The opinion of the court was delivered by
Gibson, C. J.
The bar of two verdicts in ejectment, is a statutory estoppel; and estoppels have effect only between parties and privies. The statute does not, indeed, expressly require the two verdicts to have been betwixt those who stood in that relation to the parties to be affected; but it would be monstrous to doubt that such was the intent. Statutes are to be interpreted as near as may be to the principles of the common law, especially in respect to matters which it may have been thought unnecessary to specify in detail; and it would have evinced a ridiculous attention to minutiae [225]*225had it been specially provided that a title should be impaired or affected by a verdict between one of the parties and a stranger. Now, though grantors and grantees are privies in estate so far as regards acts suffered or done at the time of the conveyance, it is fallacious to pretend they are such as to acts suffered or done after-wards. Every vendee takes the title, subject to the consequences of his predecessor’s acts during his seisin; but that it is not to be affected by a verdict against him, or by any act done by him after-wards, seems almost too clear for argument. On the principle of privity as to future acts, a vendor might charge the land in the hands of the vendee by suffering a judgment in debt; and if it be conceded, as it must, that he may not, I am unable to understand how he may burthen it with the consequences of an unsuccessful verdict, in an ejectment prosecuted at will for damages and costs. Ought not the remote, as well as the proximate, consequences of such an action to be exclusively at his risk? What seems conclusive of the affirmative, is that if the vendor’s action on the title were treated as the action also of the vendee, it would preclude the vendee from suing for the possession till it were determined; for its pendency would be a sure ground to stay proceedings in an action brought by him; or, now that the parties are the same, the vendor’s action might, perhaps, be pleaded in abatement of it'. But as the vendee could derive no advantage from a verdict which would not serve to put him in possession, it would be unjust to make him wait the vendor’s turn, and perhaps till the statute of limitations had closed upon the title — a consequence which no recovery of damages by the vendor could postpone or avoid. Yet the court would be bound to stay proceedings or entertain a plea in abatement if the vendor and vendee were deemed to be embarked in the same bottom; otherwise, as a verdict against the one might bar the other, there would be a scuffle betwixt them for priority of trial. But if the court, in the exercise of itsjudicial discretion, should refuse to stay proceedings, it could be justified only on the principle, that the vendor’s action is not the action of the vendee: a principle that would make short work with the argument; for it would bring death to it to admit that they do not constitute one party. I take it then to be clear, that the present defendants would not have been entitled to count the verdict as a point, in the game with the plaintiffs, had it been in their favour. Again. What is an ejectment pending after the plaintiff has parted with his title? It is a proceeding which has shrunk, in substance, into what the primitive ejectment was in form — an action of trespass to recover damages and costs for an ouster, in which the title is tried, in subservience of the end, only incidentally. Now it was ruled in the Duchess of Kingston’s case, 11 St. Tr. 261, and has been held for an elementary principle ever since, that the judgment of a court, even of exclusive jurisdiction, is inconclusive of a matter thus brought into question; and it surely was not the purpose of the legislature to [226]*226give conclusive effect to two verdicts where a single one would not have had it in an ejectment, stripped of the fiction which afterwards deprived it of the conclusive qualities of a recovery,, in a writ of entry or a writ of right. In its origin, ejectment was a simple action of trespass, by which neither possession nor compensation for mesne profits was demanded; and- it consequently might have been brought when the title had been conveyed. Indeed, as damages for the supposed .ouster are held to be a substantive and distinct cause of action at-this day, I see not why an ejectment might not be brought for it still; nor, if it were to have the incidental consequences of an action to recover the possession, do I see why it might not be repeated, toties quoties, till it had undone the title in the vendee’s hands, though it were free from defect when he-purchased it. If a single verdict would not be conclusive against the vendee, it would not be conclusive against the vendor.
It is idle to say the vendor is allowed-to prosecute his pending ejectment, only for the costs already incurred in it. There is no recovery of costs in any case independent of a substantively and distinctly existing cause of action; for it is the recovery of damages which, under the statute of Gloucester, entitles a plaintiff to costs. A vendor who has conveyed after action brought, could claim to go for costs, per se, with no better grace than could a plaintiff who had endorsed his-- negotiable note after action brought on it, and thus attempted to subject the maker to the costs of repeated actions. It is necessarily for damages suffered from the ouster, that such a vendor goes. On the hypothesis of the argument then, he might repeat his action till he had drawn down upon the title two adverse verdicts and'judgments in the hands of the vendee. If it be.said that the vendee takes the land voluntarily, and therefore subject to .the risk'of that, what would be said of a purchaser under his own judgment who takes it to protect his lien? Under the primitive form, of the action, it would have shocked the general sense to pretend, that his debtor still retained a power to affect the title by an action on it. And in what respect has the vendee’s ownership been jeoparded by. the form devised to let in a recovery of the land? Take it that a defendant in ejectment had set up, in bar of all bu.t damages, the plaintiff’s conveyance to a third person, which however was determined to be a forgery — it would not be pretended, that the verdict in such an action, might be admitted as evidence in an action by the' vendee against the vendor. It -would be decisive of its incompetency, that the vendee’s title had been repudiated in an. action to which he was neither party nor privy, and in which he could not have been received to produce proofs or cross-examine. Thus it-stood at the enactment of the statute in-1807; and is-it to be supposed, that the common law- principle of privity was. intended to be changed by it, or. that two verdicts: should be conclusive of-matters adjudicated incidentally, as'the title is where the land itself is not demanded, but damages fora trespass. [227]*227done to it? In abolishing the fiction which alone had prevented the verdict from being conclusive, the legislature did not choose entirely to restore the conclusiveness of the judgment under the original form of the action; and it certainly was not intended to give a wider sweep to two verdicts, than had been allowed to one: for the power to bar the title by two, was not in furtherance of the common law principle of conclusiveness, but in restraint of it. By the interpretation pressed upon us, the vendee’s title might be destroyed without his participation, by a single verdict in an action for damages, prosecuted after failure in an action for the possession.
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The opinion of the court was delivered by
Gibson, C. J.
The bar of two verdicts in ejectment, is a statutory estoppel; and estoppels have effect only between parties and privies. The statute does not, indeed, expressly require the two verdicts to have been betwixt those who stood in that relation to the parties to be affected; but it would be monstrous to doubt that such was the intent. Statutes are to be interpreted as near as may be to the principles of the common law, especially in respect to matters which it may have been thought unnecessary to specify in detail; and it would have evinced a ridiculous attention to minutiae [225]*225had it been specially provided that a title should be impaired or affected by a verdict between one of the parties and a stranger. Now, though grantors and grantees are privies in estate so far as regards acts suffered or done at the time of the conveyance, it is fallacious to pretend they are such as to acts suffered or done after-wards. Every vendee takes the title, subject to the consequences of his predecessor’s acts during his seisin; but that it is not to be affected by a verdict against him, or by any act done by him after-wards, seems almost too clear for argument. On the principle of privity as to future acts, a vendor might charge the land in the hands of the vendee by suffering a judgment in debt; and if it be conceded, as it must, that he may not, I am unable to understand how he may burthen it with the consequences of an unsuccessful verdict, in an ejectment prosecuted at will for damages and costs. Ought not the remote, as well as the proximate, consequences of such an action to be exclusively at his risk? What seems conclusive of the affirmative, is that if the vendor’s action on the title were treated as the action also of the vendee, it would preclude the vendee from suing for the possession till it were determined; for its pendency would be a sure ground to stay proceedings in an action brought by him; or, now that the parties are the same, the vendor’s action might, perhaps, be pleaded in abatement of it'. But as the vendee could derive no advantage from a verdict which would not serve to put him in possession, it would be unjust to make him wait the vendor’s turn, and perhaps till the statute of limitations had closed upon the title — a consequence which no recovery of damages by the vendor could postpone or avoid. Yet the court would be bound to stay proceedings or entertain a plea in abatement if the vendor and vendee were deemed to be embarked in the same bottom; otherwise, as a verdict against the one might bar the other, there would be a scuffle betwixt them for priority of trial. But if the court, in the exercise of itsjudicial discretion, should refuse to stay proceedings, it could be justified only on the principle, that the vendor’s action is not the action of the vendee: a principle that would make short work with the argument; for it would bring death to it to admit that they do not constitute one party. I take it then to be clear, that the present defendants would not have been entitled to count the verdict as a point, in the game with the plaintiffs, had it been in their favour. Again. What is an ejectment pending after the plaintiff has parted with his title? It is a proceeding which has shrunk, in substance, into what the primitive ejectment was in form — an action of trespass to recover damages and costs for an ouster, in which the title is tried, in subservience of the end, only incidentally. Now it was ruled in the Duchess of Kingston’s case, 11 St. Tr. 261, and has been held for an elementary principle ever since, that the judgment of a court, even of exclusive jurisdiction, is inconclusive of a matter thus brought into question; and it surely was not the purpose of the legislature to [226]*226give conclusive effect to two verdicts where a single one would not have had it in an ejectment, stripped of the fiction which afterwards deprived it of the conclusive qualities of a recovery,, in a writ of entry or a writ of right. In its origin, ejectment was a simple action of trespass, by which neither possession nor compensation for mesne profits was demanded; and- it consequently might have been brought when the title had been conveyed. Indeed, as damages for the supposed .ouster are held to be a substantive and distinct cause of action at-this day, I see not why an ejectment might not be brought for it still; nor, if it were to have the incidental consequences of an action to recover the possession, do I see why it might not be repeated, toties quoties, till it had undone the title in the vendee’s hands, though it were free from defect when he-purchased it. If a single verdict would not be conclusive against the vendee, it would not be conclusive against the vendor.
It is idle to say the vendor is allowed-to prosecute his pending ejectment, only for the costs already incurred in it. There is no recovery of costs in any case independent of a substantively and distinctly existing cause of action; for it is the recovery of damages which, under the statute of Gloucester, entitles a plaintiff to costs. A vendor who has conveyed after action brought, could claim to go for costs, per se, with no better grace than could a plaintiff who had endorsed his-- negotiable note after action brought on it, and thus attempted to subject the maker to the costs of repeated actions. It is necessarily for damages suffered from the ouster, that such a vendor goes. On the hypothesis of the argument then, he might repeat his action till he had drawn down upon the title two adverse verdicts and'judgments in the hands of the vendee. If it be.said that the vendee takes the land voluntarily, and therefore subject to .the risk'of that, what would be said of a purchaser under his own judgment who takes it to protect his lien? Under the primitive form, of the action, it would have shocked the general sense to pretend, that his debtor still retained a power to affect the title by an action on it. And in what respect has the vendee’s ownership been jeoparded by. the form devised to let in a recovery of the land? Take it that a defendant in ejectment had set up, in bar of all bu.t damages, the plaintiff’s conveyance to a third person, which however was determined to be a forgery — it would not be pretended, that the verdict in such an action, might be admitted as evidence in an action by the' vendee against the vendor. It -would be decisive of its incompetency, that the vendee’s title had been repudiated in an. action to which he was neither party nor privy, and in which he could not have been received to produce proofs or cross-examine. Thus it-stood at the enactment of the statute in-1807; and is-it to be supposed, that the common law- principle of privity was. intended to be changed by it, or. that two verdicts: should be conclusive of-matters adjudicated incidentally, as'the title is where the land itself is not demanded, but damages fora trespass. [227]*227done to it? In abolishing the fiction which alone had prevented the verdict from being conclusive, the legislature did not choose entirely to restore the conclusiveness of the judgment under the original form of the action; and it certainly was not intended to give a wider sweep to two verdicts, than had been allowed to one: for the power to bar the title by two, was not in furtherance of the common law principle of conclusiveness, but in restraint of it. By the interpretation pressed upon us, the vendee’s title might be destroyed without his participation, by a single verdict in an action for damages, prosecuted after failure in an action for the possession. That injustice might doubtless be done, did not the common law principles already invoked, come in to mitigate the rigour of a literal construction, by declaring that a vendee stands in privity to his vendor only in respect to acts suffered or done before the title was conveyed; and by declaring also that between even parties and privies, a judgment is conclusive only of those things which were directly adjudicated. If the vendee’s land were affected by an unsuccessful verdict in the vendor’s ejectment, I know not why, it might not as well be bound by a judgment in debt against him, pending also at the time of the conveyance. Such a judgment ought to go as far to bind the land, as an adverse verdict in ejectment ought to go 4o affect the cause of action. Here, the attempt is to make it affect more than the cause of action, by extending its effect from the damages which were sought to be recovered, to the land which was not. Surely the vendee is not to be prejudiced by the result of an enterprize attempted by the vendor for his peculiar benefit; for what matters it that his title to damages, was identical with the vendee’s title to the land? Though springing from a common root, the causes of action afforded by it, are different and distinct. The rule perhaps is universal, that he who stands not in privity, and has neither day in court nor right to be made a party, is not to be prejudiced by the judgment; and it will not be disputed that he who could not have been, prejudiced by it shall not have advantage from it. The principle is text law. And there was no design to change it; for though a verdict in an ejectment prosecuted only for damages, may be within the letter of the enactment, it surely never was intended to affect the title of one who had no agency in producing it. The case in view was the ordinary one — that of a title tried in a contest for the possession and made a subject of direct adjudication — for had the occurrence of a case like the present been foreseen, it would doubtless have been excepted; and we but carry out the spirit of the statute in making it an exception by implication.
Judgment reversed and a venire de novo awarded.