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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 Cottrts.

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 ns 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. Jones v. Bow, Carth. 225. Da Cmta 11 St. Tr. 161. Bunting's case, 4 Co. v. Villa Real, 2 Stra. 960. Rep. 19. Kenn's case, 7 Co. Rep. 41. (a) 11 State Tr. 16i.

(3) lb.

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 th« 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 hi* 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

fi) See the judgment by De Grey li) n St. Tr.ib. C. J., 11 St Tr. 161.

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.a discharge to the debtor of the intestate, though the probate be afterwards declared null and void (1). But the sentence is evidence only of the point directly determined; it will not be evidence of any collateral matter, which may possibly be collected or inferred from the sentence by argument. (2)

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

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The adverse party may shew that the probate is forged, because such evidence supposes, that the spiritual court has given no judgment; or, if the probate was granted by an inferior court, that the testator left bona ratabilia, for then the court had not jurisdiction (3). But evidence will not be admitted, to prove, that another person was appointed executor, or that the testator was insane (4): that would be to falsify the proceedings of the ordinary in cases, where he is exclusive judge. The probate of a will, devising real property, is not evidence of the contents of the will (5), even though the original is proved to be lost (6); the spiritual court having no power to authenticate such a devise, as far as it relates to land.

It appears then, that the sentence of an ecclesiastical court, 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 (7); first, because the parties are not the same, for the king, (in 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

(1) Allen r. Dund«s, 3 T. R. (6) Doe d. Ash V. Calrert, 1 Campb.

(1) Blackbam's case, 1 Salk, 190. 389. Hoe v. Nathrop, 1 Ld. Ray. 154.

See ante, p. 245. St. Leger v. Adams, ib. 731. Dike V.

(3) » Sid. 359. Bul1- N. P. 147. Polhill, ib. 744.

(4) I Lev. ai6. (7) u St.Tr. 1Au (5) SulLN. P. us.

manner manner intervene or appeal: secondly, such doctrine would tend to give the spiritual courts, which are not permitted to exercise any judicial cognizance in matters of crime, an immediate influence in trials for offences, and to draw the decision from the course of the common law, to which it solely and peculiarly belongs. The case of the King v. Vincent (1), therefore, (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. (2)

For the same reason, a sentence in a spiritual court on the question of marriage will not preclude inquiry 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 1 J. 1. c. 11. which makes polygamy a felonious offence, and for the trial of this offence necessarily gives to the temporal courts a cognizance of the lawfulness of marriage, it is provided that the act " shall not extend to any persons 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 inquiry, namely, sentence of divorce and sentence of nullity of marriage (3). 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. (4)

It has been before mentioned, that judgments and sentences of courts of justice, or any other judicial act, may

(O iStr.481. (3) 1 E1st, p. c. 467.

(2) R v.Gibson, Lane. Sum. Ass. (4) Duchess of Kingston's case,

1802, beloie l.d. F.llenbor.m,h C. i. IiSt.Tr.16o.

stated by Mr. Evans in the 2d vol. of

fas edition of Pothier, p. 356.

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