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in evidence, to prove that they were not married; but the whole Court of King's Bench were of opinion, on a trial at bar, that the sentence could not be given in evidence; " because, first, it was a criminal matter, and could not be given in evidence in a civil cause; next, because it was res inter alios acta, and could not affect the issue: but they held, that, if it had been a sentence on the point of marriage in a question on the lawfulness of the marriage, it might have been given in evidence, being the sentence of a court having proper jurisdiction."

And in the case of Gibson v. Maccarty (i), on an issue to try the genuineness of some promissory notes, depositions of a deceased witness having been read on the part of the plaintiff (in which depositions the witness swore, that the defendant had acknowledged the notes in question and also another note,) it was proposed, on the part of the defendant, to shew by a record of conviction, that the plaintiff had since been convicted of forging this other note, mentioned by the deponent; for such evidence, it was said, would go to the credit of the deponent's evidence, as to the acknowledgment of the notes in question; and, secondly, because there is at all times a liberty given to examine into the plaintiff's character. But this evidence was opposed on the part of the plaintiff, (on the ground, that no record of a criminal action can be given in evidence in a civil suit, because such a conviction might have been upon the evidence of a party interested in the civil action,) and Lord Hardwicke is reported to have said, "that the general rule was a9 had been stated by the plaintiff's counsel (2), and that it had been so strictly kept, that in the case of the Hillyards, on a question of legitimacy, the Court refused to admit a sentence of excommunication in the spiritual court for fornication between the father and mother of the party, whose legitimacy was impeached."

fi) Rep. temp. Htrd. %11. in Hathaway v. Barrow and Others,

(1) Acc. per Sir J, Mansfield C. J. I Campb. i$u

In a third case (1) to be found on this subject, upon an issue to try the question of devise or no devise, a coroner's inquest, finding the deceased a lunatic, was offered in evidence against the plaintiff, who claimed as executrix, for the purpose of shewing, that the deceased was incompetent to make a will; this evidence was objected to on the part of the plaintiff, and the court were equally divided in opinion. The Chief Justice (Parker) was of opinion that the inquest ought to be admitted, "because it was for the plaintiff's advantage, as the personal estate would be saved by the finding of lunacy," and he added, that in Lord Derby's case an inquest post mortem was allowed to be given in evidence. Mr. Justice Powys agreed with the Chief Justice. Mr. Justice Eyre said, " This is a criminal matter, and ought not to be given in evidence in a civil proceeding. A verdict on an indictment for battery cannot be read in an action for the same battery. An inquest post mortem is in the nature of a civil proceeding, but this is criminal, for it might induce a forfeiture of the goods, if he had been found felo de se." And Mr. Justice Pratt said, "If a verdict be given in evidence it must be between the same parties, and, therefore, an indictment at the suit of the king cannot be read in an action at the suit of the party.

The objections, then, against the admissibility of such evidence, seem to be, first, that the parties are not the same in the civil suit as in the criminal case; and secondly, that the party in the civil suit, on whose behalf the evidence is supposed to be offered, might have been a witness on the prosecution. On the other hand, it may be said, that, although the prosecution was conducted in the name of the king, no kind of injustice can be done to the defendant in admitting the record of conviction as evidence against him on the points there in issue, since he had a full opportunity at the trial of defending himself, and, if he

(1) Jones v. Wiite, Tr. *t bar, l Str,68.

Could, could, of disproving the charge: and, with regard to the second objection, it cannot, at least, apply to cases where the party, who offers the judgment in evidence, was not in fact a witnefs on the prosecution, or where from the nature of the case he could not have been admitted.

Mr. Justice Buller lays down the rule generally (11, "that a conviction in a court of criminal jurisdiction is conclusive evidence of the fact, if it afterwards come collaterally in controversy in courts of civil jurisdiction. As, suppose the father convicted on an indictment for having two wives, this, he says, would be conclusive evidence in an action of ejectment, where the validity of the second marriage is in dispute •." However, it seems very questionable whether the verdict, in such a case, would be admitted as conclusive. In the Duchess of Kingston's case (2), Lord Ch. J. Eyre, in delivering his judgment, said, that if an offender is convicted of felony on confess sion, or is outlawed, not only the time of the felony, but the felony itself may be traversed by a purchaser, whose conveyance would be affected, as it stands; and even after u conviction by verdict, he may traverse the time.

If the rule is, as Mr. Justice Buller has laid down, that a record of conviction may be given in evidence, on the same matter in a civil suit, it must be understood at least

(t) Bull. N. P. {1) 11 St. Tr. i5 n

* In support of this, the case of Buyle v. Boyle (t) is cited; where, a woman, who was libelled in the spiritual court in a cause of jactitation of mariiage, applied to the Court of King's Bench for a prohibition, suggesting that the complainant had been convicted of bigamy iu 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 Holluway C. J. and Allihone J. granced 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, ro support the general position laid down by Mr. Justice Buller.

(1) 3 Mod. 164. Comberb. 71. S. C,

with this limitation, that the party aggrieved was not a witness on the prosecution. To admit the record as evidence on any other condition, would be in efiect to allow the party to a suit to give evidence for himself. The record, ifl such a case, seems upon every principle inadmissible; and the rule must be the same, whether the conviction was founded solely on the prosecutor's testimony, or whether his testimony was corroborated by other evidence. Thus, on a trial for perjury committed in an answer to a bill of injunction, 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 (1), 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 (2). So a conviction for an assault before a magistrate, on the information of the injured party, is not evidence in an action for the same assault (3). 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 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 shewing 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 (4)." 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.

Though a conviction, says Mr. Justice Buller, in a court of criminal jurisdiction is conclusive evidence of the fact,

(t) R.v. Boston, 4 East,581. Bur- (3) Smith v. Rummcns, I Campb.o. don v. Browning, 1 Taunt. 511. (4) GiU,. Ev. i6,

(1) Bartlet v. Pickersgil), 4 East, ,

m.»W R if 242 Judgments of Courts of exclusive Jurisdiction. £Ch. 3.

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. (1)

(1) Bull. N. P. 145. Gilb. Ev. 31. on a second indictment, R.v.St.P mcris, A verdict of not guilty, on an indictment Peake. N. P. C. 119. As to acquittal* agaimt a parUh for not repairing a road in the exchequer, see infra, C.3. a. 3. ia said not to be evidence for the parish ad fin.

CHAP. III.

On the Judgments of Courts of exclusive Jurisdiction.

'JT'HE 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. (2)

But, although such sentences are conclusive, and cannot be impeached from within, yet, like all other acts of the highest judicial authority, they are impeachable from without (3). 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. (4)

In treating of this subject, it is proposed to consider, 1. Sentences of Ecclesiastical Courts: 2. Sentences of Courts of Admiralty, and of Foreign Courts: 3. Judgments

(2> 11 State T. R. 161. Judgment (3)It,.162. of Cb. J. De Grey in Duchess of King- (4) Fermor's case, 3 Co. Rep. 78. b. ston's case.

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