Judge, and whether the sentence was pronounced in a regular manner. When these preliminaries are ascertained, the effect of the sentence depends upon principles, which do not belong to the law of evidence. (1) Decree. SECTION VI. Of Proceedings in Chancery. A decree in the Court of Chancery may be given in evidence on the same footing, and under the same limitations, as the verdict or judgment of a Court of Common Law. (2) It should seem that the decree of a Court of Equity, fixing the balance of a partnership account, would be enforced in a Court of Law; but an action at common law is not generally maintainable upon a decree of a Court of Equity for a specific performance, the decree in equity merely ascertaining that a party is under equitable obligation to pay money. (3) On a trial touching the right to lands, decrees in Chancery (1) Cases of apparent want of jurisdiction; Conviction for more than one penalty on same day, Crepps v. Durden, Cowp. 540. Payment of wages, Branwell v. Penneck, 7 B. & C. 536. Time of commitment unreasonable, Davis v. Capper, 10 B. & C. 28; Hill v. Bateman, 1 Str. 710. Committal without complaint, Morgan v. Hughes, 2 T. R. 225. Excess of imprisonment, Groome v. Forrester, 5 M. & S. 314. Cases where the excess of jurisdiction was only apparent by extrinsic evidence, Terry v. Huntington, Hardr. 480. Hill v. Bateman, Str. 710. Welsh v. Nash, 8 East, 402; 1 Br. & B. 409; 12 East, 67, 82. Per Le Blanc, J., Fuller v. Cotch, Carth. 346. Lowther v. Lord Radnor, 8 East, 113. Strickland v. Ward, 7 T. R. 634, n. Gray v. Cookson, 16 East, 23. Cases as to the statement of facts giving jurisdiction Fawcett being conclusive, Brittain v. Kin- (2) Vide supra, sect. 1. B. N. P. 243. It appears from Co. Litt. 260, that the Court of Chancery is not strictly a Court of Record. The opinions, therefore, as to the sentences of all Courts not of Record being examinable, would seem to require qualification, even if these opinions be confined to sentences which are not in the nature of proceedings in rem. (3) Henley v. Soper, 6 B. & C. 20. Carpenter v. Thornton, 3 B. & A. 52. between other parties concerning the same lands were held admissible in evidence, to shew the character in which the possessor enjoyed the lands. With respect to the objection that they were res inter alios gesta, it was observed, that this reason was not conclusive against their admissibility; for, in actions against the sheriff for an escape, it is usual to give in evidence judgments against third persons, in order to shew the character in which the plaintiff claims, and the amount of damage which he has sustained. (1) The autho seems to be The subject of the admissibility of bills in Chancery, for Bill. the purpose of proving matters of pedigree by the allegations contained in them, has been considered in a former part of this Work. (2) A question has arisen, whether a bill in Chancery may be received against the complainant, on the principle of it's being an admission made by him. rities are contradictory upon this subject, but it the more prevalent opinion, that a bill in Chancery cannot be used for this purpose, on the ground that the facts stated in a bill are frequently the mere suggestions of counsel, made for the purpose of obtaining an answer upon oath by the defendant. (3) A bill in Chancery, however, is proper evidence to shew the existence of a judicial proceeding, and that certain facts were in issue between the parties, in order to introduce the answer, depositions or decree. A demurrer in Chancery does not admit the facts charged Demurrer. in the bill; for if the demurrer be overruled, the defendant may still go on and answer. So if the defendant pleads; for Plea. the plea only amounts to a statement, that, supposing the facts charged to be true, the defendant is not bound to answer. Demurrers, therefore, and pleas in Chancery are not evidence against the party demurring, or pleading the facts charged in (1) Per Tindal, Ch J., in Davies . Loundes, 1 Bing. N. C. 607. (2) Vide supra, p. 231. (3) See B. N. P. 235. Snow v. Phillips, 1 Sid. 221. Gilb. Ev. 42. Woollett v. Roberts, 1 Ch. Ca. 64. Banbury Peerage case, from MSS. (4) Lord Ferrers v. Shirley, Fitz. Answers. Depositions. the bill, in a future action between the parties to the Chancery suit.(1) The authorities, respecting the admissibility and effect in evidence of answers in Chancery, have been noticed in treating of the subject of admissions. (2) The subject of depositions in Chancery will be considered in connection with other species of depositions in the next section. It is difficult to lay down general rules applicable to the admissibility and effect of verdicts, judgments, decrees, or sentences of whatever description, when used for the particular purposes of terminating, limiting, or influencing controversy by the authority of a res judicata. Some progress has been made towards accomplishing this object in the judgment of Chief Justice De Grey, on a question referred to the Judges in the prosecution of the Duchess of Kingston. The general principles there laid down are as follows: "From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; first, the judgment of a Court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive between the same parties, upon the same matter, directly in question in another Court; secondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction; nor of any matter incidentally cognizable ; 32. (1) Tomkins v. Ashley, Mo. & M. (2) Vide supra, as to taking the whole answer together, and as to the effect of an answer in Chancery against parties and privies. nor of any matter to be inferred by argument from the judg ment. "It is certainly true, as a general principle, that a transaction between two parties in judicial proceedings ought not to be binding upon a third; for it would be unjust to bind any person, who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the Court upon facts found, although evidence against the parties, and all claiming under them, are not in general, to be used to the prejudice of strangers. There are some exceptions to this general rule, founded upon particular reasons; but as they are not applicable to the present subject, it is unnecessary to state them. Again, "Although a direct and decisive sentence is to be admitted as conclusive evidence upon the Court, and not to be impeached from within; yet all acts, though of the highest judicial authority, are impeachable from without: although it is not permitted to shew that the Court was mistaken, it may be shewn that it is was misled." The observations of Chief Justice De Grey, are in consonance with the present practice of the Courts in regard to the obvious propriety of confining the effect of judicial decisions (unless in excepted cases) to persons who are parties or privies to the proceedings; and in regard to matters coming collaterally in question, incidentally cognizable or inferred by argument from a decision; in regard also to decisions obtained by fraud or collusion. But it will be seen, by reference to the preceding sections, that the principles laid down by the Chief Justice present a very inadequate, and in some measure an incorrect view of the state of the law upon this important subject. It does not appear that the decisions of Courts of concurrent and of exclusive jurisdiction have the same effect in evidence; and it is certain that the former, at least, are not "as evidence, conclusive." The difficulties of the subject relate principally to distinctions between the sen tences of Courts of Record or superior Courts, and of Courts not of record or inferior Courts, but of concurrent jurisdiction, and also to the sentences of foreign Courts. A material distinction, both with regard to domestic and foreign sentences, appears to exist, according as their operation is in rem, or is personam. It will probably be thought, that the law upon these subjects has not hitherto attained such a degree of uniformity, as to admit of being reduced to a few plain and general principles; though, in regard to each particular description of sentences, it has been endeavoured, in the preceding sections, in some measure to accomplish this object. Principle of admission. SECTION VII. On Depositions. Depositions, as generally used, are a species of evidence of a seconday character, to be adduced, where the viva voce examination of the deponent is not attainable. They differ from ordinary hearsay evidence in the circumstances, that they are taken upon oath, and that the deponent has been subjected to the cross-examination of the person against whom they are used, or of some person standing in relation of privity with him. There is a strong presumption also, from the course of official duty, that depositions are faithfully recorded. But depositions are subject to great defects. For the demeanor of the deponent, which is a principal criterion of the truth of his statement, is not subjected to the observation of the jury; the powers of cross-examination are often restricted; and where, as in most instances is the case, the previous inquiry has been private, it wants the best safeguard against falsehood or equivocation, which belongs to judicial investigations. (1) (1) The testimony of a witness at a former trial depends on the same principles, and is subject to the same rules, as depositions. The cases on the subject will be noticed incidentally in the present section. |