issue as to the property in the soil. As the now defendant claims under Gipps by title subsequent to the proceedings, the pleadings, if evidence against Gipps, are evidence against the defendant; Com. Dig. Evidence (A 5). When Gipps had the opportunity, if he pleased, of denying Lady Wenman's title he did not do so, but submitted to a reference on the amount of damages. That is some evidence of an admission of ownership: it is not now material whether it was of much or little weight. Then the proceedings are *admissible as proving an [*453 act of ownership. Lady Wenman's tenant interrupts Mr. Gipps when meddling with the fishery; he submits to the interruption and pays for what he did. [CROMPTON, J.-The act of ownership would be evidence but can you say that the proceedings are a legitimate way of proving it? COLERIDGE, J.-If a stranger break a hedge and I stop him and he submits, it is evidence that I am owner of the close; but surely the record of an action of trespass quare clausum fregit against that stranger would not be admissible.] It rather seems that it would be; Whately v. Menheim, 2 Esp. N. P. C. 608. [COLERIDGE, J.-In Small v. Nairne, 13 Q. B. 840, 844 (E. C. L. R. vol. 66), Lord Denman says: "I am tempted to remark, for the benefit of the profession, that Espinasse's reports, in days nearer their own time, when their want of accuracy was better known than it is now, were never quoted without doubt and hesitation; and a special reason was often given as an apology for citing that particular case. Now they are often cited as if counsel thought them of equal authority with Lord Coke's reports."] Bramwell, Willes, and Honyman, in support of the rule.—Whatever effect proceedings in a suit against Gipps, as to the soil, might have against the defendant who claims it under him, proceedings in a suit relating to the fishery in which the defendant has no interest cannot affect him. The action of Fairman v. Gipps was entirely for injury to the fishery, alleged to be in Fairman's possession, by throwing mud on it. The admission of Gipps at the very highest was that he threw mud on Fairman's fishery; whether that mud was his or Lady *Wen[*454 man's, or the mud of a third person, was quite immaterial in that action. [CROMPTON, J.-That is true; but in the second count Fairman seems, unnecessarily, to have made the averments, that the mud was Lady Wenman's, descriptive; so that he must have proved it as laid, if the defendant put it in issue. Now, if instead of being on the record it had been in conversation, would it not have been some evidence of an admission? Suppose I complain to you, "Your dog Jowler, which you know to be savage, has bit my child:" and you answer, “I never knew that he was given to bite children:" would not that, as against you, be some evidence for all the world of an admission, not only of the material allegation that he was your dog, but also that he was called Jowler?] Perhaps if what is stated on the pleadings in Fairman v. Gipps had passed in conversation the inference might have

been drawn, and would have been evidence against Gipps, though not against those privy to him; but no such inference can be drawn from the pleadings. The distinction is, that statements made in the course of litigation are made for the purpose of the controversy and for that only. If the controversy has terminated, so that the matter has passed into res judicata, the record is not merely evidence but conclusive between the parties and privies, not only as to the point on which issue was taken, but also as to the traversable allegations of the successful party, though they were not traversed, and though, before the statute of Anne allowing double pleading, they could not have been traversed; and even the successful party was originally concluded by his omission to traverse the other allegations unless he saved himself by a protesta*455] tion. This doctrine, which *is highly artificial, is explained in Serjt. Williams's note (1) to Holdipp v. Otway, 2 Wms. Saund. 103. But, though the adjudication was conclusive between the parties and privies, it was not even evidence for a party against strangers; nor therefore could it be admitted for a stranger against a party; for all estoppels must be mutual. Here Fairman is Lady Wenman's tenant; but a tenant cannot by his pleadings bind the landlord: if judgment had gone against Fairman in the action of Fairman v. Gipps, it is clear that it could not have been evidence against Lady Wenman. Whately v. Menheim is, in 2 Phillipps & Arnold On Evidence, p. 8, note (2), said to be against principle. [COLERIDGE, J.-It is clear justice that the judgment against a person should not be conclusive in favour of a stranger to the suit: but may it not be evidence against a party, though not conclusive?] In some cases a verdict may be evidence of reputation, but not an award; Evans v. Rees: but in other cases a judgment is not admissible except where, if properly pleaded as such, it would have been conclusive. In Gilbert On Evidence, p. 29, it is said: "But a person that hath no prejudice by the verdict can never give it in evidence, though his title turns upon the same point, because, if he be an utter stranger to the fact, it is perfectly res nova between him and the defendant, and if it be no prejudice to the plaintiff, had the fate of the verdict been as it would, he cannot be entitled to reap a benefit; for it would be unequal." He then remarks that the only effect would be to prejudice the jury. In Rex v. Warden of the Fleet, Rep. Tempore Holt, 133, 135, it was at a trial at bar *resolved "That no *456] record of conviction or verdict can be given in evidence, but such whereof the benefit may be mutual, viz. where the defendant as well as plaintiff might give it in evidence. So if the record had been for the plaintiff's advantage, and that they could not give it in evidence, the defendant should not give it in evidence, for that very reason." The same point is ruled in Ward v. Wilkinson, 4 B. & Ald. 410 (E. C. L. R. vol. 6); and the same doctrine is laid down in 2 Phillipps & Arnold On Evidence, p. 8. The true principle seems to be that explained in

Boileau v. Rutlin, 2 Exch. 665,† and shortly stated by Parke, B., in Buckmaster v. Meiklejohn, 8 Exch. 634, 637.† "In point of law, pleadings are not admissions, but are merely the statement of the case, which the party wishes to raise for the opinion of the jury." The expediency of this view of the law is strongly exemplified in the present case. Fairman had sustained nominal damage only by an act which Gipps had done; according to the argument on the other side, Gipps was forced either to admit, in favour of Lady Wenman, that she was entitled to the estate he claimed, or to produce his whole title in an expensive litigation with a stranger who at most could only recover 3s., and whose failure to prove the allegations in the declaration would not. have injured Lady Wenman. It is more expedient, as well as better law, to treat the proceedings as a mere statement that Gipps wished to raise no question for the arbitrator as to title. As to what has been said about this being an act of ownership, the same distinction applies. Where an act of ownership is exercised and submitted to, it is good evidence against all the world; and payment of money or other things of the sort, if *contemporaneous with the act, are admissible as [*457 explanatory of it. But payment of amends, if made after the act was all over, would not be admissible as showing an act of ownership. It would be evidence against the party paying the money as his personal admission, but not against others, even if privy in estate to him; and the same would be the case if an implied admission in words took place, in the way supposed by Crompton, J., by not denying the complaint. But a statement on the record is not even an admission; and the ultimate award is admissible only when it is admissible as res judicata, that is when it is offered in evidence between parties or privies. Cur. adv. vult.

COLERIDGE, J., on a subsequent day in this vacation (June 30th),. delivered judgment.

The plaintiff in this case sued for an injury to her reversionary interest in a several fishery in an arm of the sea, alleging her right to the soil between high and low water mark as well as to the fishery, and that they were in the possession of one Fairmán, as her tenant under a lease granted in 1845. Defendant held a neighbouring property under one Gipps: and the plaintiff, to prove her title, gave in evidence the proceedings in an action brought in 1851 by Fairman, her tenant, against Gipps, for a similar injury to his possessory right, and which was referred to arbitration, and an award was made in favour of Fair

man.

The reception of this evidence was objected to, either as reputation of the plaintiff's ownership of the fishery, or as proof of so much of the allegations of ownership of Lady Wenman as were in question in both actions; and we are of opinion that the objections must prevail, and, as there is no other ground upon which it was conVOL. V.-19

[*458

tended for the plaintiffs that the proceedings and award were admissible, that they ought not to have been received, and that the defendant is entitled to a new trial.

With respect to the first objection, we are of opinion that, supposing this were a case in which evidence of reputation would be admissible, the proceedings and award in the case of Fairman v. Gipps would not be admissible as such evidence, for the reasons and upon the ground stated by the Court of Queen's Bench in the case of Evans v. Rees, 10 A. & E. 151 (E. C. L. R. vol. 37), which is a direct authority against the admissibility of an award as evidence of reputation, though the verdict of a jury might be. With respect to the second objection, we are of opinion that, as Fairman's interest under the lease from Lady Wenman accrued before the action which he brought against Gipps, the proceedings and award in that action were not admissible in evidence for Lady Wenman to show her title either to the soil, or the fishery, even supposing her ownership to have been directly in question and admitted by the defendant Gipps, or found by the award of the arbitrator, Lord Chief Baron Gilbert in his treatise upon Evidence, page 28, lays it down as a rule that nobody can take benefit by a verdict that had not been prejudiced by it, had it gone contrary." Lady Wenman would not have been bound by the finding of the arbitrator or by any admissions by Fairman in the action of Fairman v. Gipps unless it had been proved, which it was not, as in the case of Kinnersley v. Orpe, 2 Doug. 517, that the action had been brought *459] *by her direction and authority. She did not and does not claim by, through, or under Fairman; and, as far as she was concerned, the action of Fairman v. Gipps was "res inter alios acta:" and, as the proceedings and award could not have been admitted as evidence against her, they are not admissible for her, according to the rule laid down by Lord Chief Baron Gilbert, and which, no doubt, is still the law.

66

We are therefore of opinion that there must be a new trial: and the rule must be absolute. Rule absolute.

The QUEEN on the prosecution of the Treasurer of the County of KENT v. The Council of the Borough of GRAVESEND. June 30. The council of a borough having a grant of a separate Court of quarter sessions, and having no gaol, entered into a contract with the county, that all prisoners who should be committed, or removed to, or confined in, the gaol of the county from the borough, should be supported and maintained therein, during the agreement, at 78. a head.

Held that the agreement, while in force, exempted the borough from contribution to the county in respect of those things contracted for, but no further; that the words "support and maintenance" used in the contract included the expenses of keeping up the prison, and the borough was not liable to contribute in respect of those; but that it was liable to contribute in respect of the expenses of the conveyance of prisoners upon summary convictions in respect of offences committed in the borough (but none other), and of prosecutions at assizes and sessions of borough offenders, and of lock-up houses for the county.

AN arbitrator, in a case of difference concerning certain accounts between the Treasurer of the County of Kent and the Council of the borough of Gravesend, on a requisition in writing from the said parties in pursuance of stat. 7 & 8 Vict. c. 93, before making his award, stated the following special case for the opinion of the Court.

"The district comprised in the incorporated borough of Gravesend is situate in the county of Kent. In the month of September, 1849, Her Majesty, on the petition *of the Council of the said borough, [*460 granted a separate Court of quarter sessions to the borough, under the provisions of stat. 5 & 6 W. 4, c. 76. Prior to that grant, the borough had no criminal jurisdiction separate from the county of Kent, and, before the passing of stat. 2 & 3 W. 4, c. 64, was liable to contribute in whole to the county rate for the county. On the 25th October, 1849, immediately after the grant of the sessions, the council of the borough of Gravesend, in which there was no gaol or house of correction, entered into a contract with the justices of the peace for the county of Kent, under the provisions of sect. 15 of stat. 5 & 6 Vict. c. 98; a copy of which contract is hereunto annexed, and is to be deemed and taken to be a part of this case. The contract took effect from the 23d of October, 1849, and is to expire on the 23d of October, 1856. The rate of charge paid under this contract by the borough of Gravesend is the same as was and is paid by the other local jurisdictions contracting with the county justices; and no extra charge is made to such other local jurisdictions for safe custody, care, or punishment of prisoners, as distinguished from their support and maintenance. Ever since this contract, all prisoners committed from the borough of Gravesend have been committed to and confined in the county gaol and house of correction under this contract; and the treasurer of the borough of Gravesend has paid to the treasurer of the said county the amounts which have become due under the said contract. Since the grant of a separate Court of quarter sessions, the treasurer of the county of Kent has not kept an account of the costs arising out of the prosecution, maintenance and punishment, conveyance and transport of offenders committed for trial to the assizes in such county from the borough of Gravesend, *under sect. 114 of stat. 5 & 6 W. 4, c. 76, or sent a copy thereof [*461 . to the council of the borough according to the directions of that section, because, ever since the grant of sessions, the borough has in the first instance, and without such costs passing through the county accounts, out of its own funds paid all the costs to which it is liable under that section. The borough of Gravesend has also, ever since the grant of sessions, in the first instance and without such costs passing through the county accounts, out of its own funds paid all the expenses of the conveyance and transport of all its prisoners, whether convicted on summary convictions or otherwise: this payment has been so made because the county authorities, after the grant of sessions, refused to