ADMISSIONS NOT ACTED UPON BY OTHERS.

573

appears on the pleadings, the party may avail himself of it on demurrer (e).

§ 616. It makes no difference in the operation of this rule, whether the admission was true or false, or whether it proceeded from mistake or design; it being the fact that it has been acted upon, which renders it conclusive (f). Thus, where two brokers, instructed to effect insurance, wrote in reply that they had got two policies effected, which was false; in an action of trover against them, brought by the assured for the two policies, Lord Mansfield would not allow them to set up as a defence, that the letter was written by their clerk through mistake, or to deny the existence of the policies, but said that he should consider them as the actual insurers (g). This principle has also been applied to the case of a sheriff, who falsely returned that he had taken bail (h).

§ 617. On the other hand, admissions, which have not been acted upon, or by which the situation of the opposite party has not been prejudiced or altered, though receivable in evidence against the parties making them, are not conclusive. Thus, if A contracts to sell timber to B, and gives him a delivery order, he may still, on B's bankruptcy, meet an action of trover brought by B's assignees, by showing that the delivery order was invalid, and therefore did not amount to a constructive delivery of the goods, provided B has neither paid for them, nor sold them to a third party (i). So, if the question merely relates to the admissibility of a witness, whom the defendant has acknowledged to be his wife (k), or partner, such acknowledgment will not preclude him

(e) Armani v. Castrique, 13 M. & W. 451.

(f) Doe v. Lambly, 2 Esp. 635, 636, per Lord Kenyon; Morgans v. Bridges, 1 B. & A. 650, per Lord Ellenborough; Hall v. White, 3 C. & P. 136, per Best, C. J.; Stables v. Eley, 1 C. & P. 614, per Abbott, C. J.; Howard v. Tucker, 1 B. & Ad. 712; Salem v. Williams, 8 Wend. 483; 9 Wend. 147, S. C.; Chapman v. Searle, 3 Pick. 38, 44; Den v. Oliver, 3 Hawks, R. 479; Salem Bk. v. Gloucester Bk., 17 Mass. 1, 27,

(g) Harding v. Carter, Park on Ins. 4 & 5.

(h) Simmons v. Bradford, 15 Mass. 82; Eaton v. Ogier, 2 Greenl. 46.

(2) Lackington v. Atherton, 7 M. & Gr. 360, 363–365.

(k) Batthews. Galindo, 4 Bing. 610; 1 M. & P. 565 ; 3 C. & P. 238, S. C.

574

ADMISSIONS NOT ACTED UPON BY OTHERS.

from showing that in fact the witness is not incompetent (1). So, in an action against a marshal for the escape of a prisoner arrested at the suit of the plaintiff, the defendant, by having received the prisoner into custody, is not estopped from disputing the legality of the custody (m). Neither will the Court treat as conclusive evidence the admission that his trade was a nuisance, by one indicted for setting it up in another place (n); or the admission by the defendant, in an action for adultery, that the "teterrima causa was the wife of the plaintiff (0) So, a creditor is not estopped from bringing an action against a sheriff for a false return, by accepting the amount levied on account, and towards the satisfaction, of the debt mentioned in the writ (p); and where a person brought an action of trover for a dog, he was held not to be precluded from proving his title to it, though he had previously authorised a third party, against whom the defendant had brought a similar action, to deliver it to the defendant, in the place of paying 507., which was the alternative directed by the verdict; the third person having, at the time of delivery, demanded back the dog, on behalf of the plaintiff, as his property (g). In these, and the like cases (r), no wrong is done to the other party, by receiving any legal evidence to show that the admission was erroneous, and by leaving the whole evidence, including the admission, to be weighed by the jury.

§ 618. In some few cases, connected with the administration of public justice, and of government, the admission is held conclusive, on grounds of public policy. Thus, in an action for

(1) Brockbank v. Anderson, 7 M. & Gr. 295, 313; 7 Scott, N. R. 813, 831, 832, S. C.; Barker v. Stubbs, 1 M. & Gr. 44; 1 Scott, N. R. 131, S. C.; Russell v. Blake, 2 M. & Gr. 374; 2 Scott, N. R. 574; Poole v. Palmer, 9 M. & W. 71; Kell v. Nainby, 10 B. & C. 20; Glossop v. Colman, 1 Stark. R. 25, per Lord Ellenborough; Parsons v. Crosby, 5 Esp. 199, per id.; Ward v. Haydon, 2 Esp. 552.

(m) Contant v. Chapman, 2 Q. B. 771.

(n) R. v. Neville, Pea. R. 91, per Lord Kenyon.

(0) Morris v. Miller, 4 Burr. 2057; further explained in Rigg v. Curgenven, 2 Wils. 399.

(p) Holmes v. Clifton, 10 A. & E. 673, overruling Beynon v. Garrat, 1 C. & P.

154.

(2) Sandys v. Hodgson, 10 A. & E. 472.

(r) See ante, § 573.

ADMISSIONS CONCLUSIVE ON GROUNDS OF PUBLIC POLICY. 575

penalties for election bribery, it was held that a man, who had given money to another for his vote, should not be admitted to say that such other person had no right to vote (s). So, where the owners of a stage coach took up more passengers than were allowed by statute, and an injury was laid as having arisen from overloading, their conduct was held to be conclusive evidence that the accident was occasioned by the cause assigned (t). So, one who has officiously intermeddled with the goods of another recently deceased, is, in favour of creditors, estopped to deny that he is executor (u). And if an executrix treats the goods of her testator as the property of her husband, she will not be allowed to object to their being taken in execution for her husband's debt (v). Thus also, where a ship-owner, whose ship had been forfeited for breach of the revenue laws, applied to the Secretary of the Treasury for a remission of the forfeiture, on the ground that it was incurred by the master ignorantly and without fraud, and upon making oath to the application, in the 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 (x).

§ 619. The mere fact, that an admission was made under oath, does not seem alone to render it conclusive against the

(s) Combe v. Pitt, 3 Burr. 1586, 1590; 1 Wm. Bl.524, S. C.; Rigg v. Curgenven, 2 Wils. 395.

(t) Israel . Clark, 4 Esp. 259, per Lord Kenyon, recognised by Lord Ellenborough.

(u) Reade's case, 5 Co. 33, 34; Toller's Law of Exrs. 37-41; 1 Williams, Ex. & Ad. 192, 193.

(v) Quick v. Staines, 1 B. & P. 293. See Fenwick v. Laycock, 2 Q. B. 108. (x) Freeman v. Walker, 6 Greenl. 68. But a sworn entry at the custom-house 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 party 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.

576

ADMISSIONS IN DEEDS-RECEIPTS.

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 1007., was held not quite conclusive against him, though very strong evidence of the fact (y); 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 (2). Even the defendant's belief of a fact, sworn to in an answer in Chancery, is admissible evidence against him, though not conclusive (a).

§ 620. Admissions in deeds have already been considered in regard to parties and privies (b), between whom they are generally regarded as estoppels, if properly pleaded (c); and when not technically so, they are entitled to great weight, from the solemnity of their nature (d). 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 (e).

§ 621. 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

(y) R. v. Clarke, 8 T. R. 220.

(~) Thornes v. White, 1 Tyr. & Gr. 110.

(a) Doe v. Steel, 3 Camp. 115, per Lord Ellenborough. Answers in Chancery 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 r. Sanders, 2 D. & R. 347; De Whelpdale v. Milburn, 5 Price, 485.

(b) Ante, §§ 74-81.

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

(d) Doe v. Stone, 3 Com. B. 176.

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

VERBAL ADMISSIONS TO BE RECEIVED WITH CAUTION. 577

separate papers (e), or indorsed on deeds (f), or on negotiable securities (g); 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 (h); and accounts rendered, such as an attorney's bill (i), and the like (k). A bill in Chancery, if admissible at all against the plaintiff in proof of the admissions it contains, is the feeblest possible evidence, the facts stated therein being frequently little more than the mere suggestions of counsel (1).

§ 622. With respect to all verbal admissions it may be finally observed, that they ought to be received with great caution. The evidence, consisting, as it does, in the mere repetition of oral statements, is 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. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually said (m). But where the admission is

(e) 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 . 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 . Maxwell, id. 143; Williamson v. Scott, 17 Mass. 249.

v.

(f) 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, § 77.

(g) Graves v. Key, 3 B. & Ad. 313.

(h) Reyner v. Hall, 7 Taunt. 725; Shepherd v. Chewter, 1 Camp. 274, 276, note by the reporter. Adams v. Sanders, M. & M. 373; Christian v. Coombe, 2 Esp. 489. (i) Loveridge v. Botham, 1 B. & P. 49. (k) See Bacon v. Chesney, 1 Stark. R. 192, 193, n. (b); Dawson v. Remnant, 6 Esp. 24.

(1) B. N. P. 235; 2 Ph. Ev. 28; Doe v. Sybourn, 7 T. R. 3, per Lord Kenyon. (m) Earle v. Picken, 5 C. & P. 542, n., per Parke, J.; R. v. Simons, 6 C. & P. 510, per Alderson, B.; Williams . 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, "propter majorem certitudinem, quam in se habet," he adds-"Quæ ratio non habet locum quando ista

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