Page images

Inquisitions, which are extrajudicial or irregularly taken, will not be received in evidence. Thus an inquisition made by a sheriff's jury, for the purpose of ascertaining, who was entitled to the property of goods taken under an execution, is not admissible evidence even against the sheriff, in an action of trover brought by the party, in whose favour the inquisition was found (i). This evidence was received at the trial of the cause by Mr. Justice Buller, who admitted it, but held it not to be conclusive; and, a verdict having been found for the defendants, a motion was afterwards made for a new trial, on the ground, that the inquisition was conclusive evidence in favour of the plaintiff, as against the person who contested the property with the plaintiff and who was present at the time of taking the inquisition. But the court refused the application. Ch. J. Eyre said, he doubted whether a sheriff can, strictly speaking, hold any inquisition as to property, except under a writ de proprietate probanda in replevin. And Mr. Justice Buller said, he thought he ought not to have admitted the evidence at the trial, as the inquisition was not under the king's writ, but merely a proceeding by the sheriff of his own authority.

In order to make an inquisition evidence, the commission, under which it was taken, ought regularly to be proved, or shewn to be lost. But in cases of more general concern, such as the minister's return to the commission in the reign of Hen. 8. for inquiring into the value of livings, a copy of the whole record need not be taken, and the commission is of such public notoriety as not to require any proof. (2)

The general rule, respecting the admissibility of deposi- Examinations after the death of the witness, is, that they are not tl0"s• evidence, unless they have been taken judicially, and unless

(1) Latkow v. Eamer and Burnett, (a) Bull. N. P. Ii8. Hardcastle v. Sheriff of Middlesex, % H. Black. 437. . Sclater, 1 Gwrill. 787.


the party, whose interests would be affected by them, had an opportunity of being present and cross-examining the deponent. It is therefore now clearly established, that the ex parte examination of a pauper concerning his settlement, taken on oath before magistrates, is not admissible, upon a question of settlement, as evidence against the appellant parish (1). The objection against their admissibility is, not, that the magistrates have no power to administer an oath, (for it seems to be admitted, that the statute 13 & 14 C. 2. c. 12. s. 1., which first gave them a power to remove, gave them also incidentally a power to examine the pauper preparatory to a removal (2),) but, that the examination is ex parte, obtained at the instance of overseers, whose parish would be benefited by the removal, and behind the backs of the appellants, who received no notice of the proceeding, and had not the benefit of a crossexamination. (3)

There are some exceptions to the general rule, besides those already mentioned, founded on the special provisions of acts of parliament. Thus, the examination of a single woman before a magistrate, under the statute 6 G. 2. c . 31., (which enacts, that, in case any single woman shall, in an examination to be taken in writing upon oath before any justice, &c., charge any person with having gotten her. with child, it may be lawful for the justice to issue his warrant for the immediate apprehension of such person, &c.,) will be evidence after the woman's death against the reputed father, on his appearance at the sessions to abide the order of the court according to his recognizance. This examination, taken by the directions of the statute, in a judicial proceeding, will be evidence like depositions under the statute of Philip and Mary (4); although the proceeding

(1) R.v.Nunerumeourtenay,iEast, (3) Per Ld. Kenyou, R. v. ErisweH, 373. R.v. Ferry Frystone, 2 East,54. 3T. R. 715.

R. v. Abergwilly, ib. 63. (4) R. v. Ravenstone, $ T. R. 373.

(!) Per Ld. Kenyon, R. v. Eriiwell, 3T. R.


before the magistrate is entirely ex parte, and though the party accused is not present at the woman's examination.

The examination of a soldier before a magistrate, touching his settlement, is made evidence on an appeal, by the mutiny act (i), which enables "two or more justices for the county, where any soldier shall be quartered, in case he has either wife or child, to cause him to be summoned before them in the place, where he is quartered, in order to make oath of the place of his last legal settlement. And such justices are required to give an attested copy of such affidavit to the person making the same, to be by him delivered to his commanding officer, in order to be produced when required, which attested copy shall be at any time admitted in evidence as to such last legal settlement at any general quarter sessions of the peace." As an attested copy is thus made evidence, it has been determined, on a reasonable and obvious construction of the act, that the original affidavit, which is a higher kind of evidence, ought to be admitted as well as the copy (2). The statute however is to be construed strictly; and therefore no other attested copy is legal evidence, while the original is in existence, except that given to the soldier (3). For the same reason, it should seem, if the soldier, who has been examined before the magistrates, be abroad, or dead, or has quitted the army, at the time when the appeal is tried, the original affidavit or an attested copy would not be admissible in evidence. "One inconvenience, intended to be remedied by the act, was that of taking a soldier out of the quarters, for the purpose of his being examined respecting his settlement; and in order to guard against this inconvenience, the act directs the magistrates, who take the soldier's examination, to give him a copy of it, to be delivered to the commanding officer; that copy is lodged in the hands of the commanding officer, that it may be afterwards produced when required. But if

(0 Sect. 33. (3) R. v. CUjwn-U-Mowi 5T. R.

(!) R. T.Wailey, 6T. R. 534. 7«>».

th« the soldier go abroad, the same inconvenience is not likely to happen, and the act of parliament does not apply to such a case." (1)

Depositions Depositions taken in an ecclesiastical court, in a cause ticii courts, within its jurisdiction, seem to be admissible in evidence upon the same footing as depositions in the court of Chancery, the parties being the same, and having had an opportunity of cross-examining the deponents. Chief Baron Gilbert lays down the rule thus (2); "Depositions taken in the spiritual court in a cause relating to lands cannot be read, because they are no oaths at all, inasmuch as the spiritual courts have no authority to take depositions relating to lands: but it seems they may be read, when taken in a cause in which they have authority, as far as relates to that cause, inasmuch as these are lawful oaths, and a man may be indicted for the violation of them, though they be not oaths in a court of record." It does not appear, in any of the cases above mentioned, to have been thought essential to the admissibility of depositions, that they should be made in courts of record; but the material consideration was, whether they were taken judicially, and whether the other party, against whom they were offered in evidence, had any opportunity of cross-examining the deponent. And upon this principle, Lord Holt, in the case of Breedon v. Gill (3), was of opinion, that depositions before commissioners of excise, (who by statute 12 C. 2. c. 24. s. 45. have a power to administer oaths on inquiring into forfeitures,) taken in the presence of the other party, and signed by the witness, would be admissible on an appeal from the sentence of the commissioners, in case the witness should be dead at the time of hearing the appeal. There are some authorities, which hold, that depositions of witnesses in an ecclesiastical court are not to be admitted in courts of common law (4);

(1) Per Lawrence J. in R. v. Cbv- (4) Earl of Sarum v. Sir B. Spencer, ton-le-Moors,5t\R. 708, a Roll. Abr. 679. pL 5. Lit, Rep. 167.

(2) Gilb. Ev. 60. March. Rep. (to,
£3) rLd.Ray. (19. 122.

and and one book of authority lays it down as a general rule, that depositions, taken in a court not of record, shall not be allowed in evidence elsewhere (i). However, the better opinion seems to be, that such depositions are admissible in evidence, under the limitations above stated.

Judgments in a court baron, county court, or hundred Judgments court, and the judgments of any other inferior court recog- courts"0* nized by the law of the land (2), are evidence between the same parties, upon the same points in issue, on matters within their jurisdiction. Thus, in an action of debt on a judgment recovered in an inferior court, the judgment will be evidence of the debt, but not conclusive; and the defendant may shew that the cause of action was not within the jurisdiction of the court below. (3)

An award, regularly made by an arbitrator, to whom Award, matters in difference are referred, is conclusive, in an action at law, on the parties to the reference, upon all matters within the submission. What has been before said on the subject of judgments by a court of concurrent jurisdiction may be said also of awards, that they are, as a plea, a bar, or, as evidence, conclusive between the same parties, upon the same matter directly in question (4). Thus, in an action of ejectment, where the lessor of the plaintiff and the defendant had before referred to an arbitrator their respective claims to the property in question, the court of King's Bench held, that the party had by his agreement concluded himself from disputing the lessor's title (;). It has been before observed, that an award is not a bar to any cause of action, which the one party had against the other at the time of the reference, if it appear that the subject-matter

• (1) Bui M. R. 141. See ante, W *«• aute, P- 1»3! and Campbell

.p. txi. v. Twemlow, ante, p. 70 J and R. T.

(a) Com. Dig. " Evidence," C. I. Cotton, ante, p. 179.

(3) Herbert v. Cook, reported in (5) Doe dem. Morris r. Roastf,

note (a) Willes Rep. 36. Sie Moses 3 East, 15. T. Macferlan, ante, p. Hf.

« PreviousContinue »