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Non potest adduci exceptio ejus rei cujus petitur dissolutio

It is not permitted to adduce a plea of the matter in issue as a bar thereto.

Error to reverse a judgment may be given as an illustration of this maxim. In such case the defendant in error cannot plead the record in answer to the error alleged by the plaintiff, that, in fact, being the only question in dispute ; and if he could, the plaintiff would be barred of all remedy. And so, it is said, that it would be impertinent and contrary to itself for the law to allow of a plea in bar of such matter as is to be defeated by the same suit ; for if that were the case, a man could never arrive at the end and effect of his suit. Therefore, where a writ of false judgment was brought upon a judgment of nonsuit in one of the inferior courts, on the ground that the judge had nonsuited the plaintiff notwithstanding he had appeared when called and had refused to be nonsuited, insisting that the case should go to the jury, and had tendered a bill of exceptions ; and it was contended on the part of the defendant that, as the bill of exceptions was appended to the nonsuit, the plaintiff must be taken not to have appeared, and therefore could not be heard to take that objection : the Court said that that was setting up as a defence the thing itself which was the subject of complaint, a course which was prohibited by the maxim, “ Non potest adduci exceptio ejus rei cujus petitur dissolutio ;” and so it was held : and also, that the direction of a judge nonsuiting the plaintiff against his will was the subject of a bill of exceptions, and fell within the principle upon which that remedy had been provided for errors in judgment at the trial ; being all misdirections of the judge in the course of a trial, or, more generally, error in the foundation, proceeding, judgment, or execution of a suit.

Though a judgment binds the parties until it is reversed, yet it cannot be alleged against a reversal of it ; nor can it be reversed but by those who are parties to the record. Before error can be brought upon a judgment, the judgment must be had, and it must be final, and the judgment given in error is, that the judgment below stand or be amended.

It may be said that this is contrary to the maxim, “Interest reipublicae ut sit finis litium” — It is to the interest of the state that there be an end of lawsuits ; for, if so solemn an act as a judgment is not to be depended upon as an end to litigation, there would be no end to litigation : and so, also, may it be said that it must be contrary to the maxim, “Nemo debet bis vexari pro una et eadem causa” — No one ought to be twice punished for the same fault. But error in judgment does not come within either of these rules ; for it is a failure of justice, and must be remedied under the maxim, “De fide et officio judicis non recipitur quaestio : sed de scientist sive error sit juris aut facti.”

A judgment directly in point is, however, conclusive upon the same matter between the same parties, and such judgment operates as an estoppel when pleaded to an action for the same cause ; but this does not apply to a judgment in which there is a defect, and to remedy which defect error is brought, for such judgment cannot in such case be set up as a plea in bar of such writ or proceedings in error.

Bao. Max. 22 ; Co. Litt. 289 ; 3 Salk. 145 ; Jenk. Cent. 37; 2 Bac. Abr. Error A. 2 ; Samuel v. Judin, 6 East, 333 ; Masters v. Lewis, 1 Ld. Raym. 57 ; Bishop v. Elliott, 11 Exch. 113 ; Craig v. Levy, 1 Exch. 570 ; Strother v. Hutchinson and another, 4 Bing. N. C. 83 ; Cossar v. Reed, 17 Q. B. 540 ; Rex v. Westwood, 7 Bing. 83 ; Byrne u. Manning, 2 Dowl. (N.S.) 403 ; Duchess of Kingston's Case, How St. Tr. 538 ; 2 Smith L. C. ; Freeman v. Oooke, 2 M. & W. 654.

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