dissented as to the admissibility'of the judgment given by the justice of the peace, and gave the following opinion:—
As to one point, I regret that I cannot concur in the opinion just delivered. It is an admitted rule, that no one shall have advantage from a judgment, who would not have been prejudiced by it; and, if there be any imaginable case to which it is applicable, it seems to me this is one. I do not see how it can be maintained, that there was privity between the plaintiff and the tenant. The goods were dis-trained merely because they happened to be on the premises, and not in consequence of any supposed relation of the parties. It is, however, urged with some plausibility, that as the owner would have an action against the tenant for money paid to his use, the landlord would be. able, notwithstanding the judgment in favour of the tenant, to recover the rent from him circuitously. But would the judgment be evidence against the owner of the goods, (for that, is the test,) in case it had been in favour of the landlord? The owner certainly would not be the less a stranger, because he would have his action over against one who might not lie worth a shilling. But a verdict and judgment operate as an estoppel, which Lord Coke says, Co. Litt. 352, a, binds only parties and' privies; so thát a stranger shall neither take advantage of it, nor be bound by it; and in specifying the different sorts of privity that may exist in the law, 3 Co. 23, 4 Co. 123, he says not a word about privies in responsibility. In Patton v. Caldwell, 1 Dall. 419, such privity was held to be insufficient to introduce a verdict- against one underwriter to affect the others, without an agreement on their part to be bound by it. The best writers say that- a judgment- is evidence only against those who claim as privies iri blood, or estate, or in law. Stark. Ev. part II. 192. 1 Phil. Ev. 245; neither of which in-*447eludes the owner’s case; and if he be neither party nor privy, I can see nothing to take it out of the general rule, Those instances which are usually adduced as exceptions, are in fact not so; the record being received, not as evidence of the pact adjudicated, but as being the vert fact. On this elementary distinction, .which is illustrated in Burr v. Gratz, 4 Wheat. 213, we ruled the case alluded to, as having been decided in 1827, at Pittsburg. There, a defendant in ejectment, who had set up an old title in a third person, ■ was permitted to show the record of a recovery by such third person against the plaintiff in the action at bar, not to prove that the stranger had the better .title, (the fact adjudicated,) but to'rebut a presumption from lapse of time, of his having abandoned it: and, to that end, the .judgment was held competent as a distinct and independent fáct. * Now, for what was' the judgment of the justice offered here ? Not to show the naked existence of a proceeding between the landlord and the tenant, or that the tenant denied that any thing was in arriere-—and without operating as an estoppel, it could prove nothing else—but to show the fact adjudicated, that no rent was in truth due when the distress was made. Mr. Starhie speaks of the object for which a judgment may be offered; whether with a view to establish the mere fact, that such a. judgment was pronounced, and the légal consequences of such fact, or as a medium of proving some fact found by the verdict: and, where such fact has been found in a matter of private right, in regard to which the reputation of the country would be inadmissible, he says, the record is clearly incompetent to prejudice or benefit a stranger; Treat. Ev. part II 182, 186, 187; the excepted cases being, where the proceeding was in rem, to which all the world is in law a party, or where, the matter-is of a public nature, to which all the world is in fact a party. Now, the judgment here was certainly inter partes, and in a matter of private right; and, what are its legal consequences-as divested of those incidents that Would-appertain to it between parties or privies? Certainly not- the establishment of the fact found by the justice, that no rent was in arrear, and an estoppel of the landlord to deny it. There are, however, material consequences, which sometimes proceed 'from a judgment nakedly considered as an occurrence or an act: such, for instánce, as the-justification of an executor in paying debt bona fide recovered of him, whether it was originally just or not: and such are the consequences to which the elementary writers allude. But, if the*judgment, here,-were offered to produce'any other consequence than to establish the fact found by the justice, I am unable to perceive it.
The rules of evidence are founded; no doubt, in technical reason. But we must not forget that it is not reason, but convenience which requires that a judgment be conclusive in. any case. But that it should ever after prevent an' injured party from showing the truth against all persons, is required neither by reason nor convenience. *448That a judgment should not conclude one who had no opportunity to contest the matter, seems to-be required by the plainest principles of natural justice; and, on the other hand, that mutuality of ad- • vantage, which' has become the. foundation of a familiar maxim of equity, equally requires, that he should not derive a benefit from it. Buty however we may esteem the law of eyidenceyit ought'not to admit of a question, whether its obligation be not paramount to all considerations of reason or expediency. Systems of jurisprudence are necessarily complex and artificial; and, although the law of evidence be not the perfection of reason* justice will, perhaps, not be promoted by relaxing any of its rules. .
I am not, however, for rejecting the record-, merely because the proceeding was instituted subsequently to the distress. It was' offered to prove a pre-existing fact; and evidence is-not the less competent, because it has arisen since the inception of the proceeding in which it is produced.' Nor do I rely on the denial of the right of appeal, by which the landlord is' effectively deprived of a trial by jury; a'circumstance which ought, perhaps, to exempt this particular case. My objection is founded on the general rule, as I have stated'it; according to which, it seems to,me, the record was properly excluded.
Tod, J. dissented on the same' .point, but only because the proceedings before the justice were instituted after the landlord, had distrained;' '•
Judgment révérsed.