
    John A. Parker et al. versus Levi Standish.
    In case for the continuance of an obstruction in a private way, a verdict and judgment on the general issue in a former action between the parties for the same obstruc* lion, is admissible, though not conclusive, evidence to show that the plaintiff has a right to the way.
    This was an action of trespass on the case for the continuance of an obstruction in and over a way. The defendant pleaded the general issue and two special pleas. At the trial, which was before Wilde J., the plaintiffs, to maintain the issues on their part, offered in evidence the verdict and judgment thereon recovered by them in a former action against the defendant and one Smith since deceased, for the erection of the obstruction, for the purpose of showing that they had a right to the way ; but as trial was had in the former action on the general issue, and the right of way was not put directly in issue by the pleadings, the judge was of opinion that the verdict and judgment were not admissible as evidence, and they were accordingly rejected.
    
      W. Baylies and T. G. Coffin, for the plaintiffs,
    contended that the verdict and judgment in the former action were admissible evidence, though not conclusive. The plaintiffs could not have recovered in that action without proving a right of way in them ; the judgment was therefore sufficient to throw the burden on the other side to show that this right had been devested or the obstruction removed. Phillipps on Evid. (2nd ed.) 226; Kinnersley v. Orpe, 2 Doug. 517; Strutt v. Bovingdon, 5 Esp. R. 58; Miles v. Rose, 5 Taunt. 705.
    
      L. Williams and Russell, contra,
    
    cited Standish v. Parker et al. 2 Pick. 20.
   Per Curiam.

For the reason assigned by the plaintiffs’ counsel, we think the record in the former action was admissi ble evidence, though not conclusive.

Mew trial granted. 
      
      
        Standish v. Parker, 2 Pick. (2nd ed.) 22, n. (1); 2 Stark. Evid. (5th Am ed.) 705, 706; Blakemore v. Glamorganshire Canal Co. 2 Crompt., Mees & Roscoe, 133.
     