a

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 (0). 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, 2 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.

(s) Burnett, 480—Henry v. Young, 1846, Arkl., 105–Headrick, 1773, Burnett, 476 -2 Al. Cr. Law, 596.

13 Supra, 28 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 & Mor. ton 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 (t).

§ 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 (z) and criminal (a) causes. This rule applies also to church

(s) 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,

courts (6), 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

a

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

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

a

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.

a

§ 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 (1).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

(9) 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. Mal. colm, 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 gare decree for a sum, “conform to extract or exenıplification ” 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, 2 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 (j). 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. 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

The