The general rule on this point is, that no man shall be permitted to make any averment which contradicts the record of that wherein be was a party. It is as ancient as the Year-Books. (d) But while it remains true, it has comparatively little importance, as the law of estoppel, at this time.

As an illustration of the old rule, it may be said, that if any one suffered a recovery or levied a fine to A of certain land of B, in the name of B, the record would bar B from an action to recover the land; nor could he maintain such an action, unless he previously caused the record to be falsified or amended, by an action of deceit. (e) So, if by his plea, he confessed or asserted a certain tenure of land, he could not, even in another action, deny or contradict this assertion, and found himself upon a different tenure. (f) So he might be estopped by omission; that is, by not denying of record; as, if A were sued in an action of waste by B, and pleaded that there was no waste, he could not afterwards aver that he was not in the land by the demise of B, though this might be a perfect defence if he could make it. (g) Now, however, there is little force in this principle * as one of estoppel, although, as one of evidence, it is still important, because an official record is always regarded as a most solemn and weighty evidence; although it is not generally absolute or conclusive, because it is open to rebutter, by proof of fraud or material error.(h)1

(d) 39 H. 6, 32 b.

(e) 1 Roll. Abr. 863,1. 17,20, 22; Rex v. Carlile, 2 B. & Ad. 362; Cole v. Green, 1 Lev. 309.

(f) 1 Roll. 64,1. 45.

(g) 1 Roll. 864, 1. 15. See Barron v. Paulling, 38 Ala. 292. See, as to effect of entry of "neither party," March v. Hammond, 11 Allen, 483.

(h) This question has arisen, princi1 An admission of partnership by a defendant in a suit in which the plaintiff was neither a party or privy, the plaintiff not being shown to have relied on the admission, will not estop the defendant from showing that the admission was a mistake. Dahlman v. Forster, 55 Wis. 382.

Perhaps this principle, as strictly one of estoppel, may be the foundation of one rule of great force and frequent application. It is, that matters which have once been finally determined by adequate judicial authority, shall not again be controverted by any persons who were either parties or privies to that determination. Thus, it has been held, a former recovery of damages for injuries sustained from the same cause, establishes the right of the plaintiff to recover for damages afterwards sustained from the same cause. (hh) A verdict and judgment are a conclusive estoppel only as to facts without proof or admission of which they could not have been rendered. (hi) The general rule we have stated and endeavored to illustrate in the ninth section of the preceding chapter.