usual course, the ship was given up; he was not permitted afterwards to gainsay this statement, and to prove the misconduct of the master, in an action by the latter against himself for wages on the same voyage, even by showing that the fraud had subsequently come to his knowledge.'

§ 784. The mere fact, that an admission was made under oath, does not seem alone to render it conclusive against the party; but it adds vastly to the weight of the testimony, throwing upon him the burthen of showing that it was a case of clear and innocent mistake. Thus, in a prosecution under the game laws, proof of the defendant's oath, taken under the Income Act, that the yearly value of his estate was less than 100l., was held not quite conclusive against him, though very strong evidence of the fact;" and the same rule has been applied, where the fact sworn to was not, as it might be considered in this case, a matter of judgment, but was purely a matter of fact within the knowledge of the party swearing. The defendant's belief of a fact, sworn to in an answer in Chancery, is admissible evidence against him, though not conclusive.'

3

§ 785. Admissions in deeds have already been considered in regard to parties and privies,' between whom they are generally

1 Freeman v. Walker, 6 Greenl. 68. But a sworn entry at the customhouse of certain premises, as being rented by A., B., and C., as partners, for the sale of beer, though conclusive in favour of the Crown, is not conclusive evidence of the partnership, in a civil suit, in favour of a stranger. Ellis v. Watson, 2 Stark. R. 453, 478. The difference between this case and that in the text may be, that, in the latter, the partner gained an advantage to himself, which was not the case in the entry of partnership; it being only incidental to the principal object, namely, the designation of the place where an exciseable commodity was sold.

2 Gr. Ev., § 210, in part.

Thornes v. White, 1 Tyr. & Gr. 110.

3

R. v. Clarke, 8 T. R. 220.

Doe v. Steel, 3 Camp. 115, per Lord Ellenborough.

Answers in Chan

cery are always admissible at common law against the party; but do not seem to be held strictly conclusive, merely because they are sworn to. See B. N. P. 236, 237; Cameron v. Lightfoot, 2 W. Bl. 1190; Grant v. Jackson, Pea. R. 203; Studdy v. Sanders, 2 D. & R. 347; De Whelpdale v. Milburn, 5 Price, 485. Gr. Ev., § 211, in great part.

7 Ante, §§ 78-87.

Ꮓ Ꮓ

regarded as estoppels, if properly pleaded;' and when not technically so, they are entitled to great weight, from the solemnity of their nature. But when offered in evidence by a stranger, the adverse party may repel their effect, in the same manner as though they were only parol admissions."

§ 786. Other admissions, though in writing, not having been acted upon by another to his prejudice, nor falling within the reason before mentioned for estopping the party to gainsay them, are not conclusive against him, but are left at large, to be weighed with other evidence by the jury. Of this sort are receipts, or mere acknowledgments, given for goods or money, whether on separate papers,' or indorsed on deeds, or on negociable securities; the adjustment of a loss on a policy of insurance, made without full knowledge of all the circumstances, or under a mistake of law or fact, or under any other invalidating circumstances; and accounts rendered, such as an attorney's bill,' and the like." ¡A bill in Chancery is not admissible at all against the plaintiff in proof of the admissions it contains, since the facts stated therein

Fishmongers' Co. v. Robertson, 5 M. & Gr. 193; Bowman v. Rostron, 2 A. & E. 295, n.

2 Doe v. Stone, 3 Com. B. 176.

3 R. v. Neville, Pea. R. 91; Woodward v. Larking, 3 Esp. 286; Mayor of Carlisle v. Blamire, 8 East, 487, 492, 493.

* Gr. Ev., § 212, in great part.

Skaife v. Jackson, 3 B. & C. 421; Farrar v. Hutchinson, 9 A. & E 641; 1 P. & D. 437, S. C.; Wallace v. Kelsall, 7 M. & W. 273, per Parke, B. These cases have virtually overruled Alner v. George, 1 Camp. 392. For American cases, see Harden v. Gordon, 2 Mason, 541, 561; Fuller v. Crittenden, 9 Conn. 401; Ensign v. Webster, 1 Johns. Cas. 145; Putnam v. Lewis, 8 Johns. 389; Stackpole v. Arnold, 11 Mass. 27; Tucker v. Maxwell, id. 143; Williamson v. Scott, 17 Mass. 249.

6 Straton v. Rastall, 2 T. R. 366; Lampon v. Corke, 5 B. & A. 611, per Holroyd, J.; 612, per Best, J. As to cases where the receipt of money is mentioned in the deed itself, see ante, § 83.

7 Graves v. Key, 3 B. & Ad. 313.

* Luckie v. Bushby, 13 Com. B. 864; Reyner v. Hall, 4 Taunt. 725; Shepherd v. Chewter, 1 Camp. 274, 276, note by the reporter. Adams r. Sanders, M. & M. 373; 4 C. & P. 25, S. C. ; Christian v. Coombe, 2 Esp. 489. Loveridge v. Botham, 1 B. & P. 49. 10 See Bacon v. Chesney, 1 Stark. R. 192, 193, n. b; Dawson v. Remnant, 6 Esp. 24.

9

are regarded as nothing more than the mere suggestions of counsel.'

§ 787. Where an executor or administrator, upon the citation of a party interested, has exhibited an inventory of the personal estate of a deceased person, either in the Ecclesiastical Court under the old law, or in the Court of Probate under the new law,' such document, being sworn to by the exhibitant, will be regarded very properly as primâ facie evidence of assets; and the executor or administrator, who has pleaded plene administravit, will be forced to show, either the non-existence of such assets, or that they have not reached his hands, or that they have been duly administered. The same effect will be given to a declaration of the personalty of a testator or intestate, which has been made upon oath by his representative before a final settlement of the accounts. So, in Ireland, where inventories used to be solemnly exhibited by executors in order to procure probate, and were further verified by their affidavits, they were treated as primâ facie evidence, not only that the testator had left assets to the amount specified in the inventory, but that such assets had been received by the executors in due course. In England, however, as inventories without signature or verification were formerly produced for the mere purpose of obtaining probate, they were not regarded as primâ facie evidence of assets, though they would seem to have furnished, in conjunction with other circumstances, some proof of the value of the estate. A probate stamp, though admissible as slight evidence of assets to the amount covered

6

1 Boileau v. Rutlin, 2 Ex. R. 665; Doe v. Sybourn, 7 T. R. 3, per Lord Kenyon.

2 20 & 21 Vict., c. 77; Rules for Ct. of Prob. in contentious business, r. 40, and Form No. 28.

3 Giles v. Dyson, 1 Stark. R. 32, explained in Stearn v. Mills, 4 B. & Ad. 660, 662; Parsons v. Hancock, M. & M. 330, per Parke, J.; Hickey v. Hayter, 1 Esp. 313; 6 T. R. 384, S. C.; Young v. Cawdrey, 8 Taunt. 734. See Hutton v. Rossiter, 7 De Gex, M. & Gord. 9.

* See Rules for Reg. of Ct. of Prob. in non-contentious business, Form No. 18; and Rules for Dist. Reg. of Ct. of Prob., Form No. 18; and cases cited in last note.

Rowan v. Jebb, 10 Ir. Law R. 216.

"Stearn v. Mills, 4 B, & Ad. 657; 1 N. & M. 434, S. C.

thereby, is not alone sufficient to throw upon the executors the burthen of proving the non-receipt of such assets. Coupled, however, with proof either of long acquiescence in the payment of the duty, or of other suspicious circumstances, it might perhaps furnish a presumption of assets received, which the executors would find it difficult to rebut.2

§ 788. Evidence of oral admissions ought always to be received with great caution. Such evidence is necessarily subject to much imperfection and mistake; for either the party himself may have been misinformed, or he may not have clearly expressed his meaning, or the witness may have misunderstood him, or may purposely misquote the expressions used. It also sometimes happens, that the witness, by unintentionally altering a few words, will give an effect to the statement completely at variance with what the party actually said." But where the admission is deliberately made, and precisely identified, the evidence it affords is often of the most satisfactory nature.'

1 Mann v. Lang, 3 A. & E. 699; Stearn v. Mills, 4 B. & Ad. 663, 664. These cases overrule Foster v. Blakelock, 5 B. & C. 328.

2 Mann v. Lang, 3 A. & E. 702, per Lord Denman ; Curtis . Hunt, 1 C. & P. 180, per Lord Tenterden; Rowan v. Jebb, 10 Ir. Law R. 217; Lazenby v. Rawson, 4 De Gex, M. & Gord. 556, 563, 564, per Lord Cranworth. 3 Gr. Ev., § 200, in part.

✦ Earle v. Picken, 5 C. & P. 542, n., per Parke, J.; R. v. Simons, 6 C. & P. 510, per Alderson, B.; Williams v. Williams, 1 Hagg. Consist. R. 304, per Sir Wm. Scott. Alciatus expresses the sense of the civilians, to the same effect, where, after speaking of the weight of a judicial admission, 66 propter majorem certitudinem, quam in se habet," he adds-"Quæ ratio non habet locum quando ista confessio probaretur per testes; imo est minus certa cæteris probationibus," &c. Alciat. de Præsumpt. Pars Secund. Col. 682, n. 6. See Poth. on Obl. by Evans, App. No. 16, § 13; Malin v. Malin, 1 Wend. 625, 652; Lench v. Lench, 10 Ves. 517, 518, cited with approbation in 6 Johns. Ch. R. 412, and in Smith v. Burnham, 3 Sumn. 438; Stone v. Ramsay, 4 Monroe, 236, 239; Myers v. Baker, Hardin, 544, 549; Perry v. Gerbeau, 5 Martin, N. S. 18, 19; Law r. Merrills, 6 Wend. 268, 277.

5

Rigg v. Curgenven, 2 Wils. 395, 399; Glassford Ev. 326; Com. €. Knapp, 9 Pick. 507, 508, per Putnam, J. As to Admissions by Agents, see ante, §§ 539-541.

CHAPTER XV.

CONFESSIONS.

2

$789. THE only topic under the general head of admissions, which remains to be discussed, is that of cONFESSIONS of guilt in criminal prosecutions; and here it may be observed, as just remarked in regard to admissions in civil proceedings, that the evidence of oral confessions of guilt ought to be received with great caution. For not only does considerable danger of mistake arise from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own. meaning, and the infirmity of memory,'-but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence, to magnify slight grounds of suspicion into sufficient proof,'-together with the character of the witnesses, who are sometimes necessarily called in cases of secret and atrocious crime,-all tend to impair the value of this kind of evidence, and sometimes lead to its rejection, where, in civil actions, it would have been received. The weighty observation of Mr. Justice Foster should also be kept in mind, that "this evidence is not, in the ordinary course of things, to

1 Gr. Ev., § 214, in great part.

2 Ante, § 788.

3 See Earle v. Picken, 5 C. & P. 542, n., per Parke, B.; R. v. Simons, 6 C. & P. 540, per Alderson, B.; Foster Cr. Law, 243; Coleman's case, cited in Joy on Confess. 108. In Resp. v. Fields, Peck, R. 140, the Court observed, "How easy it is for the hearer to take one word for another, or to take a word in a sense not intended by the speaker; and for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible is it to make third persons understand the exact state of his mind and meaning. For these reasons such evidence is received with great distrust, and under apprehensions for the wrong it may do."

For a curious instance of this kind of exaggeration, see the evidence adduced in support of Hugh Macauley Boyd's claim to the authorship of Junius, 1 Woodfall's Junius, *133-*137.