Record of conviction. Coroner's inquest. 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 peculiar jurisdiction." In the case of Gibson v. Maccarty, (1) 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. Lord Hardwicke is reported to have said, "that the general rule was as had been stated by the plaintiff's counsel, (2) and that it had been so strictly kept, that in the case of 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." 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 (1) Rep. temp. Hard. 311. (9) Acc. by Sir J. Mansfield, Ch. J., in Hathaway v. Barrow and others, 1 Camp. 151. See also 12 Mod. 337. 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." 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." (1) But in an action upon a bond, to which there was a plea of Penal action. usury, a verdict of acquittal in an action for the usury penalties on the same bond between the same parties was held to be ad missible for the plaintiff. (2) Where a person indicted for an assault pleads guilty to the Plea of guilty. charge, it may be thought that the evidence, being in the nature of an admission by the party himself against whom it is used, stands upon a different ground from a conviction upon the evidence of others. According to some old authorities, the record, in such a case, has been considered conclusive in an action for damages for the same assault; (3) it seems, at least, to be admissible. (4) An acquittal upon an indictment has been considered not to Acquittal. (1) Jones v. White, Str. 68. (2) Cleve v. Powel, 1 M. & Ro. 228. (3) Lamb. Inst. B. 2, c. 9, p. 427, cited 9 H. 6, 60, and 11 H. 4, 65. (4) This point was so ruled by Wood, B., in an action for assault and battery, tried at Leicester Lent Ass. 1808. It was an undefended cause; but Mr. Baron Wood sug gested the objection, and, after Autre fois acquits. be receivable evidence even upon a subsequent indictment, not indeed for the same offence, but where the same right is in litigation. Thus it has been said, that a verdict of not guilty, on an indictment against a parish for not repairing a road, would not be evidence for the parish on a second indictment. (1) The rule established in regard to the plea of autre fois acquits is, that an acquittal on a former indictment is a bar to a second indictment, where the first indictment is such as that the prisoner might have been convicted upon proof of the facts contained in the second indictment. Thus, an acquittal upon an indictment for burglary, in breaking and entering a house and stealing goods, is not a bar to an indictment for burglary in the same dwelling-house and on the same night, with intent to steal. (2) An acquittal, on an indictment for having been present aiding and abetting in a felony, is no bar to an indictment charging the party as accessary before the fact, (3) on (1) Rex v. St. Pancras, Peake, 219. And it is said by Mr. Justice Buller, B. N. P. 245. Gilb. Ev. 32, that though a conviction in a Court of criminal jurisdiction, is conclusive evidence of the fact, if it come collaterally in controversy in a Court of civil jurisdiction; yet an acquittal does not prove the reverse, because it does not ascertain facts. It is to be observed, that the acquittal might have proceeded on some other ground, than the right of repair of a road, as, for example, on the ground that the road was not out of repair. It may be doubted, whether it would be competent to explain the ground of the former verdict and judgment. Vide supra, as to evidence to explain a judgment recovered, and infra, to explain the grounds of a judgment of Court of Quarter Sessions. Lord Kenyon said, that the verdict of acquittal could not be evidence for the parish, because the parties indicting the parish could not be bound by the former record, a reason which does not appear very satisfactory, especially as he held that the verdict would be conclusive against the parish. An acquittal for the same offence is conclusive, at least, if it be pleaded, the parties being considered virtually the same in both proceedings, 4 Co. 40; 2 Hawk. c. 35, s. 1; Hutchinson's case, 1 Show. 6; B. N. P. 245, where the prisoner has been acquitted in Spain. (2) Per Buller, J., in Vandercombe's case, 2 Leach, 716; 2 East's P. C. 519, overruling Turner's case, Kel. 30; and Jones and Bever's case, id. 52: see 2 Russell on Crimes, 39, n. Rex v. Taylor, 3 B. & C. 502, indictment for keeping a gaming-house. Coogan's case, 1 Leach, 448, indictment for forgery. forgery. Reading's case, 2 Leach, 590. Gilchrist's case, 2 Leach, 364. Rex v. Embden, 9 East, 437, indictment for perjury. Rex v. Sheen, 2 C. & P. 634. Rex v. Dunn, 1 Mo. Cr. Ca. 424, former acquittal on a joint indictment. Rex v. Russell, 1 Mo. Cr. Ca. 356. Rex v. Clark, 1 Br. & B. 473, indictment for child-murder. (3) Rex v. Burchenough, 1 Mo. Cr. Ca. 477. An anomaly in the law was supposed to have existed upon this subject; see 1 Hale's P. the ground that the several offences described in the two indictments could not be said to be the same. Verdicts are frequently admitted in evidence on the footing Verdicts, evidence of repuof hearsay statements, upon matters in which hearsay evidence tation. is receivable; in such cases the reason of the rule, that a verdict is only admissible between the parties or privies, is not applicable; nor can verdicts, when used for this purpose, be pleaded by way of estoppel. The use of verdicts for the purpose of hearsay evidence has been considered in a former part of this Work. (1) SECTION II. Admissibility and Effect in Evidence of Judgments of Inferior Courts. The general principle, as to the conclusive effect of what has been regularly decided by a competent tribunal with regard to the same subject and the same cause of dispute, and between the same parties, or those succeeding to their rights and in respect of the same character, would seem to apply to all the constituted tribunals of this country at least, whether superior or inferior, whether of record or not of record. (2) But it appears that the weight of authority is in favor of the judgments of inferior Courts, not of record, being examinable, at least, where an action is expressly brought upon them; though they are prima facie evidence of a debt being due. C. 626; 2 Hale, 224; Hawkins, b. 2, c. 35, s. 11; Foster's Cr. Ca. 361. (1) Vide supra, p. 263. (2) Not only is an actual adjudication binding upon the parties, but it has been held, that payments made in consequence of suits commenced, cannot be gainsaid, see Marriott v. Hampton, 7 T. R. 269. Brown v. M'Kinally, 1 Esp. 279. Judgment whether con clusive. In the case of Moses v. Macfarlane, (1) it was decided, that a sum of money, paid under the direct authority of an inferior Court, might be reclaimed as unduly paid. This decision has given great dissatisfaction. (2) It proceeded on the ground, not that the judgment was wrong, but that, (for a reason which the defendant in the Court below could not avail himself of against that judgment,) the defendant in the Court above ought not in justice to keep the money. Lord Mansfield expressly said, that the merits of a question, determined in the Court below, never could be examined over again in any shape whatever. It is to be observed, that the judgment in that case was by commissioners of a Court of Conscience, and not a judgment of record; yet Lord Mansfield does not appear to have considered it the less conclusive on that account. In the Irish case of Gahan v. Mainjay, (3) the Lord Chancellor observes, that the Ecclesiastical and Admiralty Courts are not Courts of Record, and that sitting in a Court of law, he was not at liberty to enter into the examination of the justice or injustice of any judgment of a Court of competent jurisdiction, unless it came before him by a writ of error. It has however, been frequently stated, that inferior Courts, not of record, have not the privilege of not having their judgments controverted. (4) (1) 2 Burr. 1005. (2) Per Chief Justice Eyre, in Philips v. Hunter, 2 H. Bl. 402. 2 Pothier, by Evans, p. 350, who attributes the judgment to an imperfect comprehension, on the part of Lord Mansfield, of a maxim of the civil law. In Philips v. Hunter, it was ruled, that if a creditor in England, after a trader has become a bankrupt, attaches his property in a foreign country, he is liable for the amount to the assig Tracts, 446; see also Moody v. Thurstan, Str. 481. The decision of a private arbitrator, as to merits, is conclusive, see Johnson v. Durant, 2 B. & Ad. 930. Jupp v. Grayson, 1 Cr. M. & R. 523. Barrett v. Wilson, 1 Cr. M. & R. 586. The distinction between Courts which are of record, and those which are not of record, is itself a question of some nicety, and depends on circumstances, not much connected with the reasons for their decisions being conclusive or not; Wood's Inst. p. 443. (4) By Lord Mansfield, in Walker v. Wetter, Doug. 3. By Buller, J., in Galbraith v. Neville, Doug. 6, n. By Littledale, J., in Guiness v. Caroll, 1 B. & Ad. 463. And |