mons libelled malice. Here, it will be observed, the objection was, not that the jury had not consented to the verdict, or that they had left it to chance, but that they had consented to it under improper influence; whereas the allegation that it had not been unanimous was contradicted by the fact that they had allowed it to be recorded as such, after having been read out to them in open court. There was also a conflict of jurisdictions involved in the objection; as the verdict had been returned in a Court of co-ordinate jurisdiction, and independent of that in which it was afterwards challenged. A similar decision, in so far as the first point is concerned, occurred in regard to a criminal trial of two persons before the Sheriff and a jury. The verdict finding both prisoners guilty was signed by the chancellor, returned to Court, read over by the clerk, and openly assented to, and was then duly recorded in common form. Sentence was pronounced against one of the prisoners a few days afterwards; but was delayed for several weeks in regard to the other. In the interval she offered, in a suspension before the Court of Justiciary, to prove that the verdict had not been agreed to by a majority of the jury. But the Court held the proof to be incompetent (d). Such an attempt ex intervallo to contradict by parole a verdict which had been assented to in open court, and recorded in the terms in which the jury had announced it, was manifestly inconsistent with the fundamental principles of judicial procedure.— Again, where, after a unanimous verdict of guilty, but qualified by alleviating circumstances, had been returned in a prosecution before the Court of Justiciary for abduction and rape; and where the day afterwards, when the Court were about to pronounce sentence, a large majority of the jury tendered a declaration stating that they understood that the finding in mitigation would have exempted the prisoner from capital punishment, the Court "absolutely refused” to receive the declaration, and signified their disapproval of the step (e). It was an attempt to review a returned and recorded verdict on the ground that the jury had miscalculated its consequences, which did not fall within their province; and the Court justly considered that allowing such a procedure would hold out dangerous temptations to tampering with juries.10 (d) Mill ». Nicol, 1767, Maclau., 372. (e) Macgregor, 1752, ib., 149. 10 In Dobie v. Johnston and Russell, supra, the jury returned a verdict finding that the pursuer had been induced to purchase bank stock by the false representations of the defenders, but that these representations were not fraudulent. The foreman stated at the time that the jury intended the verdict to be for the pursuer, and affidavits by the foreman and nine of the jurymen, in which they declared that unless they had intended The Court proceed so strictly in such matters that they will not allow a recommendation to mercy to be added to a verdict of guilty, which has been recorded and assented to by the jury without such a qualification (ƒ). § 1072. The most eminent Scotch writer on criminal law (g) considers it doubtful whether an inquiry could be allowed, where it is averred (without undue delay) that a mistake in a material word has by inadvertence occurred in a written verdict; as, for example, where "not" has been omitted or inserted before "guilty." The difficulty arises from the fact that the jury, by acquiescing in the verdict as read out in Court and recorded, may be held to have abandoned their previous intention to pronounce a different finding; and that, whether they did so or not, is a matter on which they alone can speak. On the other hand, the palpable injustice of excluding inquiry in such a case should overcome all mere technical difficulties. The effect of such an error, however, as Baron Hume observes, would not be to cast the proceedings, but, at the most, to make way for a new trial.11 (ƒ) Harvey, 1830, Bell's Notes, 295. But the presiding judge observed in this case, that the Court might pay regard to the recommendation in determining the punish(g) 2 Hume, 430. ment. it to be for the pursuer they would not have returned it, were afterwards produced. The Court held that the jury had no concern with the legal import of the facts found by their verdict, and strong observations on the statement in the affidavits that they had miscalculated its legal import, and would, had they not done so, have returned a different verdict, fell from several of the judges. Lord Benholme observed,-" What inference can be drawn from this declaration except that the jury, having an intention of giving the pursuer success, would have made an alteration upon their verdict in order to obtain that object? I mean an alteration upon their findings in point of fact—upon their finding as to fraud. Until and unless such alteration were made, the verdict must remain inevitably a verdict for the defenders. What then could the jury have done had they been sent back to revise their verdict so as to satisfy their own views of the justice of the case? I confess I can put no construction upon the declaration of the jury in regard to their contingent intentions, such as to make one regret that these intentions were defeated." 23 D., 1160. 11 At the trial of Aaron Mellor for murder, the name of Joseph Henry Thorne was called as one of the jury to try the cause. A juror answered to the name, went into the box and was duly sworn; but next day it was discovered that William Thorneley, another on the list of assize, had, by mistake, answered to the name of Thorne. Justice Wightman reserved the point for the consideration of the Court of Criminal Appeal, where it was held, by a majority of one, that the Court had no jurisdiction. But the minority, consisting of six judges (among whom were Campbell, C.-J., and Cockburn, C.-J.) were of opinion that there had been a mis-trial; that the Court had jurisdiction; and that the proper course was to issue a venire de novo. The decision, therefore, cannot be regarded as one upon the general question; and, looking to the observations which fell from several of the judges who constituted the majority, it is thought that the objection to the § 1073. The principle of allowing investigation into substantial objections to judicial records, is also applicable to the reports of commissioners appointed to take proofs. Thus the Court allowed proof of the allegation that a justice of peace, acting as commissioner to take an oath on reference in a Sheriff-court case, had falsely and collusively signed a certificate that the party was not in a fit state of mind to undergo examination, and that he had refused to take down the deposition which the party had really emitted (h). But in another case the Court refused to listen to the allegation that a commissioner appointed to take an oath on reference had refused either to allow certain questions to be put to the party or to record them. Here, however, the objection was not taken until after the commissioner's report had been for some time in process, and after the Lord Ordinary had decided the case on the merits against the party objecting (i).12 § 1074. When the clerk of court in a civil case has, from inadvertence or mistake, written out the interlocutor in different terms from those which the Court directed, or has omitted some portion of the judgment, the error may be corrected on application to the Court de recenti after the interlocutor has been signed (k). (h) M'Laurin v. Stewart, 1832, 10 S., 333. (i) Anderson v. Watson, 1833, 12 S., 273. The only note of what fell from the Court is in these terms:-" Bring your complaint against the commissioner. We cannot listen to such a statement here, everything being ex facie regular." Notwithstanding this, it is thought probable that the Court were moved by the omission to state the objection de recenti of the procedure before the commissioner. (k) Wishart v. Hume, 1679, 2 B. Sup., 250-Cathcart v. Cathcart, 1830, 8 S., 497; affd., 5 W. S., 315 -Palmer v. Stewart, 1832, 10 S., 252-Fletcher v. Watson, 1825, 3 S., 439-Gray v. Young, 1839, 2 D., 128-Wright v. Burns, 1832, 11 S., 180-Kerr v. Bremner, 1835, 14 S., 180-Ritchie v. Ferguson, 1849, 12 D., 119. The technical, but important, word "decerns" was allowed to be added to an interlocutor after an interval of more than two years; Lawrie v. Donald, 1833, 11 S., 246. Where two erasures in unimportant words validity of the verdict, if stated before a competent tribunal, would have been sustained; Reg. v. Mellor, 1858, 7 Cox's Crim. Cases, 455. After the decision in H. M. Adv. v. Fraser, in which the Court of Justiciary held unanimously that, having once "tholed an assize," the panels could not be tried a second time for the same offence, it may be doubted how far the observations of Baron Hume, referred to in the text, can now be held to be a correct statement of the law. It is thought that when a panel has once 'tholed an assize," without a competent conviction being obtained, no second trial can in any case take place; H. M. Adv. v. Fraser, 1852, 1 Irv., 66. 12 Where the report of a commission was regular ex facie, the Court allowed proof of the averment that the commissioner had been absent during part of the examinations; Jaffray v. Murray, 1830, 8 S., 667. See also M'Kay v. M'Lachlan, 1863, 1 Macph., 440, infra, 1404. The Court will also correct clerical errors which have occurred in recording the verdict of a jury in a civil case (); and where the verdict is ambiguous, it may be corrected by the Court from the notes of the judge who presided at the trial (m). Nay more, where the Court are satisfied that a clerical error has crept into a recorded judgment of the House of Lords, they will apply the judgment in the terms which they consider their Lordships of the Upper House intended (n). But the Court will not ex intervallo alter an interlocutor, except in a matter of mere form (o). And where the Court. of Session corrected an error in their interlocutor after an appeal had been entered, the House of Lords were not satisfied as to the competency of the proceeding; and the case was compromised on a suggestion from the woolsack (p).13 § 1075. Clerical errors in the record may also be corrected in criminal cases (r). But more strictness will be observed in regard to these than as to errors occurring in civil proceedings. § 1076. As the probative quality of judicial records depends on their being written at the time when the proceedings in the cause are fresh in the memory of the clerk of court and the parties, any considerable interval between the judgment or other procedure and occurred in an interlocutor granting power to disentail, the Court, on application made at a short interval, pronounced the interlocutor of new, observing that the former interlocutor was sufficient; Caddell, 1853, 15 D., 282. The cases on this subject are collected in Shand's Pr., 346. (1) Kirk v. Guthrie, 1817, 1 Mur., 279-Dalziel v. D. Queensberry's Exs., 1826, 4 Mur., 18-Macf. Pr., 239. (m) Marianski v. Cairns, 1852, 1 Macq., 212, noted supra, ¿ 50. (n) Aberdeen Ry. Co. v. Blaikies, 1854, 16 D., 470. (0) Martin v. Crawford, 1685, 2 B. Sup., 69-Anderson v. Watson, 1833, 12 S., 273 (noted supra, ? 1073)-compared with Lawrie v. Donald, supra. (p) Duguid v. Mitchell, 1824, 3 S., 96; 1 W. S., 216, foot-note. (r) Burnett, 480-Henry v. Young, 1846, Arkl., 105—Headrick, 1778, Burnett, 476 -2 Al. Cr. Law, 596. 13 Supra, 22 48, 49, and 50. In ordinary civil actions in the Sheriff-courts it is "competent to any Sheriff-substitute or Sheriff to correct any merely clerical error in his judgment at any time before the proceedings have been transmitted to the judge or court of review, not being later than seven days from the date of such judgment"; 16 and 17 Vict., c. 80, ? 20. The Act of Sederunt 11th July 1828, § 63, allows the Lord Ordinary, of consent, to correct or alter any interlocutor before extract. The Court, after final judgment is orally pronounced, will not, except of consent, alter the substance of an interlocutor; Cuthill v. Burns, 1862, 24 D., 849-Hard v. Anstruther, 1862, 1 Macph., 14. When a judgment of the House of Lords contains a remit to the Court of Session to carry out the judgment, it is the duty of the Court, "instead of insisting that they are bound to give a purely literal meaning to the words of this House, and unable on such a construction to execute the order, to consider that there is imposed upon them the performance of the judicial act necessary to complete the procedure and to give effect to the judgment"; per Lord Chancellor (Westbury) in Whitehead & Morton v. Galbraith, 1861, 4 Macq., 283. VOL. II. B the recording of it will be fatal. Accordingly, a decree was held to be ineffectual which bore to proceed on consent to decree under a judicial reference, but which consent had been written out from the recollection of the judges six months after its supposed date (s). And where a defender had given his oath on reference, and decree of absolvitor had been pronounced thereupon, but the clerk of court had omitted to minute either the oath or the decree, the Court would not allow the omission to be supplied ex intervallo from the oaths of the pursuer's counsel and of the judge and clerk (†). § 1077. The probativeness of judicial records is limited to matters which fall directly within their province, as the verdict and decree, interlocutory orders, findings and acts of the judge throughout the cause; and it does not extend to extrinsic or collateral matters. Thus a decreet by magistrates of a burgh, stating that the fines which it imposed had been applied to the use of the town, was held not to be probative per se of that fact, because it was not an actus officii wherein the town clerk's statement was to be credited (u). Thus, also, a decree enacting a person as cautioner judicio sisti is not effectual, unless it proceed on the cautioner's signed consent (x). And a confirmation as tutor, bearing that the party accepted the office, was held not to be probative against him of that fact, not being instructed by an acceptance under his hand (y). § 1078. It is partly on this principle that a statement on record, authenticated merely by the judge or clerk of court, is not probative of admissions by a party on the merits of the cause; for the record so authenticated is designed for minuting the proceedings of the judge and jury, not the pleas or admissions of the parties; and in practice all important admissions are authenticated by the parties or their procurators. Accordingly, a sentence or decree bearing to proceed on a confession or admission of the party, which is not signed by him or by his procurator in his name, is null both in civil (2) and criminal (a) causes. This rule applies also to church (8) L. Buchanan v. Osborn, 1661, M., 12,528. M., 12,267; 3 B. Sup., 373, S. C. 12,536. (t) Brown v. Wilson, 1680, (u) Stuart v. Mag. of Edinburgh, 1697, M., (x) L. Lovat v. Sheriff of Nairn, 1628, M., 7661; 12,526-Strowan v. Cameron, 1674, M., 7541; 12,533. (y) Kirkton v. L. Hunthill, 1665, M., 12,531-Hamilton v. Porterfield, 1686, M., 12,534. (z) Cases in Mor., pp. 12,525 to 12,535-Davidson v. Heddell, 1829, 8 S., 219. (a) 9 Geo. IV, c. 29, § 14-ib., c. 50, sch. A, 4-Mackay v. Milne, 1679, M., 12,533 -See Burnett, 480. If the prisoner pleads guilty after the case has been sent to a jury, the verdict may proceed on the confession made in their presence, the confession being minuted and subscribed by the panel or his procurator. Until the act 9 Geo. IV, |