a plaintiff in an action against several for a tort accept a sum from one to forego the action, he cannot, it seems, proceed against the rest (y).

ing a composition, secured partly by the acceptances of a third person, and partly by those of the debtor, could not, after a tender and refusal of the acceptances, sue for the original debt, on the ground that the agreement operated as satisfaction.

See further on this lead, Cumber v. Wane, Str. 426, where it was held that a payment of a promissory note for 51. could be no satisfaction of a debt of 151.; Fitch V. Sutton, 5 East, 230, above cited; Kearslake v. Morgan, 5 T. R. 513, where it was held that the defendant might plead that he indorsed a promissory note, of which he was payee, to the plaintiff, in satisfaction of the demand, The giving the security of a third person for part of a debt only, as for part of a stipulated composition, will be no bar. (Walker v. Seaborne, 1 Tannt. 526.) But if, upon the faith of an agreement amongst creditors to take less than their whole demand, a third person becomes surety for the amount, a creditor, after receiving the amount, cannot sue the debtor, because it would be a fraud upon the surety. Steinman v. Magnus, 2 Camp. 124; 11 East, 390. If creditors agree to give time to their debtor for payment of their respective debts, and to take his promissory notes for their amount, they cannot, unless the agreement has been broken by the debtor, sue him for the

for the amount. Boothbey v. Sowden, 3 Camp. 175. See Cranley y. Hillary, 2 M. & S. 122. Bradley v. Gregory, 2 Camp. 383. The defendant agreed to accept a sum to be paid on a day fixed, and a cognovit for the residue; after the day passed, the money not being paid, he issued execution against the plaintiff for the whole amount; the plaintiff obtained a Judge's order for his discharge from the arrest on certain terms, but which he did not act upon, but brought his action for the taking in execution beyond the amount mentioned in the cognovit, and recovered large damages; the Court, on the ground of the damages being excessive, granted a new trial. Parke, J. held that the action was not maintain able, the Judge's order upon being drawn up being in the nature of an agreement, and one of the terms being that the plaintiff should not bring any action for the imprisonment. Wentworth v. Buller, 9 B. & C. 840. In an action against several, the de fendants pleaded a former action brought by the plaintiffs for the same cause against one of the defendants, and that he paid a small sum into court, upon which the plaintiffs taxed and received their costs up to that time, and afterwards discontinued the action, and the defendant received his taxed costs; it was held that the issue in the se cond action, that the plaintiff accepted the said sum and taxed costs in full satisfaction, was not proved by the fact of the


plaintiff having received the costs only, and that the defendant by accepting the taxed costs had assented to the discontinuance of the action. Power v. Butcher, 10 B. & C. 329. It is not sufficient to show that the plaintiff agreed to receive a composition, and on the defendant's assigning particular debts to creditors to execute a general release, and that all the other creditors accepted the composition and executed the release, without proving a tender of the notes to the plaintiff. Cranley v. Hillary, 2 M. & S. 120, and see Walker v. Seaborne, i Taunt. 526. Oughton v. Trotter, 2 N. & M. 71. But it would it seems be sufficient to show that the notes were tendered. Oughton v. Trotter, ? N. & M. 71, and see Bradley v. Gregory, 2 Camp. 383. Butler v. Rhodes, 1 Esp. C.236. Creditors agreed to accept payment by the debtor's covepanting to pay to a trustee of their nomination one-third of his annual income; the creditors nominated no trustee, and the agreement was not acted on, but it was held that the agreement though not properly an accord and satisfaction was a good defence under the general issue, it being a new agreement with the defendant, the consideration of which to the creditor was forbearance by all the other creditors. Good V. Cheesman, 2 B. & A. 329. And where an agreement with creditors has been partly executed, and terms afterwards dispensed with by a part only of the creditors, it was held that a creditor party to the agreement but not to the dispensation could not sue for his original debt. Cock v. Saunders, 1 B. & A. 46. The plaintiff and other creditors of the plaintiff agreed to take a composition of 5s. in the pound, payable by notes at four and eight months, but there being a dispute between the plaintiffs and defendants as to the balance due, the plaintiff's promised to adjust their account with one of the defendants, and the defendants said they would do as the other creditors did; after some dispute as to the amount, the plaintiffs' attorney offered to pay the composition on the sum claimed by the defendants, which was the sum really due; the plaintiffs' attorney refused and claimed the whole balance, and it was held that the plaintiffs, although no tender had been made, were entitled to no more than the composition upon the balance. Reay v. White, 1 Cr. & M. 748. But if the debtor wilfully prevent the creditor from receiving the benefit of the composition, the latter is remitted to his right. Garrard v. Wolrer, 8 Bing. 258. So such an agreement may be defeated by evidence of fraud, as if the debtor wilfully withhold from the creditor information respecting his estate. Vine v. Mitchell, 1 M. & R. 337.

(y) Dufresne v. Hutchinson, 3 Taunt. 117.

An accord in respect of which a party may have remedy for a breach, is binding (z).

An agreement after action brought for an unliquidated demand, by which the plaintiff agrees to take a sum in discharge of the demand, is a good consideration for a promise by the plaintiff to stay the proceedings and pay his own costs (a).

ACCOUNT For the evidence to support a count upon an account stated, see AssumpSIT.-- With respect to the evidence in an action of account little need be said, since tbe proceeding seems to be obsolete. The evidence depends upon the nature of the plea in bar, which alleges that the defendant never was bailiff or receiver to the plaintiff, or that he has accounted, or that the plaintiff has released him (6), &c.

Upon a plea that he was never receiver, the defendant cannot show that he received the money from the plaintiff by way of bailment, to deliver to another person, and that he did deliver it accordingly; for he did receive the money although he was to be accountable only conditionally, and therefore the evidence does not support the plea (c). Neither under such a plea can he give a release in evidence (d). The burthen of proof on such a plea lies upon the plaintiff (e). Where he charges the defendant as receiver by the hands of A., it is sufficient for him to prove that A. directed the defendant to borrow of another to pay the plaintiff, and that the defendant borrowed accordingly, and that A. gave his bond to the lender ($).





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ADMISSIONS. It is a matter of obvious and daily remark, how much of the materials of evidence in ordinary practice is derived from the admissions, direct and indirect, of the parties themselves, and how difficult it would frequently be, if not impossible, to establish the truth by means of any other evidence. Evidence of this kind admits of great variety both in its nature and application. In many instances the admission is directly and expressly made with a view to establish the fact, and in order to supersede the necessity of any other proof; as where it arises upon the face of the pleadings, or is made by matter of record; or by specialty, by which the party is estopped

(2) Cartwright v. Cooke, 3 B.& Ad. 701. latter has repudiated all knowledge of such An accord is good with mutual promises to an agreement; the presumption is that perform, although the thing be not per- none was concluded, and the former may formed at the time of the action. Com. sne on his original right. Smith v. DickinDig. ACCORD, (B.] 4.

son, 3 B. & P. 630. (a) Wilkinson v. Byers, 1 Ad. & Eli. (6) 1 Roll. Ab. 121. 106; and semble, per Littledale, J., so it (c) 2 Roll. Ab. 683. Selw. N. P. 5. would in case of liquidated demand. A (d) Willoughby v. Small, 2 Brown]. 24. treaty is proved between two for the re (e) Hob. 36. nunciation by the one of a right of action (f) Harrington v. Deane, Hob. 36. against the other; it is also proved that the

from afterwards denying the admitted fact. In other instances, although there be no direct and express admission for such a purpose, yet if a representation be made of any fact, with a view to influence the conduct of another, or to derive an advantage to the party, and which cannot afterwards be denied without a breach of good faith, such an admission will not only be evidence of the fact, but will usually preclude the party who has made it from insisting upon the contrary. In such cases the admission does not operate merely as presumptive evidence of the actual truth of the fact, which must give way to positive proof of the contrary, but precludes, and as it were estops the party, on grounds of policy, from repudiating his own representation, and renders the actual truth of the fact immaterial. In other instances again, such evidence rests simply on the presumption that the party would not have admitted a fact contrary to his own interest, unless it had been true : such admissions are frequently of the most forcible nature, as in the case of a confession of guilt by a prisoner (g). It is a most general and extensive rule, that all a man's acts and declarations shall be admitted in evidence whenever they afford any presumption against him: for it is to be presumed that he acted or spoke consistently with his knowledge of the truth. All presumptions founded upon a man's conduct may be referred to this head, for a man's acts and conduct are indications which frequently afford presumptions as strong as express declarations; the very silence of a party will frequently supply a strong inference; as, for instance, where one makes a claim upon another, before witnesses, the justice of which the latter does not deny (h).

The admissibility and effect of evidence of this description will be con- Admissions sidered generally, with respect to the nature and manner of the admission made with

a view to itself; and secondly, with respect to the parties to be affected by it. In evidence. the first place, as to the nature and manner of the admission, it is either made, first, expressly with a view to evidence; or, secondly, with a view to induce others to act upon the representation; or, thirdly, it is an unconnected or casual representation. In general, a party cannot contradict that by evidence which he has admitted on the pleadings; nor can the jury find any fact contrary to such admissions, for they are sworn to try the matter in issue between the parties, so that nothing else is properly before them (i).

It is a general rule that what is admitted on record must be taken to be proved, and cannot be disproved (k). And also that whatever is pleaded and not denied is to be taken as admitted (1). But it seems that where a party


(h) See as to an admission by a defendant that his trade is a nuisance, R. v. Neville, Peake's C. 91. Admissions implied from the acquiescence of a party, Neale y, Parkin, 1 Esp. C. 229. Doe v. Pue, 1 Esp. C. 364. An admission that a debt was not due to an insolvent who had omitted to insert it in his schedule, Nicholls v. Downes, 1 M. & R. 13.

(i) B. N. P. 298. So the payment of money into court admits the character in which the plaintiff sues, and his right to recover at least to the amount of the money so paid. 4 T. R. 579. 2 T. R. 275. See tit. PAYMENT INTO COURT.

(k) B. N. P. 298. And see Evans v. Ogilvie, 2 Y. & J. 79.

(1) Wimbush v. Tailbois, Plowd. 48. 2 Lutw. 1215. B. N. P. 298. In such case the jury cannot find to the contrary. 2 Lutw. 1215. But no more is admitted than is stated. Williams v. Sills, 2 Camp. 509. Watson v. King, 4 Camp. 272. Infra, tit. COVENANT. Dunston v. Tresider, 5 T. R. 2. Infra, tit. TRESPASS. The plea of non-assumpsit does not admit any immaterial allegation in the inducement. Bennion y. Davison, 3 M. & W. 642. Nor any title but such as is stated in the declaration. Where the declaration states letters of administration which on the face of them are void, the

to evidence

Admissions in pleading admits, because he does not deny, a part alleged by the adwith a view versary, it is not to be taken as if proved in evidence, so as to warrant such

inferences as might have been made had the fact been proved in evidence (m). A plea of the general issue usually admits the title of the plaintiff to sue in the special character of executor or administrator (n); in respect of a cause of action arising in the life time of the testator or testatrix. In an action by a husband and wife, the plea of the general issue admits the marriage (o). In an action on the case for negligent driving of a carriage by the defendant's servant to the injury of the plaintiff's person, the ownership of the carriage and the fact of its having been driven by the defendant's servant is admitted by the plea of not guilty (p).

An admission upon a plea does not operate as an admission with respect to the proof of an issue upon any other plea (q); and although the form of protestations is still adhered to in pleading, for the purpose of precluding the inference (r) that the party pleading one matter meant to admit another, they seem to be but of little use at the present day.

By letting judgment go by default the defendant admits a cause of action, and therefore he cannot afterwards insist on fraud on the part of the plaintiff (s). Where a plea to a count in indebitatus assumpsit is pleaded as to a precise sum, that sum, although laid under a videlicet, is admitted to be due, and must be covered in order to warrant a verdict for the defendant (t). So where a party has solemnly admitted a fact under his hand and seal, he is estopped not only from disputing the deed itself, but every fact which it recites (u). Thus, if one deed be recited in another, which latter

plea of the general issue does not admit a
title sufficient to enable the plaintiff to
recover. Adams v. Savage, 6 Mod. 134.
A new assignment of unnecessary violence
to a plea by the defendant of an entry to
abate a nuisance, admits the nuisance.
Pickering v. Rudd, 1 Starkie's C. 56.

(m) Per Alderson, B. in Edmonds v.
Groves, 2 M. & W. 642, supra. But note,
that it was unnecessary in that case to decide
the point. The defendant pleaded, by way
of set-off, that the plaintiff made his pro-
missory note payable to A. C., and that
the administrator of d. C. indorsed it to
the defendant. Replication that the sup-
posed cause of action did not accrue to the
defendant within six years. The making
of the note and the indorsement were held
to be admitted by the replication, and also
that the defendant might avail himself of
a memorandum of the payment of interest
written on the note by A. C. to bar the
Statute of Limitations. Gall v. Copere,
1 Ad. & Ell. 102.

(n) See tit. EXECUTOR.
(o) See tit. HUSBAND AND WIFE.

(p) Emery v. Clarke, 2 Mo. & Ry. 260.
Taverner v. Little, 5 Bing N. C. 678.
Wolfe v. Beard, Q. B. cited 2 Mo. & R.

(9) Vol. I. p. 337. Nor can a notice of set-off or particular of it be used as evidence on the other side. Ib. And see Miller v. Johnson, 2 Esp. C. 602. Stracy v. Blake, I M. & W. 168. The statements in a plea held bad on demurrer are not

evidence for the plaintiff on the general issue. Montgomery v. Richardson, 5 C. & P. 247. Neither a plea nor demurrer to a bill in equity is evidence by way of admission against the defendant in another transaction. After a demurrer to a bill in equity overruled, the party may still go on and answer; and consequently the demurrer is not to be taken as an absolute admission of the facts charged. And on the same principle a plea in equity cannot be so, for it amounts merely to a statement of circumstances to prove that, supposing the facts charged to be true, the defendant is not bound to answer. Tomkins v. Ashby, 1 M. & M. 32. A plea in a discontinued action is not evidence against the defendant in another action. Allen v. Hartley, Doug. 20. A demurrer admits those facts only which are well pleaded.

(r) See Co. Litt. 124, b. Doct. Pl. 295. 2 Will. Saund. 103, n. 1. Montgomery v. Richardson, 5 C. & P. 247. Firmin v. Crucific, Ib. 98.

(8) East India Company v. Glover, 1 Stra. 612.

(t) Cousins v. Paddon, 2 C. M. & R. 547. But the plea is for this purpose divisible. Ib. And see Green v. Marsh, 4 Dow, P.C. 669.

(u) B. N. P. 298. See Vol. I. Ind. tit. ESTOPPEL. In other cases, although the parties may be estopped, the jury are not. Goddard's Case, 2 Co.4, b.; B. N. P. 298.

is proved to be executed by the party, the recital will be evidence of the execution of the recited deed (r). In the case of Shelley v. Wright (y) it was held that the obligor of a bond was estopped from averring against the obligee, that he had not received certain sums of money for the obligee, recited in the condition of the bond to have been so received by him. So a recital of a lease in a deed of release is evidence of the execution of such a lease (2). So the date of a lease is evidence that it was executed the same day (a). But the whole of a recital is to be taken; and therefore if a patent be recited to be surrendered, and one relies upon the recital as proof of the existence of the patent, it will also be proof of a surrender (6). Where a covenant to lay out a sum in an annuity recited that the covenantor had given a bond for the payment of the money, the recital was held to be evidence of the bond (c). The subscription of a paper by one as a witness is not of itself proof of acquiescence in the contents (d).

So in an action against a master for not inserting the true consideration in an indenture of apprenticeship, the recital in that part of the indenture executed by the defendant, that A. B. put himself apprentice, &c. is evidence of the fact against the defendant (e). So a grant to a corporation by a particular name is evidence as against the grantor, that the corporation was at that time known by that name (f). But a recital will not operate as an estoppel, or as evidence against one who was neither a party to the deed, nor claims under a party (9). Although he may claim title under a deed containing such recital (h). Where a counsel in a cause admits a fact, even by inference, it is to be taken as proved (i).

Secondly, there is a strong line of distinction between admissions or con- Admissions duct upon which a party has induced others to act, or by means of which which have

been acted he has acquired some advantage to himself, and those admissions which

upon. have been made without any reference to the matter litigated, and which are not immediately connected with it: in the former case the party is usually concluded absolutely by such an admission; as where he makes an


(x) See tit. RECITAL.- DEED; and nuity) reciting a will, and that the trustees 1 Salk. 186. The recital of an ancient had not sold, and that he was in possession charter in a modern one is evidence. Per by their permission ; held that such adAbbott, J. Gervis v. Great Western mission was evidence to show that he was Canal Company, 5 M. & S. 78.

not the legal owner of the estate. Doe v. (y) Willes, 9. See also Cossens v. Cos- Coulthrad, 2 Nev. & P. 165. sens, Willes' R. 25. And see Bouman v. (e) Burleigh v. Stibbs, 1 T. B. 465. Taylor, 4 N. & M. 264. Rees v. Loyd, (f) Mayor of Carlisle v. Blamire, Wight. 123.

8 East, 493. (2) Per Holt, J. Ford v. Gregy, 1 (g) í Salk. 186. Com. Dig. EVIDENCE, Salk. 186. Com. Dig. ESTOPPEL, [B.) 5. [B.] 5. Ibid. EsTOPPEL, CA.) 2. But it Crease v. Barrett, 1 C. M. & R. 919. may be secondary evidence where the ori

(a) i Salk, 485. In trespass against ginal is lost. 1 Salk. 286. Com. Dig. Evia sheriff, a bill of sale, reciting the writ, DENCE, [B.] 5. But it operates against the taking, and the sale of the goods, is those who claim under the party. Fitzevidence against him of these facts. Wood- gerald v. Eustace, Bac. Ab. Ev. 647. 2 P. zard v. Larking, 3 Esp. C. 286.

Wms. 432. (0) 2 Vent. 171. I Com. Dig. Evi- (h) A deed conveying an estate to B., DENCE, (B.] 5. A recital in a bond that but to which B. is no party, recites the the parties had agreed to execute a bond bankruptcy of A.; B. conveys the estate in the sum of 5001. does not confine the by a deed which contains no such recital ; bond to that sum if actually executed in the former deed is not evidence against B. the penal sum of 1,000l. Ingleby v. Swift, of the bankruptcy of A. in a suit as to 3 M. & S. 488. 10 Bing. 84.

other lands. Doe v. Shelton, 3 Ad. & Ell. (c) 2 P. Wms. 432. Marchioness of 265. Annandale v. Harris.

(i) Stracy v. Blake, 1 M. & W. 168. (d) 1 Esp. C. 57. Where a party exe- As to admissions by an attorney, see tit. cuted a deed (for raising money on an an- ATTORNEY.

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