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 (†). 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. (1) A striking illustration of the independence of different juries judging on the same facts occurred in Stone v. General Marine Insurance Company, 1851, 13 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).

(8) Bell's Pr., 22216. See also Macf. Prac., 184.

(u) 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 rice 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).

a

64

(7) Mackie

.

(2) Macfarlane v. Young, 1824, 3 Mur., 412. His Lordship also observed, “If this hal 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 tinal adjudication in that case, I must have held it to be binding." r. Wight, 1822, 3 Mur., 25.

(2) 2 Al. Cr. Law, 67. (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 stagecrach, 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 convietions against one of the drivers for careless driving several years before (but not any applicable to the occasion in issue), and the presiding juilge held them to be admissible as anticipating the defender's proof, hut observed that they would not be of much avail to the pursuer; upon which they

§ 1084. In England the conviction in a criminal case is inadmissible in a civil suit, and vice versa, on the ground that it is res inter alios (b); and before parties were admissible as witnesses in civil causes it used to be rejected on the ground that the party had, by his own evidence, aided in bringing about the verdict (c).15

§ 1085. Yet a conviction proceeding on a plea of guilty will be received in a subsequent civil action, as proof of a deliberate admission of the acts charged; and, although not conclusive as if it had been an admission on record in the civil case, it will be an important item of evidence (d).

§ 1086. Of course where a new trial is granted, the former verdict on the same issues cannot be used in evidence before the second jury; for it was set aside on the ground that it did not meet the justice of the case, in consequence of the erroneous admission or exclusion of evidence, from surprise, being against evidence, or the like (e). But where a new trial is granted on some of the issues, or where new issues on other points of the case are tried before a second jury, the verdict in the former trial may be referred to as settling all matters of fact which are not embraced by the new issues (ƒ).

III. Authentication of Judicial Records.

§ 1087. The act 1686, c. 3, ordains that "all interlocutors pronounced by the Lords of Council and Session, and all other judges within the kingdom, shall be signed by the President of the Court, or the judge pronouncer thereof"; and it prohibits "the clerks upon their peril to extract any acts or decreets unless the interlocutors,

were withdrawn.16

(b) 2 Phill., 23-Taylor, 1114-1 Starkie (4th ed.), 363.

(c) Smith v. Rummens, 1807, 1 Camp., 9-Hathaway v. Barrow, 1807, ib., 151. (d) 2 Phill., 25-Taylor, 1115-See also Griersoun v. L. Zester, 1541, M., 14,021— Vicar of Kinghorn v. L. Seafield, 1541, M., 14,022-Same parties, 1542, M., ib.-Home v. Scott, 1541, M., 14,023. In these cases the previous confession was held not to be available, because the party at making it had protested that it should not prejudice him in subsequent proceedings. (e) See O'Connor v. Malone, 1839, M'Lean and

Rob., 468, 485-Cleland v. Cleland, 1838, 1 D., 254, supra, § 917 (y).

(f) Fife v. E. Fife's Tr., 1816, 1 Mur., 125, 6-Watson v. Hamilton, 1824, 3 Mur., 486-See also Dalziel v. D. Queensberry's Ex., 1825, 4 Mur., 13.

15 In England, a conviction under statute is not admissible as a previous conviction in a prosecution at common law; R. v. Ferrie, 4 Jur. N. S., 300.

16 R. v. Moore, 1 F. and F., 73, where, in a prosecution for forgery, proof of previous acts of forgery was not admitted.

which are the warrants thereof, be signed as said is,—declaring hereby, the extracts which shall be given out otherways to be void and null.” The want of the judge's signature to an interlocutor of importance cannot be supplied by homologation; and may be pleaded after several steps of procedure have followed on it. Thus where an interlocutor by a Sheriff-substitute ordering a proof was unsubscribed, the objection was allowed to be taken for the first time in the Circuit Court, on appeal from the judgments of the Sheriff-substitute and principal successively, proceeding on a proof led on the unsigned interlocutor (9). But Lords Fullerton and Mackenzie considered that such an objection of nullity would only apply to the essential interlocutors in a cause. In a late case (1) the Lord Chancellor (St Leonards) observed, that the act 1686 “ does not say that interlocutors shall be signed at the time, but simply that they shall be signed, and subsequent signature has always been deemed sufficient."

$ 1088. In practice the original minutes of proceedings of presbyteries and other courts of the Established Church are not authenticated at the time, but are inspected half-yearly or at other intervals by a committee of the court, when one signature is then adhibited by the moderator, which is understood to extend to all the proceedings since the previous authentication (i). On account of this long continued practice, as interpreting the act 1686, c. 3, that statute has been found not to apply to the records of church courts; which will be sustained if authenticated according to the forms observed in the church (k).

(9) Smith o. M'Aulay, 1846, 9 D., 190.

(h) Ferguson v. Skirving, infra. (1) See Report by Principal Lee and Mr Bell (Procurator for the Church), in Ferguson v. Skirving, infra.

(k) Ferguson v. Skirving, 1850, 12 D., 1145; affd., 1 Macq., 232. Here the deposition by a presbytery of a schoolmaster was sustained, although the original record of the sentence, consisting of eleven pages and on six separate sheets, was only signed by the moderator (preses) at the foot of the eighth and last pages, and on marginal notes on the eighth, ninth, tenth, and last pages, and by the moderator and clerk about the middle of the sixth page; the first five pages being altogether unauthenticated. The certified copy engrossed in the presbytery records was not signed at all by the moderator who presided during the deposition, but by him who presided when the minute was read over and approved of. The Court, after an inquiry and report as to the practice in authenticating ecclesiastical records, sustained the one 80 authenticated. See also Dickson v. Heir of Newlands, 1768, M., 7464, as noticed in this case.

CHAPTER VI.-REGISTERS OF DEEDS AND OTHER PRIVATE

WRITINGS.

§ 1089. One of the most distinctive features of Scottish jurisprudence is its system of public registers for private writings. Originating in the infancy of our common law, these records have been regulated and expanded into a system of great public utility. They form an important branch of the law of evidence.

The registers referred to are divided, according to their respective purposes, into

(1) Registers for preservation—in which writings or copies of them are preserved in order to prevent the evils arising from loss or destruction;

(2) Registers for preservation and execution—in which documents are recorded as an indispensable preliminary towards their being enforced by diligence ;—and

(3) Registers for publication-in which writings or copies or abstracts of them are entered, in order that their existence may be advertised to all the lieges whom they may concern.

§ 1090. The second class, being the earliest in date, will be first noticed. These registers are coeval with, and form part of, the records of our civil courts. Originally the mode of enforcing deeds was by an action of registration, in which the granter of the deed was summoned before a competent court at the instance of the grantee, to show cause why the deed should not be registered in the court books, in order that diligence might pass upon it. About the fourteenth century it became the practice for the parties to important deeds to appear before a judge, and in person acknowledge their subscriptions; whereupon a decree setting forth the confession was pronounced, and, with a copy of the deed, was recorded in the court books; an extract of the entry being the warrant for diligence (a). When personal attendance was inconvenient to a party, he authorised a procurator to confess judgment in his name. The authority was contained in a written mandate, which at first was separate from the deed, and after having for some time been indorsed upon it, at last came to form (as at present) one of its concluding

(a) Kames' Law Tracts (ed. 1792), 77–1 Ross Lec., 109—Act 1584, c. 4. This proceeding was similar to that observed at a very early period in verbal contracts, where the parties appeared in Court and orally admitted the contract, which was thereulon recorded in the hooks of Court. See Kames, ut supra, 72.