the administration of the law, as well as to injure the opposite party.

It has been said that the law excludes, on public grounds, evidence which is indecent or offensive to public morals, or injurious to the feelings of third persons (r). But not only is there no direct authority for such a proposition, but there is authority to the contrary (8). Indecency of evidence," observed Lord Mansfield, C. J., in Da Costa v. Jones, in which the court refused to try an action on a wager, on the ground that the wager was itself indecent, "is no objection to its being received where it is necessary to the decision of a civil or criminal right."

(r) Taylor on Evidence, § 867.

(3) Stephen on Evidence, p. 147, citing Da Costa v. Jones, Cowp. 729.

§ 588. THE maxim, "Res judicata pro veritate accipitur" (a),1 is a branch of the more general one, "Interest reipublicæ ut sit finis litium" (b); and the reasons which have led to the universal

(a) Introd. pt. 2, § 44.

(b) Introd. pt. 2, §§ 41, 43.

1 JUDGMENTS. (a.) Definition. - By the term "judgment" is understood the "final judgment, order, or decree of any court." See Steph. Dig. Ev. Art. 39; 1 Greenl. Ev. §§ 522-551; Webb v. Buckelew, 82 N. Y. 555; Jamaica v. Chandler, 121 Mass. 1. That such judgment is voidable by a court of appellate jurisdiction does not affect the definition. Connolly v. Connolly, 32 Gratt. 657, 664; Wadhams v. Gay, 73 Ill. 415.

(b.) Comclusive as to Legal Effect. All judgments of whatever nature are conclusive proof as against all persons of the matters therein stated as distinguished from the matters thereby decided. In other words, every judgment is conclusively assumed, by operation of law, to be a true statement of the facts and judicial transactions therein recorded. So a judgment is conclusive proof of its own rendition, in the manner and at the time and place therein stated. Chamberlain v. Carlisle, 26 N. H. 540; Key v. Dent, 14 Md. 86; Thomas et al. v. Hinkle, 35 Ark. 450; Floyd v. Ritter, 56 Ala. 356; Thompson v. Building Assoc., 23 Kans. 209; Spencer v. Dearth, 43 Vt. 98, 103; Farmers' Bank v. R. R., 72 N. Y. 188; Lee v. Lee, 21 Mo. 531. See also Vogt v. Ticknor, 48 N. H. 242; Goodnow v. Smith, 97 Mass. 69. So of the probate of a will. Mut. Ben. Life Ins. Co. v. Tisdale, 91 U. S. 238, 243. The record, however, is subject to amendment by the court upon proper cause shown. Balch v. Shaw, 7 Cush. 282; Willard v. Whitney, 49 Me. 235.

(c.) Judgments as proof of matters decided. The probative force of a judg ment considered as proof of the matters thereby decided varies as such judgment is,— I. A judgment in rem; or, II. A judgment in personam.

I. Judgments in Rem. Speaking generally, judgments in rem decide and determine a status, or make a final and conclusive transfer or disposition of property. State v. R. R., 10 Nev. 47. Thus, the judgments of a court of admiralty decreeing prize, bottomry, salvage, forfeiture, and the like, are judgments in rem. The Mary, 9 Cranch, 126, 142-146; Magoun v. New Eng. Ins. Co., 1 Story, 157; The Cuba, 2 Hughes,

recognition of both are explained in the Introduction to this work.

§ 589. "Res judicata," says the Digest (c), "dicitur, quæ finem

(c) Dig. lib. 42, tit. 1, 1. 1.

(U. S.) 489; The Mary Celeste, 2 Lowell, 354; The Slavers, 2 Wall. 383. See also Dunham v. Ins. Co., 1 Lowell, 253. So of a decree of divorce. See Story, Conf. Laws, §§ 200-230, 597; Cooley, Const. Limit. *400 et seq. Hood v. Hood, 110 Mass. 463; Kinnier v. Kinnier, 45 N. Y. 535, 540; Cheever v. Wilson, 9 Wall. 108; Ditson v. Ditson, 4 R. I. 87. Compare Gill v. Read, 5 R. I. 343. So of probate decrees and appointments. Tompkins v. Tompkins, 1 Story, 547; Schroyer v. Richmond, 16 Oh. St. 455; Grignon v. Astor, 2 How. 319, 338; Connolly v. Connolly, 32 Gratt. 657, 664; Nelson v. Boynton, 54 Ala. 368, 376; Merriam v. Sewall, 8 Gray, 316, 327; Williams v. Saunders, 5 Cold. 60. See also Lancaster's Appeal, 47 Conn. 248. So of a decree declaring pedigree. Ennis v. Smith, 14 How. 400, 430.

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Effect of Judgments in Rem. - A judgment in rem is conclusive proof as against all persons whatever, whether parties, privies, or strangers to the case, of all facts in issue and all facts which must have been assumed true to warrant rendition of the judgment. II. Judgments in Personam. A judgment in personam is conclusive proof, as between parties and privies thereto, of all facts directly in issue in the case, actually adjudicated by the court, and all facts upon which the judgment was or necessarily appears to have been based. Tebbetts v. Tilton, 31 N. H. 273, 284; School District v. Stocker, 42 N. J. L. 115; Dunham v. Bower, 77 N. Y. 76; Gilbreath v. Jones, 66 Ala. 129; Wood v. Ensel, 63 Mo. 193; Collins v. Jennings, 42 Iowa, 447; Morse v. Elms, 131 Mass. 151; Porter v. Warner, 36 Oh. St. 471; Cook v. Burnley, 45 Tex. 97; Hardy v. Mills, 35 Wisc. 141; Hamner v. Pounds, 57 Ala. 348; Supples v. Cannon, 44 Conn. 424; Spencer v. Dearth, 43 Vt. 98. For some consideration of the criminal counterpart of the rule above stated, see Bishop, Crim. Law, §§ 808-831.

Provided, (1.) that the subject, the issue, and the grounds and means of legal defence, are substantially the same in the suit where the judgment is offered as in that in which it was rendered. Clagett v. Easterday, 42 Md. 617, 627; Giraldin v. Dean, 49 Tex. 243; Dyer v. Goran, 29 Iowa, 126; Foye v. Patch, 132 Mass. 105; Beckwith v. Thompson, 18 W. Va. 103, 119; Washington, &c. Co. v. Sickles, 24 How. 333; Morgan v. Burr, 58 N. H. 470. That new facts in avoidance may in certain contingencies be used in subsequent actions, see Cromwell v. County of Sac, 94 U. S. 351, 356; Hanham v. Sherman, 114 Mass. 19. It is, however, essential to the application of the rule relating to the conclusiveness of judgments, that the facts upon which such judgment is a final decision should have been fully litigated by the parties thereto. Wells v. Moore, 49 Mo. 229; Lamb v. Gatlin, 2 Dev. & Bat. Eq. 37; Haldeman v. U. S., 91 U. S. 584; Wadhams v. Gay, 73 Ill. 415; Morton v. Sweetzer, 12 All. 134; McFarlane v. Cushman, 21 Wisc. 401; Haws v. Tiernan, 53 Pa. St. 192; Houston v. Musgrove, 35 Tex. 594; Stowell v. Chamberlain, 60 N. Y. 272. But see, contra, to the effect that an agreed judgment is equally conclusive upon parties and those identified with them in legal interest, Chamberlain v. Preble, 11 All. 370; Dunn v. Pipes, 20 La. An. 276; Jarboe v. Smith, 10 B. Monr. 257; Fletcher v. Holmes, 25 Ind. 458; Brown v. Sprague, 5 Denio, 545. So a confessed judgment is binding; Nesbaum v. Keim, 24 N. Y. 325; Twogood v. Pence, 22 Iowa, 543; Secrist v. Zimmerman, 55 Pa. St. 446. See also Hotel Assoc. v. Parker, 58 Mo. 327. And provided, (2.) that any judgment in the nature of a formal admission by a party may, at all times, be given in evidence as against such party. Parsons v. Copeland, 33 Me. 370; Wells v. Compton, 3 Rob. (La.) 171; Kellenberger v. Sturtevant, 7 Cush. 465. That judgments in personam are not conclusive evidence as between strangers to the record, or between a stranger and a party or privy thereto, see Corbley v. Wilson, 71 Ill. 209; McBee v. Fulton, 47 Md. 403; Raymond

controversiarum pronunciatione judicis accipit: quod vel condemnatione vel absolutione contingit." But in order to have the effect of res judicata, the decision must be that of a court of competent

v. Richmond, 78 N. Y. 351; Hine v. R. R., 42 Iowa, 636. See also Betts v. New Hartford, 25 Conn. 180; Hutchinson v. Bank, 41 Pa. St. 42; Elliott v. Frakes, 71 Ind. 412; Corcoran v. Canal Co., 94 U. S. 741.

Same Subject. It is however necessary that the suit be litigated, as has been said supra, substantially upon its merits. Chesnutt v. Frazier, 6 Baxter, 217; Ford v. Doyle, 44 Cal. 635. For the reciprocal relation of law and equity tribunals in this connection, see Cramer v. Moore, 36 Oh. St. 347; Wright v. Deklyne, 1 Peters, C. Ct. 199; Hendrickson v. Norcross, 19 N. J. Eq. 417; Baldwin v. McCrea, 38 Ga. 650; Tilson v. Davis, 32 Gratt. 92, 104; Durant v. Essex Co., 7 Wall. 107. The test, it has been said, with regard to the conclusive nature of a former judgment in a subsequent suit, is determined by the consideration, Would substantially the same evidence sustain both, the demand not being apportionable in its nature? Norton v. Doherty, 3 Gray, 372; Ware v. Percival, 61 Me. 391; Dawley v. Brown, 79 N. Y. 390; Riker v. Hooper, 35 Vt. 457; Cannon v. Brame, 45 Ala. 262. But see Burritt v. Belfy, 47 Conn. 323. Such judgment is equally conclusive whether pleaded as an estoppel or given in evidence. Kilheffer v. Herr, 17 S. & R. 319, 325; Betts v. Starr, 5 Conn. 550; Thompson v. Roberts, 24 How. 233; Hamner v. Pounds, 57 Ala. 348; Krekeler v. Ritter, 62 N. Y. 372. In certain States it has been held that the estoppel of judgment must be specially pleaded. Krekeler v. Ritter, 62 N. Y. 372. See also Clink v. Thurston, 47 Cal. 21; Perkins v. Walker, 19 Vt. 144; Morgan v. Burr, 58 N. H. 470, to the effect that an estoppel should, if possible, be pleaded in bar. As to who are considered privies, conf. § 519, n. 1, supra; Finney v. Boyd, 26 Wisc. 366; Stoddard v. Thompson, 31 Iowa, 80; Kelly v. Donlin, 70 Ill. 378; Chant v. Reynolds, 49 Cal. 213; Littleton v. Richardson, 34 N. H. 179; Harvie v. Turner, 46 Mo. 444.

(d.) Interstate Judgments. The constitutional provision (U. S. Const., Art. IV. § 1), “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State," gives the judgment of another State the evidentiary effect of a domestic judgment. Christmas v. Russell, 5 Wall. 290; Child v. Powder Works, 45 N. H. 547; North Bank v. Brown, 50 Me. 214; State v. Helmer, 21 Iowa, 370; Conway v. Ellison, 14 Ark. 360; Rogers v. Burns, 27 Pa. St. 525; Chew v. Brumagim, 21 N. J. Eq. 520; Hall v. Winchell, 38 Vt. 588; Kerr v. Kerr, 41 N. Y. 272; Lawrence v. Jarvis, 32 Ill. 304. See also Wright v. Andrews, 130 Mass. 149; Harshey v. Blackmarr, 20 Iowa, 161.

(e.) Foreign Judgments. A consideration of the instances in which the courts of one country will, by international comity or otherwise, give effect to judgments by the courts of another, seems more properly to fall within the scope of international law. See Story, Confl. Laws, §§ 532, 545, 551, 584, 586, 591, 592, 593, 597 et seq.; 2 Kent, Comm. 120, 121, and notes. When, however, such foreign judgment in rem or in personam is recognized as binding by a domestic tribunal, it is considered to have the same conclusive effect, to the same extent, and between the same persons, as a domestic judgment of the same class. Woodruff v. Taylor, 20 Vt. 65. But see Coit v. Haven, 30 Conn. 190, 197. The point, however, cannot be regarded as entirely settled, certain cases giving only a prima facie validity to a foreign judgment in personam. Story, Confl. Laws, § 607.

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Proviso. · Provided, that in case of all judgments, — domestic, interstate, or foreign, in rem or in personam, it may be shown as against the validity and effect of the judg ment, (1.) that the court rendering such judgment had no jurisdiction of the subjectKnowles v. Gaslight Co., 19 Wall. 58; Child v. Powder Works, 45 N. H. 547; Pelton v. Platner, 13 Ohio, 209; Gilman v. Gilman, 126 Mass. 26. But see Lapham v. Briggs, 27 Vt. 26. So of judgments in rem. McKeever v. Ball, 71 Ind. $98;

matter.

jurisdiction, concurrent or exclusive, —“ judicium a non suo judice datum, nullius est momenti" (d). The decisions of such tribunals are conclusive until reversed; but no decision is final, unless it be pronounced by a tribunal from which there lies no appeal, or unless the parties have acquiesced in the decision, or the time limited by law for appealing has elapsed (e). Moreover, the conclusive effect is confined to the point actually decided; and does not extend to any matter which came collaterally in question (f). It does, however, extend to any matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision itself, though not then directly the point at issue (g).

(d) 10 Co. 76 b.

11 St. Tr. 261; 1 Rol. Ab. 876; Blackham's (e) 1 Ev. Poth. Part 4, ch. 3, sect. 3, case, 1 Salk. 290, 291; R. v. Knaptofft, 2 B. & C. 883; Carter v. James, 13 M. & W. 137.

art. 1.

(f) Per De Grey, C. J., delivering the opinion of the Judges to the House of Lords, in the Duchess of Kingston's case,

(g) R. v. Hartington Middle Quarter, 4 E. & Bl. 780, 794.

Tyler v. Defrees, 11 Wall. 331; Shroyer v. Richmond, 16 Oh. St. 455; Noble v. Oil Co., 79 Pa. St. 354. (2.) Or of the parties. State v. Fleak, 54 Iowa, 429; Easterly v. Goodwin, 35 Conn. 273; Napton v. Leaton, 71 Mo. 358; Hill v. Mendenhall, 21 Wall. 453; Penobscot R. R. v. Weeks, 52 Me. 456; Gay v. Smith, 38 N. H. 171; Parish v. Parish, 32 Ga. 653; Price v. Ward, 25 N. J. L. 225; Hanson v. Wolcott, 19 Kans. 207. Unless indeed the judgment itself recite matters which establish or confer jurisdiction. Wyatt v. Rambo, 29 Ala. 510; Penobscot R. R. v. Weeks, 52 Me. 456; Coit v. Haven, 30 Conn. 190, 197; McCauley v. Fulton, 44 Cal. 355; Smith v. Wood, 37 Tex. 616. Thus recitals are conclusive as to jurisdiction in interstate judgments. Thompson v. Emmert, 4 McLean, 96; Pritchett v. Clark, 4 Harr. (Del.) 280; Westcott v. Brown, 13 Ind. 83; Lapham v. Briggs, 27 Vt. 26. But see for strong dicta and decisions, contra, i. c. that jurisdiction is only prima facie established by the recitals, Comstock v. Crawford, 3 Wall. 396; Norwood v. Cobb, 24 Tex. 551; Lawrence v. Jarvis, 32 Ill. 304, 310; Rape v. Heaton, 9 Wisc. 328; Ferguson v. Crawford, 70 N. Y. 253; Price v. Ward, 25 N. J. L. 225; Pennoyer v. Neff, 95 U. S. 714, 730. (3.) Or that the judgment is tainted with fraud or collusion. School District v. Schreiner, 46 Iowa, 172; Mut. Ben. Life Ins. Co. v. Tisdale, 91 U. S. 238, 242; Hartman v. Ogborn, 54 Pa. St. 120; Tebbetts v. Tilton, 31 N. H. 273, 286; State v. Brown, 16 Coun. 54; Ellis v. Kelly, 8 Bush, (Ky.) 621; State v. Cole, 48 Mo. 70. But see Christmas v. Russell, 5 Wall. 290, 305; Krekeler v. Ritter, 62 N. Y. 372, contra.

Presumptions as to Jurisdiction. It is said the jurisdiction of a court of general jurisdiction will be presumed. Folger v. Columbian Ins. Co., 99 Mass. 267, 273; Jarvis v. Robinson, 21 Wisc. 523; Haywood v. Collins, 60 Ill. 328; Hahn v. Kelly, 34 Cal. 391; Wingate v. Haywood, 40 N. H. 437; Hendrick v. Whittemore, 105 Mass. 23. As to how far the jurisdiction of a foreign or inferior tribunal will be assumed, see Goulding v. Clark, 34 N. H. 148; State v. Hinchman, 27 Pa. St. 479; Rowley v. Howard, 23 Cal. 401; Crawford v. Howard, 30 Me. 422; Lewis v. Allred, 57 Ala. 628; Secombe v. R. R. Co., 23 Wall. 108; Shufeldt v. Buckley, 45 Ill. 223.

(f) Legal Consequences of Judgments. Any consideration of the consequences to parties and privies flowing from any judgment, civil or criminal, after such judgment has been duly proved, seems outside the scope of the present work. See 1 Greenl. Ev. §§ 533, 537, n. 1.