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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 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 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,

(1) R. v. Boston, 4 East, 581. Burdon v. Browning, 1 Taunt. 521.

(2) Bartlet v. Pickersgill, 4 East, 577. n. (b).

(3) Smith v. Rummens, 1 Campb. 9. (4) Gilb. Ev. 26.

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. 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 infrà, c. 3. s. 3. ad fin.

CHAP. III.

On 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. (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. 261. Judgment of Ch. J. De Grey in Duchess of Kingston's case.

(3) Ib. 262.

(4) Fermor's case, 3 Co. Rep. 78, b.

in rem in the Exchequer, and by Commissioners of Excise: 4. Sentences by a College in one of the Universities, and Convictions before Magistrates.

SECT. I.

Of Sentences in the Ecclesiastical Courts.

SPIRITUAL Courts have the sole and exclusive cognizance of questioning or deciding directly the legality of marriage. And 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 cognizance, 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 (1). 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 nullity, therefore, and a sentence in affirmance of marriage, have been received as conclusive evidence on a question of legitimacy arising incidentally upon a claim to a real estate (2). So, a sentence 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 (2). In all these cases, said C. J. De Grey (3), 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

(1) Judgment of De Grey C. J. 11 St. Tr. 261. Bunting's case, 4 Co. Rep. 29. Kenn's case, 7 Co. Rep. 42.

Jones v. Bow, Carth. 225. Da Costa
v. Villa Real, 2 Stra. 960.
(2) II State Tr. 261.

(3) Ib.

R 2

under

under those, who were parties and had acquiesced. And, in general, the sentences of the spiritual court are 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, general bastardy, or on the fact of profession or deprivation, in those cases upon the issue so formed the mode of trying the question is by reference to the ordinary, and 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)

A sentence in a cause of jactitation, also, is evidence against a marriage, and has been received as such, 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, or to any

"6

(1) See the judgment by De Grey (2) I St. Tr. ib. C. J., 11 St. Tr. 261.

other

other proofs of that or any other marriage in another cause: and if such sentence is no plea to a new suit in the ecclesiastical court, and is not conclusive there, it cannot conclude another court, which receives the sentence, from going into new proofs to make out that or any other marriage (1). Admitting the 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 the 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.

The ecclesiastical courts have also exclusive authority in deciding on the validity of wills of things personal, and in 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. Thus a probate unrepealed is conclusive evidence, in civil cases, of the validity of a will: and therefore payment of money to an executor, who has obtained probate of a forged will, is

(1) 11 St. Tr. 261.

(2) Blackham's case, I Salk. 290.

(3) Noel v. Wells, 1 Lev. 235. I Ld. Ray. 262. 3 T. R. 130. Ꭱ 3 a dis.

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