By a wife. porated company were held to be inadmissible against a member of the corporation in an action on a contract with him, although the act of incorporation directs the clerk to keep such a book; for the ground on which partnership books are admissible in evidence against partners is, that they are books kept by themselves, or by their authority; but the clerk of the company, once appointed, was not subject to the control of any individual member (q). In an action of covenant against two, it was held that the voluntary affidavit of one, upon a subject in which he was jointly interested with the other, was evidence against the other (r). But an admission by one of several trustees, who are not personally liable, will not bind the rest (s). But, notwithstanding a community of interest, the declaration of the wife will not, in general, bind the husband. Even in an action by the husband and wife, in right of the wife as executrix, her declaration will not be evidence (t). So where wages had been earned by the wife, it was held that her admission of the receipt of 201. was not evidence against the hus band (u). So an admission by the wife, of a trespass, cannot bind the husband (x). So the answer of the wife in equity cannot be read against the husband (y); for the wife is not, in general, considered to be invested with power to act for her husband, and consequently to bind him by her declarations. But where the authority of the wife to act as agent to her husband can be presumed (2), her declarations are like those of any other agent; accordingly, the admission of the wife as to an agreement for suckling a child, was held to be evidence (a) against him. So where an action was brought by the direction of the wife, in the name of her husband, to recover a sum of money which had been taken from her on suspicion that it was the produce of stolen property, it was held that what she had said (in the absence of the husband) respecting the money, when examined on a (q) Hill v. The Manchester and Salford Waterworks Comp., 5 B. & A. 866. (r) Vicary's Case, Bac. Ab. Ev. 623. But an admission by one part-owner of a ship does not bind another part-owner. Jaggers v. Binnings, 1 Starkie's C. 64. And it has been held, in an action against two partners on a deed purporting to have been executed by one for self and partner, that an admission by the other that he had given authority to his partner to execute on his behalf, is not sufficient without producing the authority. Steglitz v. Eggington, Holt's C. 141. (8) Davis v. Kioge, 3 Esp. C. by Lord Eldon. But in an action against a corporation, a declaration by a mere member not relating to any official situation is not admissible. Mayor of London, &c. v. Long, 1 Camp. 22. (t) Alban and others v. Pritchett, 6 T. R. 680. In an action by the husband and wife for assaulting the wife, the defendant justified the turning the wife out to obtain possession of the plaintiff's house; it was held by Parke, B. that a declaration by the wife as to the terms of the agreement under which the hus band held as tenant were inadmissible. Newton v. Harland, York Summer Ass. 1837. The joint answer of a husband and wife cannot be read in evi- (x) 7 T. R. 112. Hum (y) 3 P. Wms. 238; Salk. 350; Vern. 60. 109, 110. (z) Held that the jury might infer authority from two instances of her appearing to conduct his business relative to the transaction in question at his country house. Palmer v. Sells, 3 N. & M. 422. (a) Str. 527. See also Emerson v. Blonden, 1 Esp. C. 141, and infra tit. AGENT; and Anderson v. Sanderson, 2 Starkie's C. 204, where the admission of the wife as to a sum due for articles supplied to the shop, of which she had the sole management, was received. S. P. Clifford v. Barton, 1 Bing. 199. charge of being concerned in the robbery, was evidence for the defendant (b). So in an action against the husband for goods sold to his wife (c) during the time when he occasionally visited her, it was held, that a letter subsequently written by the wife, acknowledging the debt, was evidence. The rule, that where there is a community of interest and design, the By a condeclaration of one of the parties is evidence against the rest, is not confined spirator. to cases of civil contract. It is indeed true, that in general the declaration or admission of one trespasser, or other wrong-doer, is not evidence to affect any other person, for it is merely res inter alios acta; but where it has once been established, that several persons have entered into the same criminal design, with a view to its accomplishment, the acts or declarations of any one of them in furtherance of the general object are no longer to be considered as res inter alios with respect to the rest; they are identified with each other in the prosecution of the scheme; they are partners for a bad purpose, and as much mutually responsible as to such purpose, as partners in trade are for more honest pursuits; they may be considered as mutual agents for each other. Where an un ty of design and purpose has once been established in evidence, it may fairly and reasonably be presumed that the declarations and admissions of any one, with a view to the prosecution and accomplishment of that purpose, convey the intentions and meaning of all (d). And this seems to be the general rule, in case of trials for conspiracies, and other crimes of a like nature (e). An admission by the party represented is usually admissible in evidence Against a against the representative (ƒ). An admission by the owner is sometimes evidence against one who claims title through him (g). (b) Carey v. Adkins, 4 Camp. 92. (c) Palethorp v. Furnish, 2 Esp. C. 211; 5 Esp. C. 145. Gregory v. Parker, 1 Camp. 594. (d) See Lord Ellenborough's observations, 11 East, 584, infra, tit. TRESPASS. (e) See tit. CONSPIRACY.-BANKRUPT. (f) See EXECUTOR.-BANKRUPT.—An admission made by a bankrupt before his bankruptcy, is evidence to charge his estate with a debt. P. C. 5 T. R. 513. Secus, as to subsequent admissions. So admissions made by an insolvent subsequent to his insolvency, are not admissible against the trustees of his estate. Smith v. Simmes, 1 Esp. C. 330. In an action against trustees for creditors, a declaration of the debtor is evidence of the plaintiff's debt. Robson v. Andrade, 1 Starkie's C. 372. Note.-The declaration seems to have been made at the time the trust was created. So in an action against the sheriff for escapes, &c. See tit. SHERIFF. Kempland v. Macauley, Peake's C. 65; and see Dyke v. Aldridge, 7 T. R. 665; 11 East, 584, n. In an action against the sheriff for a false return of nulla bona, where the defence relied upon is an act of bankruptcy overreaching the levy, the plaintiff may give in evidence an admission made by one of the petitioning creditors as to any fact respecting his debt. Young v. Smith, 6 Esp. C. 121. To prove a bill of sale, fraudulent declarations made by the VOL. II. vendor at the time of executing it, are (g) See Ivatt v. Finch, 1 Taunt. 141; D representative. The whole is to be read. Admission under rule of 2Will. 4. An admission by the debtor is evidence against the sheriff, in an action for a false return or escape (h); but this, it seems, is by reason of the sheriff's misconduct. An admission by the principal is not evidence against his surety on a contract (i). It is a general rule with respect to admissions, as it is in all other cases, that where an entry or declaration is entire, and one part is capable of being explained and qualified by another, the whole is to be taken as evidence (k). What credit is to be given to the whole, or part, is a question for the consideration and discretion of the jury; and therefore where a party has admitted the claim made by another, but at the same time has made a counter-claim, his statement of a counter-claim is evidence to be left to the jury, as to the existence of such counter-claim (7). By the General Rules of Hilary Term, 2 Will. 4, it is ordered that the expense of a witness, called only to prove the copy of any judgment, writ, or other public document, shall not be allowed in costs, unless the party calling him shall, within a reasonable time before the trial, have required the adverse party, by notice in writing and production of such copy, to admit such copy, terest, is frequently evidence as to the na- (h) Infra, tit. SHERIFF. See tit. RES (i) Infra, tit. SURETY. Hart v. Horn, 2 Camp. 92. See Perchard v. Tindall, 1 Esp. C. 394. Infra, tit. REPLEVIN. (k) Randle v. Blackburn, 5 Taunt. 245. Smith v. Young, 1 Camp. 439. Jacob v. Lindsay, 1 East, 462. Barrymore v. Taylor, 1 Esp. C. 325. Green v. Dunn, 3 Camp. 215. So in an answer in Chancery, if a party charge and discharge himself contemporaneously. Smith v. Lumbe, 7 Ves. 588. Where the only evidence against a party charged with murder, was his own confession, which admitted that he was present at the time, but took no part in the transaction; it was held that the whole was evidence for the prisoner, but that the jury might disbelieve any part. R. v. Clewes, 4 C. & P. 221. Rose v. Savory, 2 Bing. N. C. 145. A prosecutor gives in evidence the statement of the prisoner, which is exculpatory; it is not therefore to be taken as true, but it is for the jury to say if they think it consistent with the other evidence. Rex v. Steptoe, 4 C. & P. 397. The prosecutor offers evidence of what was said by the prisoner before the justice; it is evidence as well for as against him, it is for the jury to say under the circumstances whether they believe it or not. Smith v. Blandy, 1 Ry. & M. C. 275. R. v. Higgins, 3 C & P. 609; Cruy v. Halls, ib. Eq. C. Ab. 10; Thomson v. Lumbe, 7 Ves. 583; Ridgway v. Dawson, 7 Ves. 404. Giving credit in a particular, for a demand of the opposite party, is not an admission of the debt. Miller v. Johnson, 2 Esp. C. 602. Under a rule of the Court to admit a notarial copy of the condemnation of a vessel in evidence, such copy only establishes the fact of the condemnation, and is not evidence of the particular defects upon which the condemnation purports to be grounded. Wright v. Barnard, 2 Esp. C. 700. The plaintiff cannot give in evidence the examination of the defendant taken before Commissioners of Bankrupt on one day, without also reading those taken on another day, 5 Sim. 39. Nor can he give the cross-examination of a defendant in evidence, without reading his examination in chief, ib. It is otherwise where the answer of a witness in equity is put in to shew his incompetency, B. N. P. 238. And see 2 Vent. 171; Com. Dig. EviDENCE, [B.] 5. (1) Randle v. Blackburn, 5 Taunt. 245. Thompson v. Austen, 2 D. & R. 361, and see note (k) and Vol. I. and unless such adverse party shall have refused or neglected to make such Admission admission. under rule of 2 Will. 4. And it is further ordered, that the expense of a witness called only to prove the handwriting to or the execution of any written instrument stated upon the pleadings, shall not be allowed, unless the adverse party shall, upon summons before a Judge, a reasonable time before the trial (such summons stating therein the name, description, and place of abode of the intended witness), have neglected or refused to admit such handwriting or execution, or unless the Judge, upon attendance before him, shall indorse upon such summons that he does not think it reasonable to require such admission. And by a General Rule of Hilary Term, 4 Will. 4, it is ordered that either 4 Will. 4. party, after plea pleaded and a reasonable time before trial, may give notice to the other, either in town or country, in the form thereto annexed, marked A., or to the like effect, of his intention to adduce in evidence certain written or printed documents, and unless the adverse party shall consent (m), by indorsement on such notice, within forty-eight hours, to make the admission specified, the party requiring such admission may call on the party required, by summons, to show cause before a Judge (n) why he should not consent to such admission, or in case of refusal be subject to pay the costs of proof, And unless the party required shall expressly consent to make such admission, the Judge shall, if he think the application reasonable, make an order that the costs of proving any document specified in the notice, which shall be proved at the trial to the satisfaction of the Judge or other presiding officer, certified by his indorsement thereon, shall be paid by the party so required, whatever may be the result of the cause (o). Provided that if the Judge shall think the application unreasonable, he shall indorse the summons accordingly. Provided also, that the Judge may give such time for inquiry or examination of the documents intended to be offered in evidence, and give such directions for inspection and examination, and impose such terms upon the party requiring the admission, as he shall think fit. If the party required shall consent to the admission, the Judge shall order the same to be made. No costs of proving any written or printed document shall be allowed to any party who shall have adduced the same in evidence on any trial, unless he shall have given such notice as aforesaid, and the adverse party shall (m) In the notice of intention to produce documents in the form prescribed by the rule, one of them was described as a counterpart of a lease from E. T. to the defendant, date 26 December 1829. The order was, Take order by consent for admitting all but the three wills, &c. The plaintiff produced on the trial an instrument in the form of a lease from, and executed by E. T., and also executed by the defendant, indorsed "counterpart", and having a 17. 10 s. stamp, which was sufficient for a counterpart but not for a lease, and it was held that the effect of the admission was, that a document had been executed of a character corresponding with that in the notice, and that the defendant could not object that the instrument was in effect a lease and not a counterpart; and it was held that proof was unnecessary of the identity of the document produced at the trial with that inspected at the Judge's (n) The application must be made to (0) Notice having been given, and admission refused, and a Judge's order having been made, certified by his indorsement, that the documents were produced to his satisfaction, the party is entitled to costs, although a new trial is granted, previously to which the documents are admitted. Lewis v. Howell, 6 Ad. & Ell. 769. The certificate in such case is to be granted by the Judge presiding at the first trial, Ib. Confessions cases. have refused or neglected to make such admission, or the Judge shall have indorsed upon the summons that he does not think it reasonable to require it. A Judge may make such order as he may think fit respecting the costs of the application, and the costs of the production and inspection; and in the absence of a special order the same shall be costs in the cause. A confession, where it is voluntary, is one of the strongest proofs of guilt; in criminal for it cannot be supposed that a person really innocent would voluntarily subject himself to infamy and punishment. Many of the rules applicable to admissions in civil cases are applicable to those in criminal proceedings, but there are some which are peculiar to the latter (p). Voluntary. A confession can never be received in evidence, where the defendant has been influenced by any threat or promise (q). To say that it will be better for him if he will confess, or worse if he will not, is sufficient to exclude the consequent declaration by the prisoner; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration, if any degree of influence has been exerted (r). And where a confession has once been induced by such means, all subsequent admissions of the same or of the like facts, must be rejected, if they have resulted from the same influence (s). It is, however, a question for the court, and not for the jury, to decide, whether under the particular circumstances the confession be admissible (t). The general principal on which the decisions on the subject seem to have proceeded, seems to be this, that if under the circumstances there be reasonable ground for presuming that the disclosure was made under the influence of any promise or threat of a temporal nature, the evidence ought not to be received (u). (p) As to the effect of confessions in cases of treason, see TREASON. (q) Warrickshall's Case, Leach's C. C. L. 3d edit. 298; Cowp. 334; 2 Haw. c. 46, s. 36. Two men were charged with the murder of one who (as it afterwards appeared) was still living, and yet one of them upon a promise of pardon, confessed himself to be guilty of the crime. Note to Warrickshall's Case, Leach's C. C. L. 301, 3d edit. And an instance is mentioned in the State Trials, where not only the party himself, but his brother were executed on a supposed confession, although all the parties were innocent. (r) A promise made by the surgeon who was called in upon a case of administering poison, after telling the prisoner that she was suspected and had better tell all she knew, was held to render the statement of the prisoner inadmissible. R. v. Kingston, 4 C. & P. 387. So after a threat by the captain of a ship to the prisoner, a mariner on board, upon the stolen property being found, that if he did not tell him who was his partner he would commit him to prison as soon as he got to N. R.v. Paratt, 5 C. & P. 570. (s) By the Judges, in the case of Sarah Nute, Mich. T. 1800. dence of such request was rejected, on the ground that it had been made under the hope of being admitted king's evidence, and could not be considered as voluntary. By Adair, Serj. Leach's C. C. L. 636; this case goes to a very great length. Where hopes had been held out to a prisoner to confess, and when brought before a magistrate he refused to confess, except upon conditions, Buller, J. admitted the general rule, with some qualifications, observing, that there must be very strong evidence of an explicit warning by the magistrate not to rely on any expected favour on that account; and that it ought most clearly to appear that the prisoner understood such warning, before his subsequent confession could be given in evidence; East's P. C. 658. And in a similar case, before Bayley, J. where the prisoner had been told by the constable's assistant that it would be better for him to confess, but the magistrate cautioned him frequently to say nothing against himself, the confession was held to be admissible. R. v. Lingate, Derby Lent Ass. 1815, and afterwards before the Judges. Where the wife of the constable had told the prisoner, some days before the commitment, that it would be better for him to confess, the confession was admitted. R. v. Hardwicke, cor. Wood, B., Nottingham Lent Assizes, 1811, and afterwards before the Judges. Where the prisoner was admonished by a stranger, in the presence of a constable, that he had better tell |