courts (b), although these are not strictly dealt with as to the forms of their procedure. In like manner a judicial ratification by a wife is not probative unless it is signed not only by the magistrate before whom it is emitted, but also by the party herself, or, if she cannot write, by notaries subscribing for her in common form (c).

§ 1079. But while important judicial admissions must be subscribed by the party or his procurator, it is the practice for counsel to consent orally at the bar in matters occurring incidentally in the course of the process, as in consents to commissions for examining witnesses, to prorogations, and even to the repelling or sustaining of particular pleas. In such cases, the interlocutor bears to proceed on consent; and it is effectual, unless the statement is challenged without delay (d). In jury trials, also, it is the practice for counsel to consent verbally to proof of certain facts being dispensed with, or to witnesses tendered being held to concur with others who have already been examined, and similar incidental matters. And this consent is marked by the judge in his notes. The trust placed in such admissions arises from the mutual confidence of the counsel on each side, rather than from definite rules of practice.

§ 1080. The rule which requires confessions in criminal cases to be signed by the prisoner was departed from in a complaint by the procurator-fiscal to the Magistrates of Glasgow against 640 dealers in wine and spirits for using false measures, where the record, which bore that "all severally acknowledged the matter therein charged," was not signed by any of them. In a suspension by one of them, the Court of Justiciary held that "the record in a case of this nature afforded sufficient evidence without the signature of the party" (e). The Police Acts in several large towns dispense with the prisoner's subscription; and there is perhaps a similar power in inferior courts at common law in summary trials for minor offences (f). But in summary trials before the Sheriff without a jury, it is the practice for prisoners to sign their confessions; and

all pleas of guilty were made and subscribed in presence of the jury, who returned the verdict proceeding on the judicial confession; Justiciary Records.

(b) Ker v. Steedman, 1661, M., 12,528-Ross v. Findlater, 1826, 4 S., 514. See Miller v. Baird, 1755, M., 12,539-Cuthbert, 1842, 1 Broun, 311.

(c) Mitchelson v. Mowbray, 1635, M., 5960; 6073; 1 B. Sup., 354; 357, S. C.-Bell v. Mow, 1636, M., 12,526—Swinton v. Brown, 1668, M., 3412; 8408, S. C.-Gordon v. Maxwell, 1678, M., 12,533—1 Fraser Pers. and Dom. Rel., 434.

(d) Compare Brown v. Henderson, 1693, M., 12,535-Fraser v. Maitland, 1824, 2 Sh. Ap., 37-Miller v. Edinburgh and Glasgow Railway Company, 1849, 11 D., 1012 --and see Tait Ev., 45. (e) Jardine v. Simpson, 1823, Sh. Just. Ca., 94.

(f) See Tait Ev., 47; and Cockburn v. Johnston, 1854, 1 Irvine, 492.

if they cannot write, the judge signs for them (g). The Court, in an old case, sustained a decree by a burgh court, not signed by the accused, which imposed a fine and bore to proceed on a complaint for "abusing the provost, adhered to and owned by the defender in face of the Court" (h). This decision may be defended on the ground that the party by his conduct before the Court (a narrative of which fell within the province of the record), repeated the offence and warranted the punishment which had been inflicted for it.

II. How far the Verdict or Decree in one case is admissible in another case involving the same facts.

§ 1081. To prevent rights from being precarious and fluctuating, decrees in foro are conclusive of the interests of the parties and their successors, so as to exclude any subsequent action embracing the same conclusions and media concludendi (i).14 But a subsequent suit relating to a different interest, or on different media, is competent, although it should be founded on the same facts, so that one who has been either convicted or acquitted in a criminal prosecution may be sued for damages at the instance of the injured party, be

(g) 9 Geo. IV, c. 29, sch. G, 3. (h) Prov. of Forfar v. Cuthbert, 1682, M., 12,533. (i) Stair, 4, 40, 16-Ersk., 4, 3, 3-Tait Ev., 406-Henderson v. Malcolm, 1814, 2 Dow, 287, 8-Graham v. Maxwell, 1814, ib., 314.

14 It has been decided in England that a colonial verdict is not pleadable in bar in an action brought in England for the same cause; Bank of Australasia v. Harding, 1850-9 Manning and Scott's C. P. C., 661. In Houlditch v. the Marquis of Donegal, 8 Bligh N. S., 301, it was held that a foreign judgment is not conclusive, but is merely prima facie evidence. "The decree or judgment of a foreign court may be made the ground of a valid proceeding, and with fruit and effect in each country. But a question has been raised, Whether it is only prima facie evidence, a ground of action, or conclusive, not to be traversed or rebutted, and not to be averred against? The leaning of my opinion is so strong, that I can hardly call it the inclination of an opinion; and we know it is the general sense of lawyers in Westminster Hall, that the judgment of a foreign court in courts of this country is only prima facie evidence-is liable to be averred against, and not conclusive. It would seem a strange thing to hold that our courts were bound conclusively to give execution to the sentence of foreign courts, when, for aught we know, there is not any one of those things which are reckoned the elements or the corner stones of the due administration of justice present in the procedure of these foreign courts;" per Lord Chancellor Lyndhurst in Houlditch v. Marquis of Donegal. In Whitehead v. Thomson, 1861, 23 D., 772, the Court of Session gave decree for a sum, " conform to extract or exemplification" of a judgment obtained in the Court of Queen's Bench. Lord Curriehill was of opinion that, before the Court could give decree as asked, they must be satisfied that the judgment would be res judicata in England; but this was doubted by Lord Deas; see infra, ? 1283.

cause the one process is carried on ad vindictam publicam, while the object of the other is reparation of the patrimonial loss occasioned to a private individual (). In the same way, the right of the Crown to prosecute is not impaired by a previous civil action at the instance of the injured party (k). Thus, also, one who had been acquitted in a criminal prosecution for attempting to bribe the solicitor of excise failed to recover the money in a subsequent action for payment; the Civil Court holding that it had been given for an illegal purpose (1).

§ 1082. But the rules regarding res judicata are not so pertinent to the subject of this treatise, as is the question whether the decree or verdict in one cause can be used as evidence valeat quantum in another laid upon the same facts. The authorities on this point are not uniform. On the one hand, where a person had been convicted of robbery, and the injured party raised an action of reparation against him which was opposed by his creditors, the Court refused to hold the conviction as res judicata; but no question was raised, and no doubt seemed to be entertained, as to the competency of receiving it in evidence (m). So it has been held that a conviction before a court-martial for murder is sufficient evidence in a subsequent action of assythment (damages claimed by the deceased's relations), unless the defender's innocence is proved (n). And where a person had been acquitted on a trial for culpable homicide, caused by the fall of a tree which he had been cutting, it was observed in a subsequent civil action of damages by the deceased's relations against that person and his employer, that the acquittal was a circumstance in favour of the defenders (o). Such seems, also, to have been the opinion of Baron Hume, who observes that the testimonies given in the criminal case are lawful evidence in the civil case, so far as they go, without excluding new pleas or evidence for the defender, "whereby to obviate the presumption against him, and invalidate, if he can, the previous conviction" (p). But, however

(j) 2 Hume, 71, 479-2 Al. Cr. Law, 64-Bell's Pr., 2216-Ker v. Sun Fire Office, 1793, M., 14,078-Wilsons v. M'Knight, 1830, 8 S., 398-Hill v. Fletcher, 1847, 10 D., 7. (k) Hume, ib.-Al., ib.-Bell, ib-Tait, ib.-Miller v. Moffat, 11th March 1820, 2 Mur., 308, afterwards tried criminally as L. Advocate v. Moffat, 12th June 1820, 2 Hume, 260. (1) Stein v. Bonar, 4th Dec. 1789, 2 Hume, 72. (m) Bontein v. Buchanan's Crs., 1739, M., 14,043; Elch., "Proof," No. 5. The proof failed in the civil action. (n) Machargs v. Campbell, 1767, M., 12,541; Hailes, 192, S. C. (0) Per Lords Just.-Clerk Boyle and Bannatyne in Linwood 1817, F. C.; affirmed on merits, 1 Sh. Ap., 20.

e. Hathorn, 14th May,

(p) 2 Hume, 480.

See also ib., 72.

just this view may have been under the old practice, when the depositions in the criminal cause were entered at length on the record, and when the civil court proceeded on written proofs without the aid of a jury, it is inapplicable to modern procedure, where, from the witnesses being examined orally without such a record, the jury in the civil case cannot discover whether the former verdict was well or ill founded (r). Professor Bell seems to have overlooked this distinction, when he laid down that the verdict in a criminal case, although not conclusive in a subsequent civil case regarding the same matter, and vice versa, may serve as prima facie proof (s).

§ 1083. The strict view is more consistent with principle, as well as with modern practice. In many cases the verdict in another case should be excluded on the ground of res inter alios; while in every case the jury ought to decide on the evidence adduced before them, without regard to the opinion which another judge or jury may have formed upon the same issue, but perhaps erroneously, or from different evidence (t). The former verdict must either coincide with, or differ from, the view which the jury would take on the second trial independently of it. In the one event, it would be useless; in the other, it would produce misdecision, the risk of which can only be avoided by excluding the proof. Accordingly, in an action of proving the tenor, where the issue was whether a certain deed of settlement had been destroyed by the testator's directions, the interlocutor pronounced by the Lord Ordinary in a previous action of reduction between the same parties and relating to the same matter, in which his Lordship found it proved by the oaths of havers that the deed had been destroyed after the testator's death, was held by Lord Cringletie to be inadmissible, because the jury "must judge for themselves on the evidence before them" (u). In like manner, in an action of damages for maltreatment when the

(r) See 2 Al., 66. (s) Bell's Pr., 2216. See also Macf. Prac., 184. (t) A striking illustration of the independence of different juries judging on the same facts occurred in Stone v. General Marine Insurance Company, 1851, 18 D., 1288, where there were separate actions and trials against two sets of underwriters upon the same ship. The same evidence was adduced in each case; in the one the jury found for the pursuer, and in the other for the defender; yet the Court refused the pursuer's motion in the second case for a new trial, holding that the verdict in each case must stand, unless palpably inconsistent with the evidence adduced before the jury therein. See also Cleland v. Cleland, 1838, 1 D., 254, noted supra, 917 (y).

() Andersons v. Jeffrey, 1826, 4 Mur., 99. See also Dalziel v. D. Queensberry's

Executors, 1825, 4 Mur., 13.

pursuer was in a prison, in which the defenders were the governor and two turnkeys, where the defence was that the defenders had acted in accordance with the prison regulations, which the pursuer had violated, the Lord Chief Commissioner refused to admit an incidental decision of an inferior court as to what regulations were in force, and he observed,—" If the point had been incidentally decided even in a supreme court, I should have held it not to be binding, and that I must here decide the point on the facts proved, and not by proof of the conclusion to which others have come" (x). In another trial (y) before the same learned judge, the sentence which had been pronounced in a criminal prosecution was produced, without objection for the pursuer, in an action of damages at the instance of the injured party; but his Lordship observed that he would have doubted whether one who had been examined as a witness in a criminal prosecution could make such a use of the sentence. His Lordship, accordingly, guarded against the case being drawn into a precedent, lest parties should attempt to make evidence for themselves, by getting a conviction on their own testimony in a criminal prosecution. This reason, however, for doubting the admissibility of the sentence does not apply now, as parties are competent witnesses in this class of civil cases.

Sir A. Alison also lays down, that while a civil action is competent in regard to acts which have been prosecuted criminally, and vice versa, "the verdict of the one court is no evidence in the other" (z). And this is supported by recent practice; as in several cases where actions of damages have followed criminal prosecutions for the same delict, the verdict in the criminal court seems not to have been tendered for the pursuer (a).

(x) Macfarlane v. Young, 1824, 3 Mur., 412. His Lordship also observed,-" If this had been a suit in the Supreme Court, instead of an inferior one, and having for its direct object to ascertain which set of regulations were in force, and had there been a final adjudication in that case, I must have held it to be binding." v. Wight, 1822, 3 Mur., 25.

(z) 2 Al. Cr. Law, 67.

(y) Mackie

(a) See Hill v. Fletcher, 1847, 10 D., 7-Ronald v. Robertson, Jan. 1820 (not reported), noted in 2 Al., supra. See also M'Arthur v. Croall, 1852, 24 Sc. Jur., 170, where, in an action of damages at the instance of a widow against the proprietor of a stagecoach, on the ground that her husband's death had been caused by the negligence of the drivers of two coaches belonging to the defender, the defender pleaded that he had taken proper precautions for the safety of passengers, by having skilful drivers, good horses, &c.,-the pursuer tendered two criminal convictions against one of the drivers for careless driving several years before (but not any applicable to the occasion in issue), and the presiding judge held them to be admissible as anticipating the defender's proof, but observed that they would not be of much avail to the pursuer; upon which they