dispute. (1) In support of this, the case of Boyle v. Boyle (2) is cited; where a woman, who was libelled in the spiritual court in a cause of jactitation of marriage, applied to the Court of King's Bench for a prohibition, suggesting that the complainant had been convicted of bigamy in marrying her; and the Court of King's Bench granted the prohibition. The best report of this case is in Comberbach, whence it appears that Holloway, C. J. and Allibone, J. granted the prohibition against the opinion of Powell, J., "because," they said, "the libel is for jactitation, and the ecclesiastical court will not allow the plea." Nothing further is to be found in the case, to support such a general position. (p) If the rule is, as Mr. Justice Buller has laid down in the passage above referred to, namely, that a record of conviction may be given in evidence, on the same matter, in a civil suit, it must be understood, at least with this limitation, that the party, who offers such evidence, was not a witness on the prosecution (q) To admit the record as evidence on any other condition, would be in effect to allow the party to a suit to give evidence for himself. The record in such a case seems upon every principle inadmissible; and the rule must be the same, whether the conviction was founded solely on his testimony, or whether his testimony was corroborated by other evidence. On a trial for perjury, committed in an answer to a bill of in- Conviction of perjury. junction, the person who was sued by the defendant in an action then pending, and who in consequence filed the bill, was thought to be a competent witness, (3) on the ground that a conviction, procured by his testimony, could not be used by him for obtaining relief in equity against the defendant's action at law. (4) So On informaa conviction before a magistrate, on the information of the injured party, is not evidence in an action brought by the same party. (5) Ch. B. Gilbert seems indeed to have been of opinion, that where the verdict in the criminal prosecution is supported by other testimony, besides that of the party who C. (1) Bull. N. P. 245. 2 Atk. 412. (3) R. v. Boston, 4 East, 581. BurBrowning, 1 Taunt. 521. don v. (4) Bartlett v. Pickersgill, 4 East, 577. n. (b) (5) Smith v. Rummems, 1 Campb. 9. Hathaway v. Barrow and others, 1 Campb. 151. Burdon v. Browning, 1 Taunt. 520. tion. (p) See Note 604, p. 852. (q) See Note 605, p. 853. Acquittal, its effect. wishes to avail himself of it in the civil suit, there the verdict may be properly received in evidence: for though the verdict, he says, "may be diminished in point of authority, by showing that it was partly founded on the oath of the party interested in the action, yet the jury ought to respect it no further than as they presume it was given and supported by other witnesses not concerned in the cause." (1) It may still, however, be objected, that the fact might have found credit from the party's oath; and since this evidence is so intermixed, that it cannot appear on what the jury relied, the verdict ought not to be admitted at all as evidence. (r) Though a conviction, says Mr. Justice Buller, in a court of criminal jurisdiction, is conclusive evidence of the fact, if it afterwards come collaterally in controversy in a court of civil jurisdiction; yet an acquittal, which does not, like a conviction, ascertain facts, is no proof of the reverse. (2) (s) It is, however, conclusive, that the party has been tried for the offence, and was not proved to be guilty.(t) (1) Gilb. Ev. 26. (2) Bull. N. P. 245. Gilb. Ev. 32. A verdict of not guilty, on an indictment against a parish for not repairing a road, is said not to be evidence for the parish on a second indictment, R. v. St. Pancras, Peake, N. P. C. 219 As to acquittals in the Exchequer, see infra, c. 3, s. 3, ad fin. General rule. CHAP. III. Of the Judgments of Courts of Exclusive Jurisdiction. THE great principle on this subject is, that a judgment of a court of exclusive jurisdiction, directly upon the point, is conclusive between the same parties, upon the same matter coming incidentally in question in another court for a different purpose:() but that the judgment either of a court of concurrent or exclusive jurisdiction is not evidence of any matter, which came collaterally in question though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.(1) (1) Judgment of Ch. J. De Grey in Duchess of Kingston's case, 11 St. Tr. 261, fol ed. 20 Howell's St. Tr. 538, S. C. (r) See Note 606, p. 853. (s) See Note 607, p. 853. (t) See Note 608, , p. 8 .853. But, although such sentences are conclusive, and cannot be Fraud. impeached from within, like all other acts of the highest judicial authority, they are impeachable from without. (1) Fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says, it vitiates all judicial acts, whether ecclesiastical or temporal. (2) (v) In treating of this subject, it is proposed to consider, First, Sentences of Ecclesiastical Courts: Secondly, Sentences of Courts of Admiralty, and of Foreign Courts: Thirdly, Judgments in rem in the Court of Exchequer, and by Commissioners of Excise, and Sentences by Colleges in the Universities. SECT. I. Of Sentences in the Ecclesiastical Courts. SPIRITUAL Courts have the sole and exclusive cognisance of Sentence on question of questioning or deciding directly the legality of marriage (w). And marriage. the temporal courts have an inherent power of deciding incidentally, as far as temporal rights are concerned, either upon the fact or legality of a marriage, when they form a part of some more general issue within their cognisance, or are in some way connected with the decision of the proper object of their jurisdiction. But where, in civil causes, the temporal courts find the question of marriage directly determined by the ecclesiastical court, they receive the sentence as conclusive proof of the fact, it being an authority accredited in a judicial proceeding by a court of competent jurisdiction. (3) They receive it upon the same principles, and subject to the same rules, by which they admit the acts of other courts. A sentence of Sentence of nullity, therefore, and a sentence in affirmance of marriage, have nullity. been received as conclusive evidence, on a question of legitimacy arising incidentally upon a claim to a real estate. (4) So, a sen- Jactitation. tence in a cause of jactitation has been received as evidence against a marriage, upon a title in ejectment, and in personal actions immediately founded on a supposed marriage. (4) (1) 11 St. Tr. 261. (2) Fermor's case, 3 Co. Rep. 78. b. (3) Judgment of De Gray, Ch. J. 11 St. Tr. 261. 20 Howell, 538. Bunting's case, 4 Co. Rep. 29. Kenn's In case, 7 Co. Rep. 42. Nedham's case, (4) 11 St. Tr. 261. 20 Howell, 538. (v) See Note 610, p. 854. (w) See Note 611, p. 856. Between what parties. all these cases, said C. J. De Grey, the parties to the suit, or at least the parties against whom the evidence was received, were parties to the sentence, and had acquiesced under it, or claimed under those who were parties, and who had acquiesced. The sentences of the spiritual courts are, in general, not evidence, except against the parties to the suit, in which the judgment was given, or against those claiming under them. To make them conclusive against strangers, would be giving them an effect beyond what a judgment in the courts of common law is allowed to have. In a few particular instances, indeed, namely, where issue is joined on the record in certain real writs, on the legality of marriage or its immediate consequence, on general bastardy, or on the fact of profession, or deprivation, in those cases, upon the issue so formed, Certificate of the mode of trying the question is by reference to the ordinary, and ordinary. his certificate, when returned and entered on record in the temporal courts, is a perpetual and conclusive evidence against all the world on that point; which exceptionable extent was the occasion of a statute in the reign of Henry the Sixth, requiring certain public proclamations to be made, for persons interested to come in and be parties to the proceeding. (1) (x) Sentence in tation. A sentence in the cause of jactitation is evidence against a cause of jacti- marriage, and has been received as sucb, upon a title in ejectment, and in personal actions immediately founded upon a supposed marriage; (2) but it will not, like a sentence of nullity, be conclusive evidence. They are sentences of a very different nature and operation. A cause of jactitation is ranked as a cause of defamation only, and not as a matrimonial cause, unless when the defendant pleads a marriage: and, whether it continues a matrimonial cause throughout, as some say, or ceases to be so on failure of proving a marriage, still the sentence has only a negative and qualified effect, namely, that the party has failed in his proof, and that the libellant is free from all matrimonial contract "as far as yet appears," leaving it open to new proofs of the same marriage in the same cause, (1) Part of the judgment of De (2) 11 St. Tr. 261. 20 Howell, 538. Grey, C. J. 11 St. Tr. 261. 20 Howell, 538. cause. or to any other proofs of that or any other marriage in another And if such sentence is no plea to a new suit in the ecclesiastical court, and is not conclusive there, in cannot conclude another court, which receives the sentence, from going into new proofs to make out that or any other marriage. (1) Admitting the Its effect. sentence in its full extent and import, it only proves, that it did not yet appear that the parties were married, and not, that they were not married at all; and, by the rule laid down by Ld. Ch. J. Holt, (2) such sentence cannot be proof of any thing to be inferred by argument from it; and, therefore, it is not to be inferred that there was no marriage at any time or place, because the court had not then sufficient evidence to prove a marriage at a particular time and place. In the Duchess of Kingston's case, therefore, on a charge of polygamy, where a sentence in a spiritual court, in a cause of jactitation of marriage, was offered as conclusive evidence, to disprove the second marriage, the Judges held, that this sentence (even admitting it to be evidence on a criminal prosecution) could not be conclusive, but that the sentence and the judgment of the Lords might well stand together, and both propositions be true. The sentence would only prove, that it did not then appear that the parties were married; but, because the court had not then sufficient proof of the marriage specified, it could not be inferred, that there was no marriage between them at any other time or place. letters of ad The ecclesiastical courts have also exclusive authority in Probates, and deciding on the validity of wills of things personal, (y) and in ministration. granting administration. (3) And their sentences, pronounced in the exercise of this sole and exclusive jurisdiction, are so binding on the temporal courts, as to be conclusive evidence of the right directly determined; but it will not be evidence of General rule. any collateral matter, which may possibly be collected or inferred from the sentence by argument. (4) (z) Therefore, letters of administration, which have been granted to a person as adminis (4) Blackham's case, 1 Salk. 290. Thompson v. Donaldson, 3 Esp. N. P. (1) 11 St Tr. 261. 20 Howell, 538. Ld. Raym. 262. 3 T. R. 130. (y) See Note 613, p. 857. (z) See Note 614, p. 857. |