Page images
PDF
EPUB

sion of a total loss. Rucher v. Palsgrave, 1 Lampb. ooT^ 1 Taunt. 419, 5. C. Where there is a special contract, the payment into court admits that contract; but where, as in the common indebitatus assumpsit, the demand is made up of several distinct items, the payment admits no more than that the sum paid in is due. Per Gasetee J. Section v. Benedict, 5 Bingh. 32. It is a conclusive admission of the character in which the plaintiff sues; Lipscombe v. Holmes, 2 Camph. 441; and of the plaintiff's right to sue in the court in which the action is brought. Miller v. Williams, 5 Esp. 19. In an action on a bill of exchange, it admits the handwriting of the parties; Gutteridge v. Smith, 2 H. B. 374; and the sufficiency" of the stamp. Israel v. Benjamin, 3 Campb. 40. In an action on a guarantee, the payment of money into court, on a plea of tender, admits an agreement signed according to the statute of frauds. Middleton v. Brewer, Peake, 15. In an action of covenant, it admits the execution of the deed; Randal v. Lynch, 2 Campb. 356, 357; and where two breaches are assigned in one count, payment into court on one of the breaches is an admission of the whole contract, as set out in that count, so as to enable the plaintiff to recover on the second breach without proof of the contract. Dyer v. Ashton, 1 B. and C. 3. It admits a contract for goods sold and delivered, where the goods were tortiously converted by the defendant, and the plaintiff has declared for goods sold and delivered. Bennet v. Francis, 2 B. and P. 550, 4 Esp. 28, S. C. In an action for goods sold by sample at a stipulated price, after payment of money into court, the defendant cannot insist on the inferiority of the goods. Leggattv. Carper, 2 Stark. 103. Where the declaration states a contract to pay a particular sum of money for certain articles, payment of part of the money into court, by admitting the contract, admits also the sum originally due; and the only question is, whether the remainder of the money had been previously paid; Cox v. Brain, 3 Taunt. 95, 2 B. and A. 118; but where the declaration is for goods sold, to be paid for at the average1 price, to be ascertained on a day specified, payment into court does not admit the average price to be as stated in the declaration; Stoveld v. Brewer, 2 B. and A. 116; see also Eierth Bell, 7 Taunt. 450; and payment of money into court on several counts, one of which only is applicable to the plaintiff's demand, admits a cause of action on that count only. Per Best C. J. Stafford v. Clark, 2 Bingh. 383. In an action against s carrier for not carrying goods safely, if the defendant has restricted his liability by a notice that he will not be accountable for more than 5/. (unless entered and paid for accordingly), the payment of 51. into court does not admit a liability beyond that sum. Clarke v. Gray, 6 East, 570. Yatev. Willan, 2 East, 128, and see 1 Phill. Ev. 178. Where the defendant pleads the general issue, and the statute of limitations,

and pays money into court generally, such payment does not take the case out of the statute. Long v. Gravitte, 3 B. and C10. If the plaintiff declares on an illegal contract, the defendant cannot give it validity by his admission; and if money is paid into court generally, and the plaintiff insists on several claims, some legal and others illegal, the court will apply the payment to the legal claim. Hibbans v. Crickett, I B. and P. 261. If the plaintiff misleads the defendant, and induces him to suppose that the only point to be tried is a question of fraud, the court will not permit him to take advantage of the payment of money into court, so as to exclude evidence of the fraod. Mutter v. Hartshorn, 3 B. and P. 556. Payment of money into court must be proved by the production of the rula of court. Israel v. Benjamin, 3 Campb. 40.

Admissions by recital.] A recital in a deed is evidence against him who executed the deed, or any person claiming; under him. Com. Dig. Enid. (£. 5.), and see Rees v. Llnyd, Wightw. 123. Thus the recital of a lease in a release is evidence of the lease against the releasor and those claiming under him. Ford v. Grey, 1 Salk. 286; but see Peuke, Ev. 108, 5th edit. So in trespass against a sheriff, a bill of sale reciting the writ, the taking, and the sale of the goods, is evidence against him of those facts. Woodward v. Larking, 3 Esp. 286. So the recital of an ancient charter in a modern charter is evidence. Per Abbott, J. Gervis v. the Grand Western Canal Camp. 5 Jtf. and S. 78. The recitals in a deed may confine the effect of other admissions in the same instrument. Lampon v. Corke, 5 B. and A. 607. ID. audit. 211, S. C.

Admissions on the record.] Whatever is admitted on the record need not be proved, and cannot be disproved; B. N. P. 898; but an admission as to one of several issues, does not operate as an admission to any other. Harrington v. Macmorris, 5 Taunt. 228. Whatever is pleaded and not denied, shall be taken to be admitted. Wimbish v. Tailbois, Plmo. 48. Thus if the defendant in replevin avow the taking of the cattle, damage feasant, in the locus in quo as parcel of the manor of K., and the plaintiff make title to the manor of K., and traverse that the manor is the freehold of the defendant, he cannot afterwards prove that K. is no manor, for that is admitted by the traverse. B. N. P. 298. If the defendant in covenant do not plead rum est factum, the execution of so much of the deed as is expanded on the record is admitted; but if the plaintiff wish to avail himself of any other part of the deed, he must prove it by the attesting witness in the usual way. Williams v. Sills, 2 Campb. 519. In an action by an executor or administrator on a cause of action arising in the lifetime of the testator or intestate, a plea of the general issue admits the title of the plaintiff to sue as executor or administrator. Marsfield v. Marsh, 1 Ld. Raym. 824. Tliynne v. Prutheroe, 2 M. and S. 553. But where the cause of action arises in the time of the executor or administrator, the general issue does not admit his title, and the plaintiff must prove it. Thus where the plaintiff declares in trover upon a possession by his testator, and a conversion in his own time, pleading the general issue does not admit his title as executor. Hunt v. Stevens, 3 Taunt. 113; but see Watson v. King, 4 Campb. 272. The plea of the general issue admits only such a title as is stated in the declaration, and therefore where profert is made of letters of administration which do not establish the plaintiff's claim to recover in the action, the plea of the general issue will not admit the title of the plaintiff so fur as to enable him to recover. Adams v. Savage, 6 Mud. 134. In an action by husband and wife, the plea of the general issue admits the marriage. B. N. P. 20. The plea of payment, in debt by assignees of a bankrupt upon a bond, admits their title as assignees. Corsbie v. Oliver, 1 Stark. 76. Where, in trespass, the defendant pleads an entry to abate a nuisance, and the plaintiff new assigns unnecessary violence, the nuisance is admitted, and the plaintiff cannot go into evidence to negative it. Pickering v. Rudd, 1 Stark. 56, 4 Campb. 219, S. C. A demurrer to a bill in equity does not admit the facts so as to be evidence against the defendant in another action between the same parties. Tomkins v. Ashby, 1 M. and M. 32.

Suffering a judgment by default is an admission on the record of the cause of action. Thus in an action against the acceptor of a bill, the defendant, by suffering judgment, admits a cause of action to the amount of the bill. Green v. Ileame, 3 T. R. 301. So in an action on a contract, the defendant cannot, after a judgment by default, insist upon the fraud of the' plaintiff. East India Company v. Glover, 1 Str. 612. But where an action is removed by habeas corpus from an inferior court, after judgment by default, that judgment is not evidence against the defendant in the superior court. Boltings v. Firby, 9 B. and C. 762. So a demurrer admits the facts; and on 8 writ of inquiry after judgment for the plaintiff, the amount at the damages is the only question. De Gaillon v. L'Aigle, 1 B, and P. 368.

Whole admission to be taken together.] The whole of an adJ mission must be taken together, and therefore where an account rendered by the defendant is produced to establish the plaintiff's demand, it is evidence to prove both the debtor and creditor side of the account. Handle v. Blackburn, 5 Taunt. 245. Thomson v. Austen, 2 D. and R. 361. Fletcher v. Froggatt, 2 C. and P. 569. The assertion of a party in a conversation, given in evidence against him, of fucts in his favour, is evidence for him of those facts. Smith v. Blandy, R. and M. 1o7 But though the defendant is entitled to have the whole of the particular entry in a book read, yet he cannot insist upon reading distinct entries in different parts of the book. Catt v. Howard, 3 Stark. 6. See also ltemmie V. Hall, Mann. Index, 376. Bee v. Fervors, 2 B. and P. 548.

Admissions compulsory.] An admission made in the course of an examination under compulsory process, as before com. missioners of bankrupt, is evidence against the party milking it. Robson V. Alexander, 1 B. and P. 448. Smith v. Beadnell, 1 Camph. 30. Stoekfleth v. De Taslet, 4 Campb. 10. So upon compulsory process from the House of Commons. R.v. Merceren, t Stark. 366. But if the party was imposed upon when he signed the examination, or was under duress, he will not be bound by it. Per Ld. Eltenborough. Stoekfleth v. De Tastet, 4 Campb. 4; and see Tucker v. Barrow, 7 B. and C. 623,1 M. and R. 518. S. C.

OBJECT OF EVIDENCE.

Tne object of evidence is to prove the point in issue between the parties, and, in doing this, there are three rules to be observed: 1. That the evidence be confined to the point in issue. 2. That the substance of the issue only need be proved; and, 3. That the affirmative of the issue is to be proved.

EVIDENCE CONFINED TO THE ISSUE.

Surplusage.] Where an averment may be whollv rejected as surplusage, it need not be proved, as the proof of it would not tend to the decision of the point in issue. The rule with regard to the proof of averments is, that if the whole of an •verment may be struck out without injuring the plaintiff's right of action, it is not necessary to prove it; but it is otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action; for there, though the averment be more particular than it need have been, the whole must be proved, or the plaintiff cannot recover. Per lawrence, J. Williamson v. Allison, 2 East, 452. Thus, where the plaintiff, in an action on a warranty of goods, alleged that the defendants knew the goods to be unfit for sale, it was held, that the allegation of knowledge being immaterial, need not be proved. Ibid. But, where the plaintiff, in an action against the sheriff for taking a tenant's goods in execution without

leaving a year's rent, stated the terms with more particularity than was necessary, it was held, that they must be proved as laid. Bristow v. Wright, Dougt. 640, 665.

Evidence of collateral facts, when admissible.] In general, evidence of collateral facts is not admissible. Thus where the question was as to the quality of beer to be furnished by the plaintiffs to the defendant, it was held that evidence could not be admitted of the quality of beer supplied by the plaintiff to other persons. Hotcombe v. Hewson, 2 Campb. 391. But where a collateral fact is material to the proof of the issue joined between the parties, evidence of such fact is admissible. Thus, in order to prove that the acceptor of a bill knew the payee to be a fictitious person, or that the drawer had a general authority from him to fill up bills with the name of a fictitious payee, evidence may be adduced to show that he iiad accepted similar bills before they could, according to their date, have arrived from the place of date. Hunter v. Gibson, 2 H. Bl. 288. But, in an action against the acceptor of a bill who defends on the ground of forgery, evidence that the person suspected of the forgery has forged the defendant's name in other instances is inadmissible. Balutti v. Serani, Peake, 142. Graft v. Lord Broumlow Bertie, M. S. Peake Ev. 111. Viney v. Barss, 1 Esp. 293. Proof of a customary right in a particular manor or parish is no evidence as to the customary rights in an adjoining parish or manor; Duke of Somerset v. Prance, 1 Str. 661; but, where all the manors in a particular district are held under the same tenure, and a question arises in one of the manors as to an incident to the tenure, evidence may be given of the usage prevailing in any other of the manors within the district. Ibid. Champion V.Atkinson, 3 Keb. 90, 11. v. Ellis, 1 31. and S. 662. So where, in each of several manors belonging to the same lord, and part of the same district, it appeared that there was a class of tenants answering the same description, and to whom their tenements were granted by similar words, it was held that evidence of the rights enjoyed by those tenants in one manor might be received to show what were their rights in another. Rewe v. Brenton, 8 B. and C. 758. So proof of the manner in which a particular trade is carried on at one place is evidence as to the course of that particular trade in another place. Nobl* v. Kennoway, 2 Dougl. 510. Upon a question of skill and j udgment evidence may be given of facts, which, although in other respects collateral, are, by means of the skill and judgment of the witness, connected with, and tend to elucidate the issue. Folkes v. Chad. 1 Phill. Ev. 276. 3 Dougl. 157, 5. C. Where the question was as to the right to certain trees growing in a woody belt of considerable extent, entire and undivided, evidence was admitted of several acts of ownership in

« PreviousContinue »