:

3 B. & P. 185. If a man execute a bond by a wrong name, Gould v. Barnes, 3 Taunt. 504, or any misdescription of himself, Bonner v. Wilkinson, 5 B. & A. 682, he should be sued by that name or description, and he cannot dispute it. The date of a lease is evidence it was executed the same day : 1 Salk. 76. So, where a person, who had been mortgagee of certain premises, took a conveyance of them from the assignee of the mortgager, in which they were described as unincumbered, it was held to be strongest evidence against him of the mortgage having been paid off: Jones v. Williams, 2 Stark. 52; Baggalley v. Jones, 1 Camp. 367. So the recital of a fact in the counterpart of an indenture is evidence against the party by whom it is executed: Burleigh v. Stibbs, 5 T. R. 465. So the recital of a lease, in a deed of release, is evidence that it was executed as against the releasor, and those that claim under him; but as to others, it is not, without proving there was [*43] such a deed, and it is lost or destroyed: 1 Sal. 286; see Burnett v. Lynch, 5 B. & C. 601 and Quære, if such recital is, at all events, only secondary evidence: see Peake's Ev. 108. So a recital in an indenture of the receipt of consideration-money, and a receipt endorsed, is conclusive at law, Rowntree v. Jacob, 2 Taunt. 141; Barker v. Dewey, 1 B. & C. 704; Lampon v. Corke, 5 B. & A. 606; Bonner v. Wilkinson, 5 B. & A. 682, Willes, 9; and this though there be strong evidence against the receipt, ib. 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 deft., that A. B. put himself apprentice, is evidence of that fact: Burleigh v. Stibbs, 5 T. R. 465. 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: 2 P. Wms. 432. A grant to a corporation by a certain name is evidence against those claiming under the grantor, that the corporation was at the time known by that name: Mayor, &c. of Carlisle v. Blamire, 8 East, 493. 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: E. of Mountague v. Ld. Preston, 2 Vent. 170. In an action by executors of a lessee against the assignee of a lease, it was proved at the trial that the plt.'s testator had executed the counterpart of a lease, and that the plts. had assigned that lease to the deft., and that the latter had executed a deed, by which that lease was again assigned to a third person, and in which deed the lease which had been granted to the testator of the plts. was recited it was held, the recital was as against deft. evidence of the original lease; and that it was not necessary to prove its execution, especially as deft. had taken a beneficial interest under it by accepting the assignment: Burnett v. Lynch, 5 B. & C. 601. A grantor is, in general, estopped by his deed to say he had no interest, 2 T. R. 171; but not so where the grantor is a trustee for the public; especially if, deriving his authority under a public act of Parliament, he grant that which he is not empowered to grant by the act: ib. If a patentee himself assign a patent, and afterwards infringe the right of the assignee, he is estopped from pleading to an action by the assignee, that the inven

tion was not new: Hayne v. Maltby, 3 T. R. 439, 441. Where an heir apparent, having only the hope of succession, conveys, during the life of his ancestor, an estate, which afterwards descends to him, although nothing passes at that time, yet, when the inheritance descends upon him, he is estopped to say he had no interest at the time of the grant: per Ld. Kenyon, Hayne v. Maltby, 3 T. R. 441.

As to pleading the matter of estoppel, see ante, 38.

When an Admission in Specialty is not an Estoppel.] On the other hand, the admission is not conclusive, it should seem, if the deed be void, if the truth appear plainly from any other part of the deed, or the admission is uncertain in its nature. If the condition of a bond contain a generality to be done, the party is not estopped from showing that there was not any such thing: as, if the condition be to " carry away all the marle in such a close," he may show there was no marle there: 1 Rol. R. 872, l. 35, 25; Com. D. Estop. A. 2; 1 Saund. 215, n. 2. A lessee by indenture is not estopped by the description of lands in the lease, but may try the fact whether the land called L.'s meadow be meadow or not: Str. 610. So, if a condition be to release all his right, he may say he has not any right: 1 Rol. 872, l. 37. If A. demise to B. the herbage of his own land by indenture, B. is not precluded showing that A. had nothing in the land, because the lease was not of the land: Co. Lit. 47, b. Where A., asserting he had a right to a patent machine, covenants with B., that B. shall have the liberty of using it in a particular manner, in consideration of which *B. co- [*44] venants he will not use it in any other, in an action by A. on the covenant against B., B. is not estopped from pleading that the invention was not new, or that the patentee was not the inventor; and he may thus show that the patent was void, and consequently no consideration to him: Hayne v. Maltby, 3 T. R. 438. We have seen how the effect of an admission of this nature may be determined, ante, 43.

By WRITINGS Not under Seal, by VERBAL DECLARATIONS, by DEMEANOUR and CONDUCT.] These kinds of admissions have been classed under one head, as there is so little distinction between them. The rule as to whether they are conclusive or not against the party, must be collected from the preceding observations as to the "effect of admissions in general."

In General.] Admissions in writing have, in general, the same effect as admissions under record, or by specialty; except, indeed, that the technical doctrine of estoppel applies only to the latter, 2 Bl. Co. 295, 1 Saund. 216, n. 2, Petrie v. Hannay, 3 T. R. 424, Hayne v. Maltby, ib. 438; and the nature of the admission is more peculiarly open for a jury. A party is precluded from disputing a record or specialty in all cases, except there be duress, fraud, or illegality in it, Petrie v. Hannay, 3 T. R. 418, 2 Wils. 344, 350; but this is by no means the case with parol or written contracts, &c. A written document has more force in evidence than if the contents of it were merely spoken. It implies premeditation, and a sort of tacit consent by the party, that that shall be VOL. I.

7

the most authentic evidence of the facts it contains. It is partly on this account that parol evidence is inadmissible to vary what is written: post, "Parol Evidence."

Admissions by words are entitled to weight according to the circumstances under which they were spoken. They have, in general, more weight than admissions by demeanour and conduct.

Admissions by demeanour and conduct, also, may be such as to bind the parties: but admissions in loose and careless conversation, or the result of forgetfulness or inadvertence, are not entitled to any weight: Rex v. Whitley, 1 M. & S. 637; Bur. 2057; 2 Wils. 399; post, 46.

The admission, to render it evidence, must be freely and voluntarily made. If made in an ineffectual treaty for the compromise of an action, it will be rejected, as made by the party with a view of buying peace: B. N. P. 236; Gregory v. Howard, 3 Esp. Rep. 113. But, if the treaty has been reduced to a final agreement, signed and executed, it will be evidence, though purporting to be a compromise: 9 Price, 122, 8. An admission made conditionally, where the consideration has not been performed, is inadmissible; but an admission made on a reference which has turned out ineffectual, is admissible: Christie v. Cowell, Peake's Rep. 5; Gregory v. Howard, 3 Esp. Rep. 113. If an admission be made at the same time with an admission against it, both must be taken together, and the former has no weight: ante, 38; Com. D. Estop. E. 2, 9. The admission, to render it conclusive, must be unqualified: Evans v. Verity, R. & M. 239. Loose and careless admissions are entitled to little or no weight: Rex v. Lower Whitley, 1 M. & S. 637; Bur. 2057; 2 Wils. 399; Green v. Davies, 4 B. & C. 235; 6 D. & R. 306, s. c. An admission, uncertain in its nature, and not directly and precisely made, or made as a mere supposition, is of little or no effect: see Com. D. Estop. E. 4, 5, ante, 41. Admissions by parol against a record or specialty are not admissible. An admission involving a matter of law is insufficient: Summerset v. Adamson, 1 Bing. 73; Scott v. Clare, 3 Camp. 236. Where a party said he had taken the benefit of an insolvent act subsequent to the time when the cause of action accrued, it was held not sufficient evidence of what had been done

under the insolvent act, when it could have been established by [*45] *unequivocal evidence from the rolls of the Insolvent Court: 1

Bing. 73; and see 5 B. & C. 506, where a party's misrepresentation as to the legal effect of a deed were held inadmissible.

By Agreement.] An admission in a contract in writing is admissible in evidence, and, in general, conclusive evidence against the party. making it, 9 Price, 269. So, where the party, or his attorney, makes the admission deliberately for the purposes of the cause: Young v. Wright, 1 Camp. 140; 1 T. R. 710; 2 Stark. Ev. 31; 1 East, 568. An admission, signed by the obligor's attorney, acknowledging the signature of his client, and of the attesting witness, is presumptive evidence of the delivery of a deed: Milward v. Temple, 1 Camp. 375. But an admission of this nature, merely as to the execution of a deed set out in the pleadings, does not preclude the party from taking advantage of any

variance: post, "Debt," "Deed." As to proof of the attorney's signature, &c. to the admission, post, 54.

By giving a Bill, &c.] A party, on the sale of goods, &c., giving a promissory note, or entering into a bond, or other obligation, for the amount, admits thereby the contract, and the adequacy of the consideration, and will be conclusively bound, unless he prove fraud, &c. on the part of the plt.: Salomon v. Turner, 1 Stark. 51; Knox v. Whalley, 1 Es. 159; Archer v. Bamford, 3 Stark. 175; Chit. Bills, 72; post, "Bill of Exchange." If a person buy goods of another, who agrees to receive a certain bill in payment, the buyer's name not being on it, and that bill be afterwards dishonoured, the person who took it cannot recover the price of his goods from the buyer; for the bill is considered as a satisfaction: 15 East, 13; per Bayley. An acceptance is prima-facie evidence of assets and effects in hand for the drawer: Vere v. Lewis, 3 T. R. 183; 1 Wils. 185; Semb. 1 T. R. 487. As to the proof of bills, post, "Bills of Exchange."

By Receipts.] A receipt, in general, is no more than prima-facie evidence of such receipt; and the facts stated in it are open to explanatory or contradictory evidence: post, "Receipt.".

By Notices, Letters, Advertisements, &c.] The letters of a party are evidence against him, without producing the answer to them: Ld. Barrymore v. Taylor, 1 Esp. Rep. 326. However, letters and all other written instruments must be produced, or the non-production accounted for, before any evidence as to admissions of the contents of such writings, or instruments can be given: Bloxam v. Elsie, R. & M. 187; post, "Secondary Evidence." In an action against the endorser of a bill, proof that the deft. had written a letter stating he had received a bill corresponding with that upon which the action was brought, and that, after the issue joined, he had declared that he came to town to hasten the trial of a cause brought against him on an endorsement he had made on a bill, and that he carried the cause down by proviso, is sufficient evidence of his handwriting: Chit. Bills, 388; vide infra. A notice that a partnership is dissolved, signed by the parties for the purpose of being inserted in the Gazette, was holden to be sufficient evidence of the dissolution for all purposes against the parties signing it, although the partnership was constituted by deed, and consequently must have been dissolved by deed: Doe d. Waithman v. Miles, 1 Stark. 181; 4 Camp. 373, s. c. A notice given by an acceptor to the plt., in an action against him, to produce papers relating to a bill described in the indenture as "accepted by deft.," is prima-facie evidence of deft.'s acceptance: Holt v. Squire, 1 Ry. & M. 282. An auctioneer advertising property for sale, "as the property of J. S., a bankrupt," in an action against him, will be precluded from disputing the *bank- [*46] ruptcy: Maltby v. Christie, 1 Esp. Rep. 340. Assignees of a bankrupt advertising a lease to be sold, describing themselves as owners or possessors, prima-facie admit their having taken to the lease: semb. Turner v. Richardson, 7 East, 340; Page v. Godden, 2 Stark. 309;

post, "Bankruptcy, Actions against Assignees." As to the proof of letters, notices, advertisements, &c., post, "Written Evidence."

By Account Stated.] We have already seen what is evidence to support an account stated: ante, 31, 2. An account stated is not, in general, conclusive evidence against the party admitting the balance to be against him: 1 T. R. 42.; ante, 32. He would be allowed to show a gross error or mistake in the account, or any fraud or misrepresentation by the other party, if he could adduce clear evidence to that effect. But where an account is settled, and the party gives a bill for the amount, but which bill is not paid, he cannot, as we have just seen, on an action brought, impeach the charges in the first account which has been settled: 1 Esp. Rep. 159; ante, 45. And, where parties having cross demands settle and balance their accounts, though part of the plt.'s demand could not have been recovered in an action, the settlement of the accounts will bind the defendant, so that he cannot set up that defence to an action for the balance: 6 Esp. Rep. 24; 12 Mo. 517; Ch. C. 199.

Accounting with the other party in a particular character, admits that character: 10 East, 104; post, 49. Stating an account will, in general, amount to an admission of the title of the party to receive the money: as where the deft. agreed verbally with plt. to take a house and purchase the fixtures at a valuation, and an inventory of the fixtures and furniture was accordingly made, described generally as "an inventory of the fixtures," &c. with the gross amount placed at the foot thereof, it was held, that the deft., having taken possession of the furniture and fixtures, and paid part of the amount of the valuation, was liable on an account stated for the remainder, and could not object to the plt.'s defective title to the house: Salmon v. Watson, 4 Moore, 73.

By Demeanour and Conduct.] Admissions arising from demeanour and conduct are conclusive evidence against the party, where he has derived a benefit therefrom or prejudiced another. As, where a bankrupt had petitioned for his discharge under 49 G. 3, c. 121, s. 14, it was held that he could not, in an action against his assignees, dispute the validity of the commission, "for, having availed himself of the commission for one purpose, he could not afterwards be allowed to assert to the same judges before whom he took the benefit of it, that it was invalid:" Watson v. Wace, 5 B. & C. 153-5. So, where the bankrupt had gone to various persons to solicit them to vote in the choice of assignees under his commission, Like v. Howe, 6 Esp. Rep. 20, or where he had taken a part in the sale of his own effects under the commission, Clarke v. Clarke & ors. ib. 61, it was held he could not afterwards dispute the validity of the commission. But a bankrupt's merely presenting a petition to enlarge the time of his surrender, in which he stated he had been duly declared a bankrupt, does not so preclude him: Mercer v. Wise, 3 Esp. Rep. 216. A bankrupt will be restrained in equity, by injunction, from proceeding at law after having repeatedly questioned the commission, or after acquiescence and delay: Arch. B. L. 278; Ex parte Cutlen, 1 G. & J. 317. If a patentee assign his patent, and afterwards infringe the right of the assignee, he is estopped from pleading,