CHAPTER XVI. ON ADMISSIONS. WHEN a party to an action or suit has either expressly, or by necessary implication, admitted the case of an opposite party, the latter is not required to prove it. ADMISSIONS, properly so called, can be made only in civil, and are not allowed in criminal proceedings. They are regarded as being a waiver of proof on the part of their makers, rather than as evidence against them. They are potius ab onere probandi relevatio, quam proprie probatio. They are not conclusive unless they assume the form of estoppels by record, under seal or in pais. In Heane v. Rogers (r), Bayley, J., said :-" There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence and strong evidence-against him; but we think that he is at liberty to prove that such admissions were mistaken or were untrue, and that he is not estopped or concluded by them, unless another person has been induced by them to alter his condition: in such a case the party is estopped from disputing their (r) 9 B. & C. 586. truth with respect to that person (and those claiming under him) and that transaction; but as to third persons he is not bound. It is a well-established rule of law that estoppels bind parties and privies, not strangers." "An estoppel," it has been said, "is an admission, or something which the law treats as equivalent to an admission, of an extremely high and conclusive nature, -so high and so conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it, though he may show that the person relying on it is estopped from setting it up, since that is not to deny its conclusive effect as to himself, but to incapacitate the other from taking advantage of it. Such being the general nature of an estoppel, it matters not what is the fact thereby admitted, nor what would be the ordinary and primary evidence of that fact, whether matter of record, or specialty, or writing unsealed, or mere parol; and this is no infringement on the rule of law requiring the best evidence, and forbidding secondary evidence to be produced till the sources of primary evidence have been exhausted; for the estoppel professes not to supply the absence of the ordinary instruments of evidence, but to supersede the necessity of any evidence by showing that the fact is already admitted; and so, too, has it been held, that an admission which is of the same nature as an estoppel, though not so high in degree, may be allowed to establish facts, which, were it not for the admission, must have been proved by certain steps appropriated by law to that purpose" (s). (s) 2 Sm. L. C. 693. Estoppels are of three kinds; 1, by matter of record (t); 2, by deed; 3, by matter in pais. 1. The highest species of estoppel is that by matter of record on the principle "interest reipublicæ ut sit finis litium." But judgments are of two kinds, viz. judgments in rem, and judgments in personam, the respective effects of which by way of estoppel are very different. A judgment in rem is, according to Lord Coke, one which is pronounced by a competent tribunal upon the status of some particular subjectmatter, either a thing or a person. No satisfactory definition of a judgment in rem has, however, yet been given (u). The chief instances in modern times are to be found in the Ecclesiastical, Admiralty, Probate, and Prize Courts (x), and upon questions of legitimacy, marriage and the like. These judgments are binding upon all the world, if obtained without fraud, but in Castrique v. Imrie (y), a question was raised by Cockburn, C. J., whether an exception ought not to be made to the rule in judgments on contracts, when the Court applies the lex fori instead of the lex loci, and in the case of Simpson v. Fogo (z), V.-C. Wood evidently inclined to the affirmative view on this point. A judgment in personam, or more correctly inter partes, is conclusive, however, only between the parties to the record or their privies upon the maxim "Res (t) Cf. Yakalama v. Annakala Naramma, 1 O'Sull. 276. (u) Institutes of Justinian by Sandars, L. iv. tit. vi. s. 1. Ditto by Ortolan, s. 1954. See 2 Stokes and O'Sull. 276. (x) Hughes v. Cornelius, 2 Shower, 232. (y) 8 C. B. N. S. 415. (z) 1 J. & H. 18. P. K inter alios acta alteri nocere non debet." The rule, therefore, is this, that as between the parties to the record and their privies, the facts, actually decided by a verdict, cannot be litigated again (a), and are conclusive evidence of the state of the issue between them (b). The tests whether the maxim "Res judicata pro veritate accipitur" applies are-1st, that the thing must be the same; 2nd, that the person to be affected by the judgment must be party or privy to the proceedings in which it was given. Therefore the judgment against a man in a civil suit is not evidence against him on a criminal trial, or vice versâ. So in the Divorce Court a decree founded upon the evidence of the parties does not estop them from controverting the facts so found in another suit, where their evidence is inadmissible (c). It is held to be unnecessary to give evidence of facts which are admitted distinctly on the record; nor can evidence be received to dispute such admissions. But it is also held that such admissions of a fact on the record amount only to a waiver of proof of that fact; and that if the adverse party seeks to have any inference drawn from the fact so admitted he must prove it like any other fact (d). There is some conflict of authority on the question whether facts, not traversed distinctly, may be treated as admitted sufficiently to dispense with the necessity of their being proved by (a) Act viii. of 1859, s. 2. (b) Boileau v. Rutton, 2 Exch. 665. the other party (e). A party's statement in court cannot be treated as an admission (ƒ). The same principle applies where the interest is the same with, or derived from, a person who would have been estopped, if he had been a party. Thus, an heir is estopped by a verdict against the ancestor through whom he claims, there being between them privity by blood; an executor by a verdict against his testator; and a husband who claims through his wife, by a verdict, before her marriage, against her in respect of the same claim (g), there being in these two cases a privity in law. So, the lord by escheat, the tenant by the curtesy, and the incumbent of a benefice being respectively privies in law, are bound by, and may take advantage of, estoppels (h). But in all such cases the same point must have been in issue; for a verdict between two parties on one issue can have no effect on another issue between them. So, where the admissions are tendered on the ground of privity of interest, such identity or privity must appear clearly; and nobody can take benefit by a verdict, who would not have been prejudiced if it had gone the other way. Therefore, an award in favour of a tenant in a previous action is not evidence of title for the reversioner in a subsequent action against a person claiming through the defendant in the first action (i). Thus, also, as no privity exists (e) Boileau v. Rutton, 2 Exch. 665; Smith v. Martin, 9 M. & W. 304. (f) Darby v. Ouseley, 1 H. & N. 1. (g) 2 Smith's L. C., notes to Duchess of Kingston's Case. (h) Co. Litt. 352 b.; Outram v. Morewood, 3 East, 346. (i) Lady Wenman v. Mackenzie, 5 E. & B. 447. |