admission for the purpose of trial (k). Where a man has cohabited with a woman, and treated her in the face of the world as his wife, he cannot afterwards object to a creditor who supplied her with goods, that she is not his wife (1). So where a man has held himself out to the world in a particular character, he cannot afterwards divest himself of it, in order to claim that to which under the assumed character he is not entitled (m). A man who acquiesces several years in a commission of bankrupt, and solicits the votes of creditors in the choice of assignees, cannot afterwards dispute the commission (n). So a petitioning creditor cannot dispute the debt in an action at the suit of the assignees (o). So a defendant is estopped, by the recognizance of bail entered into for him by the name by which he is sued, from pleading a misnomer, although he is no party to the recognizance (p); for in these and other such cases the party, by taking the benefit of the act, has conclusively adopted it. So a tenant cannot dispute his landlord's title, nor can a copyhold tenant dispute the title of the lord of the manor (q). A tenant is concluded by the statement which he makes to his landlord, as to the time of entry (r). Respondents obtaining a respite of an appeal cannot afterwards object the want of notice of appeal (s). Where one being asked his name previous to the suing out of process, represents it to be John, he cannot, in an action of trespass against the sheriff, insist that his name is William (t). So where a man has made a deliberate admission in rem., by giving his promissory note, or by entering into a bond, or other obligation, for the amount of goods sold, he is conclusively bound by it in the absence of fraud, or perhaps, of mistake; for the very intent and purpose of the acknowledgment is, that it shall operate as conclusive evidence against the party (u). Where, however, a receipt has been given for money, it is not so conclusive but that the party may show that it was given under a mistake (x), and that he did not receive the sum or thing in question. So a parish certificate is evidence, for all the rest of the world, against the parish which granted it, and conclusive as to the parish to which it was directed (y). Where a plaintiff signed himself M. D. it was held that he was to be taken for a physician, and that he could not maintain an action for fees (z). So it has been said that proof of the bankrupt's submission to a commission is evidence against him of his being such (a), as, if he obtain his discharge as a bankrupt under a Judge's order (b). But the (k) Such an admission must either be proved to have been signed by the attorney on the record, or by the authority of the party himself. See Vol. I. and Ind. tit. ADMISSIONS. (1) Watson v. Threlkeld, 2 Esp. 637. Robinson v. Nahon, 1 Camp. 245. Munro v. De Chemant, 4 Camp. 215. (m) Watson v. Threlkeld, 2 Esp. 637. Robinson v. Nahon, 1 Camp. 245. (n) Like v. Howe and Rogers, 6 Esp. C. 20. Flower v. Heebee, 2 Ves. 236. (0) Harmer v. Davis, 1 Moore, 300. (p) Meredith v. Hodges, 2 N. R. 453. (q) Doe d. Nepean v. Budden, 5 B. & A. 626. See tit. USE AND OCCUPATION, and tit. EJECTMENT. (r) Doe d. Eyre v. Lambley, 2 Esp. C. 635. (s) R. v. Justices of Carmarthenshire, 4 B. & Ad. 563. (t) Price v. Harwood, 3 Camp. 108; and see Bass v. Clive, 4 M. & S. 13. (u) See Nash v. Turner, 1 Esp. C. 117. Solomonson v. Turner, 1 Starkie's C. 51. Vid. infra, AsSUMPSIT. (x) Stratton v. Rastall, 2 T. R. 366. Benson v. Bennett, 1 Camp. 394. Bristow v. Eastman, 1 Esp. C. 172. (y) 4 T. R. 256. R. v. Headcorn, Burr. S. C. 253. (z) Lipscomb v. Holmes, 2 Camp. 441. See Chorley v. Bolcott, 4 T. R. 317. (a) Haviland v. Cook, 5 T. R. 655. (b) Goldie v. Gunstone, 4 Camp. 381. Mercer v. Wise, 3 Esp. 219. Watson v. Wace, 5 B. & C. 153. Secus, if he make the admission merely in a transaction with third persons. Heane v. Rogers, 9 B. & C. 577. mere surrender of the bankrupt is not sufficient, because it is compulsory (c). The fact that a party has proved a debt under a commission of bankrupt is not even prima facie evidence, in an action by the assignees of the bankrupt against that party, of the requisites to support the commission (d); for a creditor has not the means of knowing what was the evidence upon which the party was declared a bankrupt; and by proving the debt he at most gives credit to the petitioning creditor, and the commissioners, that the former has not sued out a commission, nor the latter declared the party bankrupt, without proper grounds (e); and it is not reasonable that he should be put to the dilemma of being barred by a certificate, or of being taken to have admitted that every act necessary to support the commission really existed. Such admissions (f), though they be conclusive, are not estoppels in the strict and technical sense, which, to be conclusive, must be pleaded; but are conclusive upon the evidence, on the principles of good sense and sound policy (g). Thirdly. Where the admission or declaration is quite foreign to the ques- Collateral tion pending, although admissible, yet it is not in general conclusive evi- admissions. dence; and though a party may, by falsifying his former declaration or oath, show that he has acted illegally and immorally, yet as he is not guilty of any breach of good faith in the existing transaction, and has not induced others to act upon his admission or declaration, nor derived any benefit from it against his adversary, he is not bound by it: the evidence in such cases is merely presumptive, and liable to be rebutted. Where the admission consists in a loose and careless declaration, if it be evidence at all, it is of little weight (h). Proof that B. has dealt with A. as the farmer (c) Per Ld. Ellenborough, 4 Camp. 382. Neither is he precluded by a petition to the Chancellor to enlarge the time of surrendering. Mercer v. Wise, 3 Esp. C. 219. Nor by an application to a commissioner to appoint an official assignee. Munk v. Clarke, 2 Bing. N. C. 299. (d) Rankin v. Horner, 16 East, 191. Stewart v. Richman, 1 Esp. C. 108. It had before been held, that the proving a debt under a commission of a bankrupt estopped the party from afterwards disputing it. Per Lord Mansfield, Walker v. Newell, cited 3 T. R. 322. (e) Rankin v. Horner and another, 16 East, 191. But see Maltby v. Christie, 1 Esp. C. 340. Walker v. Burnell, Dougl. 303; 3 T. R. 321. (f) See further Vol. II. tit. PRESUMPTION. An executrix who uses the testator's goods as her own, and afterwards as her husband's, cannot object to their being taken in execution for the husband's debt. Quick v. Staines, 1 B. & P. 293. See tit. SHERIFF. A petitioning creditor cannot dispute the debt in an action by the assignees. Harmer v. Davis, 1 Moore, 300. A distress on one as tenant is evidence of the tenancy. Lord Falmouth v. Swann, 8 B. & C. 459. Where A. B. executed a warrant of attorney in the name of C. B., held that judgment was properly entered up, and a fi. fa. issued and executed against him, by that name. Reeves v. Slater, 7 B. & C. 873. The obligor of a bond represented to a purchaser that it (g) See the observations of Abbott, (h) Burr. 2057; 2 Wils. 399; and Lord Ellenborough's observations, 1 M. & S. 636. Collateral of the post-horse duties is evidence in an action by A. against B., to prove admissions. that he is so (i). Upon an indictment under the 27th of Eliz. for remaining in this kingdom forty days after taking orders from the See of Rome, proof that the defendant had officiated here as a Romish priest was held to be evidence of his having taken orders (k). In an action for non-residence, proof that the defendant has acted as the parson, is evidence against him that he is such (1). In an action for not setting out tithes, proof that the defendant has paid tithes to the plaintiff is evidence of his title to receive them (m). An acknowledgment by the defendant that his trade is a nuisance, is admissible, although not conclusive evidence against him, upon an indictment for setting up his trade at another place (n). Proof that A. B., as the proprietor of a newspaper, had given security for the payment of the duties on advertisements, and had from time to time applied to the Stamp-office concerning duties on the paper, was held to be evidence that he was the publisher (o). A description by the party as to his situation is evidence against himself that he holds that situation (p). And therefore, on an information against a military officer for false musters, the returns themselves in which he described himself to be such officer were held to be evidence of the fact (g). An advertisement by an auctioneer of the sale of the property of A. B. a bankrupt, is evidence in an action by him against the assignees that A. B. was a bankrupt (r). In an action for slandering the plaintiff in his profession as an attorney, the words importing that the plaintiff was an attorney are evidence of the fact (s). Where a lessee covenanted that the lease should be avoided by his bankruptcy, proof of his submission to a commission was held to be evidence of bankruptcy without proof of any act of bankruptcy (t). The oath of a party taken before the commissioners of the income-tax is evidence upon an information under the game-laws (u), but not conclusive. So the omission of a debt by an insolvent in his schedule is evidence against him, although it does not estop him from suing (x). So in a suit between the lord of a manor and the devisee of a copyhold, the recital of the devise in (i) Radford v. M'Intosh, 3 T. R. 682. And see Peacock v. Harris, 10 East, 104. Lister v. Priestley, Wightw. 67. (k) R. v. Kerne, 2 St. Tri. 694. Brommich, 2 St. Tr. 966. R. v. (1) Bevan v. Williams, 3 T. R. 635. 4 T. R. 367, per Buller, J. (n) R. v. Neville, Peake's C. 91. (r) Maltby v. Christie, 1 Esp. C. 340. (s) Berryman v. Wise, 4 T. R. 366. Pearce v. Whale, 5 B. & C. 39; and see Vol. II. tit. LIBEL. In a qui tam action against a collector of taxes, it is not necessary to give in evidence his warrant. Proof that he has acted as collector is sufficient. Lister v. Priestley, Wightw. 67. Accounting with one as farmer of the tolls of a turnpike, who has assumed that character by consent of those concerned, estops the party from disputing the validity of his title, when suing by account stated for those tolls. Peacock v. Harris, 10 East, 104. In an action against overseers, acts done by them in that capacity are evidence of their being overseers. Merrill's Lessee v. Whitechurch, Salisbury assiz. 1817. But they are not concluded by the acts of former overseers, without regular proof of their appointment. Or by the act of a co-defendant previous to the commencement of his overseership. (t) Doe v. Hodgson, cor. Abbott, L. C. J. Sitting after Easter T. 1823. (u) R. v. Clarke, 8 T. R. 120. So a return under the stat. 1 & 2 G. 4, c. 87, of corn in the possession of a party, as sold and delivered to B., does not preclude him from showing that it was delivered to D. on account of B., but that B. was not to have possession before payment. Woodley v. Brown, 2 Bing. 527. (x) 3 Camp. 13, the admittance is evidence of the devise against the lord, although it would Collateral not have been so against the heir (y). In an action for bribing of one who had a vote at an election, the very offer to bribe is evidence against the defendant that the party solicited had a right to vote (z). In the case of Morris v. Miller (a) it was held, that, in an action for criminal conversation, an admission by the defendant that he had committed adultery with the wife of the plaintiff was not sufficient, without proof of a marriage in fact. But when this doctrine was urged in a subsequent case (b) the Court observed, as to the case of criminal conversation, “To be sure, a defendant's saying in jest, or in loose rambling talk, that he had lain with the plaintiff's wife, would not be sufficient alone to convict him in that action; but if it were proved that the defendant had seriously and solemnly recognized that he knew the woman he had lain with was the plaintiff's wife, we think it would be evidence proper to be left to a jury, without proving a marriage." Answers in Chancery, as has been seen, operate as admissions upon oath (c). It seems, however, that an admission by the defendant, even to an answer in Chancery, is merely secondary evidence as to the execution of a deed, and therefore does not supersede the necessity of proving it by the subscribing witness, because a fact may be known to the subscribing witness which is not known to the obliger, and he is entitled to avail himself of all the knowledge of the subscribing witness relating to the transaction (d.) But this objection does not apply where the party enters into an admission with a view to the trial of the cause. And it has been held that a declaration by the lessee of a plaintiff in ejectment, that he has assigned a lease, is evidence of the fact (e). So in some other cases, where the subject of admission is usually authenticated and proved in a formal and solemn manner, and the existence of the fact includes legal considerations not likely to be understood by the party, better evidence than his simple oral admission is frequently required; as, where a prisoner upon an indictment for bigamy has admitted the former marriage (ƒ); for this, it has been held (g), does not supersede the necessity of formal proof of the first marriage. A mere voluntary affidavit is evidence against the party who makes it as a confession (h). So, as has been seen in some cases, a bill in equity is evi (y) Lord Raym. 735. (z) Coombe v. Pitt, Burr. 1586; and Rigg v. Curgenven, 2 Wils. 395. In both those cases the bribee was admitted to vote, which was held to be the strongest evidence of his right to vote; but Lord Mansfield and the rest of the Court (Burr. 1590), held expressly, that a man who had given money to another for his vote should not be admitted to say that he had no vote. (a) Burr. 2057. Qu. whether this is the same with the case cited 2 Wils. 399, under the names of Dr. Smith v. Miller? the lessor of the plaintiff in ejectment that (e) Doe v. Watson, 2 Starkie's C. 230. (f) See tit. POLYGAMY. So where the plaintiff in assumpsit had admitted his discharge under an insolvent act, which was set up as a defence. See 3 Camp. 136. So an admission by the plaintiff at a tavern that he had been discharged as an insolvent was held to be inconclusive, as comprising matter of law as well as of fact. Summerset v. Adamson, 1 Bing. 73. (g) By Le Blanc, J., York Assizes. (h) Style, 446. Sacheverel v. Sacheverel, Bac. Ab. Ev. 628. An answer to a bill in admissions. Indirect dence against the complainant (i). So a paper written by a defendant, though signed by a third person, is evidence against him (k). In general an admission may be presumed, not only from the declaration admissions. of a party, but even from his acquiescence or silence. As, for instance, where the existence of the debt, or of the particular right, has been inserted in his presence and he has not contradicted it. So an acquiescence and endurance, when acts are done by another, which, if wrongfully done, are encroachments, and call for resistance and opposition, are evidence, as a tacit admission that such acts could not legally be resisted (1). Where notice to quit is served personally upon a tenant, and he makes no objection to the time specified in the notice, it is primâ facie evidence of admission and acquiescence (m); but if the party cannot, or does not, read the notice when served, no such inference can be made (n). Evidence of this class declines by gradual shades, from the most express and solemn admissions down to expressions and acts which afford but remote and weak presumptions as to the particular fact in question; for it has already been seen, that the conduct of the party himself who knows the truth of the fact, or who may be presumed to know it, is always evidence against himself. An admission made for the purpose, as it is usually termed, of buying peace, is not allowed to be taken advantage of for the purposes of evidence, Chancery filed against the defendant by (i) Vide ante, Vol. I. Ind. tit. JUDICIAL (k) Alexander v. Brown, 1 Carr. 288. A. of the right of B. Doe d. Winckley v. Pye, esq. Principal of Barnard's Inn, 1 Esp. C. 364. And see Doe v. Allen, 3 Taunt. 78. Covenant by a lessee that the lease shall become void if he become bankrupt, proof of his submission to the commission is evidence, without proving an act of bankruptcy. Doe v. Hodgson, West. Sitt. after Easter Term, 1823, cor. Abbott, L. C. J. The drawer of a dishonoured bill objects to pay the amount, on the ground of his having received no consideration, but says nothing concerning the indorsement; his silence in this respect is not an admission of the handwriting of the first indorser. Duncan v. Scott, 1 Camp. C.100. Although what has been said in the presence of a party is admissible in evidence for the purpose of introducing or explaining anything said by him, or even of raising an inference from his silence, the rule does not apply to assertions or declarations made by a third person in the presence and hearing of a party on an inquiry before a magistrate on a penal charge, even although the party might if he had chosen cross-examined that third person or commented on his statement; for in such proceedings a regularity and order of proceeding is adopted which prevent a party from interposing when and how he pleases; and, consequently, the same inferences cannot be drawn from his conduct or his silence as in ordinary cases. Miles v. Andrews, 1 Mood. & M. 336. (m) See EJECTMENT BY LANDLORD. (n) Thomas d. Jones v. Thomas, 2 Camp. 559. Doe v. Forster, 13 East, 405. Doe v. Briggs, 2 Taunt. 109. |