Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

nistration. Noell v. Wells, 1 Lev. 235. This jurisdiction was transferred to the Court of Probate, and has, by the J. Act, 1873, s. 16, been again transferred to the High Court of Justice, and is by sect. 34 assigned to the Probate, Divorce, and Admiralty Division. See Pinney v. Hunt, 6 Ch. D. 98. A probate, therefore, granted by a competent court, is conclusive of the validity and contents of such a will and the appointment of executors till it is revoked, and no evidence can be admitted to impeach it, except in proceedings in the Probate Division for its revocation. Allen v. Dundas, 3 T. R. 125 ; Meluish v. Milton, 3 Ch. D. 27, C. A. ; see Pinney v. Hunt, supra. On this ground the payment of money to an executor, who has obtained a probate of a forged will, is a discharge to the debtor of the intestate, though the probate be afterwards declared null. Allen v. Dundas, supra. See Hargr. Law Tracts, 459. But administration may be impeached by proof that the value required a higher stamp. See Stamps-Probate, post, p. 250. Letters of administration are not evidence of any fact which is matter of inference and not of adjudication, as the intestate's death, for the grant assumes the fact of death. Thompson v. Donaldson, 3 Esp. 63; accord. Moons v. De Bernales, 1 Russ. 301, 306. Though it could not be shown in a court of common law that the Ecclesiastical Court had erred in granting probate, yet evidence might be given to show that the court had no jurisdiction; as that the supposed intestate was alive. Allen v. Dundas, 3 T. R. 130. So the letters of administration might be proved to have been revoked. B. N. P. 247. And the books of the Prerogative Office are evidence of the revocation. R. v. Ramsbottom, 1 Leach, C. C. 25, n. So, it may be shown that the seal of the ordinary has been forged ; but it cannot be shown that the will was forged, or that the testator was non compos mentis, or that another person was appointed executor; B. N. P. 247 ; Noell v. Wells, 1 Lev. 236; for those questions are settled by the judgment of the court.

A probate, we have seen, is not, except under special circumstances, evidence of a will of real property, ante, pp. 135, 140, 141 ; nor is it generally evidence that an instrument is a will so as to pass copyhold or customary estates ; Hume v. Rundell, Madd. & Geld. 331 ; or to operate as an execution of a power to charge land. S.C. ib. We have seen, ante, p. 44, that it is not primary evidence in cases of pedigree to prove relationship.

As to the effect of probate in the case of a will of land, see the provisions of 20 & 21 Vict. c. 77, stated ante, pp. 140, 141.

The other provisions of that Act, relating to the effect of probate generally will be found post, Part III., Actions by erecutors.

Effect of Sentences in Admiralty Courts. Upon questions of prize the Court of Admiralty has exclusive jurisdiction ; therefore a sentence of condemnation in that court is conclusive, and being a proceeding in rem, it binds all the world. Kinnersley v. Chase

, Park Ins. 8th ed. 743. The jurisdiction of the Court of Admiralty has been transferred by the J. Act, 1873, s. 16, to the High Court of Justice, and is assigned by sect. 34 to the Probate, Divorce, and Admiralty Division. And the sentence of a foreign Court of Admiralty is also, by the comity of nations, held to be conclusive upon the same question arising in this country. Hughes v. Cornelius, 2 Show. 232 ; Bolton v. Gladstone, 5 East, 155. But the sentence of a Court of Admiralty, sitting in contravention of he law of nations, will not be recognised in our courts. Havelock v. Rockwood, 8 T. R. 268. If the property is condemned on the ground of its not being neutral, the sentence is conclusive evidence of that fact. Judgments of Inferior Courts.

193 Barzillay v. Lewis, Park Ins. 8th ed. 725. So, where no special ground is stated, but the ship is condemned generally as good and lawful prize, it is to be presumed that the sentence proceeded on the ground of property belonging to an enemy, and the sentence will be conclusive evidence of that fact. Saloucci v. Woodmass, Park Ins. 8th ed. 727 ; S. C., 3 Doug. 345. But where there is some ambiguity in the sentence of a foreign Court of Admiralty, so that the precise ground of the determination cannot be collected, the courts here may examine the ground on which it proceeded. Bernardi v. Motteux, 2 Doug. 574 ; Lothian v. Henderson, 3 B. & P. 499. And if the condemnation does not plainly proceed upon the ground of enemies' property, or of non-compliance with subsisting treaties, but on the ground of regulations arbitrarily imposed by the captor, to which neither the government of the captured ship nor the other powers of Europe have been made parties, such a condemnation will not be admitted as conclusive of a breach of neutrality. Pollard v. Bell, 8 T. R. 444, and cases collected in Park Ins. 8th ed., 730, et seq. In order to conclude the parties from contesting the ground of condemnation, such ground must appear clearly upon the face of the sentence ; it must not be collected by inference only, or left in uncertainty whether the ship was condemned upon one ground which would be a just one by the laws of nations, or upon another ground which would amount only to a breach of the municipal regulations of the condemning country. Per Tindall, C. J., Dalgleish v. Hodgson, 7 Bing. 504; Hobbs v. Henning, 18 C. B., N. S. 791 ; 34° L. J., C. P. 117.

Proceedings in rem in the Admiralty Court, in a collision cause, followed by an order for the sale of the ship and payment of the amount to the plaintiffs are no bar to an action of damages against the owners personally, if the proceeds of the sale are less than the damage sustained by the collision Nelson v. Couch, 15 C. B., N. S. 99 ; 33 L. J., C. P. 46 ; and see The Sylph, L. R., 2 Adm. 24.

Effect of Judgments of Inferior Courts. It would seem, upon principle, that the final judgment of a competent inferior court, whether of record or not, acting within its jurisdiction, will be conclusive between the same parties upon the same subject matter where properly relied on. Moses v. Macferlan, 2 Burr. 1009; Galbraith v. Neville, i Doug. 6, n. ; Routledge v. Hislop, 2 E. & E. 549 ; 29 . J., M. C. 90 ; Flitters v. Aufrey, infra. And see the observations in 1 Stark. Ev., 2nd ed., 228. So it has been held that a certificate from commissioners under an Act for settling the debts of the Army, stating the sum due from the defendant to the plaintiff, is conclusive in an action brought to recover the money. Moody v. Thurston, 1 Stra. 481 ; see Att.-Gen. v. Davison, M'Cl. & Y. 160. The judgment in a County Court action is conclusive as to any facts decided thereby; the judgment will appear by the record, but from the form of proceedings it is necessary to explain by parol what points were raised in the County Court and decided by the judgment. Flitters v. Allfrey, L. R. 10 C. P. 29.

A County Court order under 19 & 20 Vict. c. 108, ss. 50, 51, for giving up possession of premises made against a person holding under the tenant and complied with by him, is not conclusive evidence of title in a subsequent action again£t such person for mesne profits. Campbell v. Loader, 3 H. & C. 520 ; 34 L. J., Ex. 50. And such order would seem not to be conclusive against him even as to the right to possession ; Hodson v. Walker, L. R. 7 Ex. 55 ; in which case it was held (diss. Martin, B.), that

[merged small][ocr errors]

the order did not affect the rights of a person not a party to the proceedings.

In order to be a bar, the proceedings in a court of limited jurisdiction must show on the face of them, expressly or by necessary intendment, that the court had jurisdiction in the matter. Taylor v. Clemson, 2 Q. B. 978, 1031 ; 11 Cl. & Fin. 610; Cox v. London, Mayor of, L. R. 2 H. L. 239. So also the judgment of an inferior court of local jurisdiction may be avoided by proof that the cause of action did not arise within its jurisdiction ; Herbert v. Cook, 3 Doug. 101 ; S. C. Willes, 36 n. ; Briscoe v. Stephens, 2 Bing. 213; or that defendant, the debtor against whom the inferior court awarded process, did not reside within the district ; Carratt v. Morley, 1 Q. B. 18 ; it not appearing that any proof of residence had been, in fact, given to the court below. See also Huxham v. Smith, 2 Camp. 19. The above cases related to district courts having no statutable or other power, except over causes arising within the territorial limits. Where the court is limited only as to certain persons or causes, and not as to locality; or where the jurisdiction of the court, though established for a limited district, can lawfully exercise powers out of it; or where the practice of the inferior court requires, and is warranted by law in requiring, that the defect of jurisdiction should be pointed out by plea or otherwise, and the defendant has waived the objection ;-in such cases it would seem that the inquiry will be, not simply where the cause of action arose, or where the parties reside, but whether the court had jurisdiction. As to the jurisdiction of the Mayor's Court, London, see Cox v. London, Mayor of, supra : L. Joint Stock Bank v. Id., 1 C. P. D. 1; 5 C. P. D. 494, C. X. ; 6 Ap. Ca. 393, D. P. ; and Cooke v. Gill, L. R., 8 C. P. 107.

It has been that a judgment of the old County Court is examinable, and the existence of the facts necessary to the regularity of such judgment is a question for the jury, although a motion made in the County Court to set aside the proceedings for irregularity had been dismissed. Thompson v. Blackhurst, 1 N. & M. 266. But in such case there must be a proper defence to let in the inquiry. Williams v. Jones, 13 M. & W. 628. Where trespass was brought for executing a warrant to levy a poor-rate, the plaintiff was not permitted to impugn the appointment of the overseers on the ground of irregularity or miscalculation of votes at the meeting of justices at which the appointment was made ; the jury having expressly negatived fraud. Penney v. Slade, 5 N. C. 319.

Where a cause was removed by habeas from an inferior court after a judgment by default, that judgment was not evidence against the defendant in the superior court. Bottings v. Firby, 9 B. & C. 762.

Effect of Convictions. It is a general rule that the judgments of all courts of competent judicature are conclusive for the purpose of protecting their judicial officers acting within the scope of their authority. Thus, where the justices of the peace have an authority given to them by Act of Parliament, and they appear to have acted within the jurisdiction so given, and to have done ali that they are required by the Act to do in order to originate their jurisdiction, a conviction drawn up in due form, and remaining in force, is a protection in any action brought against them for the act so done. Per Abbott, C. J., Basten v. Carew, 3 B. & C. 653. Therefore where, in trespass against two magistrates for giving the plaintiff's landlord possession of a farm as deserted, the defendants produced in evidence a record of their Convictions.Sentences of Visitors.

195 proceedings under the statute 11 Geo. 2, c. 19, s. 16, which set forth all the circumstances necessary to give them jurisdiction, and by which it appeared that they had pursued the directions of the statute, it was held that this record was not traversable, and was a conclusive answer to the action. Ibid. So, in trespass against magistrates for taking and detaining a vessel, a conviction by them under the Bum-boat Act (2 Geo. 3, c. 28), was conclusive evidence that the vessel in question was a boat” within the meaning of the Act. Brittain v. Kinnaird, 1 B. & B. 432. See further Kemp v. Neville, 10 C. B., N. S. 523; 31 L. J., C. P. 158, and cases cited, post, Part III., sub tit., Actions against justices.

The recital of an information on oath in a warrant of commitment in the nature of a conviction (as for refusal to give sureties of the peace) is evidence for the justice of such information. Haylock v. Sparke, 1 E. & B. 471. Though it was held otherwise in the case of a warrant to apprehend on a charge. Stevens v. Clark, 2 M. & Rob. 435. See R. v. Richards, 5 Q. B. 926. In like manner a conviction for a contempt by commissioners of a court of requests is conclusive for them in an action of trespass against them; and the plaintiff cannot controvert the fact of contempt, though unnecessarily alleged in the plea. Aldridge v. Haines, 2 B. & Ad. 395. But a want of jurisdiction in the commissioners may be shown. Andrews v. Marris, 1 Q. B. 3.

An affiliation order obtained by E. W. may be used to contradict E. W., who, when called to prove her marriage and the legitimacy of the plaintiff her son, denied, on cross-examination, that she had ever applied to the magistrates for an affiliation order. Watson v. Little, 5 H. & N. 472; 29 L. J., Ex. 267.

Notwithstanding some authorities to the contrary (B. N. P. 245 ; Gilb. Ev. 30), it is now settled that a record of a conviction is inadmissible as evidence of the same fact coming into controversy in a civil suit. Gibson v. M'Carty, Cas. temp. Hardw. 311 ; March v. March, 28 L. J., P. & M. 30 ; Castrique v. Imrie, L. R., 4 H. L. 434, per Blackburn, J. In many of the earlier cases the conviction was held inadmissible by reason of the evidence on which it was procured. See Blakemore v. Glamorgan Canal Co.,

2 C. M. & R. 139 ; Brook v. Carpenter, 3 Bing. 297 ; Smith v. Rummens, 1 Camp. 9, 151. But the conviction was also inadmissible, on the ground that it was res inter alios acta, and this objection is still in force. See Gibson v. M'Carty, supra; and Peake Ev. 41, et seq. Yet, a plea of guilty on an indictment for assault is evidence by way of admission against the defendant in an action for that assault. Trial, per Pais, 1 Phill. Ev., 7th ed., 328 ; R. v. Fontaine Moreau, 11 Q. B. 1033. Though a verdict of guilty would not be evidence. R. v. Warden of the Fleet, 12 Mod. 337—9. But a conviction may sometimes be admissible as evidence of reputation. See Petrie v. Nuttail

, 11 Exch. 569 ; 25 L. J., Ex. 200. When a conviction operated in rem it was evidence inter alios, though obtained by the testimony of the party who used it in evidence. Davis v. Nest, 6 C. & P. 167.

Effect of Sentences of Visitors, dc. The sentence of expulsion of a member of a college by the master and fellows is conclusive, and cannot be impeached in a court of law. R. v. Grundon, Cowp. 315. A sentence of deprivation by a visitor of a college is in the same manner conclusive, and the grounds of it not examinable in any court. Philips v. Bury, 1 Ld. Raym. 5 ; S. C., 2 T. R. 346 ; see Hargr. Law Tracts, 464, 465. So, in ejectment against a schoolmaster, who has been removed by sentence of the trustees of the school (such power being vested in them) for misbehaviour, it is not necessary for the plaintiffs to prove the grounds of the sentence, and the defendant cannot disprove them. Doe d. Davy v. Haddon, 3 Doug. 310.

Effect of Judgments of Foreign Courts. The judgment of a foreign court (and for this purpose Irish, Scotch, and Colonial courts are foreign courts) of competent jurisdiction, directly de. ciding a question cognisable by the law of the country, is conclusive here, if the same question arise incidentally between the same parties, and the sentence be conclusive by the law of the foreign country. Garcias v. Ricardo, 12 Cl. & Fin. 368; Burrows v. Jemino, 2 Stra. 733; Stafford v. Clark, 2 Bing. 377 ; Crispin v. Doglioni, 3 Sw. & Tr. 96 ; 32 L. J., P. M. & A. 169; Dent v. Smith, L. R., 4 Q. B. 414; Messina v. Petrococchino, L. R.,, 4 P. C. 144; see cases collected in notes to Kingston's (Ds. of) case, 2 Smith's L. C. 8th ed. 839, et seq. Thus, in an action on a covenant to indemnify the plaintiff from all debts due from the late partnership of the plaintiff, defendant, and another, and from all suits, &c., proof of the proceedings in a foreign court in a suit there instituted against the late partners for the recovery of a partnership debt, in which suit a decree passed against them for want of answer, per quod the plaintiff was obliged to pay the debt, is conclusive against the defendant, who will not be permitted to show that the proceedings were erroneous. Tarleton v. Tarleton, 4 M. & S. 20.

In an action brought in this country upon the judgment of a foreign court having jurisdiction over the parties and subject matter of the suit, such judgment must now be taken as conclusive and binding on both parties, so as to preclude their contesting the merits or propriety of the decision, although formerly on this question much difference of opinion prevailed. Ferguson v. Mahon, 11 Ad. & E. 179; Australasia, Bank of, v. Nias, 16 Q. B. 717 ; 20 L. J., Q. B. 284; De Cosse Brissac v. Rathbone, 6 H. & N. 301 ; 30 L. J., Ex. 238 ; Munroe v. Pilkington, 2 B. & S. 11; 31 L. J., Q. B. 81 ; Vanquelin v. Bonard, 15 C. B., N. s. 341 ; 33 L. J., C. P. 78; Ellis v. M'Henry, L. R., 6 C. P. 228 ; Godard v. Gray, L. R., 6 Q. B. 139.

But if it appears on the face of the foreign proceedings or by extrinsic proof that the judgment is against natural justice, as that the defendant has never been summoned (in which case the court could have no jurisdiction), the courts here will not give effect to it. Ferguson v. Mahon, supra; Buchanan v. Rucker, 9 East, 192; S. C., 1 Camp. 63; Cavan v. Stewart, 1 Stark. 525. So, where the judgment has been obtained by fraud. Ochsenbein v. Papelier, L. R., 8 Ch. 695 ; even although the foreign court tried the question of fraud and decided that it had not been committed. Abouloff v. Oppenheimer, 10 Q. B. D. 295, C. A. So, where the judges in the foreign court were interested parties. Price v. Dewhurst, 8 Sim. 279. But it is no objection that the proceedings have (according to the law of the foreign country) been served upon a public officer in the absence of the defendant. Becquet v. MacCarthy, 2 B. & Ad. 951; and see Cowan v. Braidwood, 1 M. & Gr. 882; Australasia, Bank of, v. Harding, post, p. 197; see also Valle v. Dumergue, 4_Exch. 290 ; Copin v. Strachan, and Copin v. Adamson, L. R., 9 Ex. 345 ; 1 Ex. D. 17, C. A.

In order to render the judgment binding in this country, it must appear that it was final and conclusive in the foreign court in which it was given; Plummer v. Woodburn, 4 B. & C. 625, 637 ; Frayes v. Worms, 10 C. B., N. S. 149; that the cause of action was exactly the same; Callandar v. Dittrich,

« ΠροηγούμενηΣυνέχεια »