Page images

dm* that the witness is not to be believed on his oath. Ewer * Ambrose, 3 B. and C. 749. Nor, as it seems, is it competent to nun to prove that the witness has previously given a dif ferent account of the transaction. Id. But he may prove the fccts denied, by other witnesses. Lowe v. Joliffe, 1 W B 365 Mz'xder v. Gibson, 2 Campb. 553. Richardson v. Allan, 2 Starkl

PnvUege of tint answering questions.] Where a question is asted, the answer to which would tend to expose the witness to punishment, or to a criminal charge, as to convicthim of the onence of usury, Cates v. Hardacre, 3 Taunt. 424, he cannot be compelled to answer; see the coses collected, 1 Phill Ev 262 ■

"pinTTMTM j"£h <luestns ouSht n°t to be put. CundeUv. ft*. 1 M. <md M. 108. But if the time limited for the recovery of the penalty has expired, the witness may be compelled to answer. Roberts v. Allutt, 1 M. and M. 192. And if a witness answers any questions on a matter rendering him liable to ioneiture or punishment, he cannot afterwards claim his prince, but must answer throughout. East v. Chapman, II «m «. 47. The objection to such questions must come from" tie^witness and not from the counsel in the cause. Thomas «• *«,(„,, Ibid, 48. So he cannot be compe)led {0 an3wer

onestions which might subject him to a forfeiture of his estate J* *64. And see Stat. 46 Geo. 111. c.37. But a witness can-" ^legally refuse to answer a question relevant to the matter uTM' (the answering of which has no tendency to accuse wmself, or to expose him to penalty or forfeiture of any kind w nature whatsoever), on the ground that the answering of «ucn qnestion may establish, or tend to establish, that he owes oew, or is otherwise subject to a civil suit. 46 Geo. Ill ,',! J 4witness 1S not compellable to answer questions which «re degrading to his character; Cooke's rase, 13 How. St Tr

& I ,Td'\ftMe'.1? HoW-SU Tr- 1T> L*!)"'"*", 16 How'.

"■ ibl; though it seems that such questions may leeallv £ "W. H. „. Edwards, 4 T.R. 440; k .. Holding, Irchb **• b», 102; Cundell v. Pratt, 1 M. and M. 108 ; and see the -«*«, 1 Phill. Ev. 269. If the witness ch'oosesTo at

w tue question, his answer is conclusive. 2 Watson's Trial oyinney, 288 ; see also Rose v. Blakemore, R. and M. 383.

A witness also is not compellable, or indeed allowed to reran communications, the disclosure of which might be iniunous to the interests of the state. Thus, questions tending to ndiscovery of the channels by which a disclosure of treason

w transactions was made to the officers of justice, are not Permitted to be asked. Hardy's case, 24 How. St. Tr. 814. R.v.' urn T' 2 ,Star't- 136- So communications between the goveroZ.VT^ and his attorney-general are confidential, and «Mot be disclosed. Wyattv.Gore, Holt, 299; and see Cooke v.

[ocr errors]

Maxwell, 2 Stark. 184. So also a letter written bv an agent of government to one of the secretaries of state. Anderson v. Ha. mil ton, 2 B.and IS. 156 (n).

Opinion of witness when admissible.] In general the opinion of a witness as to any of the facts in issue is inadmissible as evidence, unless upon questions of skill and judgment. Thus, in an action of trespass for cutting a bank, where the question is whether the bank, which had been erected for the purpose of preventing the overflowing of the sen, had caused the choking up of a harbour, the opinions of scientific men as to the effect of such an embankment upon the harbour are admissible. Folkes v. Chadd, 3 Dovgl. 157. 1 Phill. Ev. 276, S. C. 4 T.R. 498, S. C. cited. And where the question is, whether a seal has been forged, seal-engravers may be called to show a difference between a genuine impression and that supposed to be false. Ibid, per Lord Mansfield. So a physician who has not Been the particular patient, may, after hearing the evidence of others, be called to prove, on oath, the general effects of the disease described by them, and its probable consequences in the particular case. Peake, Ev. 208. The opinion of a person conversant with the business of insurance may be asked, as to whether the communication of particular facts would have varied the terms of insurance, but not as to what his conduct would have been in the particular case. Berthon v. Loughman, 2 Stark. 258. Camden v. Cowley, 1 W. Blacks. 417. B. v. Wright, Euss. and Ry. C. C. R. 456. But see Durrell v. Bederley, Holt, 286; and see ante, p. 70, as to the evidence of persons skilled in forgeries. So the evidence of a ship-builder has been admitted on a question of sea-worthiness, though he was not present at the survey. Thornton v. Royal Exchange Ass. Co. Peake, 25. So a person versed in the laws of a foreign country may give evidence as to what, in his opinion, would, according to the law of that country, be the effect of certain facts. R. v. Wakefield, Murray's ed. p. 238. Chaurand v. Angerstein, Peake, 44.

Memorandam to refresh witness's memory.] A witness will be allowed to refer to an entry, or memorandum, made by himself shortly after the occurrence of the fact to which it relates, in order to refresh his memory, and this though the entry ormemorandum would not of itself be evidence; Kensington v. Inglis, 8 East, 289; as a receipt on unstamped paper. Rambtrt v. Cchen, 4 Esp. 213. If the witness cannot speak to the fact from recollection, any farther than as finding it entered in a book or paper, such book or paper ought to be produced, and if not evidence, the testimony of the witness amounts to nothing. Doe v. Perkins, 3 T. R. 749. But where a witness, on seeing his initials affixed to an entry of payment, said," I have no recollection that I received the money; I know nothing bnt by tie book, but seeing my initials, I have no doubt that l received the money," this was held sufficient evidence. Maugham v. Hubbard, 8 B. and C. 14. A witness may refresh his memory by reference to entries in a book, which he did not write with his own hand, but which he examined from time to time while the events recorded were fresh in his recollection; Burrirngh v. Martin, 2 Campb. 112; but he will not be allowed to refresh his memory with a copy of a paper made by himself six months after he wrote the original, though the original is proved to be so covered with figures as to be unintelligible. Jones v. Stroud, 2 C. and P. 196. However, in one case where a witness refreshed his memory from a paper not written by himself, Lord Ellenborough said, that it was sufficient if s man could positively swear that he recollected the fact, though he had totally- forgotten the circumstance before lie came into court; and if, upon looking at any document, he can so far refresh his memory as to recollect a circumstance, it is sufficient. Henry v. Lee, 2 Chitty, 124. If the witness he blind, the paper may be read over to him. Catt v. Howard, 3 Stark. 4. Where a paper is put into the hands of a witness to refresh his memory, the counsel on the other side has a right to inspect it, without being bound to read it in evidence. Sinclair v. Sternum, 1 C. and P. 582. R. v. Ramsden, 2 C. and P. 603.


Under the present head will be collected the most material cases relative to the effect of judgments, verdicts, and other judicial proceedings, of instruments of state, of public books and registers, and lastly of awards.

First, with regard to the effect of judgments and verdicts in the superior courts of this country.

Effect of Judgments and Verdicts.

T.jfect of judgments and verdicts in the superior courts with regard to the parties.] It is a general principle that a transaction between two parties in judicial proceedings ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he might think erroneous. And therefore the depositions of witnesses in another cause, in proof of a fact, the verdict of a jury finding a fact, and the judgment of the court on facts found, although evidence against the parties, and all claiming under them, are not in general to be used to the prejudice of strangers. Per he Grey, C.J., Duch. of Kingston's case, 20 How. St. Tr. 538. In order to bind the party he must have sued, or been sued, in the same character in both suits. Thus in an action by an executor on a bond, he will not be estopped by a judgment in an. action brought by him as administrator on the same bond, but he may show the letters of administration repealed. Robinson's case, 5 Rep. 32 b. In considering the effect of judgments the court will look to the real parties to the suit. Thus a verdict in trespass against a person who justified as servant of J. S., was allowed to be given in evidence against the defendant, who also acted under J. S., J. S. being considered the real defendant in both causes. Kinnersley v. Orpe, Dougl. 517. But such evidence is not conclusive. Outram v. Morewood, 3 East, 366. So a verdict against one defendant is evidence in a second action against the same, and other defendants, if the latter claim under the first defendant. StriUt v. Bovingdon, 5 Esp, .58, Gitb. Ev. 32.

Effect of judgments and verdicts in the superior courts with regard to privies.] Privies stand in the same situation as those to whom they are privy. Thus a privy in blood, as an heir, may give in evidence a verdict for, and is bound by a verdict against his ancestor. Locke v. Norborne, 3 Mod. 141; see Outram v. Morewood, 3 East, 346. So of privies in estate. Therefore, if there be several remainders limited by the same deed, averdict for one in remainder may be given in evidence for one next in remainder. Pyke v. Crouch, 1 Ld. Raym. 730. B.N.P. 232. Sec Doe v. Tyler, 6 Bingh. 390. So a verdict for or against a lessee, is evidence for or against him in reversion. Com. Dig. Ev. (A.5), Gilb. Ev. 35, 1 Phill. Ev. 308; but see B.N.P. 232, 1 Stark. Ev. 192. So of privies in law; thus a verdict against an intestate, or testator, binds his representatives. A. v. Hebden, And. 389. In the same manner a judgment against the schoolmaster of a hospital, concerning the rights of his office, is evidence against his successor. Travis v. Chaloner, 3 Gwilt. 1237. Upon the same principle a judgment of ouster against a mayor was allowed to be given in evidence to prove the ouster is a quo warranto against a third person, admitted by him. R. v. Hebden, 2 Sir. 1109, B.N. P. 231, ZSelw.N.P. 1089, S. C.; but such evidence is not conclusive. R. v. Grimes, b Burr. 2598.

Effect of judgments or verdicts in the superior courts with regard to strangers.] There are several exceptions to the general rule, that no one shall be bound by a judgment to which he is not party or privy. In the case of customs, or tolls, verdicts, whether recent or ancient, respecting the same custom or toll, are evidence between other parties. City of London v. Clerke, Carth. 181, B.N. P. 233. So in the case of customary commoners, a verdict in an action for or against one, is evidence for or against another claiming in the same right. Per Lord Kenyan, Reed v. Jackson, 1 East, 357. So a verdict with regard to a public right of way. Id. 355. But the verdict in such cases is not conclusive. Biddulph v.Ather, 2 Jl'i/s.23. The judgment in rem, of a court of exclusive jurisdiction, is conclusive as to all the world, videpost, p. 104. Where a judgment is offered in evidence merely for the purpose of proving the fact that such a judgment has been obtained, and not with a. view to prove the facts upon which the judgment was founded, it may be evidence for or against a stranger. Thus a verdict against a master, in an action for the negligence of his servant, is evidence in an action by the master against the servant, to prove the amount of damages. Green v. A'esu River Co., 4T.R.590.

Effect of judgments and verdicts with regard to the subject matter of the suit.] A judgment between the same parties, and upon the same cause of action, is conclusive; and if the cause of action is the same, it is immaterial that the form of action is different. Thus a verdict in trover is a bar in an action for monev had and received, brought for the value of the same goods'. Hitchenv. Campbell, 2 W. Bl. 827. So a judgment in debt is a bar in an action of assumpsit on the same contract, Slade's case, 4 Rep. 94 b. So a judgment in trespass, in which the right of property is determined, is a bar in trover for the same taking. Com. Dig. Action (K. 3). If the party mistake his form of action, and fail on that account, the judgment in such action will not conclude him. Ferrars v. Arden, Cro. Eliz. 668, 2 Saund. 47, p (n). Godson v. Smith, 2 B. Moure, 157. If the plaintiff omit to give any evidence of a demand which he might have recovered in a former action, he will not be precluded from giving evidence of it in a subsequent action, Seddm v. Tutnp, G T. R. 607; and see Ravee v. Fainier, 4 T. i?. 146. Thorpe v. Qmper, 5 Bingh. 129. But where the declaration in the second action is framed in such a manner that the causes of action may be the same as those in the first suit, it is incumbent on the party bringing the second action to show that they are not the same. Lord Bagot v. Williams, 3 B. and C 239.

A judgment is only evidence where it is directly upon the point in question, and is not evidence of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred bv argument fromthe judgment. Due. of Kingston s case, 20 now. St. Tr. 533. Blar'khams case, 1 Salk. 290.

Ejfect of judgments and verdicts in the superior courts with regard to the manner in which they are taken advantage of.] A judgment

« PreviousContinue »