35 S.E. 245 | N.C. | 1900
In this action of trespass the plaintiff alleges that defendant has cut his timber trees to his damage, etc. Defendant admits cutting and hauling off the said trees, but denies that plaintiff is the owner of the land on which the trees were growing.
Plaintiff in his complaint describes a large tract containing 400 acres. The defendant describes by metes and bounds a tract of 33 acres, on which the trees were cut, and claims to be the owner thereof, and produces his title deeds, etc. The whole controversy is the ownership of these 33 acres, which we understand are embraced by the description of the larger tract.
In the course of the trial the plaintiff offered in evidence the record of an action by him against the defendant and two others for damages in cutting his trees prior to 1892, in which a judgment was entered in favor of the plaintiff. The regularity of the proceedings set out (194) in this record is not denied. The introduction of this record as evidence was objected to by defendant. Plaintiff did not offer *113 this record as a link in his title, but only as an estoppel on the defendant to deny or dispute plaintiff's title. Defendant excepted to the admission of the record and judgment, on the ground that plaintiff had filed no plea of estoppel. Defendant, as a witness in his own behalf, said "he gave the same testimony as to ownership and possession in former trial, that he did here. That this is same land and same title that was presented by defendant and passed upon in former trial. That he had cut no timber since last suit was tried, but had cut timber on land since last suit was commenced."
We then have this question: In an action of trespass and an answer of general denial, with no special plea, can the plaintiff, for the purpose of an estoppel, introduce as evidence the record and judgment in a former trial, between the same parties and involving the same subject-matter, and similar pleadings, without pleading the estoppel? This question has not been heretofore passed on by this Court, and we remember that technical pleadings, formerly, were closely observed by courts. Bigelow Estoppel (5 Ed.), pp. 697, 698, 699, devotes a chapter of three pages to this precise question, and refers to the old and modern practice and the decisions of each period. The earliest case referred to is Goddard's case, 2 Coke, 4. This, and the succeeding cases, hold that an estoppel must be pleaded, and that the judgment as evidence was conclusive in England and in America. At the time of Coke and those decisions, the jurors were themselves witnesses, and were sworn as such to speak the truth, and must observe their oath. In this fact the doctrine of Goddard's case is supposed to have had its origin as well as in technical pleading.
Since the decision in Duchess of Kingston's case, 2 Smith's (195) L. C., and the transition in the jury system, the tendency of decisions in America has been strongly the other way. Bigelow shows, however, by citing cases, that in our sister States the courts are much divided. All the cases agree that the judgment in the former case, when introduced either under a plea or as evidence, is conclusive on both court and jury, the record being regular. The modern doctrine, to which Mr. Bigelow gives the weight of his opinion, is that when an estoppel is relied on as a defense to the action, it must be pleaded specially, and this Court frequently has so decided. Harrison v. Hoff,
The other exceptions present no other important questions and need not be considered.
Affirmed.
Cited: Alston v. Connell,
