Proof of will of personalty. title. trator of the effects of A. B. deceased, are not legitimate proof of A. B.'s death. (1) (a) A probate, unrepealed, is conclusive evidence, in civil cases, of the validity of such will; (b) and, therefore, payment of money to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the intestate, though the probate be afterwards Of executor's declared null and void. (2) (c) A probate is the only legitimate evidence of personal property being vested in an executor, or of the appointment of executor; (d) the original will is not admissi Act of devise ble for that purpose. (3) (e) But the probate of a will, devising real property, is not evidence of the contents of a will, as to such property; (4) not, even when the original will is lost, (5) (except, indeed, as a mere copy;) the spiritual court having no power to authenticate such a devise, as far as it relates to land. (ƒ) of freehold. Forgery of probate. Sentence not conclusive in The adverse party may show, that the probate is forged, because such evidence supposes that the spiritual court has given no judg ment; or if the probate was granted by an inferior court, the adverse party may show that the testator left bona notabilia, for then the court had not jurisdiction. (6) (g) But evidence will not be admitted to prove that another person was appointed executor, or that the testator was insane: (7) that would be to falsify the proceedings of the ordinary, in cases where he is exclusive judge. (h) It appears, then, that the sentence of an ecclesiastical court, criminal cases. directly upon a point within its peculiar jurisdiction, is conclusive on the same matter, coming incidentally into question in a civil case in another court. But, although the law stands thus with regard to civil suits, proceedings in matters of crime, and especially of felony, fall under a different consideration; (8) first, because the parties are not the same, for the king (in (1) Thompson v. Donaldson, 3 Esp. (2) Allen v. Dundas, 3 T R. 125. (4) Bull. N. P. 245. (5) Doe d. Ash v. Calvert, 2 Campb. 389. Hoe v. Nathorp, 1 Ld. Raym. 154. St Leger v. Adams, ib. 751. Dike v. Polhill, ib. 744. (6) 1 Sid. 359. Bull. N. P. 247. 5 Rep. 30. 1 Lev. 236. (7) 1 Lev. 236. (8) 11 St. Tr. 261. St. Tr. 588. 20 Howell's (a) See Note 615, p. 858. (b) See Note 616, page 858. (c) See Note 617, p. 859. (d) See Note 618, p. 859. (e) See Note 619, p. 860. (f) See Note 620, whom the trust of prosecuting public offences is vested, a trust executed by his immediate orders, or in his name by some prosecutor,) is not a party to such proceedings in the ecclesiastical court, and cannot be admitted to defend, examine witnesses, or in any manner intervene or appeal: secondly, such a doctrine would tend to give the spiritual courts, which are not permitted. to exercise any judicial cognisance in matters of crime, and immediate influence in trials for ffences, and to draw the decision from the course of common law, to which it solely and peculiarly belongs. (1) The case of the King v. Vincent, (2) therefore, Indictment for forgery. (where the probate of a will is said to have been admitted, as conclusive evidence of its validity, on an indictment for the forgery of the same will,) has been frequently much questioned, and at length expressly overruled. (3) bigamy. For the same reason, a sentence in a spiritual court, on the Indictment for question of marriage, will not preclude enquiry, on a criminal charge of polygamy; unless it is made to have such an effect by an express provision of the legislature. Now, by the statute of I J. 1, c. 11, which makes polygamy a felonious offence, and for the trial of this offence necessarily gives to the temporal courts a cognisance of the lawfulness of marriage, it is provided, that the act "shall not extend to any person divorced by a sentence in the ecclesiastical court, nor to any persons where the former marriage has been by the ecclesiastical court declared null and void." There are two cases, then, put by the statute, in which the sentence of the ecclesiastical court will protect against the criminal enquiry, namely, the case of a sentence of divorce, and the case of a sentence of nullity of marriage. (4) But the statute makes no exception in favour of a sentence in a cause of jactitation: and as such a sentence is not conclusive even in the court where it was delivered, and declares not directly, but only collaterally, the invalidity of marriage, it has been adjudged not to be a bar to a criminal prosecution. (5) (1) 11 St. Tr. 261. 20 Howell's R. 342, 343, n. St. Tr. 539. (2) 1 Str. 481. (3) R. v. Gibson, R. v. Buttery and M'Namara, S. P. Russ. & Ry. Cr. C. (4) 1 East, P. C. 467. (5) Duchess of Kingston's case, 11 St. Tr. 260. Sentence when con clusive. Sentence impeachable for fraud. Between what parties. It has been before mentioned, that judgments and sentences of courts of justice, or any other judicial act, may be impeached by evidence of fraud or collusion. And such evidence was adjudged to be admissible, on the part of the prosecution, in the case of the Duchess of Kingston, who was tried for polygamy. A distinction, in this respect, has been made between the case of a stranger, (who cannot come in and reverse the judgment, and therefore of necessity he must be permitted to aver, that it was fraudulent,) and the case of a party to the proceedings; the party himself cannot give evidence of fraud, but must apply to the Court, which pronounced the judgment, to vacate it. Thus, in the case of Prudham v. Phillips, (1) where the defendant proved her marriage with one M., in answer to which a sentence of an ecclesiastical court was produced, (to which sentence she was a party,) showing that she was at the time married to another person, Chief Justice Willes, after much debate, refused to allow the defendant to prove, that the sentence had been obtained by fraud. (i) Sentence in questions of prize SECT. II. Of Sentences in Courts of Admiralty and Foreign Courts. THE Judge of the Admiralty has the sole and exclusive cognisance in questions of prize or not prize at sea. (2) The true reason of this rule is, that prizes are acquisitions jure belli, and the jus belli is to be determined by the law of nations, and not by the particular municipal law of any country. A sentence, therefore, in the prize court, deciding the question of prize, is conclusive, in all it professes to decide, on the same point incidentally arising in courts of common law. "It has been clearly settled," said the Master of the Rolls in the case of Kindersley against Chase, (3) "from the time of Lord Hale down to the present period, that a sentence of condemnation in a court of admiralty, when it proceeds on the ground of enemy's property, is conclusive, that the property belongs to enemies, and not only for the immediate purpose of such a sentence, but (1). Ambler, 763, cited by the Ld. Caux v. Eden, 2 Doug. 600. Lindo v. (3) Cockpit, July, 1801, Park Ins. 490. is binding in all courts and against all persons. The sentence of a court of admiralty, proceeding in rem, must bind all parties, must bind all the world." (j) The sentence of a foreign court of admiralty also, which is ac- Sentence of foreign court knowledged by the law of nations, and of competent jurisdiction, of admiralty. deciding the question of property, is conclusive, if the same question arise in this country. (1)* And though in the case of Hughes v. Cornelius, the leading case on this subject, the question upon the foreign sentence arose in an action of trover, and not in an action on a policy of insurance, where the non-compliance with a warranty of neutrality is in dispute, yet, from that period down to the present, the doctrine, there laid down, has been considered as applicable to questions of warranty in actions on policies, as to General rule. questions of property in actions of trover. (2) (k) And it may now be assumed as the settled doctrine of courts of English law, that all sentences of foreign courts, of competent jurisdiction to decide questions of prize, are to be received here as conclusive evidence in actions upon policies of insurance, on every subject immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially. (3) "It is now too late," said Mr. Justice Lawrence," (4) "to examine the practice of admitting these sentences to the extent to which they have been received, supposing that practice might at first have appeared doubtful. On the authority of those decisions men have acted for a long series of years, and entered into contracts of assurance in this country, with a knowledge of such decisions, and in expectation that the questions, arising out of such contracts, to which the decisions are applicable, will be ruled by them." * This principle, which is established in our courts of justice, prevails also in those of the United States of America. See 4th vol. of Cranch's Reports of Cases adjudged by the Supreme Court of the United States, pp. 267, 271, 512, 513. (j) See Note 624, p. 880. (7) See Note 625, p. 881. Conclusive of what. Effect of sertence. Such a sentence of condemnation will be binding on the rights of third persons, as well as on the parties to the original suit; it is conclusive between the assured and the underwriter, with respect to every fact which it professes to decide. (1) Thus, when it proceeds on the ground of enemy's property, it is conclusive, that the property belongs to enemies, not only for the immediate purpose of such a sentence, but it is binding on all courts and against all persons. (1) And the sentence is binding, whether it proceed to condeinn the ship expressly as being enemy's property, or whether such a ground of decision can only be collected from other parts of the proceedings; and this, although it appear on the face of the sentence, that the prize-court arrived at the conclusion through the medium of rules of evidence and rules of presumption, established only by the particular ordinances of their own country, and not admissible on general principles. (2) The sentence is conclusive evidence of the points, upon which it professes to decide. (3) (m) Thus, for example, if it proceeded upon the ground of the property not being neutral, it is conclusive against the insured, that he has not complied with his warranty. (4) If no special ground is stated, and the ship is condemned generally as lawful prize, it is to be presumed from the condemnation, as no other cause appears, that the sentence proceeded on the ground of the property belonging to an enemy; and the sentence, in such a case, has been held to be conclusive evidence that the property was not neutral. (5) (n) In the case of Bernardi v. Motteux, (6) where there was some ambiguity in the sentence, so that the precise ground of the determination could not be collected, the Court of King's Bench considered themselves at liberty to examine, whether the ground on which the sentence proceeded, but which was not stated, actually falsified the warranty contained in the policy. Hence (1) Kindersley v. Chase, Park, Ins. 490. All the cases on this subject are there collected. (2) Bolton v. Gladstone, 5 East, 155. 2 Taunt. 85. Baring v. Roy, Ex. Ass. Comp. 5 East, 99. (3) Christie v. Secretan, 8 T. R. 196. Fisher v. Ogle, 1 Campb. 419. Everth v. Hannom, 2 Marshall, 72. (4) Barzillay v. Lewis, Park, Ins. 469. Baring v. Clagett, 3 Bos. & Pull. 201. (5) Saloucci V. Woodmas, Park, Ins. 471. 8 T. R. 444. (6) 2 Dougl. 574. 5 Bos. & Pull. 215. |