A ва TREATISE ON THE LAW OF EVIDENCE. Eighth Edition. WITH CONSIDERABLE ADDITIONS. BY S. MARCH PHILLIPPS, ESQ. AND ANDREW AMOS, ESQ. BARRISTER AT LAW. PART II. LONDON: SAUNDERS AND BENNING, LAW BOOKSELLERS, 43, FLEET STREET. 1838. 505 PART THE SECOND. ON WRITTEN EVIDENCE. WRITINGS are either public or private. Some public writings are of record; others, not of record. Again, public writings may be distinguished into such as are of a judicial character, and such as are not judicial. It is proposed to treat, in the first chapter, of the admissibility and effect in evidence of judicial writings; and, in the second, of the effect of such public writings as are not judicial. The subsequent chapters will relate to the proof of writings, both public and private. CHAPTER THE FIRST. OF THE ADMISSIBILITY AND EFFECT IN Evidence of JUDICIAL WRITINGS. It is proposed to consider the subject in the following order First-With respect to verdicts and judgments, in the superior Courts. Secondly-Verdicts and judgments in inferior Courts. Thirdly-Sentences of foreign Courts. Fourthly-Proceedings in the Ecclesiastical Courts. Fifthly-Proceedings in other Courts of exclusive juris diction. Sixthly-Proceedings in the Court of Chancery. Seventhly-On depositions. Lastly-On inquisitions. It is to be observed, that these several heads of the subject mutually illustrate each other, and that the general principles applicable to each cannot be sufficiently comprehended without reference to all. Conclusive of fact recorded. Immaterial averments. SECTION 1. On the Admissibility and Effect in Evidence of Judgments and Judgments and verdicts in the superior Courts are always of record. They have, therefore, the character which belongs to all records, that no evidence is allowed to contradict them. (1) Thus, if a verdict finding several issues were to be produced in evidence, the opposite party would not be allowed to shew, that no evidence was offered on one of the issues, and was indorsed on the postea by mistake. (2) On an indictment for assisting the escape of a convict out of prison, if the record of the conviction is produced by the proper officer, evidence is not admissible to dispute the statement in the record, or to shew that it never was filed among the other records of the county; even though the indictment refer to it with a prout patet as remaining among those records. (3) An officer who has the care and custody of records may be examined as to their condition, but he cannot be examined as to their matter or contents. (4) But a record will not be conclusive as to the truth of allegations, which were not material nor traversable. (5) Thus, for example, a party will not be estopped from averring, in an action of debt on a bond, that the bond was made at A., though, in a (1) Co. Litt. 1176; 260, a.; 12 Rep. 24, 25; Dodderidge's English Lawyer, p. 200; Lamb. Inst. B. 1, c. 13, p. 71; Gilb. Ev. 5; B. N. P. 221. Glynn Thorpe, 1 B. & A. 156. Rex v. Hopper, 3 Price, 495. The authorities principally relate to records, but the principle and the law extends to some Courts, at least, which are not, strictly speaking, Courts of Record. (2) Reed v. Jackson, 1 East, 355. (3) Rex v. Shaw, and others, 1 R. & R. Cr. Ca. 526. (4) Leighton v. Leighton, 1 Str. 210. (5) Co. Litt. 352 b. former action on the same bond, he averred it to have been made at B. (1) So, in the case of a conviction for a felony, where the jury had given a general verdict, the record will not be conclusive that the offence was committed on the day mentioned in the indictment, for the time is not of the substance of the charge; and therefore a party interested to dispute the forfeiture, (which in the case of real property relates to the time of the offence), may show that the offence was committed on a different day from that alleged in the record. (2) used. Το prove fact of judgment. The record of a judgment or verdict not being liable to con- Judgment how tradiction as to the truth of it's contents, the question as to it's admissibility or effect in evidence must depend on the inferences attempted to be drawn from it. These inferences are sometimes necessary and conclusive, and sometimes optional with juries. Where a judgment is produced merely for the purpose of shewing that such a proceeding actually took place, (as, with a view to disqualify a witness, by shewing that judgment was actually passed upon him), the record is conclusive of the fact of conviction; the fact of conviction being by the law made the criterion of incompetency. (3) plaint determined. A judgment may be used for the purpose of shewing, that a To shew com person has already obtained satisfaction, or has failed in an attempt to obtain satisfaction for what he is claiming. In such cases the judgment is conclusive, at least, if pleaded by way of estoppel, as to what it clearly purports to decide; but evidence is sometimes admissible in regard to the connection between the judgment and the particular claim, as, where, in answer to a plea of judgment recovered, the plaintiff replies, that it did (1) Com. Dig. Estoppel, E. 6. (2) Ives's case, 3 Inst. 230; Gilb. Ev. 230. (3) The legal consequences arising from the simple fact of a judgment having been passed are very numerous, e. g. as constituting part of a title; to shew a suit determined; to let in evidence of what was sworn upon a trial; to justify proceedings in execution of the judgment; to entitle a partner |