Gosset v.
Howard.

the defendant issued a writ of attachment against the plaintiff's ship, for the purpose of enforcing a debt which the defendant alleged that the plaintiff owed him, and the plaintiff afterwards sued the defendant in this country for trespass in seizing the ship, it was held that it must be presumed, in the absence of evidence to the contrary, that the Court had jurisdiction to issue the process in question (b).

In the great case of Gosset v. Howard (c), the Exchequer Chamber held that the warrant of the Speaker of the House of Commons must be construed by the rules applied in determining the validity of warrants and writs issuing from a superior Court; and it was laid down that, with respect to writs so issued, it must be presumed that they are duly issued, that they have issued in a case in which the Court has jurisdiction, unless the contrary appear on the face of them, and that they are valid of themselves, without any allegation other than that of their issue, and a protection to all officers, and others in their aid, acting under them. Many of the writs issued by superior Courts recite upon their face the cause of their issuing, and show their legality -writs of execution for instance. Others, however, do not, and, though unquestionably valid, are framed in a form which, if they had proceeded from persons having a special jurisdiction unknown to the common law, would have been clearly insufficient, and would have rendered them altogether void. With regard to the Speaker's warrant, the Court held that it must be construed with at least as much respect as would be shown to a writ out of any of the Courts at Westminster; observing, in the language of Mr. Justice Powys (d), that "the House of Commons is a great Court, and all things done by them are intended to have been ritè acta" (e).

(b) Taylor v. Ford, 29 L. T. N. S.

392.

(c) 10 Q. B. 411, where the cases with respect to the validity of warrants were cited in argument.

(d) Reg. v. Paty, 2 Ld. Raym. 1105, 1108.

(e) Judgin., Gosset v. Howard, 10 Q. B. 457. Cf. Bradlaugh v. Gosset, 12 Q. B. D. 271.

RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET. (Wing. Max., p.327.)—A transaction between two parties ought not to operate to the disadvantage of a third (f).

Of maxims relating to the law of evidence, the above may Principle rule. be considered as one of the most important and most useful; its effect is to prevent a litigant party from being concluded, or even affected, by the acts, conduct, or declarations of strangers (g). On a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are, as well as his conduct and declarations, evidence against him; yet it would not only be highly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorised strangers; and if a party ought not to be bound by the acts of strangers, so neither ought their acts or conduct to be used as evidence against him ().

The above rule, then, operates to exclude all the acts, declarations, or conduct of others as evidence to bind a party, either directly or by inference; so that, in general, no declaration, written entry, or affidavit made by a stranger is evidence against a man; nor can a person be affected, still less concluded, by any evidence (i), decree, or judgment to which he was not actually, or, in consideration of law, privy (k).

(f) Res inter alios judicatæ neque emolumentum afferre his qui judicio non interfuerunt neque prejudicium solent irrogare; Cod. 7, 56, 2.

(g) The maxim was much considered in Meddowcroft v. Huguenin, 3 Curt. 403 (where the issue of a marriage, which had been pronounced void by the Consistorial Court, attempted unsuccessfully to impeach that sentence in the Perogative Court). S. C., 4 Moore, P. C., 386. See Reg. v. Fontaine Moreau, 11 Q. B. 1028, and cases infra.

(h) 1 Stark. Evid., 3rd. ed 58, 59;

Stephen, Dig. Law of Evid., 1st ed.
138. See Armstrong v. Normandy,
5 Exch. 409; Reg. v. Ambergate R.
Co., 1 E. & B. 372, 381; Salmon v.
Webb, 3 H. L. Cas. 510.

(i) See Humphreys v. Pensam, 1
My. & Cr. 580.

(k) "It cannot be doubted that a man's assertions or admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding o not, may be given in evidence against him in any suit or action in which

Maxim applied to judicial proceedings.

In a leading case (1), immediately connected with this subject, it was laid down by the judges, as a general principle, "that a transaction between two parties in judicial proceedings ought not to be binding upon 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; and, therefore, the depositions of witnesses in another cause (m) in proof of a fact, the verdict of a jury finding the fact, and the judgment of the 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" (n).

As regards the parties to the earlier suit, it is stated in the same case, as being generally true, "first, that the judgment of a Court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive (0), between the same parties, upon the same matter,

the fact so asserted or admitted becomes material to the issue to be determined. And in principle there can be no difference whether the assertion or admission be made by the party himself, who is and ought to be affected by it, or by some one employed, directed, or invited by him to make the particular statement on his behalf. In like manner a man who brings forward another for the purpose of asserting or proving some fact on his behalf, whether in a court of justice or elsewhere, must be taken himself to assert the fact which he thus seeks to establish ;" per Cockburn, C.J., Richards v. Morgan, 4 B. & S. 661.

(1) See the Duchess of Kingston's case, 11 Howell, St. Tr. 261; 2 Smith L. C., 10th ed. 713. See, also, Needham v. Bremner, L. R. 1 C. P. 583; Natal Land Co. v. Good, L. R.

2 P. C. 121; Davies v. Loirades, 7 Scott, N. R. 141; Doe v. Brydges, Id. 333; Ld. Trimlestown v. Kemmis, 9 Cl. & F. 781; cited Boileau v. Rutlin, 2 Exch. 665, 677. The general rule stated in the text has, however, been departed from in certain cases; for instance, in questions relating to manorial rights, public rights of way, immemorial customs, disputed boun dary, disputed modus, and pedigrees.

(m) See, for instance, Morgan v. Nicholl, L. R. 2 C. P. 117.

(a) See, also, Judgm., King v. Norman, 4 C. B. 898.

(0) I.e., if pleaded, there being an opportunity to plead it; for "if a party does not take the first opportunity which the pleadings afford him of relying on an estoppel, he leaves the matter at large;" Judgm., Fever sham v. Emerson, 11 Exch. 385; see 2 Sm. L. C., 10th ed. 747--752.

directly in question in another Court; secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognisable, nor of any matter to be inferred by argument from the judgment " (p).

To the general principle, that a judgment is binding only as between the same parties and their privies (q), judgments in rem form an exception; for by a judgment in rem the subject-matter adjudicated upon is rendered, ipso facto, such as it is thereby declared to be, and the judgment, therefore, is of effect as between all persons whatever. For instance, a grant of probate by a Court of competent jurisdiction actually invests the executor with the character which it declares to belong to him, and such a grant, until its revocation, is conclusive against all the world (7). Amongst judgments which are considered to be in rem is the sentence of a Court of competent jurisdiction, in a proceeding against a vessel for the purpose of enforcing a maritime lien, whereby the ship is condemned to be sold, in order that the lien may be satisfied out of the proceeds of sale (s).

It must be noticed, however, that, as regards the matters upon which a judgment is conclusive, there is no distinction in principle between a judgment in rem and a judgment

(p) Duchess of Kingston's case, supra; see per Knight Bruce, V.-C., Barrs v. Jackson, 1 Y. & C. 585; per Ld. Selborne, Reg. v. Hutchings, 6 Q. B. D. 300, 304; Priest man v. Thomas, 9 P. D. 70, 210; A.-G. for Trinidad v. Eriché, [1893] A. C. 518, 523 63 L. J. P. C. 6.

(2) See, for instance, Lady Wenman v. Mackenzie, 5 E. & B. 447; Mercantile Trust Co. v. River Plate

Trust Co., [1894] 1 Ch. 578: 63 L. J.
Ch. 366; Young v. Holloway, [1895]
P. 87 64 L. J. P. 55.

(r) See per Buller, J., Allen v. Dundas, 3 T. R. 129: 1 R. R. 666; Prosser v. Wagner, 1 C. B. N. S. 289.

(s) Castrique v. Imrie, 8 C. B. N. S. 405, 412: L. R. 4 H. L. 414, 428; Minna Craig Co. v. Chartered Merc. Bank, [1897] 1 Q. B. 55, 460: 66 L. J. Q. B. 339.

inter partes; neither is conclusive except upon the points actually decided thereby (t). For instance, a judgment of conviction on an indictment for forging a bill of exchange has the force of a judgment in rem, for it operates upon the status of the defendant, and makes him a convicted felon; but it is conclusive only as to the defendant's status, and is not even admissible evidence of the forgery in an action on the bill, although the conviction must have proceeded on the ground that the bill was forged (u). Similarly, a verdict of guilty and judgment thereon, on an indictment for a nuisance by obstructing a highway, is not conclusive evidence, on the question whether the way is public, in an action of trespass brought by the defendant against a private person for using the way (x).

Again, a decree of probate is conclusive evidence that the instrument proved was testamentary according to the law of this country, but it is not conclusive in rem as to the testator's domicile, even though it contain a finding thereon (y). It appears that the sentence of a prize court, condemning a vessel expressly on the ground of breach of neutrality, is conclusive evidence not only of the condemnation, but also of the fact that the vessel was not neutral; but this case must be regarded as exceptional (z).

It is requisite to notice the distinction which exists between the case in which a verdict or judgment inter partes is offered in evidence, with a view to establish the mere fact that such a verdict was given, or such a judgment pronounced, and that in which it is offered as a means of proving some fact which is either expressly found by the verdict, or upon the supposed existence of which the judgment can alone be supported. In the latter case, as

(1) Ballantyne V. Mackinnon, [1896] 2 Q. B. 462: 65 L. J. Q. B. 616.

(u) Castrique v. Imrie, L. R. 4 H. L. 414, 434, per Blackburn, J. (7) Petrie v. Nuttall, 11 Exch. 569.

(y) Concha v. Concha, 11 App. Cas. 541 56 L. J. Ch. 257. (z) Judgm., [1896] 2 Q. B. 463, referring to cases cited 2 Smith L. C., 10th ed., pp. 779 et seq.