Page images
PDF
EPUB

By third Party.] In an action upon a bond, conditioned for the payment of money to a third person, an admission of such third person, that the deft. owed nothing, is conclusive evidence for the deft.: Hanson v. Parker, 1 Wils. 257. So, in actions by the sheriff, when indemnified by the party really interested, the admissions of such party will be evidence to defeat the action: Dowden v. Fowle, 4 Camp. 38; Young and another v. Smith and another, 6 Esp. Rep. 121; Duke v. Aldridge, cited 7 T. R. 666. But a declaration by the party, under whom a deft. in replevin makes cognizance, is not evidence for plt.: Hart v. Horn, 2 Camp. 92. In actions on policies, the admissions of the parties really interested are evidence : Bell v. Ansley, 16 East, 143. So, in an action by a master of a ship for freight, the admissions of the owner, for whose benefit the action is brought, are evidence for the deft.: Smith v. Lyon, 3 Camp. 465; Hart v. Horn, 2 Camp. 92: 1 Wils. 257. In trover for a deed, the declaration of the party at whose request the deft. admitted he detained the deed, was held evidence for the plt.: Harrison v. Vallance, 1 Bing. 45. And, where A. deposited with B. a sum of money, to distribute among A.'s creditors, in an action by C. (a creditor) against B. for the amount of his portion, the admission of A. was received as evidence that C. was a creditor to a certain amount: Robson v. Andrade, 1 Stark. 372. In trover for a deed which the deft. had, by letter, admitted he detained at the request of W. R., and in the detainer of which W. R. was substantially interested, it was held that declarations of W. R., in favour of the plt.'s claim, were properly received in evidence: Harrison v. Vallance, 1 Bing. 45. In settlement cases, all declarations by rated parishioners are evidence against the parish; for they are parties to the cause : Rex v. Whitley, 1 M. & S. 636; Rex. v. Hardwicke, 11 East, 578.

By Partners.] The admission of one partner, after proof of the partnership (post, Partners"), is evidence against another, in all cases of their joint contracts, as their interest is joint: Nicholls v. Dowding and others, 1 Stark. 81; ib. 161; 1 Taunt. 104; Pea. 203. Where several partners sued for breach of contract, a declaration by one, that the subject matter of the contract was his property alone, was admitted against all the partners, to defeat the action : Lucas v. De la Cour, 1 M. & S. 249; i Holt, 141. But an admission by a partner as to a subject not of copartnership, but of conjoint ownership in a vessel, is not binding on his copartners: Jaggers v. Bennings, 1 Stark. 64; Hooper v. Lusby, 4 Camp. 66. In covenant against two, the voluntary affidavit of one, upon a subject in which they are jointly interested, will be evidence against the other: Gilb. Ev. 56; Peake, 269. An admission of one partner in an answer to a bill in equity is not admissible in evidence against the rest : Rooth v. Quin, 7 Price, 198. An admission by one of several joint contractors must be clear and explicit to bind or affect the others; and it has, therefore, been held, that, in order to take a case out of the Statute of limitations, in an action on a promissory note, it is not sufficient to show a general payment by a joint maker of the note to the payee within six years, so as to throw it upon the deft, to show that the payment was not made on account of the note: Holme v. Green, 1 Stark. 488. A payment within six years of a dividend on a joint and several note, under a commission against one of *the makers, has been held to preclude the other from availing [*527 himself of the statute: 2 H. B. 340. But this was doubted in Brandram v. Wharton, 1 B. g. A. 468, &c., on the ground that the acknowledgment, besides being a constructive one, was made by parties (the assignees), who could not be called upon for contribution: and where one of the two joint drawers of a bill of exchange became a bankrupt, and, under his commission, the endorsee proved a debt (beyond the amount of the bill) for goods sold, &c., and exhibited the bill incidentally (as a security he then held for his debt), and afterwards received a dividend, it was held, in an action by the endorsee against the insolvent drawer, that the payment of the dividend within six years did not revive the demand against him: ib. Admissions by partners as to any transactions which occurred during its continuance, will be evidence, though made after the dissolution of the partnership, Wood v. Braddick, 1 Taunt. 104; but admissions as to facts which occurred after its dissolution, ib., or previous to the partnership, unless a joint responsibility be proved as a foundation for the evidence, are not evidence: Catt v. Howard, 3 Stark. 3. It is immaterial whether the partner be a party to the suit: 1 Taunt. 104.

Admissions by Trustees, Assignees, Executors, &c.] The admission by a trustee does not bind his co-trustee, when they are not personally liable, Davies v. Ridge, 3 Esp. Rep. 101; and it should seem, the same rule will apply to assignees of a bankrupt, insolvent, &c.; sed quære, Eden, 202.

Admissions by a Party jointly and severally interested.] Where there is a joint interest in several, the admission of one will be received against the others. Thus, the admission of one of several makers of a joint and several promissory note, that it has not been paid, is evidence against all, Whitcomb v. Whiting, Doug. 652; and this though one of them was a mere surety, and a separate action brought: Perham v. Raynal, 2 Bing. 306; Pittam v. Foster, 1 B. & C. 249. But, after the death of one of several joint, or joint and several contractors, his executors cannot be prejudiced, or rendered liable, after the lapse of six years, by an admission or part payment of the demand by the surviving debtors : Atkins v. Tredgold, 2 B. &. C. 23; 3 D. & R. 200, s. C. Supra, 51, 2.

Admissions by Cotrespassers.] Where parties are established to be cotrespassers or wrong doers, or to have entered into the same criminal design, with a view to its accomplishment, the admissions of the one, as to the motives and circumstances of the trespass, will be evidence against all who are proved to have combined together for the common object, p. L. Ellenb. Rex v. Inhabitants of Hardwicke, 11 East, 585, and this, though such admissions be made by one in the absence of the others. Thus, if three defts. have jointly imprisoned the plt., the declarations of one of the defts., made some weeks after, in the absence of the others, tending to show that the imprisonment arose from malice, are admissible evidence in an action for false imprisonment brought against all three: Wright v. Court, 2 C. & P. 233. A co-defendant, against whom the plt. has given no evidence, may be called as a witness, but he has no right to an acquittal to be made a witness, until the other evidence for the defts. is finished: Wright v. Paulin, R. & M. 128.

Admissions by Party represented, as Bankrupts, &c.] An admission by the party represented is usually admissible in evidence against his representative: Bateman v. Bailey, 5 T. R. 513; Smith v. Simmes, 1 Esp. Rep. 330, 389. An admission made by a bankrupt before the act of bankruptcy is evidence to charge his estate with a debt, 5 T. R.

513; but an admission made afterwards is inadmissible for that 1*531 purpose. That *admissions made by an insolvent subsequent to

his insolvency are not admissible against the trustees of his estate: 1 Esp. Rep. 330. As to the admissions of bankrupts to prove petitioning creditor's debt, post, Bankrupt."

Admissions by Agents.] The admission of an agent as to acts within the scope of his authority, and when so acting, are as conclusive evidence against the principal, as if he had himself made the admission : 4 Taunt. 519; Betham v. Benson, Gow, 45; Fairlie v. Hastings, 10 Ves. 127. Therefore, the admission of a servant employed to sell a horse is evidence to charge the master with a warranty, if made at the time of sale; but, if made at another time, the servant must be called as a witness: Alexander v. Gibson, 2 Camp. 555; Helyear v. Hawke, 5 Esp. Rep. 72. So, the admission of an under-sheriff, or of a sheriff's officer, with reference to any part of their conduct for which the sheriff is answerable, is evidence against him: Yabsley v. Doble, 1 Ld. Raym. 190; North v. Miles, i Camp. 389 & n., “If a man refer another upon any particular business to a third person, he is bound by what this third person says or does concerning it, as much as if that had been said or done by himself,p. L. Ellenb., Williams v. Innes, 4 Camp. 365; as he thereby constitutes' him his agent for the purpose of admission. Where the purchaser of goods denied the delivery, but says, “if the carrier's servant says he delivered the goods, I will pay,” the answer of the servant is evidence after his death: Daniel v. Pitt, 1 Camp. 366, n. And, where dest. agrees to admit a claim if J. S. will make an affidavit of it, the affidavit will be conclusive : Lloyd v. Willan, 1 Esp. Rep. 178. And, where deft., being applied to for payment, says, “A. will pay you," A.'s admission is evidence of the debt: Burt v. Palmer, 5 Esp. Rep. 145; 1 Camp. 364. “The declaration of an agent can only be evidence against the principal, where it accompanies the transaction, (and forms part of the contract entered into by him) about which he is employed; and, if made at another time, it is not admissible:" per Sir W. Grant, Fairlie v. Hastings, 10 Ves. 123. And the general rule as to the statement of the agent is, “where it is proved that A. is agent of B., whatever A. does, or says, or writes, in the making of a contract, as agent of B., is admissible in evidence; because it is a part of the contract which he makes for B., and therefore binds B.; but it is not admissi

ble as his account of what passes :" per Gibbs, J., Langhorn v. Allnut, 4 Taunt. 519. Therefore, it is decided that the letters of an agent abroad to his principal, containing a narrative of the transaction in which he was employed, were not admissible in evidence against the principal, being merely the representation of the agent: ib. And where B., through the medium of his agent, chartered a ship to A., and engaged by the charter-party that she was sea-worthy, a letter written by that agent to a third person previously to the charter-party being effected, tendering the ship for hire, is not admissible in evidence, since it did not form a part of the contract on which the action was founded; but the agent himself must be called: Betham v. Benson, Gow, 48. It is said to have been ruled at N. P., that, where A. had ordered goods of B., to be delivered to C., an acknowledgment of the receipt by C. was evidence against A., Biggs v. Lawrence, 3 T. R. 454; but Ld. Kenyon frequently ruled the contrary: see Bauerman v. Radenius, 7 T. R. 665; Goss v. Wallington, 3 B. f. B. 138; 1 Phil. Ev. 93. However, in all cases “ where any fact material to the interest of either party rests in the knowledge of an agent, the general rule is, that it ought to be proved by his testimony, and not by his mere assertion," 10 Ves. 128; and the declarations of the agent are admitted in evidence (on the principles alluded to), not for the purpose of establishing the truth of the fact stated, but as representations, by which the principal is as much bound as if he had made them himself: 1 Phil. Ev. 94. As to admissions and entries made by deceased stewards, bailiffs, agents, &c., post, 57. The agency must, in all cases, *be first established before the admis- [*547 sions are evidence. As to the manner of proving the agency, post, Principal and Agent."

Admissions by Counsel.] A statement made by a counsel upon his address to the jury, in the hearing of his client, is binding on the client if he makes no objection: per Burrough, J., 3 Bing. 119.

Admissions by Attorneys. "If a fact is admitted by the attorney on the record, with the intent to obviate the necessity of proving it, his client will be bound by the admission, as he must be supposed to have authority for that purpose:" p. L. Ellenb., Young v. Wright, i Camp. 141; ante, 45. And propositions made by an attorney, on the part of his client, respecting a demand which another person had against him, is good evidence against his client: Gainsford v. Grammar, 2 Camp. 9. So, the admission of an attorney as to the execution of a deed, or the dishonour of a bill, is conclusive evidence of those facts, ib.; so his making an offer on the part of his client to pay a certain composition, is sufficient evidence to take a case out of the Statute of Limitations: 2 Camp. 11. And a letter written by an attorney to his client, and produced with his client's signature endorsed upon it, has been admitted as evidence against the client, Ass. of Meyer v. Sefton, 2 Stark. 274. But the admissions of an attorney merely in conversation are not evidence: Young v. Wright, i Camp. 141, Meyer v. Sefton, 2 Stark. 275. Therefore, offers made by plt.'s attorney, in the hearing of a third person, to do an act relative to the deft., are not admissible evidence to

affect the plt. with such offers, even though they were within the scope of the attorney's authority; but, had they been made to the deft. him. self, they would have been admissible: Wilson v. Turner, 1 Taunt. 398. It is in all cases sufficient to prove that propositions were made by the attorney on the record, without further proof of authority; "as the law will infer that he had authority for what he said or.did upon the occasion," per Ld. Ellenb., Gainsford v. Grammar, 2 Camp. 11; and it is immaterial whether they were made before or after the commencement of the suit, if the relation of client and attorney subsist: ib., Marshall v. Cliff, 4 Camp. 133. Admissions by an attorney are as those of an accredited agent, and cannot be proved by him from a regard to the privilege of his client, but must be substantiated by other testimony: ib.; post, Wiiness.

Admissions by Wife.] The admissions of a wife, in cases where she can be considered the agent of her husband, are evidence against him: Emerson v. Blonden, 1 Esp. Rep. 142. Therefore, where the wife has acted for the husband, and with his consent, in the transaction of his affairs, he will be bound by admissions made by her respecting those affairs. Thus, where she has been suffered to transact the business at home, and purchase the articles used in the business, her admission as to the state of the accounts between her husband and the plt. who supplied her with the goods, are evidence against the husband : Anderson v. Sanderson, 2 Stark. 204, 1 Holt, 591, s. C. And, where the wife has been accustomed to serve in the shop, and to transact the business in her husband's absence, an offer made by her to settle the demand is admissible in evidence in actions for goods sold against the husband : Clifford v. Burton, 1 Bing. 199. And where the wife pays for goods, and manages the business generally, her admission will take a case out of the Statute of Limitations, Palethorp v. Furnish, 2 Esp. Rep. 511, n.; and the wife, where the husband occasionally visited her, will be deemed his agent, with reference to admissions by her for goods (necessaries) furnished her: 1 Camp. 394. But the general rule is, that a wife's admissions will not bind the husband, “as breaking in upon the

confidence subsisting between man and wife :" Aveson v. Ld. *551 Kinnaird, 6 East, 196. Therefore, in an action by the *hus

band for wages due to the wife, her admission of the receipt of the money is no evidence against him : 2 Str. 1094; Carey v. Adkins, 4 Camp. 92. Even in an action by the husband and wife, in right of the wife as executrix, her declarations will not be evidence: Alban & ux. v. Pritchet, 6 T. R. 680. An admission by the wife of a trespass cannot bind the husband, Den v. White, 7 T. R. 112; nor can the answer of the wife in equity be read against the husband: 3 P. Ws. 238. As to the admission of wife's declarations when made as res gesta, and as part of the transaction itself, post, 56. When husband and wife are incompetent witnesses for or against each other, post, Witness.

Admissions by STRANGERs in general.] On the other hand, admissions made by third persons are not, in general, evidence against thu party, as they usually fall within the description of res inter alios acta,

« PreviousContinue »