The opinion of the court was delivered by
Bennett, J.There is but a single question in this case, and that is one of very considerable importance. The inquiry is, was the county court correct, in instructing the jury, that the record given in evidence, in connection with the facts admitted on trial, was conclusive as to the title of the cloth, and also upon the defendant, in regard to the defence assumed under his notice 1
The case shows, that the speaking of the words, which is attempted to be justified, was of and concerning the stealing of the same identical cloth, which was sued for in the action of trover, and that the point litigated on that trial was, whether the defendant had taken and carried away the same cloth.
*148The authorities are very full, that the judgment of a court of competent jurisdiction, directly on the point, is, as a plea, conclusive between the same parties on the same matter directly in question in another action. It operates and is pleaded as an estoppel. It is claimed by the defendant, that, where it is not pleaded, but used simply as evidence, it cannot have a conclusive effect. It is to be remarked, that the plaintiff could not, in this case, avail himself of the judgment by plea. The defendant having gone into his defence of justification under a notice, the plaintiff could only meet it by evidence. We are not called upon to1 determine, what should be the effect of a judgment, where there has been an opportunity of pleading it, but the party omits to plead it, and elects simply to use it as evidence. In such a case it might be said, the estoppel was waived. See Trevivan v. Lawrence, 1 Salk. 276. Outram v. Morewood, 3 East 365. Vooght v. Winch, 2 B. & A. 662. Stafford v. Clark, 2 Bing. 381. Wilson v. Butler, 4 Bing. N. C. 756. Isaacs v. Clark, 12 Vt. 692.
I am aware, that there seems to be some discrepancy of opinion in regard to the manner, in which an estoppel shall be made available in a case, in which it exists. It has been said, that, to render a verdiet conclusive by way of an estoppel, it must be pleaded as such ; and that it must appear upon the record, that the same point was directly in issue in the first suit. This may be true, in order that the record may of itself constitute an estoppel. If this does not so appear, it must be averred and proved aliunde the record; and the truth of the averment must be open to the finding of the jury.
In the Duchess of Kingston's Case, the principle contained in the opinion of Ch. ,T. De Grey is, that a judgment on the same matter is, in pleading, a bar, in evidence, conclusive. In Aslin v. Parkin, 2 Burr. 665, the judgment in the action of ejectment is expressly stated to be conclusive against the tenant in the subsequent action for mesne profits. In Rex v. St. Pancras, Peake 219, it was held, that a record of conviction against a parish, for not repairing a road, was conclusive evidence against them, as to their liability to repair. So in Strutt v. Bovingdon et al., 5 Esp. R. 56. Lord Ellenborough said, that, though a record of a former cause could not, in that case, be a legal estoppel, so as to conclude the rights of the parties by its production, yet, he says, he should think himself bound to tell the jury to consider it as conclusive.
*149When the question determined by a former jury has come before them as one point among many, raised on the general issue, or upon a general plea in bar, putting in issue a number of facts, it cannot appear from the record what precise point had been determined in the former proceeding. In such a case parol evidence is necessary, to show the point passed upon. The parol evidence does not, in such case, impeach the record, but is consistent with it. Though you cannot add to, or contradict, a record by parol evidence, yet you may explain it. In Gardner v. Buckbee, 3 Cow. 120, two notes had been given upon the sale of a vessel; and one of the notes had been prosecuted; and in that action the general issue had been pleaáed by the defendant, with notice of a total failure of consideration, by reason of fraud in the sale of the vessel; and upon that ground the defendant succeeded in his defence. In a suit upon the second note, the defendant offered in evidence the record in the former suit; and the court held, that that record, with proof aliunde that fraud in the transaction was the ground upon which the verdict was founded, was conclusive against the plaintiff. Burt v. Sternburgh, 4 Cow. 559, adopts the same principle. See also Wood v. Jackson, 8 Wend. 91, in which the case of Gardner v. Buckbee received the unanimous approbation of the court of errors, — that court reversing the decision of the supreme court in 3 Wendell. In the case of Young v. Rummell, 2 Hill 478, the court have gone the length of not requiring an estoppel to be pleaded, in order to give it a conclusive effect in any case, in which special pleading is not necessary. The English doctrine I conceive to be, that the defendant, by pleading the general issue, waives the estoppel, if he might plead it. Such was also the doctrine of the supreme court in New York, in Fowler v. Hait, 10 Johns. 111, and in Coles v. Carter, 6 Cow. 691.
Unless parol evidence is admissible, for the purpose of connecting the general estoppel of a judgment with the particular points litigated at the trial, and upon which the verdict of the jury proceeded, the rule, which provides that the same matter shall not be twice drawn into controversy, must loose much of its practical and salutary effect.
Since the enactment of the statute in Massachusetts, abolishing special pleading, it has been held, that a verdict on the same point, *150or judgment for the same cause of action, is conclusive, as evidence to the jury ; since it cannot be taken advantage of in any other way: Sprague v. Wait, 19 Pick. 457.
I am aware, that the idea has been countenanced by adjudged cases, that, to constitute a former verdict an estoppel, an issue must have been taken, upon the face of the pleadings, upon the precise point, which is drawn in question in the second suit; and that it must be pleaded in such suit by way of an estoppel. This may be necessary to constitute a technical estoppel. If the pleadings do not show the precise point litigated in the former proceedings, the identity of the point in dispute in the two actions must be made out by parol evidence; and whether made out, or not, is a question for the jury, under proper instructions from the court. Where the identity is fully made out, to hold that the proceedings in the first suit are not conclusive, as evidence, upon the right, is to render that axiom of the law, “ Nemo debet bis vexard pro eadern causa,” in a great measure of little practical value.
I do not conceive, that the decision we are now making is at variance with Vooght v. Winch, or with Doe v. Huddart, 2 C. M. & R. 316, which followed the case of Vooght v. Winch, and in which the court of exchequer held, that a judgment in the action of ejectment was not conclusive in the action for mesne profits. In both of those cases the court merely decide, that the party, by not pleading the estoppel when he might have done it, loaived it. In the case of Vooght v. Winch it will be found, that each of the judges expressly relied upon this circumstance; and in the case of Doe v. Huddart the record in the ejectment might have been replied, by way of an estoppel, to the plea in the action for mesne profits. It is true, that, previous to the rules adopted in England in 1834, the plea of not guilty, in an action of trespass, put in issue the title, as well as the taking of the mesne profits; and it being uncertain ■whether the defendant intended to deny the plaintiff’s title, on which he was alone concluded in the action of ejectment, or to deny merely the taking of the profits, the estoppel could not be replied. But under the new rules of pleading, the general issue being narrowed, it might be pleaded as an estoppel.
If we understand the meaning of Ch. J. De Gres, when he says, in the Duchess of Kingston’s Case, that a judgment on the same *151point, between the same parties, is, in pleading, a bar, in evidence, conclusive, to be, that it is conclusive as a plea, where there is an opportunity of pleading it, and that, where there is no such opportunity, then it is conclusive as evidence, the seeming inconsistency in the cases would, in a great measure, be obviated; in as much as the case of Vooght v. Winch and other cases proceed upon the express ground, that the defendant might have pleaded the estoppel. This was the doctrine of the court in the case of Trevivan v. Lawrence, Salk. 276; and it was followed and fully approved of by the court of common pleas in Magrath v. Hardy, 4 Bing. N. C. 782,—where i't was held, that the eátoppel was waived, the defendant having omitted to plead it, as he might have done.
It being admitted, on the trial in the county court, that the slanderous words, which were attempted to be justified, were spoken of and concerning the stealing of the same identical cloth sued for in the action of trover, and that the point litigated and settled was, whether the defendant in that action had taken and carried away the same cloth, there was nothing in this respect to go to the jury ; and the- court, with these facts conceded, were right in holding the record in the action of trover conclusive.
It need hardly be remarked, that the decision of this court is fully in accordance with the views expressed by the learned judge in giving the opinion of the court in Gray v. Pingry, 17 Vt. 424.
The result is, the judgment of the county court is affirmed.