V. WISBEY. 1852. Conviction- WHITAKER other evidence than the record. That may be so, but was any other evidence tendered? If not, there is no matter of law, but it is a simple question of fact.] We admit that the plaintiff offered to prove that it was subsequent to the execution of the deed that the prisoner was arraigned for the felony. For our case, we put in evidence the formal conviction of the prisoner by Estoppel. producing the record. If the plaintiff could show by other than the record when the conviction actually took place, then we should have no case; but that cannot be done. There was no other evidence before the jury of the conviction, for the plaintiff could not give parol evidence. The rule is clear, that where a person is convicted in a Court of Record, the only evidence of his conviction is the record itself. The cases cited on the other side will be found, on close examination, not to apply. The record states that the conviction took place on a certain day, and evidence cannot be admitted in contradiction, showing it took place on another day: (1 Phillips Ev. 425; Thomas v. Ansley, Esp. 10; Pope v. Foster, 4 T. R. 490.) That this rule is carried out to a great extent will appear from reference to 2 Hawkins, 179. In the next place the record shows that the prisoner was tried and convicted on the 19th of March, and that entry forms part of the record. Now it has been held that if a record shows that a trial took place on a certain day, it must be taken it was finished on that day. The rule as to one continuous day extends to all sessions, and even to Parlia ment itself: (Walker v. Holmes, 4 T. R. 660; The Attorney General v. Panter, 6 Bro. Par. C. 486; St. Clement Danes v. St. Ann's, Holborn, 2 Salk. 6; 2 Brook's Abr. 40.) Where a record states a thing as having been done on a particular day, and any other matter relating to it is shown to have taken place after that day, the doctrine of relation applies, and the court will take it as having been done on the day specified in the record. This is stated in 2 Brook's Abr. 197 (Relation, 13; vide Charter 25); and this doctrine has been universally acted upon. There is a note in Saunders to the same effect. In Ludford v. Gretton, Plowd. 491, it said "that all matters of record in respect of their highness are presumed in themselves to carry absolute truth. And, therefore, none can say that the king's charter was made or delivered at another time than when it bears date, no more than a man may say that a recognizance or statute merchant or staple was acknowledged, or any writ purchased at any other time than when it bears date. For to aver that it was ante-dated, or that it was delivered or acknowledged after the date, tends to the discredit of the Great Seal or of the officer of record." In Portchester v. Petrie, 3 Doug. 261, it was held by Lord Mansfield, that where it was admitted on the record that two judgments were given on the same day, priority of judgment could not be averred. Every act of Parliament in which no time is specified for its commencement, is held to take effect from the first day of that session of Parliament wherein it is made. In the next place, matter in pais, though it may have occurred before, will, by relation, be taken to be done v. WISBEY. 1852. Conviction- Estoppel. on the day: (Jacobs v. Miniconi, 7 T. R. 31; Greenway v. Fisher, WHITAKER 7 B. & Cr. 436.) [WILLIAMS, J.-Then you say, that if a shopkeeper in York is convicted on the last day of the assizes, all the goods he has sold during a fortnight since commission day, and all the money he has received for them, is forfeited to the Crown?] Yes; it is almost an universal practice to make such assignments as these before commission day. All the cited cases are within the rule laid down by Lord Mansfield, C.J. in Portchester v. Petrie (suprâ.) But the case strictly in point here is that from Hale (suprâ.) In law, a record is supposed to be a minute of what takes place from time to time in the court; it is not such a trifling thing as the other side would have the court believe. If the plaintiff were permitted to give parol evidence of the day when the prisoner was convicted, it would be admitting parol evidence of the indictment itself. The court should therefore say that the inconvenience which would follow is so great that it cannot be permitted. The old rule goes so far as this, that a mischief shall be preferred to an inconvenience. The general principle that facts shall prevail against fictions of law, is limited to some few cases, and does not affect verdicts and records of superior courts generally (Jacobs v. Miniconi, suprâ.) When the court have before them what the law says is the proper evidence of conviction -that is to say, the record, they are precluded from admitting any other evidence: (Lant v. Arnaboldi, 1 Cr. & Jerv. 97; Rex v. Thurstone, 1 Lev. 91; Rex v. Carlisle, 2 B. & Ad. 362.) This last case very strongly illustrates the force of a record as evidence: (Rer v. Shaw, Russ. & Ry. 526.) In the cases cited on the other side, there is not a single instance where evidence was admitted to contradict a record. We are contending for a positive and necessary rule of evidence which must be sustained, or great inconvenience will be occasioned. MAULE, J.—This case has been argued by the learned counsel on both sides in a very elaborate and learned manner; every authority bearing upon it has been cited; but I do not myself now entertain, nor have I throughout the arguments entertained, any doubt upon the question. This was an action of trover, to which the defendant pleaded, Not possessed. The plaintiff was the assignee under a deed of the goods of a prisoner. It appears that the commission day of Cambridge Spring Assizes was the 19th of March, that the deed of assignment was executed on the 20th, and that the prisoner who so executed the deed was on the 24th tried and convicted of felony. The defendant said by his plea that the goods were not the goods of the prisoner, because he could not convey them by assignment on the day when the deed transferring the property in them was executed. At the trial at Nisi Prius, the jury found, that the deed of assignment was executed bona fide, and for a valuable consideration. The record was produced, which showed the conviction as having taken place on the 19th of March, two days previous to the execution of the deed; and it was insisted that this was conclusive against the V. WISBEY. 1852. Conviction- Estoppel. WHITAKER plaintiff. No doubt the plaintiff had a good title, unless it was taken away by the record of conviction prior to the assignment. [His lordship read the record.] The caption of the record of conviction states that the assizes were held on the 19th, but there is no allegation that the trial and conviction took place on that day, so that there is mention of the day when the assizes were held, but none of the day of conviction. If no further evidence was admissible, it must be taken that the conviction was on the 19th, for, so far as the record goes, the assizes begin and finish on that day. If the assizes began and finished on the 19th, then the conviction, as shown by the record, refers only to that day; but, where the assizes extend over several days, as here, the question is, whether you can show that the conviction did not take place on the 19th, but on the 24th. I apprehend that, consistently with true principles of law and every decided case, you can. As far as the record is concerned, the assizes may be regarded as of one day; but that day is a legal day, which may, and often does consist of more than one natural day of twenty-four hours. The legal day may last from the 19th over the 24th, and there is no necessity for entering the adjournments. The court will itself take judicial notice that the assizes are continued from day to day. Therefore, when the record alleges that the assizes were held on the 19th, proof that the trial in point of fact took place on the 24th is no contradiction of the record. The evidence does not show that the trial did not take place on the 19th in the sense in which that term is used in the record. It is no more inconsistent to show that the conviction took place on the 24th than it would be if the record should show on what particular hour of the day a conviction took place. If it were material to show at what particular hour of the 19th the conviction took place, and it certainly might be done, in like manner you may show on what natural day, being part of the legal day, the conviction occurred. Fictions of law are for the furtherance of justice. The principle that evidence is not admissible to contradict a record is one calculated for the advancement of justice; but the ground upon which I feel bound to decide this case seems fully recognised in Doe v. Hersey, where it is said, "By fiction of law, the whole term, the whole time of the assizes, and the whole session of Parliament may be, and sometimes are, considered as one day; yet the matter of fact shall overturn the fiction in order to do justice between the parties." Seizure is said to relate to the time when the writ is put into the hands of the sheriff. Some cases have been relied upon as to the beginning of term; but though for some purposes it is held that all term is one day, still that cannot be held for all purposes, because there are within it various return days and the like, and the court knows judicially that it consists of several natural days. In bankruptcy, several acts are said to relate back to some previous day. An act of Parliament (unless the contrary is specified) takes effect from the first day of the session. But those cases do not seem to me applicable to the present. Suppose, as has been v. WISBEY. 1852. Conviction- suggested in argument, that in places where assizes last a fortnight WHITAKER or three weeks, a person on bail, say a shopkeeper, is convicted, or that he commits a felony during the assizes, then, according to the argument used on behalf of the defendant, all goods sold by him between the commission day and the day of his trial would be forfeited. Considering that fictions of law are not to prevail against facts, we must hold the plaintiff entitled to recover, for the jury found that the conveyance was bona fide, and for a valuable consideration. It is not necessary, for the reasons given, that we should go with minuteness into the cases cited; we think this rule should be discharged. WILLIAMS, J.-I am quite of the same opinion. Counsel have brought before the court every case bearing upon the subject, and the result of this thorough research into the authorities, as contended by the defendant, would be, that the court is constrained, by an arbitrary rule of law, to say that the conviction, which in point of fact took place on the 24th, was on the 19th of March. I do not think this is so. The conveyance is perfectly good if made before the actual conviction of the person executing it. It is urged that we are compelled by a positive rule of law to say that the conviction took place on the day named in the record. If we did so, it would work injustice in many cases other than this; such, for instance, as where bona fide purchasers buy goods, after commission day, of a man convicted of felony before the close of the assizes. The consequences would be so absurd as to make the soundness of the rule doubtful. I agree with my learned brother in thinking that the assizes are to be considered as of one legal day containing natural days; and as the court would be bound to take notice of an hour or fraction of the legal day, so it may take notice that the conviction here took place on one particular natural day within the legal day of the assizes. Rule discharged. Estoppel. SOUTH WALES CIRCUIT. GLAMORGANSHIRE SUMMER ASSIZES, 1852. Glamorgan, July 13. (Before Mr. JUSTICE TALFOURd.) Re JOHN MORGAN. (a) Practice Opening statement of counsel. Semble-Where a prisoner is defended by counsel, and the facts of the crime imputed to him are few and simple, although the practice in some such cases has been for counsel to enter at once on the examination of witnesses, without previously stating the case to the jury, an opening address is, generally speaking, advantageous, and should therefore be made. R. GROVE, on the arraignment of the prisoner for W. stealing oats, hay, &c. where the facts were few and simple, after stating he was instructed to prosecute, asked his lordship whether, in cases where the prisoner is defended by counsel, and the facts are few and simple, his lordship thought that counsel for the prosecution should state the case to the jury previous to calling witnesses? TALFOURD, J.-Perhaps that is a matter which had better be left to the discretion of counsel, who no doubt will always pay due regard to the public time. Grove.-An opinion, I believe, was expressed by Mr. Justice Allan Park, that in such instances, counsel ought to open the case to the jury; but Mr. Justice Vaughan Williams, on the last circuit, had ordered a different course, and permitted counsel to enter on the examination of witnesses, without previously addressing the jury on the facts and law of the case. TALFOURD, J.-On consideration of the question, I agree with Mr. Justice Park. An opening of the case by counsel in such cases is, generally speaking, advantageous, and therefore should be made. (a) Reported by D. T. EVANS, Esq., Barrister-at-Law. |