instances signed by the judge. These records being made up by sworn and in general careful officers, and passing under the eyes both of the judge and of the parties to the cause, are entitled to high credibility.

I. To what extent they are Probative.

§ 1061. As to the extent to which judicial records are probative, a distinction exists between matters which fall immediately within their object, and incidental or collateral matters.

The record, when duly authenticated, is competent and full proof on all matters of the first class which are set forth in it. Thus in civil causes the interlocutors and minutes of Court are the materials from which the extract decree is prepared as the warrant of legal executorials. And the record of a criminal court, proved by an official extract (of which hereafter), is full proof of the conviction or acquittal of the person accused, provided he be identified as the person to whom the conviction applies; as, where it is tendered to prove that he has tholed an assize, or that he has been convicted of a crime, when that either forms part of the charge against him in a subsequent trial, or is founded on as impairing his credibility as a witness (a).+

§ 1062. Judicial records are also probatio probata on all matters falling immediately within their province, except when they are challenged on grounds which, if true, infer that they contain a falsehood or flaw in some essential particular (b). Averments that the proceedings, when set forth on record as having been duly conducted, were irregular in some matter of form or technical detail, will not be entertained; for the probative quality of the record is supported by the presumption omne rite et solenniter actum, and no real injustice is occasioned by giving effect to it. Thus the Court

Conviction of

(a) Burnett, 474-2 Hume, 316 (note 2)—2 Al., 50, 596—Tait, 43. a crime inferring infamy disqualified a witness before the passing of the act 15 Vict., c. 27. (b) As to such exceptions, see infra, ? 1065, et seq.

4 A certificate or extract of a conviction for theft in an English court, proved to apply to the panel, has been admitted by the Court of Justiciary as instructing the aggravation of "previous conviction of theft"; Jane M Pherson or Dempster and Others, 1862, 4 Irv., 143. But see observations on Dempster by Lord Deas, in H. M. Adv. v. Davidson and Francis, 1863, 35 Se. Jur., 270. A previous conviction must be sufficiently proved; it is not sufficient that the judge before whom the trial takes place is aware that the previous conviction applies to the panel; Morrison v. Munro, 1854, 1 Irv., 599.

5

of Justiciary refused to allow a prisoner to prove that five of the jurors in a trial before them had not been sworn; the objection having been stated the day after the verdict had been returned and the jury discharged, and when the Court were about to pronounce sentence (c). And where, after a verdict of guilty had been returned, it was pleaded in arrest of judgment that the jury had been sworn in the absence of the presiding judge, the objection was repelled, with the observation, that his Lordship had been only absent from the bench for a few minutes, that no objection had been stated at the time, and that the record could not be redargued (d). In like manner the Court repelled the objection to the record of an oral verdict, that it did not bear that the jury had chosen a chancellor, or that the verdict had been delivered from his mouth (e). So, where the records of trials in inferior Courts bore that the judge had heard the "evidence adduced," and had "taken evidence," the Court of Justiciary, construing these words to mean that the witnesses had been examined on oath according to the usual practice, refused to allow a proof that they had not ($). And a similar decision was pronounced in regard to a record which merely set forth that the witnesses had been “examined,” without also stating that they had been put on oath (9). $ 1063

On the same principle, when an omission or mis-statement occurs in any essential part of the record, it will be fatal; and, except in the cases mentioned afterwards (h), the Court will not allow a proof that the proceedings were regular. This rule was applied to the record of a conviction in a police court, which bore that all the witnesses except one had been “sworn and examined,"

a

(c) Hannah, 1809, 2 Hume, 316—Burnett, Apx., p. 70, S. C. (d) M.Ginnes v. Harvey, 1833, Bell's Notes, 239.

(e) M.Kinlay, 1819, Sh. Just. Ca., 58. But see M'Leod, 1819, ib., 30, where the Justiciary Court, before answer, allowed a proof that one of the jury was erroneously designed, the objection having been pleaded in arrest of judgment. There can be little doubt, it is thought, that the objection would not ultimately have been sustained, as it struck only at the description, not at the identity, of the juror.

(f) Cobb, 1836, 1 Swin., 354—Macqueen v. Robson, 1832 (not rep.) noted in 2 Al., 51.

(9) Connor, 1826, and Gunn v. M'Gregor, 1829, 2 Al., 51, 597.

(h) Infra, 2 1074, 5.

5 Reg. v. Mellor, 1858, 7 Cox's Crim. Cases, 455. See infra, & 1072, note 11.

6 Proof that the magistrate, before whom a declaration was emitted, was absent during part of the time when it was being taken, has been admitted; H. M. Advocate v. Mahler, 2 Irv., 634. As to the effect of his absence on the admissibility of the declaration, see infra, & 1406.

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 (). 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 (1). 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 (n) 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

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

the case.

(1) 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, 248, et seq. (m) Paterson, 1823, 2 Al., 617.

(n) Supra, seq.

191,

that the decree of sale did not form a bar to reduction (). Thus, 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 liim 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 aflirmed 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. Mackenzio, 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 (†). 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. (t) 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.