and that he had been "examined." The Court of Justiciary holding this to mean that the witness had not been sworn, suspended the sentence simpliciter (i). And where it is customary in records of particular courts to set forth that the witnesses were examined on oath, it would seem that the omission of such a statement in an individual case will be fatal (k).

§ 1064. Nor may extrinsic evidence be admitted for the purpose of giving to the record a different meaning from its true construction. For example, a recorded verdict must be construed as it stands, without the aid of extrinsic evidence, although it is ambiguous (). Thus, also, where a prisoner charged with murder and assault pleaded res judicata, and founded on an extract conviction, which bore that she had been punished for "drunkenness, fighting, and returning from banishment," the Court, holding that these terms described a different offence, refused to allow parole proof to show that they related to the same affair as that for which she was indicted (m). The rules against admitting parole evidence to explain deeds (2) illustrate the same principle.

§ 1065. An exception to the rule by which judicial records are conclusive proof, occurs in regard to objections which go not merely to the regularity of the proceedings, but to the essential justice of the case. For such a wrong (which experience shows may exist) there must be a remedy; and, therefore, an objection of this nature may be established by extrinsic evidence, in the same way as allegations of fraud or want of substantial consent may be proved to the effect of annulling private deeds. Thus, where an entailed estate had been sold judicially, as if for payment of the entailer's debts, and a subsequent heir challenged the proceedings on the ground that they were a fraudulent device for breaking the fetters of the entail, by raising up fictitious debts and overstating the amount of such debts as really existed; the House of Lords held

(i) Purves, 1825, Cr. Just. Ca., 133; 2 Al., 50. But where the record in a justice of peace case did not state that the principal witness had been sworn, while stating that the others had, the Court repelled the objection, as the deposition of that witness concluded in the usual terms, “All which is truth, as the deponent shall answer to God," and bore to be signed by the justice, as the witness could not write; Ranken v. Alexander, 1836, 1 Swin., 44; Bell's Notes, 239, S. C. (k) Grant, 1827, Syme,

144-Dykes, 1829, ib., 262-See also Nimmo v. Stewart, 1832, 10 S., 844. The admission that witnesses in a small debt case were not sworn is fatal to the decree, although appearing on record to be regular; Home v. Henderson, 1825. 4 S., 30.

(1) Supra, 48, et seq.

¿ 191, et seq.

(m) Paterson, 1823, 2 Al., 617.

(n) Supra,

Thus,

that the decree of sale did not form a bar to reduction (0). also, where the common agent in a process of ranking and sale had purchased part of the bankrupt estate, and the decree in his favour bore that the sale had been legally and orderly proceeded in, and therefore adjudged the estate to him as his absolute property; in an action of reduction which the bankrupts raised of the decree and subsequent title, on the ground that the common agent could not legally purchase, because his duty to obtain the highest price for the creditors and to protect their interest was incompatible with a sale to himself, the House of Lords (reversing the decision of the Court of Session) held the sale to be null. This is a strong case, because the decree had been pronounced causa cognita, upon a report by one of the judges to the whole Court, stating that he had satisfied himself by investigation as to the propriety and regularity of the proceeding (p).

§ 1066. The same principle is illustrated by a recent and important case. A person possessed of landed estate in Scotland, emigrated to America; where, shortly before his death, he married a woman by whom he had had a son and daughter. A nephew was served heir to him, on the footing that these children were bastards; whereupon an action of reduction of the service was raised at the instance of a factor loco tutoris who had been appointed by the Court of Session to the son, on the application of his next of kin. In this action of reduction decree of absolvitor was pronounced by the Court of Session in 1803, and affirmed by the House of Lords in 1808. In 1848, the son raised an action of reduction in the Court of Session, for the purpose of setting aside the service and the judgments in the previous action of reduction. In this action the son averred that the former proceedings had been adopted and carried through in pursuance of a fraudulent conspiracy to deprive him of his right of succession, entered into between the nephew and certain other persons in collusion with the factor loco tutoris; and that, in pursuance of this device, certain facts which, it was alleged, would have led to an opposite decision in the first action, had been fraudulently concealed. The Court of Session dismissed the action, on the ground that the summons was irrelevant, as no specification of facts inferring fraud was set forth in it. In the House

(0) Irvine v. E. Aberdeen, 1770, 2 Pat. Ap. Ca., 249, reversing.

(p) York Buildings Co. v. Mackenzie, 1795, 3 Pat. Ap. Ca., 378. The agent pleaded homologation and acquiescence; but the House of Lords held that the circumstances did not raise that bar to the action.

of Lords a question was raised as to the jurisdiction of the Court of Session to entertain an action of reduction of a decree of a superior tribunal, but no doubt was supposed to exist as to the competency of inquiring by some means into the question, whether the former proceedings had been carried through in furtherance of a fraudulent conspiracy. The House of Lords affirmed the judgment of the Court of Session, but chiefly on a different ground (r).

§ 1067. The principle on which these decisions proceeded has also been followed in regard to recorded verdicts of juries, when impugned on similar grounds. Thus the allegation that the jury in a civil case had cast lots for their verdict, was held to be provable by evidence other than the jurors; who were held to be incompetent under the constitution of the tribunal (s). In another case, where an unsuccessful party moved for a new trial on the ground that the jury had been tampered with and had misconducted themselves, the Court, before answer, allowed a proof of the allegations by witnesses other than the jurors (t). Again, where, in a jury. trial in a Sheriff-court for assessing the value of certain lands under a special statute, the verdict had been sealed up before the jury, had been handed to the clerk of court, and by him delivered to the Sheriff; and where the next day several of the jurors gave in to the Sheriff a declaration stating that the verdict erroneously bore that the sum set forth in it had been found by a majority of the jury; the Court of Session held it to be fatal to the verdict that it had been returned to Court out of the presence of the judge, and without having been read over to the jury and approved of by them in open Court (u). Their Lordships, accordingly (holding it to be unnecessary to inquire into the other objection) ordered a new

trial.8

§ 1068.

In the following cases, also, the Court allowed investi

(r) Sheddan v. Patrick, 1852, 14 D., 721; affd., 15th May 1854, 22 Sc. Jur., 420. (s) Stewart v. Fraser, 1830, 5 Mur., 166; Adam on Jur. Tr., 176; 209; and ib., App., No. 14, S. C. () M Whir v. Maxwell, 1836, 15 S., 299. The proof entirely failed. See also Black v. Croall, 1854, 16 D., 431. (u) Forbes v. Magistrates of Aberdeen, 11 Feb. 1809, F. C. The facts as to the irregularity on which the Court proceeded were not disputed.

7 How far affidavits by jurymen, as to the circumstances under which a verdict was returned, are admissible, was considered in the late case of Dobbie v. Johnston and Russell, 23 D., 1139—See supra, ¿ 48, note 4.

8 A motion for a new trial, on the ground of the verdict having been returned and delivered to the clerk of court in absence of the judge, was refused,— -no exception to his absence having been taken by the parties at the time; Brownlie v. Tennant & Co., 1855, 17 D., 422.

gation, where the records of inferior courts were impugned on the ground of error in substantialibus, or of irregularities which amounted to a denial of justice. Where an accused person imprisoned for examination applied to the Sheriff to be admitted to bail, and his petition was marked by the sheriff-clerk with the date 9th July, which was the date of the first deliverance on it; in an action of damages at his instance against the Sheriff for wrongous imprisonment under the act 1701, c. 6, it was held by the House of Lords to be competent for him to prove that the petition had actually been presented on the 2d of the month (x). In an action regarding the settlement of a schoolmaster, where a formal extract from the books of the presbytery bore that intimation of the proceedings of that court had been made to the heritors, the Court of Session allowed a proof not only that the extract was disconform to the record, but also that the procedure set forth in the record had not taken place (y). Again, where regulations which had been framed under the powers contained in a general police act, for the proceedings in summary trials before Sheriffs, required that if the accused applied for time to summon witnesses, and was refused, the clerk of court should make a note of the application and refusal; and where a party who had been convicted for theft in a trial falling under the regulations brought a suspension on the ground that no complaint had been served on him, that the judge had refused his application for time to summon witnesses, and to employ an agent, or to prepare for his defence; and where no note to that effect had been made by the clerk; the Court, before answer, allowed a proof of the allegations. Afterwards, on considering the evidence, they found that it did not. actually "amount to proof of the specific allegation contained in the previous interlocutor; but found that it appeared that the suspender had not been aware that the case could be proceeded with without a summons and warning thereby to be prepared; and that he did express some surprise or complaint that the matter could be then disposed of; and that the right to apply for time was not intimated to the suspender, to whom the new regulations were unknown, and hence that he was not enabled to put his application into any correct form; and, under the whole circumstances, as there appears to be some want of explanation, although unintentional and accidental on the part of the magistrate, in not making

(x) Andrew v. Murdoch, 1814, 2 Dow, 401; reversing, Buch. Rep., 1. (y) Philp v. Heritors of Cruden, 1724, M., 12,539; 13,122, S. C.

the purport of the new regulations fully known," their Lordships suspended the sentence, but without expenses (z).o

§ 1069. In treating of this subject, Sir A. Alison (a) distinguishes between cases where the objection is merely that the offer of proof was rejected, and those where it is also alleged that the judge refused to note the offer and rejection. In the latter case he holds the objection to be provable, because it does not contradict the record, the allegation being that the judge refused to make up a record; whereas in the former case, the prisoner admits that he did not require the judge to note the rejection, and there is therefore nothing to shake the presumption that the record is full and accurate (b). But the decision which has just been cited, and (it is also thought) correct principle, exclude this distinction; which is founded, not on the character of the respective objections, but on the extent of acquaintance which accused persons, who are generally uneducated, may have with forms of process.

§ 1070. The decision referred to is further important, as showing that an accidental error of the judge, if materially affecting the justice of the case, will be a sufficient ground for suspending the sentence; and this is just, because the injury to the accused does not depend on the motives which gave rise to the error.

§ 1071. Contrasted with these cases, but not conflicting with them, is one in which the Court of Session held it to be incompetent for them to inquire whether the chancellor of the jury in a trial before a Circuit Court of Justiciary had controlled the other jurors, had prevented them from retiring for deliberation, and had returned as unanimous a verdict of acquital, which (it was alleged) had not been unanimous (c). The question occurred in an action of damages at the instance of a private party (who had been prosecutor in the Criminal Court) against the chancellor of the jury; and the sum

(z) Blyths v. M.Bain, 1852, J. Shaw R., 554.

(a) 2 Al., 51, 2.

(b) Sir A. Alison founds his distinction on two unreported cases; Gillespie and Mills, 1831, and Russel, 1829, both noticed in 2 Al., 51, 2. (c) Mackintosh v. Fraser, 1834, 12 S., 872.

9 The Court of Justiciary allowed proof that the sentence pronounced in a prosecution before a magistrate was not read over to the prisoner before being signed, the record being formal; Wilson v. Haining, 1844, 2 Broun, 328. The proof failed; same parties, Arkley, 80. In Ord v. M'Callum, the Court of Justiciary allowed the complainer a proof of his averment, that for the purpose of excluding parties friendly to him the door of the police court was kept closed; 1855, 2 Irv., 183; but in M'Lean v. Macfarlane, 1863, 35 Sc. Jur., 319, the Court refused an application for suspension, on the ground that it was not sufficiently averred by the suspender that delay had been asked and refused, although at the bar that averment was made, and proof offered.