
    Henry Ryer against Elnathan Atwater and James B. Wright.
    June, 1810.
    MOTION for a new trial.
    This was an action for an assault and battery and imprisonment, which were thus alleged: “ That on or about the 1st day of August, 1807, at the island of St. Croix, on board of the brig Thomas, the defendants did, with force and arms, an assault make on the body of the plaintiff, and him did beat and wound and unlawfully imprison, and detained and confined him in close confinement for the space of two days,” et alia enormia.
    
    The defendants pleaded not guilty.
    
    On the trial, the defendants, in support of their de-fence, offered evidence to prove, that in July, 1807, the plaintiff was a sailor on board the brig Thomas, at the island of St. Croix, of which Atwater, one of the defendants, was master, and Wright, the other defendant, was mate; that the plaintiff then and there broke to pieces and destroyed a quantity of cheese belonging to Wright; that he also used insulting language to Wright; and that, as a punishment for this conduct of the plaintiff, Atwater ordered him to be confined in a part of the vessel called the run. To establish the fact of destroying the cheese, the defendants offered a duly authenticated copy of the record of an action brought by Wright against the plaintiff, for the damage done to the cheese, before the county court for the county of JVew-Haven. In that action Wright declared as follows : “ That at the island of St. Croix, on the 20th of August, 1807, the plaintiff owned and possessed 500lb. of cheese, of the value of seventy dollars, and the defendant did then and there, with force and arms, unlawfully spoil and destroy, and break in pieces, the whole of said cheese, while the same was so owned and possessed by the plaintiff, so that the same was rendered wholly useless and unsaleable, and of no value,” et alia enormia. Ryer pleaded not guilty; and a verdict was obtained and judgment ren-¿ere(j for Wright. To the admission of this record in evidence the plaintiff objected, contending that it was not legal proof for the purpose for which it was offered. The court allowed the objection, and rejected the evidence. A verdict having been found for the plaihtiff, the defendants moved for a new trial on the ground that the court mistook the law in rejecting the evidence offered.
    
      In an action fur an assault and battery and imprisonment, brought by A. against B. and C.,.the defence was, that A., being a sailor on board of a vessel of which B. was master and C. mate, had destroyed a quantity of cheesebelong-ing to C., and had also used insulting language to C.s whereupon H.. as a punishment for A*s conduct, confined him in the run of die vessel. To establish the factofdestrov-ingthe cheese., the defendants offered in evidence the record of a court of competent jurisdiction in an action bro'f. by C. against A. for destroying the cheese of C, in which action Cb obtained a verdict for damages^ and final judgment was ren-deredthereon* Held that such record was inadmissible evidence.
    
      
      Dwight, in support pf the motion.
    
      T. S. Williams, contra.
   Trumbuix, J.

The ground of this motion is, that the court below refused to admit in evidence the record of a verdict and judgment in an action of trespass brought by Wright, one of the present defendants, in which he recovered judgment and damages against Ryer for the taking and destroying of a quantity of cheese, the property of Wright.

It is a general rule, that the record of judgment in a former suit is inadmissible, unless the same parties or their privies, and no others, are the parties in the cause, on the trial of which it is offered in evidence. To this rule there are, however, sundry exceptions, which it would lead into a large field to discuss, detail, and apply to the present case. But this inquiry is unnecessary, as I am of opinion that the question before Us may be settled on clearer grounds than a discussion of that point could furnish.

A record of a cause determined on issue and verdict, on which finding and verdict final judgment is rendered* when admitted in evidence, is conclusive between the parties, as to the facts decided iñ it, except when offered in actions of a higher nature, or which relate to a common right: but it is conclusive so far only, and in respect to such facts, as were necessarily and directly decided. It is never relevant or admissible, unless it proves some fact, material in the trial of the cause in which it ⅛ offered in evidence.

The only facts decided in the record offered in the court below are these: that at some time previous to the date of the writ in that case, (for in trespass the day laid In the declaration is not material,) Ryer was guilty of trespass as to a quantity of cheese, and that Wright has, by judgment of court, recovered against him his full damages for that injury.

These facts do not in any manner tend to excuse ¿U-water.&nd Wright, on the charge of Ryer against them in the cause then on trial. They are no justification for an assault, battery and imprisonment, or for the infliction of any corporal punishment upon Ryer.

I am therefore of opinion, that the evidence arising from the record was wholly irrelevant, and was properly rejected by the court.

Swift, J.

Verdicts to be admissible evidence, must be to the same point, appearing on the record, and between the same parties and their privies, or those who stand in the same situation.

In this case, it does not appear from the record that the same point was in issue in both cases. The first was an action of trespass for destroying certain property of one of the now defendants, and was tried on the general issue. The present is an action of assault and battery, and the plea is not guilty. The defendants on the trial stated as matter of justification, the destruction of the property of one of the defendants, and also certain insulting language offered to him, by the plaintiff; and then proposed to prove the destruction of the property by the verdict in the former case. I apprehend no precedent or rule can be founds that will admit a party to make a . parol statement of his defence, which does not appear on • • • the record to be m issue between the parties, and then produce a verdict in a former case to prove it. The defendants should have pleaded the justification specially, to lay a foundation for this species of evidence.

But it does not appear, even from the case stated, that the same point was in issue between the parties in both actions. In the first, the point in dispute was, whether the plaintiff destroyed certain property belonging to one of the defendants. In the present action, the point is, whether the plaintiff destroyed the property ef one of the defendants, and made use of such insulting language to him, he being his captain, as will justify the battery complained of. These points are wholly different: for the question whether the plaintiff destroyed the property of one of the defendants, was to be liable to pay damages for it, or whether such destruction of property and insulting language is a justification for an assault and battery, are questions of a very different nature. Of course, it cannot be said that,the issue was joined upon the same point in both cases.

It is true, there is one fact which is the same in both, that is, the destruction of the property; but when there are several distinct facts which constitute the points contested between the parties, no authority can be found that will warrant the admission of a verdict as evidence to prove one of the several facts put in issue. In the cases reported the verdict goes to the whole point in issue, and not to a part of the facts: and this distinction is founded in reason ; for where the facts are different, the same points precisely cannot be in issue.

The actions were not between the same parties; for one of the defendants was not a party to the first action. It is conceded, that the verdict cannot operate as evidence in favour of the defendant who was not a party to the former suit. No case has been produced to show that a verdict is evidence where some of the parties, and not all, were the same in both suits; and there seems to be a strong reason why it should not be done; for in many cases, it is possible that the one who was not a party to the first suit was a witness, and that the verdict was obtained by his testimony. As it would be inconvenient to call parol proof to show such fact, the only consistent principle is to reject all verdicts thus circumstanced. In the present case, it is very probable that the defendant, who was not a party to the former suit, was a witness : and though it may be said that the verdict shall not operate in his favour, yet it would introduce a strange inconsistency that one of the defendants should be acquitted of the assault and battery by force of the evidence furnished by this verdict, and the other be convicted for want of it, when the verdict is before the jury, and proves that both, if either, ought to be acquitted.

It appears, then, to be the only consistent general rule, that verdicts should be evidence only between the parties and their privies, and those who stand in the same situation ; and as I find there has been no deviation from this rule, I think it most advisable to adhere to it.

Accordingly, I concur in opinion that a new trial ought not to be granted.

The other judges were of the same opinion.

New trial not to be granted. 
      
       Vide Church v. Leavenworth, ante, 274.
     