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Principle of rule.

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.

Of maxims relating to the law of evidence, the above may certainly be considered as one of the most important and most practically useful; its effect is to prevent a litigant party from being concluded, or even affected, by the evidence, acts, conduct, or declarations of strangers. 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; but 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 (e).

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, decree, or judgment to which he was not actually, or, in consideration of law,

(e) 1 Stark. Evid., 3rd ed., 58, 59. Many of the remarks appended to the above maxim have been extracted from the above valuable work, although some slight alterations have been occasionally introduced, for the purpose of adapting them to the specific subject under consideration. This opportunity has, therefore, been

taken expressly to acknowledge the benefit thus derived, and to obviate the necessity of continual reference to the same authority. Besides the remarks extracted from Mr. Starkie's work, some important cases have, however, been noticed, which appeared peculiarly fitted to the purpose of illustration.

privy. From an important case (ƒ), immediately connected with this subject, the following remarks are extracted :—It is certainly true, as a general principle, that a transaction between two parties in judicial proceedings ought not to be binding upon a third party, 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 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.

As between the parties to the original suit, it will be merely necessary to observe, that the judgment of a Court of concurrent jurisdiction directly upon the point is as a plea in bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court. But, where the judgment of a Court of competent jurisdiction has been pronounced in rem, and has actually operated upon the status of a particular thing, it may happen that some other Court, proceeding likewise in rem, may pronounce a contrary judgment on the same subject-matter, in which case it must be looked upon as arrogating to itself and exercising the functions of a court of appeal, and it is only in this point of

(f) See the opinion of the judges in the Duchess of Kingston's case, 11 Howell, State Trials, 261. See, also, Davies, demand., Lowndes, tenant, 7 Scott, N. R., 141; Doe d. Bacon v. Brydges, Id. 333. 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 custom, disputed boundary, disputed modus, and pedigrees. With regard to these exceptions, it seems true, that, whereever reputation would be admissible evidence, there a verdict between strangers in a former action is evidence also. (See the Law Mag., No. I., N. S., p. 217).

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view that its decision can be considered as warrantable. It must be further observed, that in no case can a judgment be evidence of any matter which came collaterally in question, though within the jurisdiction of the Court, nor of any matter incidentally cognisable, nor of any matter to be inferred by argument from the judgment; and the above rule applies not only to the parties to the judgment, but likewise to the privies thereto (g).

As regards third persons, it is peculiarly necessary to observe the distinction between judgments strictly inter partes and those in rem; a judgment inter partes being, in general, conclusive between the original parties only; whereas a judgment in rem renders the thing adjudicated upon, ipso facto, such as it is thereby declared to be, and is, therefore, of effect as between all persons whatever. Thus, a grant of probate or of administration is in the nature of a decree in rem, and actually invests the executor or administrator with the character which it declares to belong to him; and such grant of probate or administration is accordingly (if genuine, unrevoked, and granted by a Court of competent jurisdiction) conclusive as against all the world (h). So, the sentence of a foreign Court of admiralty, duly constituted and of competent jurisdiction, decreeing a ship to be lawful prize, is conclusive as to that which is in it, and as to the existence of the ground on which it professes to proceed, against all persons, until reversed by a regular court of appeal; all the world, it has been said, are parties to such a sentence (i). And, generally, where any statute or law,

(g) See the note to the Duchess of Kingston's case, 2 Smith, L. C. 436. (h) See per Buller, J., Allen v. Dundas, 3 T. R. 129.

(i) Per Lord Mansfield, C. J., Bernardi v. Motteux, Dougl. 581; Hughes v. Cornelius, 2 Show. 232;

per Ld. Ellenborough, C. J., Bolton v. Gladstone, 5 East, 160; 2 Park. Mar. Insur., 8th ed., 718: Kindersley v. Chase, cited Id. 743. As to foreign judgments generally, see Callander v. Dittrich, 4 Scott, N. R., 682; Cowan v. Braidwood, 2 Scott,

decree or judgment, is of a public nature, or operates in rem, the rule as to res inter alios acta does not apply, for to such proceedings all are privy (k).

It is likewise 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 above stated, the evidence will not, in general, be admissible to conclude a third party; whereas, in the former, the judgment itself is invariably not only admissible as the proper legal evidence to prove the fact, but is usually conclusive evidence for that purpose, since it must be presumed that the Court has made a faithful record of its own proceedings. Moreover, the mere fact that such a judgment was given can never be considered as res inter alios acta, being a thing done by public authority; neither can the legal consequences of such a judgment be ever so considered, for, when the law gives to a judgment a particular operation, that operation is properly shewn and demonstrated by means of the judgment, which is no more res inter alios than the law which gives it force (1).

Having thus noticed that the general rule as to res inter alios acta is not applicable, first, where a judgment is in rem, and, secondly, where it is offered as evidence merely to shew that such a judgment was, in fact, given, we shall proceed to observe briefly on several extensive classes of cases in which, likewise, this rule has no application.

N. R., 138; The General Steam Navigation Company v. Gwillou, 11 M. & W. 877.

(*) 1 Stark. Evid., 3rd ed., 61, 62;
Pim v. Curell, 6 M. & W. 234.
(1) 1 Stark. Evid., 3rd ed., 252.

Rule inappli

cable in cer

tain cases.

Where acts

have a direct legal operation.

Thus, where the acts or declarations of others have any legal operation material to the subject of inquiry, they must necessarily be admissible in evidence, and the legal consequences resulting from their admission can no more be regarded as res inter alios acte than the law itself. For instance, where a question arises as to the right to a personal chattel, evidence is admissible, even against an owner who proves that he never sold the chattel, of a subsequent sale of the chattel in market overt; for, although he was no party to the transaction, which took place entirely between others, yet, as such a sale has a legal operation on the question at issue, the fact is no more res inter alios than the law which gives effect to such a sale. So, in actions against the sheriff, it very frequently happens that the law depends wholly on transactions to which the sheriff is personally an entire stranger; as, where the question is as to the right of ownership in particular property seized under an execution; and in these cases all transactions and acts between others are admissible in evidence, which, in point of law, are material to decide the right of property (m).

An exception similar to the preceding occurs where the conduct or declaration of another operates, not by way of admission or mere statement, but as evidence which the law admits as being, under the particular circumstances, not only free from objection, but conducive to the ends of justice. Thus, if A. make a private memorandum of a fact in which B. has an interest, this memorandum, generally speaking, would not be evidence against B.: it would fall within the description of res inter alios acta; but, if it were a memorandum of a fact peculiarly within the knowledge of A., and made in the usual course of business, and especially if A. by that entry charged himself, it would

(m) 1 Stark. Evid., 3rd ed., 61.

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