Burrill v. West

Richardson, C. J.

delivered the opinion.of the court.

This is an action of assumpsit, founded upon a promise made by the defendant, to indemnify the plaintiff, a constable, for making sale of a chattel upon a writ of execution, in favor of the defendant against one W. Wtsl. The amount of the defendant’s undertaking, was to save the plaintiff harmless from the claims of all persons having a better title • to the chattel, then the title of W. West, the debtor. It was then incumbent upon the plaintiff, in order to maintain this action, to shew not'only that he had been subjected to the payment of damages, by reason of his having made the sale, but that he had been subjected to pay them to a person having a better title to the chattel, than the title of W. West. The plaintiff produced in evidence, the record of a judgment of the supreme judicial court of Massachusetts, founded upon a report of referees, by which it appeared that one Joshua Ames had recovered against the plaintiff damages and costs in an action of trespass, for taking the chattel in question; but the plaintiff offered no evidence to shew that the defendant had any knowledge whatever of the pendency of that suit, nor did he offer any other evidence of Ames* title to the chattel attached. The question is, was that judgment, evidence against this defendant, that Ames had a better title to the chattel, than the title of W. West ?

A verdict or judgment, in a former action upon the same matter directly in question, is evidence not only for or against the parties to the suit, but for or against privies in blood, privies in estate, and privies in law. But neither a verdict nor a judgment can, in general, be evidence for either party in an action against one, who was a stranger to the former proceeding, who had no opportunity to examine witnesses or defend himself. It is not necessary that he against whom a judgment is to be used as evidence, should have been actually a party to the suit in which it was rendered. But in general, notice of the suit, and an opportunity to be heard, seem indispensable to make the judgment evidence. 7 Johnson 168 , Kip vs. Brigham et a.—7 do. 173, Waldo vs. Long. —6 do. 158, Kip vs. Brigham et a.—1 do. *193 517, Blasdale vs. Babcock.-4. Mass. Rep. 349, Hamilton vs. Cutts et a.— 4 Dallas 436 , note, (1) Phillips’ E?-233‘ (2) 4 D. & E. 590 Green vs. The New River Company.

To these general rules there are however exceptions. Thus, on questions of custom, or toll, on a question of customary right of common, or a public right of way, a verdict in a former action between any other persons is admissible in evidence.(l) ⅛0 the judgment offered in evidence by the plaintiff in this case was admissible to prove certain facts. It was without doubt proper evidence to prove that Ames had asserted his right to the chattel, and that what the plaintiff has paid, he was compelled to pay by legal processes) But the present case does not come within any of these exceptions, but must be governed by the general rule. The judgment offered in evidence by the plaintiff was altogether incompetent to prove Ames' title to the horse in this case, and there must be Judgment for (he defendant.