the plaintiff as administratrix generally, were not estopped by the judgment in a previous action brought against them by the plaintiff, suing as administratrix under Lord Campbell's Act (i). Lord Coke classes privies under the three heads of 1. Privies in blood; 2. Privies in law; and 3. Privies by estate. But as regards estoppel, the same doctrine applies to each class, viz., that one who claims through (d) Kinnersley v. Orpe, 2 Dougl. vol. iii. p. 66; Com. Dig. Tit. 517. (e) Per Parke, B., in Simpson v. Pickering, 1 C. M. & R. 529. (f) Doe d. Smith v. Webber, 1 A. & E. 119. () Vin. Ab. Estop. p. 432, citing Bro. Estop. pl. 140; Com. Dig. Estop. p. 195; Metters v. Brown, 1 H. & C. 686. (h) Robinson's Case, Co. Rep., Estop. (C.). Demurrers are now abolished, see R. S. C., 1883, Order XXV., rule 1; and see as to the practice now, R. S. C., 1883, Order XXI., rule 5. (i) Leggott (administratrix) v. G. N. R. Co., L. R. 1 Q. B. D. 599; 45 L. J. Q. B. 557. And see Ferrers v. Arden, 2 Cro. Eliz. p. 668; Co. Rep., vol. iii. 271. another is, to the extent of his claim, subject to, and able to take advantage of, all estoppels affecting the person through whom he claims. Thus, as an example of the first class, viz., privies in blood, an heir is estopped by a verdict against his ancestor through whom he claims (j). But not if he does not claim under the ancestor (k). Again, as an example of the second class, viz., privies in law, an executor or administrator is bound by a verdict against his testator or intestate (7). So also a verdict against a wife was held to bind a future husband (m). And a judgment of ouster against one member of a corporation is conclusive evidence against another who derives title under him (n). Further, as an example of the third class, viz., privies in estate, if several estates in remainder be limited in a deed, and one of the remaindermen obtains a verdict in an action brought against him for the same land, that verdict may be given in evidence for the subsequent remainderman in an action brought against him for the same land, though he does not claim any estate under the first remainderman, because they all claim under the same deed (0). But there is no such privity 6) Locke v. Norbonne, 3 Mod. 141; Bell v. Harwood, 3 T. R. 308; Com. Dig. Tit. Estop. p. 194, notes r, s, and t. (k) Spencer v. Williams, L. R. 2 P. & D. 230. (1) R. v. Hebden, Buller's N. P. 231; Andrew, 388; 2 Str. 1109. (m) Outram v. Morewood, 3 East, 346; and sce Co. Litt. 352 a. (n) R. v. Mayor, &c., of York, 5 T. R. 66 and 72; but see R. v. Grimes, 5 Burr. 2601. (0) Pyke v. Crouch, 1 Ld. Raymd. 730; 8 Wil. iii. On the same principle, a remain of estate between a tenant for life and a reversioner (p). So also in a bill claiming tithes, a former verdict between the parson and another occupier was admitted as evidence on the point "whether the payment called the tilth-penny was paid and payable in lieu of tithe-hay" (q). The rule that a record inter partes binds parties and privies, is subject to the general limitation that no one can plead a record for estoppel, unless he himself may be estopped by it (). Thus it has been laid down that nobody can take benefit by a verdict, that would not have been prejudiced by it, had it gone contrary (s). For an example, a stranger to a record inter partes cannot take advantage of an estoppel arising therefrom (t). Neither, it appears, is he bound by any estoppel arising therefrom (u). The general rule is laid down in the opinions of the (t) Bro. Estop. pls. 64, 223. The reason given in the old authority, why a stranger cannot take advantage by estoppel of a record upon verdict, is, that the verdict might be reversed by error or attaint, but that the stranger could not reverse it, see ibid. (u) Vin. Ab. Estop. pp. 444, 446; Bro. Estop. pls. 15, 44, 105, 169; Co. Litt. 352 a. See, contra, the rule laid down in Bull v. Wyatt, Cro Car. 338 (cited in Vin. Ab. Estop. p. 442), to the effect that an estoppel by record binds all strangers who would not be disinherited by it. judges in the Duchess of Kingston's Case (x) as follows: "It is a general rule, with certain exceptions, that a transaction between two parties in judicial proceedings, 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 he might think erroneous and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of a court upon facts found, although evidence against the parties and all claiming under them, are not in general to be used to the prejudice of strangers." The reason why an estoppel per rem judicatam is limited in its effect to parties and privies, is because it is dependent upon the principle, "Res inter alios acta alteri nocere non potest" (y). So too, it is stated elsewhere, that the verdict ought to be between the same parties, because otherwise a man might be bound by a decision, who had not the liberty to cross-examine: and that nothing can be more contrary to natural justice, than that a man should be injured by a determination, that he, or those under whom he claims, were not at liberty to controvert (2). A distinction was formerly drawn between the effect by way of estoppel upon third parties of a record in a real, and in a personal action (a). Thus, if A. brought (x) 20 St. Tr. pp. 355-651; 2 Smith's L. C. (8th ed.), p. 784 et seq.; 1 Leach, C. C. 146. And see also the rule as to the admissibility of depositions, &c., in other actions, as laid down per Hullock, B., in Attorney-General v. Davison, McClel. & Y. at p. 169. (y) R. v. Ambergate &c. Ry. Co., 1 E. & B. 372; and per Ld. Selborne in R. v. Hutchins, L. R. 6 Q. B. D. 300. (2) Buller's N. P. P. 233. |