vSV?^V
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M fit
UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW LIBRARY
PRACTICAL TREATISE
LAW OF EVIDENCE,
&c.
VOL. II.
Loyoox.
Printed by James &. Luke J. Haii5aiil, near Lincoln'»-Inn Fields.
PKA^TI(^\ L TllFwVTISE
OF THE
LAW OF EVIDENCE,
DIGEST OF PROOFS,
CIVIL AND CRLMINAL PROCEEDINGS.
THIRD EDITION,
WITH COKSIDERABLE ALTERATIONS AND ADDITIONS.
By THOMAS STARKIE, Esq.
OF TUB IKNEH TEMPLE, ONE OF HEH MAJESTY'6 COUNSEL.
VOL. II. ABA M U R
LONDON:
V. AND R. STEVENS AND G. S. NORTON,
(Successors to the late J. cV W. T. CLA If K E, of J\>riiu/(d Street. )
UaU) fiooh^tUcrsi autj J9ubli£(l)cis(,
26 AND 39, BELL YARD, LINCOLN'S INN,
AND A. MILL I KEN, DIBLIN.
MDCCCXLll.
T •
LAW OF EVIDENCE
VOL. II.
PROOFS ON PARTICULAR ISSUES.
ABATEMENT. nPlIE proof of the afRrmative of the issue on a plea iu abatement is, from the very nature of the plea, usually incumbent on the defendant (a). Tliis natural order is subject to inversion, either it seems in respect of the form of the issue, according to which tlie j)Iaintiff takes the burthen of proof upon himself; as where the replication to a plea in al)atement for non- Joinder in assumpsit, alleges that the defendant undertook solali/ to pay {h) ; or, which more frequently happens, in consideration of the plaintiff having to prove the amount of his damages. In strictness the question as to damages does not arise until the issues have been disposed of, and it might seem to be more convenient to try the issues first, for if tlie defendant succeed the inquiry as to damages is unnecessary. Tlie course of practice is otherwise, and so far as any precise rule can be collected it seems to be this, that if the amount of damages be in dispute, the plaintiif is entitled to begin, although the proof of the issue joined may be incumbent on the defendant (c) ; but that if the damages be merely nominal, or can be asccr-
(a) See tit. Okder op Proof, supra, Vol. I. In Fowler v. Costar, M. & M. 241, in an action on a bill of exchange, and the non-joinder of a joint contractor pleaded ; Lord Tenterden perniitttnl the defendant to begin, observing that where it appeared by the record or statement of counsel, that there was no dispute about the sum to be recovered, the damages being cither nominal or mere matter of comiiii- tation, tlien if the affirmative was on the defendant, he ought to begin.
{h) See YouiKj v. Bairner, 1 Esp. C. 103.
(c) Indebitatus assumpsit for goods sold, plea non-joinder of others as defendants, Lord Denman held that the plaintift'was entitled to begin, but that the defendant might do so if he would admit the amount claimed ; Morris v. Lotan, 1 M. & R. 233. In Ldcon v. Higgim, 3 Starkie's C. 178, the defendant having pleaded her coverture to an action for goods sold, her counsel were permitted by Ablrott, L. C. J. to begin, on condition of admitting tlie amount. In Itohij V. Hoivard, 2 Starkie's C. bbb, non-
VOL. il.
joinder having been pleaded to a declara- tion for laying out the plaintiff's money on an insuffieient security, the same learned Judge was of opinion that the plaintiff's counsel ought to begin, since it was incum- bent on the plaintiff to prove his damages. See also Stansfield v. Levy, 3 Starkie's C. 8; Fowler v. Cottar, M. &M.241. In soujc instances, the question as to begiunhig appears to have been regarded as one for the discretion of the court, Burrell v. Ni- cholson, I M. & R. 304. Bay ley, J. at tlie York Summer Assizes 1S2I, directed that the defendant should begin, and tiiat the (juestion of damages should, if necessary, b(i tried afterwards. See Young v. liuir- ner, 1 Esp. C. 103; Jackson v. llvskcth, 2 Starkie's C. 518. In the case of Hutch- inson V. Fernie, 3 M. A: W. 305, the court intimated that a clear ease of erromous direction in tliis respect, would be a ground of new trial. In the case of Stausjiild v. Lenj above cited, Abbott, L. C. J. lield tliat where the plaintiff is allowed to begin, lie may confine himself to proof of damages, and reserve his case in rejily to the pUii. B
ABATEMENT.
taiiicd hy mere coin])iit,ati()ii, or are suliTiitted by tlip (lofcndnnt on whom the prooi'oi' the issue lies, lie is entitled to l)egiu {d). Plea of A pIcH in iibatement, that the defendant made tlu; promise jointly with
uoiijoiiiilcr. another, is supported by evidence that the defendant made the promise jointly with an infant; for the plaintiff ought to plead and prove that the infant has avoided his promise (e). Upon a plea that A. and li., assignees of C, a bankrupt, ought to have been joined, it is not sufficient for the defend;! nt to )>rove that they have acted as assignees ; he must ]»rove that they were so, either ))y tlie production of the assignment, or by proving an admission by the plaintiif to that effect (/'). A bill delivered by the plaintiff for business done for the insured, the defendant being one, in which he debits tlie defendant with three-sevenths only of the whole amount, is prima facie evidence (the defendant having pleaded in abatement) that the action* \v;is lu'ouglit to recover his share only (f/).
If the plaintiff contract Avith the defendant alone, without knowing that he iias other partners, proof by the defendant, upon a plea in abatement for non-joinder, that he had secret partners, would not be a sufficient defence in support of the plea (h).
Any acts by the defendant, tending to show tliat he treated the contract as several, not joint, are evidence for the plaintiff. Where the defendant had written letters to the plaintiff, ])romising to ])ay the money in question, and without making mention of any partners. Lord Ellerdjorough, upon issue to bar on a plea of non-joinder, held that the evidence was conclusive as to separate liability (i.) One signing an instrument in his own name for others may frequently be sued alone, although the others may also be liable (/«).
The plaintiff may, on motion, compel the defendant to give him a particular of tlio places of residence of the alleged co-part- ners. Tuj/lwv. Harris, 4 B.kA.DQ. Tlic plaintiff will fail, if it appear that any other tlian those named in tlie plea jointly pro- mised. Godson v. Good, 0 Taunt. 587.
{(i) Lacon v. Hujgins, 3 Starkie's C. 178.
(e) But a contract by an hifant, for goods sold to trade with, is absolutely void. Thornton v. Illbxjworth, 2 B. & C. 820. Gihbs v. Merrill, 3 Taunt. 307. Where one churchwarden sued another for money paid for tlie affairs of the churrh, it was held, on a ))lea in abatement, that it was unnecessary to join the vestrymen who had .signed a resolution for the repairs, without any intention of Iiecoming responsible, the two churchwardens having jointly given the orders. Larichester v. TucJter, 1 Bing. 201. And where one of tvi^o chapelwardens alone orders goods, it is sufficient to sue him alone; for the plaintiff knows no one but the person who gives him the order. Shaw v. Hislop, 4 I). & R. 241. See also .EatuH v. Bell, ,', B. & A. 34. Horseley v. Bell, 1 Brown's C. C. 101. Amb. 770. Sprott v. Powell, 3 Bing. 478. Brooke v. Guest, 3 Bing. 481. As to tlie non- joinder of defendants in actions against carriers, see tit. (;.\kkier.s; and Brether- ton v. Wood, 3 B. & B. 54. Amell v. Waterhonse, 2 Chitty, 1.
(./■) Pax more v. Bon afield, 1 Starkie's C. 296. liohinson v. Hcnshaw, 4 M. & S. 475.
(r/) 1 Starkie's C. 296.
(h) Doov. Chippenden,cov. Ld. Kenyon, Ch. J. at Westmr. sittings after Ilik T. 1790, upon a plea in abatement cited in Mr. Abbott's treatise, 92. Baldney v. Bitchie, 1 Starkie's C. 338. See tit. Paktnbrship, infra. If a party con- tract with two, he may sue them only : if after the contract is made he discovers that they liad a secret partner who had an in- terest in the contract, he is at liberty to sue the latter jointly with them, but he is not bound to do so. Be Mautort v. Sanndcrs, 1 B. & A. 398, overruling JJn- h<m v. Ludert, 5 Taunt. 609. And see Mnllett V. Hook, 1 M. & M. C. 88. And see tit. Pv\RT\ERSHiP. f)n a plea in abatement in an action for work and labour, of the non-joinder of eighteen others, members of a.joint company, Abbott, L. C. J. held that declarations by one of the eighteen, before action brought, that he was a shareholder, was evidence of the fact for the defendant, Clay V. Langslon^, 1 M. & M. 45 ; tamen qiia-re.
(i) Mnrrat/ v. Sontermlle, 3 Camp. 99. n.
(ft) See tit. Agent. — Bill of Ex- change. A promissory note, beginning " I promise to pay," was signed by a member of a firm for himself and his partners, and it was held that he was liable to be sued scvenillv. llcdl v. Smith, 1 B. & C. 407 ; Morch y. Ward, Pcake's C. 130; Clurlte \. BlacJcestock, Holt's C. 474; Sayer v. Chuytor, 1 Lutw. 696.
ABATEMENT. 3
By tlio statute 3 & 4 Wm. 4, c. 4'.;, s. 9, to any plea in abatement in any court of law, of the non-joinder of another person, the plaintiff may reply that such pcr?*on has been dischari^cd by bankruptcy and certiticati-, or under an act for tlie relief of insolvejit deljtors.
And by section 10, in all cuses where after such plea in abutenicnt, the plaintiff shall, without proceeding to trial upon an issue thereon, cnmniciice another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, if it shall appear by the pleadings in such subsequent action, or on the evidence at the trial thereof, that all the original defendants were liable, but tliat one or more of the i)ersons named in such plea in abatement, or any subsequent plea in abatement, are not liable as a contracting party or parties, the ])laintiff shall nevertheless be entitled to judgment, or to a verdict and judgment, as the case may be, against the other defendant or defendants who shall appear to be liable ; and every defendant wlio is not so liable shall have judgment, and shall be entitled to his costs against the defendant or defen- dants who shall have so pleaded in abatement the non-joinder of such person ; provided that any defendant who shall have so pleaded in abate- ment, shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement (/).
The ]daintifF must be prepared to prove his damages (7rt). Damages.
AVhere a peer is named as a commoner, he may plead his misnomer in Misuoiner. abatement, since the title is part of his name, and he ought to be tried by his peers only (?«) ; but he ought to set forth the writ, &c. upon the plea, because it is but a dilatory plea, and must be tried not by the country but by the record. But a plea that the defendant is a peeress by marriage must be tried by the country, since it involves a question of fact extrinsic of the record (o).
Upon a plea of peerage under letters patent, they must be produced under the great seal (p). In Knowles's Case, upon an indictment for mur- der, the defendant pleaded that his grandfather was created Earl of Ban- bury by letters patent under the great seal of England, which he produced in court ; the Attorney-general replied, that on, &c. the defendant petitioned the Lords in Parliament to be tried by his peers, and that the Lords dis- allowed his claim ; the defendant demurred, and the demurrer was allowed, on the ground tliat the refusal of the Lords could not operate as a judg- ment (q).
If the defendant in a criiniiial jjroceeding plead a misnomer, the King may reply that he is known l)y the one name as well as the other (r); but in an apjjeal such a replication was not allowed (s).
Upon a plea oi' misiumer, wliere the defendant avers tlr.it he was baptized
(l) See Claij v. Langsloio, 1 M. & M. the IHurl of St rath more wtha Countess of
C. 45, supra. Strathmore, 2 J. i5c W. .W:^.
{m) Welekcr V. Lc Pclletier, otherwise (;•) 2 Hale,-2:W. By tlic statute? G. 4,
the phiintifi" will be entitled to nominal c. 04, s. ID, no indit-tnient or information
damages only. shall be abated by reason of any plea of
(«) i.e. In case of Treason or Felony, misnomer, or want of addition, or of wrong
2 Hale, 240. 6 Co. 53. Countess of addition, if the court shall be satisfied by
Rutland's Case, 35 H. 0, 40. aHidavit or otherwise of the truth i-f the
(o) 0 Co. 53. 2 Hale, 240. t^ee Star- plea ; and it shall order the indictment or
kie's Crim. PI. 295. iiifornmtiou to be amended, 6:c.
ip) 2 Salk. 509. (.s) 1 II. 7, 29. 21 Ed. 3, 47. 2 Hale,
(V) Jt. V. (Jrii/iam, 4 St. Tr. 410. See 238.
4 AniTTTAI.S — ACCESSOnV.
by the imiiu' iif A. It., Iir iiiiist (jivi- j»r(MiJ"i)f niich hnptisin, althoiigli he wa>» not iRtiiiid HO to iilli'^f it ; iiiul it iH not Hutticicnt to show tliiit lio husiitwayti liet'ii cuIIimI and known )>y that nnnic {t). A defendant in t-itlitT u criminal or civil procccdin',' will in trrnrrul .Ih' ••oiicludrd i>j a new action, or upon a froli indictment, us In tlit- name or addition wliicli lie has bet i'ortii in IiIh former |ilca (»). ( .,ih|>i-- If in assnmpsit the (Icfciideiit ])Icnd in aliatenicnt tliiit the promise was
''"*■>• nnide jointly with /v. /•'., the latter will he a competent witness for the plain-
tiff; for if the plaintilf were to sneeeed, althon(;h the record wonid j»rcvent the plaintiH' from recovering a Kccond time in u joint action, the witnoHs woidd htill be liable to an actitm at the 8nit of the defentlant for contribu- tion (x) ; for the n-cord would not be eviilence aj,'ainst tin- latter; and if the phiintiif were to fail, the witness, if a jiartiier, would still be liable to be iined by the plaintiff in an action against himself and the fonner defendant, and would he nitinnitely liable to jiay his own slmrc. The witness, if he be a partner, is at all events liable to pay his own proportion of the debt(y). It seems, however, that Ii. F. would not have been a coni]>etent witness for the defendant, in onler to prove that he was a joint contractor, without a rclease(r), where he would be liable to contribute towards the costs of the action in case the defendant failed. Hut a release from the defendant would at all events nuike him competent, for then he would not be liable to contri- liution ; and it would be his interest that the ]>laintifr should reeover against the ilefendant alone, rather than tliat he should fail, in which case he might still briui; a joint action.
The defendant, njton an indictment for l)erjury, may jirove in liar that the action in which the evidence was given, on which the purjury is assigned, had abated before the trial of such action, by the death of a ci>-plaintiff after issue joined, no suggestion having been entered on the record pursuant to the statute 8 & 9 VV. 3, c. 11, s. 0(a).
ABUTTALS. See TRESPASS.
ACCEPTANCE. Sec BILL OF EXCHANGE.
ACCESS. .SVpB.\STAin)V.
ACCESSORY.
I'niicijdd It will bo convenient here to consider the evidence aj»plicable to both
III tlie Hr»t princijmh and accesxories Principals, in cases of felony, are of two degrees.
' A jirincipal in the first degree is the absolut*' perpetrator of the crime, and
is either actually jtresent when it is perpetrated, or commits it whilst absent
by an innocent agent or instnnnent(6). A jirincipal in the second degree is
(t) Welekcr v. Le Pelletier, 1 Camp. to contribute towards the costs of tho
479. Si-*" Com. Ditr. /VnATKMENT, [!■'.] former suit.
17. Mahleti \. Jlolimin, 0 .Mod. ll"*; 1 (i/) //ii/ijioH v. Woftinjon, 4 M. &S. 476 ;
Salk. 0. nnd see Cttuham v. liulducy, 'i Starkic'ii
(m) 2 Hale, "J-IH. S«o Trim, ricjuiin!."*, (;. 414.
2 Ed. M'.\. \ pica of luisiiiinirr is no (z) Ymingy. Baimrr, 1 Ksp. C H)fl;
liiii);i-r iilluwcd in B penunuii nctioii. :) <.V: 4 nnd see the ohson'ations of I>ord Kllrn-
\V. 4, r. 42, «. 1 1 ; nnd ««•«• the provision, lior<>iiuh, 4 .M. i^ S. 4'M), and of H«_vi«y, J.
». 12, 8.<» to tfw? uw of initials. III. 4M4 ; nnd see Cwttodarrr v. Jircame,
(x) F/ird KUcntnimiinh seems to hnve I'cnkr's C. 174; and liirt v. IIixhI, 1 K«p.
b<>cn of opinion that in this event the (!. 20; and S4>e also tit. !>tp.RKST op
mitnes* would have iHeii in a worse situa- WiTXKss, nnd I'autnkb.
tion tliiiii hi- wi.iild lia\«' iMfn in hnd tlie (a) li. v. Cohen, 1 Starkic's C . .111.
plaintiti' fuil)^, on account of hit liability {h) ifiih-, (W-j. (iHi. 2 Ihiw. r. 2U, s. 1 1 .
ACCESSORY. 5
one who is present, aiding and aljetting the fact to be done (e). An accessory before the fact is lie, that being absent at the time of the felony committed, doth yet jirocure, counsel, or abet another to commit a felony {d). A man may therefore be convicted as a principal in the first degree, upon evidence that he committed the fact when absent, without the more immediate inter- vention of any guilty agent. As where A. persuades B. to drink poison, by recommending it as a medicine {e) ; or where he sends the poison by a third I)erson, ignorant of its quality (/) ; or incites a madman to destroy another ; or a child to set fire to a house {g). To prove one to be principal in the Principalin second degree, it must be shown^?-s<, that he was prcseiit when the offence tlie second Avas committed. But it is not necessary to shew that he was actually stand- p^^^^f ^y |. ing by, within sight or hearing of the fact ; it is sufficient if he was near ]je was enough to lend his assistance in any manner to the commission of the offence, present. As where one commits a robbery or murder, and another keeps watch or guard at some convenient distance (h). So if several set out together, or in small parties, upon one common design, whether of murder or felony, or for any other unlawful purpose, and each takes the part assigned to him, some to commit the fact, they are all, in contemplation of law, present when the fact is committed (?). So, if several come to commit a burglary, and some enter, and the rest watch, all are principals (A). So, where a constable's assistant attempted to apprehend a number of persons in a house, under a warrant for a riot and battery, and fourteen of the rioters issued from the house and killed the constable's assistant, it was held that those within the house, if they abetted and counselled the riot, were, in law, present, aiding and assisting, as well as those who issued out and actually committed the assault five roods from the house (I). And, i7i general, if a party be suffi- ciently near to encourage the principal in the first degree with the exjjecta- tion of immediate help or assistance in the execution of felony, he is in point oi law present. Lord Dacre and others {m) came to steal deer in the park of Mr. Pelham ; Rayden, one of the company, killed the keeper in the park, the Lord Dacre and the rest of the company being in other parts of the park ; and it was held that it was murder in them all, and they died for it. So if A. and B. be present, and consenting to a robbery or burglarj^, though though A. only actually commits the robbery, or actually breaks and enters the house, and B. be watching at another place near, or be about a robbery
(c) Hale, P. C. 615. Formerly he who act, and who are not present when the act
struck alone was principal, and those who is done ; for if present, they are principals ;
were present, aiding and assisting, were 2 Inst. 182.
accessories, who could not be convicted (e) 4 Co. 44. 2 Inst. 183.
before tlie attainder of the principal; (/)9Co. 81. Kelynge, 52, 53.
1 Hale, P. C. 4:37. 40 Ass. 25. 40 E. 3. {(j) Ann Coiirse'ti Case, Foster, 349.
But it has been long settled, tliat all pre- 0>) Foster, 350. 1 Hale, 537. If two
sent, aiding and abetting, are principals; steal in a shop whilst a third remains on
1 Hale, P. C. 437. Plow. 07. Whetlier the outside to watch and co-operate, he
a person is guilty as a principal in the is guilty as a principal. R. v. Gogerly
tirst or second degree, is a question of law, and others, 1 Russ. & R. 343. In the
R. v. Roijce, 2 Burr. 2076. If several case of R. v. Davis and Hall, cited below,
persons combine to forge an instrument, though the jury found that the prisoner
and each separately executes a part, all are Hall was near and ready to lend assistance,
principals, though they are not together yet the evidence seems to have been insuffi-
wlien the work is completed. R. v. Bingley cieiit to warrant the finding.
and others, 1 Russ. & R. 446. (/) Koster, 350. 353. 1 Haw. c. 38.
{d) 1 Hale, P. C. 615. Lord Coke, in 1 Hale, P. C. 439. Kel. 111.
his reading on the Statute \Yest. 1 , c. 14, {li) Foster, 350. 1 Hale, P. C. 439.
says, the word aid comprehends all per- (/) 1 Hale, P. C. 462.
sons counselling, abetting, plotting, assent- {in) 1 Hale, 439. 443. 245. Fost. 354 ing, consenting and euct)ura''ing to do tlie
6 ACCESSORY.
hard by, which lie effects not, both are robbers and burglars (n). Where Hyde and A., B., (J. and D. rode out to rob, but at Honnslow D. parted from the company, and rode away to Colbrook, and A., B. and C. rode towards Egham, and about three miles from Hounslow, Hyde, A. and B. assaulted a man ; but before he was robbed, C. seeing another man coming at a distance, before the assault, rode up to liini about a bow-shot, or more, from the rest, intending either to rob him, or to prevent his coming to assist ; and in his absence, Hyde, A. and B. robbed the first man of divers silk stockings, and then rode' back to C, and they all went to London, and there divided the spoil ; it was ruled (according to Lord Hale) upon good ntbi'me, first, that D. was not guilty of the robbery, though he rode out with them upon the same design, because he left them at Hounslow, and fell not in with them ; it may be he repented of the design, at least he pursued it not. Secondly, that C, though he was not actually present at the robbery, nor at the assault, but rode back to secure his company, was guilty as well as Hyde and the two others (o). It is otherwise where the party is not sufficiently near to render assistance to the principal felons. Where three prisoners were charged with feloniously uttering a forged note, &c., and it appeared that one of the pri- soners offered the note in payment at Gosport, the other prisoners being then waiting at Portsmouth for his return : the whole being in con.sequence of a previously concerted plan, the Judges (after conviction) held, that the two latter prisoners were entitled to their acquittal, since they were not present when the felony was committed (/>).
In the case of the King v. Steioart and Dickons (g), it appeared that the two prisoners had previously agreed to sell forged notes to James Piatt, a witness upon the trial, and that the price had been paid. That after the witness had been at the house of the prisoners for the purpose of receiving the notes, Stewart and the witness went to a public-house, and that after- wards Dickons came and beckoned them out ; Stewart then said to the wit- ness, " You see Ann there, whom you have seen at our house ; she will deliver the goods to you ; I v/ish you good luck." Dickons, the woman pointed out by the prisoner Stewart, within three minutes afterwards delivered the forged notes to the witness, and the witness did not know whether the pri- soners were or were not in sight when the notes were so delivered, nor which way they went. The jury found the prisoners guilty, and stated (the question being left to them by the learned Judge), that the delivery of the notes by Dickons was in completion of the agreement made by the prisoners, and on their account, and not her own. Execution was respited, in order that the opinion of the Judges might be taken upon the question ; and all the Judges recommended that a pardon should be applied for in respect of the particular offence (r).
(w) 1 Hale, P. C. 537 1 And. 116, note, and Hall joined him near the place,
&c. ; differently reported, Fost. 354. See about fifteen or twenty rainntes afterwards.
tit. BuKGLAuy. — Rape. The jury found that Hall was at the time
(o) 1 Hale, 537. of the uttering sufficiently near and ready
(p) R. v. Scares, and two others, 2 East, to render assistance, and found both
P. C. 974; and see R. v. Badcock and guilty; but tlie Judges afterwards held
others, 1 Russ. & R. 249; R. v. KeUif, lb. the conviction of Hall to be improper.
421 ; R. V, Morris, lb. 270. In the case {q) Coram Garrow, B., Warwick Lent
of i?. V. Z)rt!v'.5 ^- //«//, 1 Russ. & R. 115, Assiz. 1818, and afterwards before the
the two prisoners came to u town with in- Judges, MSS. C.
tent to utter a forged note ; tlicy left the (r) See also R. v. Else, 1 R. & R.
inn where they had put up together; 142.
Davis W6iit into a shop and uttered the
ACCESSORY. 7
If, must l»e Hhpwn, scnmilli/, {\\:it lie was ahlimj nml iiiirttiiiyU); \vlii<li TI.allicwH* words seem to include every species of nssistiiricc wliieli one present fan "''""•-' ""d pive, cither in act, or by his assent, mid by his encourafjonicnt or rf'a(liii.--s "'^■''^"«- to further the general pur[iose (/). For if any one comes for an iiiilawful purpose, although lie does not act, he is a priiici])al (n). It is not necessary to show that one, indicted as a jfriiicijial, was present during the wliole of the transaction; it seems to be sufficient to show iiini 1o be present aidin^ and abetting when the offence was consummated, altliough he was not pre- sent at the inception. Where the servants of ^. feloniously removed goods 171 A.'s warehouse, and B. several hours afterwards assisted them in rrniov- ing the goodsyVom the Avarehouse, it was held tliat B. was a jjrincipal, since it was a continuing transaction (.r). So, where the servants of Uycr, who was the owner of a lioat (and had been (employed to convey on shore a (pian- tity of barilla), without the privity of J)yer, separated part of the barilla from the rest, and conveyed it to another i)art of the boat, and concealed it under some rope, and Dyer afterwards assisted the others in conveying the part so separated from the boat; it was held, iqjon the same ground, that Dyer was a ])rincipal (//).
Principals, whether in the first or second degree, are usually charged as being feloniously present, aiding and abetting (c); since where a statute creates a new felony, or takes away the benefit of clergy from those guilty of an existing felony, under particular circumstances, the offence ])artakeB of all the incidents to a felony at common law, and all present aiiling and abetting are princijials, and may be charged as such {a). But where the statute by its descri])tion includes that party only wlio does the very act, one who is principal in the second degree only ought to be ac-rpiitted either of the offence generally, or of so much as the particular statute is a])plicable to.
The allegation, that the prisoner yvnsaidmfj and ahetfhif/, imj)lies an a.<isf7it to thei)rinci|)al act. This assent must be proved either by some act directly done in furtherance of the commission of the crime, which manifests the assent of the prisoner, as by his keeping watch whilst others in his presence break open a house, or by evidence that he was associated with the rest in the prosecution of one common illegal object, in the execution and further- ance of which the principal crime was committed. If ^.be present when a murder is committed, and takes no part in it, nor endeavours to prevent it, and neither apprehends the murderer, nor levies hue and cry after him, and tlie matter be done in private, the circumstances would, it seems, be evidence to a jury, of consent and concurrence on his part(Z»). But here the privacy
(.<') See Lord Coke's exposition of tlie was but an accessory. 7?. v. Khitj, llnss.
word aw/, 2 Inst. '218, and supra, 5; see & K. y:52. R. wM^Maklmi; SmUliAh.
also Foster, :i.54; and Minsliew, Cowel, (//) R.\. Dyer (uid I)ht'nicj,VAi^X, V.C
Slvinncr, Spelinan, and Dufresne, on tlie 707, per Graliain, U. and Le IJlaiic, .1.
nu'iinin'^ of the word nhet ; from which it (r) Where aiders and aliettors arc iiicn-
iipjiears that instisation alone, without tioned expressly in the statute, the lieinTal
I'oree, is the sense of the word. allc^atinn appcai-s to he satfioieiit ; see
(0 Tost. ;^.jO. 2 Haw. c. 47. Criiii. Pleadings, second edition, b2, 8!}.
(»') 1 Hale, P. C. 374. 44:3. 8G.
(x) R.x.Atwdl and others, TLz-it, v. C (a) See the Coallicavor's case, Lench,
7(i8. But where several broke ojien a 7G. Staundf. 44. 3 Inst. 4'). I Hnle,
warehouse and stole a quantity of hatter, P.C.(ii:3. Fost. :3">4. R.\. Midwinter if
and carried it along the street thirty yards, Sinm, Leach, C.C. L. 3d edit. 78. Bujt.
and then the prisoner joined them, and 207.">.
being apprized of the felony, iissisted in {b) Foster, Disc. 3, s. J vending the goods; it was held tliat hr
y, 4
ACCESSORY.
Evidence against an accessory before tlie fact.
and secrecjr with which the fact was accompanied would be a strong circum- stance ; for if the homicide had been oi)enly committed before witnesses, as it frequently is, where it amounts in construction of law io murder, although /l.'s conduct might be criminal, it would not render him either principal or accessory(c). But in case the murder had been committed in prosecution of an unlawful design, proof that A. came to assist and carry that design into exe- cution, would be evidence to convict him as a principal in the second degree(<Z) ; for in such case the i)erson giving the blow is no more than the instrument by which all strike. In such case, however, it would be essential \o i)rovetliat the murder was committed in the proseciition of some specihc unlawful design in which the prisoner had engaged (e) 5 for if the death resulted from the I)articular malice of the individual who inflicted the blow and who took the op])ortunity to revenge himself, the others, who were assembled for a different purpose, would not be involved in his guilt. Three soldiers went to rob an or- chard, twogotupapear-tree, the third watched with a drawn sword, and killed the son of the owner, who had collared him ; and it was held, that the latter was guilty of murder, but that the two others were innocent, because they came to commit a small inconsiderable tresj^ass, and the man was killed upon a sudden affray without their knowledge. But Holt, C. J. said that it would have been otherwise, "if they had all come thither with a general resolution against all ojiposers," which would have proved that the murder was com- mitted in prosecution of their original purpose (/"). So where A. beat a constable in execution of his office, and being parted from him desisted, and B., a friend of A., rushed in and killed the constable, A. not having been engaged after they were parted, it was held to be murder in B., but that A. was innocent, since there was no previous agreement to obstruct the constable in the execution of his office {g). A general resolution against all opposers, which can be proved either to have been expressly entered into, or which can be inferred from circumstances, as from the number, arms, or behaviour of the parties at or before the scene of action, is strong evidence in cases of this nature (/t), and shews, when substantiated, that every one present, in the eye of the law, when the offence is committed, is guilty as a principal {i). Where, however, A,, B. and C. set out with intent to rob on the highway, and A. and B. upon the same day commit a robbery, C. may show in defence that he had previously abandoned the design, and separated himself from the party, and that there was not, when the offence was committed, any engagement or reasonable expectation of mutual support and defence to affect him {h). So if several set out to commit a felony, but being alarmed, run different ways, and one to avoid capture, maims his pursuer, the rest are not principals {I).
An accessory before the fact may be tried either after the conviction of the principal felon or at the same time with him, or may be indicted and convicted of a substantive felony, whether the principal felon has or has not
Staundf. 40. Post. Disc. Kel. 116.
(c) Dalt.395 3, s. 5.
{d) Post. Disc. 3, s. G.
(e) Post. Disc. 3, s. 7.
(/) Ibid.
{y) Per Holt and Rokeby, Js. Hertford Ass. Post. Disc. 3, s. 7 ; see also Plum- ■mer'n Ca.se, lb.
(h) Post. Disc. 3, 9.8.
(i) The cases of Lord JJaoe and Pad- set/, cit(!d above, were decided 011 the same principle ; the offences of whicli they stood
charged were committed far out of their sight and hearing, yet both were liolden to be present. It was sufficient that at the instant the offences were committed by some of the same party, and upon the same pursuit, and under the same engage- ment and expecfatiou of mutual defence with those who dil the fact. Post. 3.j-i.
( k) Post. Disc. 3, 8. 8.
(/) If. V. White and another, llussell .^ Ry. <J.
ACCESSORY. (J
been previously convicted (vi). If the principal has been previously convicted,
the conviction may be proved by the record jiroperly iiutlu'iitieiited(H), wliidi will be prima facie evidence to prove tlie guilt cd" the i)riiic,ii»al(fjj, wlietln-r tlie indictment allege the guilt of the principal expressly (/>), or, as is the more usual course, recites the record of conviction (^f). In either case the prisoner may insist on every matter both of fact and of law to controvert the guilt of the principal (r), for the accessory is considered as jmrticeps in lite(s). As against an accessory before the fact, the general allegation must next be ])roved, that he did feloniously and nuiliciously incite, move, j)rocnre, aid, abet, counsel, hire, and command the principal to commit tiie felony (<). Proof sufficient to satisfy this allegation imports evidence of the knowledge and assent of the ])risoner to the commission of the felony, that he at least instigated and incited the principal to commit the crime. With respect to the measure of the incitement and force of persuasion used, no rule is laid <k)wn ; that it was sufficient to efficctuate the evil purpose is proved by the result. In principle, it seems that any degree of direct incitement with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the guilt of the accessory ; and therefore that it is unnecessary to show that the crime was effected in consequence of such incitement, and that it would be no defence to show that the offence would have been com- mitted although the incitement had never taken place (u).
In cases where there is a variance between the crime which the accessory has advised and that which the principal has per])etrated, those criteria must be resorted to which are clearly stated by Sir M. Foster; viz. " Did the prin- cij>al commit the felony he standeth charged with under the influence of the flagitious advice, and was the event in the ordinary course of things a probable consequence of that felony .' Or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind, or on a different subject (x) '."
A wife may be convicted as a principal felon in uttering a forged certificate ^v^ft•. for receiving prize money, although she acted in pursuance of her husband's direction ; and the husband may be convicted as an accessory before the
fHCt(y).
Against an accessory ii/'ter the fact, after proof of the principal felony, Accessorj- either by the record of the conviction of the principal felon or by evidence(r), ^***''" ^'"^ it must be proved, that he, knowing the felony to have been committed, received, relieved, comforted or assisted the felon (a), or received the stolen goods (Z>). It seems once to have been held, that the knowledge of the
(hi) By the st. 7 & 8 G. 4, c. 29, s. 64. (x) Foster, Disc. 37-2. Tluis KA. coiin-
(»0 See tit. Hecokd. sel B. to buru the house of C, and li.
(w) See tit. Judgments, for the reason. kuowiug the house of C. spares it, and
( p) As in Lord Sanchar's Cane, D Co. burns tlic house of D., A. is not accessory
114. See Starkie's Cr. PI. "id edit. 140. to this felony.
(q) See Fost. Disc. 3, c. 2, s. 3. (//) li. v. Munis, 2 Leach, ODfi ; Russ.
(»•) See the reason, tit. Judgments. k. K. 270; and see R. v. Hikj/ics, cor.
(«) Fost. 3G5. Thompson, li. Lancr. Lent. Ass. 1813.
(0 See Crira. Pleadings, 130. Russell, 1476. See tit. Husband and
(u) According to Lord Coke, to caiuic, Mife.
is to procure or counsel one to forge ; to (r) The receiver of stolen property may
assent, is to agree afterwards to the pro- be tried either as an accessory uftiT the
curement or counsel of another; to con- fact, or as a substantive felon, 7 .i: 8 (i. 4,
sent, is to agree at the time of the i)ro- c. 20, s. o4.
curement, or counsel, and he in law is a (ti) 1 Hale, P. C. (118.
procurer; 3 Inst. 100. Hut an assent ;Our {/>) I'uder the stat. 7 ^ 8 Ci. 4, c. 20,
the fact conuuitted makes not the party s. 04. — See Lakciny. assenting a principal, 1 Hale, 684.
10
ACCOMPLICE.
Variance.
Compe- tency.
accessory was to be inferred from the attainder of the principal in the same county («■,"), because every one is bound to take notice of an attainder in the same county ; but this notion appears to have exploded (rf).
1{A. be charged as ]irincipal in the first degree, and B. as aiding and abet- ting, the indictment will be supported by evidence that jB. struck the blow, and that^. was present aiding and abetting(e); and in such case, jB. maybe con- victed although -<4. is acquitted (/"). If ^. be indicted as accessory to B. and C, he may be convicted on evidence that he was accessory to C only (g). It has been said, that it was otherwise in case of an appeal (/<); yet there seems to have been no difference in the two cases as to the rules of evidence. One indicted as a princijjal cannot be found guilty on evidence showing that he was an accessory before the fact(i). Wherever a variance is material as to the principal, it is material and available to the accessory(A) ; and vice versa, where a variance is immaterial to the principal, it is immaterial to the accessory (Z).
ACCOMPLICE. It seems to be an universal rule, that a particeps criminis may be examined as a witness in both civil and criminal cases, notwithstanding the immorality or illegality of his conduct, provided he has not been convicted of any crime that incapacitates him (m).
In civil actions it was formerly held that a witness could not be ad- mitted to allege his own turpitude, or to disprove an instrument to which he was a party or witness (w) ; but the rule is now exploded (o), for it is calculated to conceal the truth. The subscribing witnesses to a will have, in several instances, been allowed to give evidence to impeach the will {p) ; and the same rule applies where the instrument is of a negotiable nature {q). A clerk having embezzled his master's property laid it out in illegal insurances, and he was held to be a competent witness for the master against the insurer (r). So a man who has pretended to convey lands to another is a competent witness to prove that he had no title (s). A co- assignor of a ship may prove that he had no interest in the vessel (<). Parents may give evidence to bastardize their issue (u).
(c) Staimdf. 9G. 8 E 4. f. 3.
(d) 3 P. Vims. 494.
(e) 9 Co. 67. Ibid. 112, h. 4 Co. 42. 3 last. 148. 2 Hale, P.C. 292. 1 Plow. 28. B. V. Wnllis, 1 Salk. 334. R. v. Be?i- S011, 3 Mod. 121. 1 Lord Raymond, 21. Doug. 20.
(/) R. V. Wallu, 1 Salk. 334.
(fir) 9 Co. 119. 2 Hale, P. C. 292. 2 Haw. c. 46, sec. 196.
(A) 2 lust. 183.
(i) 2 Haw. c. 26, s. 178, 9.
(70 2 Haw. c. 46, s. 194. Summ. 2G5. 2 Hale, P. C. 292.
(0 2 Haw. C.46. R. v. Macalhj, 9 Co. 65. Cro. J. 279. 2 Hale, P. C. 292.
(in) See tit. Infamous Witness.
(w) 4 Inst. 279. Str. 1148. Salk. 461. 689. 3 St. Tr. 427. Burr. 1255. 1 T. R. 296. 3 T. R. 21 . 27. This was in coEform- ity with the maxim of civil law, " Nemo allcf/ans turpitudinem suain est audi- endiis." In the case of Jordaine v. Lash- hroohe, 7 T. R. 601, Lawrence, J. ob- served, " persons are continually allowed to allege their own turpitude, as in cases
of simony, compounding felony, sale of offices, &c.; and possibly that maxim may in our law be confined to the cases of plaintiffs making demands ex turpi causa, and to cases of defence in which innocent persons may be prejudiced.''
(o) 5T. R.579. 7T. R.601.
(;0 Lmce v. Jolliffe, 1 Bl. R. 365. 7 T. R. 604.
{q) 7 T. R. 64.
(V) Clarke x.Shee, Cowp. 197.
(.v) Title V. Grevet, Lord Raym. 1008.
(t) Anon, cited 1 T. R. 301. So a witness may be called to prove that the defendant had been registered as the part- owner of a ship, on the oath of the wit- ness, without his privity or consent, Rands v. Thomas, 5 M. & S. 224. And where a woman had deposed on oath, at the instance of the defendant, that the pro- secutor was the father of her bastard child, it was held that she was a compe- tent witness to prove tliat the defendant was the father. R. v. Teal, 11 East, 309.
(?<) See the cases tit. Bastakdy ; but i^eu also R. v. Ruck, 1 Wils. 340.
I
ACCOMPLICE. 11
In the case of Walton v. Shelley (j), it was hfld tliat the indorsee of a promissory note was not competent to prove that it was tainted witli usury in its creation; but in the latter case of Jordaine v. Lashbroohe (y) it waa (loiiiod that the former decision was warranted hy the previous caees ; and it was hehl, tliat a party to a bill of exchansjfe was coiiipetent to j)rove it to have been void in its creation {z). So in an action for l)ribery the person bribed is a competent witness, although by tlie statute {a) the jmrty wlio discovers the bribery of another is exempted from an action, and the witness intends to avail himself of this exemption by way of defence to an action pending against himself for bribery committed at the same election (b). No one, however, can l)e a witness for another whilst he is a i)arty to tlie record. But a co-defendunt may be rendered coni])etent by entering a nolle proscrpd ((•) ; and if there be no evidence to charge one co-defendant in trespass, he may be acquitted under the direction of the court, and give evi- dence in the cause.
In criminal cases it is perfectly clear that an accomplice is a competent jn criminal witness, previous to his conviction of a crime which takes away competency, proceed- in all cases, whether of treason (<■/), felony (e), or mere misdemeanor (y); '"o** the doctrine is founded on obvious grounds of policy (</), and, perhaps, of necessity. It is also perfectly settled that no promise of pardon, whether it be absolute or conditional, will render an accomplice incompetent (h). In some instances accomplices are strictly entitled to pardon. Such was formerly the case with approvers, upon conviction of their associates (i). Tlie practice of admitting an ajjprover to a])peal (a matter purely within the discretion of the court) had become obsolete in the time of Sir Matthew Hale (k), who observed that more mischief had arisen to good men from these approvements, upon false accusations by desperate villains, than benefit to the public by the discovery and conviction of real offenders. Since their discontinuance, and before their final abolition (Z), the doctrine of approvements had become more a matter of curi<xsity than use (/«). Although an approver was sworn to the truth of his ajipeal (n), yet it seema that he was not a competent witness upon the trial. For this proceeding romi)c- have been substituted the enactments of general statutes, and the reasonable tcacy. and equitable practice of admitting an accomplice to give evidence under a conditional promise of pardon, in case he make a fair and impartial dis- closure.
(x) 1 T. P.. 2n(!. Case, 10 St.Tr.2.J9. Lord Hale seems to
(y) 7T. R. GUI. luive been of a difftTont opinion in case
(z) See Rich v. Topping, Peake's Cas. of a pardon promised for witnesses ajraiiist
224. Esp. 117. others, 1 Ilak", 304; 2 Hale, 280; and in
(o.) 2 G. 2, c. 24. tlic case of an approver, 1 Hale, 303.
(b) J3itsh \. Rnwlings, S&y. 209. IIoio- (i) Cowp. 339. Leacli, C. C. L. 140. ard V. Shipk'i/, 4 East, 180. ErhcarcLs v. But now by the stat. 59 G. 3, c. 40, ap- Ecans, 3 East, 431. Phillips v. Foicler, p<'als by approvers, as well as others, are Say. 289, 290. ubolislied.
(c) 3Inn v. Ward, 2 Atk. 229. (A) 2 Hale, 22G.
(d) R. V. Tonge, Keb. 17. 1 Hale, (/) By tlie stat. 59 G. 3, c. 40.
P. C. 303. 7T. R. 709. (/») if there were a dozen apiicllecs,
(c) Leach, C. C. L. 133. R. v. JJr. the approver was bound to fi^dit them all
I>ndd, Leach, C. C. L. 141. R. v. West- if tiiey waped battle; Haw. b. 2, c. 24,
7;«r, Ibid. 12. s. 24. '2 Hale, 233, 234. 3 Inst. 13(1.
(/) 2 Haw. c. 40. 7?. v. Cross, 12 But as he had the power to make his own
Mod. 520, where the thief was a witness selection, there was room for the exercise
as^uinst the receiver. See R. v. Teal, 11 of mucli discretion. Eiist, 309 ; .w/rm note (y;). («) Staundf. lib. 2, c. 50, p. 145.
(//) 1 Hale, 303. 1 Hale, 303; but bcc Layer's Case, 10 St.
(Ji) Ton>/c's Case, 1 Hale. 304. Loijrrs Tr. 259.
12 ACCOMPLICE.
Tliese statutes, in cases of coining, robhory, fmrglary, housebreaking, and horse-stealing (o), enact, that if an offender l)eing out of prison shall discover two or more persons wlio have committed the like offences, he shall be entitled to a pardon of the offences respectively specified in those statutes (p).
These statutes, and also others which protect an offending party who dis- covers another offender, seem to make the latter a competent witness by legislative declaration ; for if he were not to be a competent witness, the pro- visicms of the statutes would be almost nugatory and useless ; it would be holding out an inducement to offenders to make a discovery, and when made, they would be precluded from the benefit of it(f/).
In present practice, where accomplices make a full and fair confession of the wliole truth, and are in consequence admitted to give evidence for the crown, if they afterwards give their testimony fairly and openly, although they are not of right entitled to pardon, the usage, lenity, and practice of the court is to stay the prosecution against them ; and they have an equi- table title to a recommendation to the king's mercy (r).
Under such circumstances, there can be no doubt, as to the competency of the accomplice, upon any principle ; the condition is not that he shall convict, nor even that he shall give evidence unfavourable to any prisoner, but that he shall make a fair disclosure of what he knows. The credit to be given to such a witness is for the consideration of the jury : the acknowledged turpi- tude of the witness must necessarily stamp his testimony with suspicion ; and it is to be the more carefully watched, since such a witness lies under a strong temptation to substantiate the account which he has already given, in the hopes of pardon, and is likely to suppose that his object will be gained by a conviction, and may be frustrated by an acquittal.
No accomplice can be examined against his consent, for he is not bound to criminate himself. Where he is willing to give evidence, it seems to be the more proper course not to include him in the indictment (*). The practice is (where the accomplice is in custody), for the counsel for the prosecution to move that the accomplice be allowed to go before the grand jury, pledging his own opinion, after a perusal of the facts of the case, that his testimony is essential (t). The admission of the party as a witness, amounts to a promise
(o) Robbery, 4 W. & M. c. 8, s. 7. 9 Ann. c. 14, s. 9, the loser of money at
Coining, G & 7 W. 3, c. 17, s. 12. Bur- cards was held to be a good witness to
glary, housebreaking, and private stealing, prove the loss. So in R. v. Johnwn, cited
10 W. 3, c. 23, s. 5 ; repealed by the 7 & 8 ibid. See Interested Witness.
Geo. 4, c. 27. 5 Ann. c. 31, s. 4. Uttering (?•) R. v. Budd, Leach, C. C. L. 140,
counterfeit money, 15 Geo. 2, c. 28, s. 28, per Lord Mansfield, Cowp^ 339. And
which extends to such offences only. Ille- see R. v. Lee, 1 Russ. & R. »t. ")
gaily buying or receiving stolen lead, iron, {s) 1 Hale, 305. Lord Hale there says,
or other metals, 29 Geo. 2, c. 30 ; repealed the witness is never indicted, because that
by the st. 7 & 8 Geo. 4, c. 27. weakens and disjjarages his testimony, but
{])) See 4 Conuii. 330, 331. possiI)ly does not wholly take away his
{q) See Lord Ellenborougli's observa- testimony. See 2 Hale, 234. It is said
tions in Jletcard v. Sidpleij, 4 East, 180; that if a defendant accuse himself, he may
Bush v. RaxcliiKj, Say. 289 ; R. v. Rock- he a witness against his companion. See
icood, 4 St. Tr. 084-0; R. v. Teasdale, Sir Percy Cresbi/'s Case, 19 J. 1. Noy's
3 Esp. 08; Mead v. Robinson, Willes, Rep. 1.54.
422 ; where it was held, that the legisla- (f) If, however, an accomplice be taken
ture, by holding out inducements, and before the grand jury by means of a sur-
otfering an indenmity, intended to make reptitious order, the indictment will still
the discoverers legal witnesses. And be valid. JK. v. J[>o^^, Leach, C.C.L. 184.
Rhilips V. Folder, 8 Geo. 2, cited Willes, And it seems to be a general rule, that the
42.5 ; R. V. Lnchiip, 9 Geo. 2, B. R. MSS. means ))y wliicli evidence was obtained
cited Willes, 425, in the note ; wliere, in will be no objection to tlie evidence itself,
a prosecution for penalties under the stat. A justice of the peace has uo authority to
ACCOMPLICE. 13
of ref>onimc'ii(lation to morcy, upon fondition of his makinp; a full and fiiir disclosure of all the circuinstauces of the crime.
An accomplice, as it seems, is a competent witness, and may he examined, When in- if he he willin"', although he is indicted along with others, provided he he not '^^'^^''^ w''^*' put ujion Jiis trial at the same time with the others (m); for an indictment ii;^ainst several, is several as to each ; so he is if he has pleaded guilty, or hcen sei)arately convicted, provided judgment has not heen jtronounccd ujion liiiii for an offence which dis(|ualiHeshim(j). So an accomplice is a compe- tent witness for his associates, as well as against them, although they be severally indicted for the same offence (y), whether he is convicted or not, jirovided he he not disqualified by a judgment.
IJy a breach of the condition the accomplice forfeits his claim to fsivnur. iiud is liable to ho. tried and convicted (c) upon his confession.
Wiiere there is no evidence, or luit slight evidence, against one of the parties upon his trial, the court will sometimes direct the jury to give their verdict as to him, and upon their acquittal of him to admit his testimony (a).
With respect to the force and effect of such testimony, it must, from its Force of very nature, l)e regarded with great jealousy and suspicion. It is hard (Lord *"'-■'' t«'sti- Ilale observed )(/v) to take away the life of any person upon the evidence of a "'""y- piirflcrps rrivibilf!, uidess there l)e very considerable circumstances which may give the greater credit to what he swears. In strictness of law, indeed, a prisoner may be convicted on the testimony of a single accomplice (c); since, where competent evidence is adduced, it is for the jury to determine on the effect of that evidence. In practice it is usual to direct the jury to actpiit the prisoner, where the evidence of an accomplice stands uncorrobo- rated in material circumstances ; but this it is said is a matter resting en- tirely in the discretion of the court (d).
pardon an offciuler, and to ttll liim lie shall R.\. Durham & Crowder, Leach, C. C. L.
lie a witness at all events ai^ainst others. .038. Lord Kcnyon's oliservations in Jnr-
R. v. Rudd, Leach, C. C. L. 140; Cowp. du'mc v. Lrnhbroohc, 7 T. II. GOl ; 1 Hale,
:331. p. C. 303, :!04, 305.
(m) Qu. and see 1 Hale, 305, supra (d) It seems to be clearly settled, that
note(s). See also jR.v. £■//<■«, Macnall. 63. a prisoner may be convicted on the un-
(x) Lee V. Ga7usel, Co\v\). \. confirmed testimony of an accom])liee.
(</) 2 Hale, 280, cites the case of liut as a rule of dhcretion and in itractiec,
Iiillmore,Gr(n/ and Jrarbin, and Gnnsfon it is said, that he ought not to be con-
V. Duimis, 2 II. A. (!85, pi. 3. That is, vieted unless the testimony of the ac-
as it seems, wliere they are severally tried complice receive materUtl contirniation,
for an offence several in its nature ; for in Regarding the rule as one of discretion
such ease it seems to make no difference and not of strict law, it can scarcely be
whether they are severally or jointly in- understood that it is a rule which the Judge
dieted. may enforce or disregard at liis option,
(r) In a late instance, a prisoner who but rather that it belongs to the court to had niaile a confession, after a represen- decide, under the circumstances of each tation iii;i(lc to liiui by a constalile in the particular case, whether they siiii|ily a ma- gaol, that liis accomjilices had been taken terial confirmation of the aeeomijlicf's tts- into custody, which was not the fact, and timony. Now, though circumstances may who, after liaving been admitted as a wit- be intinitely varied, tlie princijile on whicli ness against his associates on a charge of the rule is founded, and by which it is to maliciously killing sheep, \\\wn the trial be aiijilied, remains the same. The rule denied all knowledge of tin; subject, was is devised for the ]irotection of the ac- afterwards tried and convicted u))(>n his cased. Independently of the rule, a jury confession. R.\ . linrlcii, cor. it-dYroy;,\\. would not be warninted in convieting Leicester Lent Assizes 1818. And the ui>on the testimony of an acconijilice, with- conviction was afterwards approved by all out beuig satisfied tluit liis testimony was the Judges. MSS. C. true. But even assuming them to Ik> so
(rt) 1 Sid. 237; Trials per Pais, 148. satisfied, the rule intervenes to the protec-
Style, 401. 12 Ass. 12. 34. 2 Haw. c. 40, tion of the accused, and recpiires that
8.08; Sav. 34. they sliall not convict hitii unless fhtir
(h) 1 Hale, P. C 305. liclief is at least in part founded on am-
(c) II. \. .(4<woorf, Leach, C. C. L. 521. stf/eraWt circumstuuces (according to Lord
14
ACCOMPLICE.
Hale) proved aliunde, which coincide with his tt'stiiiioiiy, .iiid add credit to it. For coincidences in testimony and circnni- stanccs, wlien they consist in particidars wiiicli were beyond the reach of premedi- tation, may not oidy sanction but conii)el belief in tlie pitrdculfir stdtcinent made by the worst of men. But then the question arises, is any distinction to be made as to the nature of the circumstances in respect of wliicli contirmation is required — is it sufticient that the accomplice be confirmed 8ini))Iy as to the corpus delicti, or are some conlirmatory circumstances essential as to tlie idcntitij of the offe/ider? The object of rccpiirinj;- confirmatory evidence must either be to create sucii a degree of confi- dence in the sincerity of the accomplice as to render him generally credible even as to statements in respect of which he is not confirmed, or to exclude the proba- bility of his attempting to deceive in the particular transactioii which he details. If the latter be the true principle, some confirmation as to the agency of the accused should seem to be essential ; for where there are no circumstances inde- pendently of the testimony of the accom- plice to implicate the accused, the con- viction must necessarily rest on the cre- dibility of the witness. From tlie language of the Judges on the subject, and particu- larly that of Thomson, L. C. B. (io the case of jR. V. Swallow, cited below), it should seem that confirmation as to the circum- stances of the offence without any as to the identiti/ of the offender is sufficient, provided of course the jury be induced to give credit to such a witness. The same inference may it seems be drawn from those cases where it has been held, that where several are jointly tried, and there is confirmation only as to some, others may be convicted as to whom there is no confirmation. See R. v. Jones, 2 Camp. 133, cited below, and It. v. Dawher, 3 Starkie's C. 34, and the point is stated to have been expressly decided by the Judges in Birkett's Case, Euss. & Ry. C. C. L. 252. It must be admitted, that even as- suunng that it is sufficient to confirm by circumstances the general credibility of the accomplice, yet that mere confirmation as to the circumstances of the oft'cnce, although it may show the accuracy of the accomplice's recollection, usually affords a very imperfect test of his sincerity. The ordinary motive to deceive, by which an accomplice would be influenced, is the hope of saving liimself, and, it may be, a friend who i)articipated in the offence, by the conviction of an innocent person ; and the temptation is to misrepresent not as to the circumstances of tlie offence, but merely as to the agents who committed it. As it is his obvious interest to acquire the confidence of the jury, it is plain that the mere accuracy of his details of the corpus delicti can seldom generate any reasonable degree of confidence in his irencral since-
rity. On the other hand, whatever be the rule of law on the subject, it seems that such circumstances as tend to implicate the accused, independently of the testimony of tlie accomplice, are of far greater weight than those wliich merely confirm him as to the details of tlie offence, whether the ob- ject bo to confer general credibility or to exclude the apprehension of deceit in the particular case. If distinct proof were to be given aliunde, that the offence liad been committed by twopersoJis at the least, even this would effectually exclude a sus])icion which might otherwise obtain, viz. that the witness sought to secure impunity to him- self by imputing guilt exclusively his own to another ; still a doubt might remain whe- ther to save a guilty friend he did not in his statement substitute an innocent party; and it would be difficult to extract such a degree of confidence from his mere detail of the re.v gestce, however accurate, as would warrant belief in his mere unconfirmed statement, though such an apprehension might to a great extent, or even entirely, be removed by circumstances which af- fected the prisoner personally. It would be easy for an accomplice to convict an innocent substitute for a guilty party, were no evidence requisite to connect the latter persoiially with the offence, but exceed- ingly difficult to do so were his powers of effecting mischief to be limited to those against whom circumstantial evidence ex- isted, independently of his testimony and beyond the reach of his artifices. It may be said, that if personal confirmation were essential, and several prisoners were tried at the same time, as to some of whom there was personal confirmation, but not as to the rest, the jury would be bound to acquit the latter, though they convicted the rest, and that it would be inconsistent that on the testimony of the same witness they should believe him as to part and not as to the rest of his story. Tlie answer, however, is obvious, that if the rule be regarded, as it must be, a technical and artificial one, to be applied in protection of a prisoner even though the jury should think the wii.ness faith-worthy, there would be no inconsistency in convicting .4. as to whom there was personal confir- mation, and acquitting JB. as to whom there was none ; the inconsistency would not be greater than if butli A. and JJ. were to be acquitted, though the jury believed the witness, because there was no confirmation as to either. Indeed a greater degree of inconsistency might result from the oppo- site doctrine. For personal confirmation being unnecessary, if A. and 13. were ta be tried together, and there were confir- mation as to A. but none of any kind as to B., the latter might nevertheless be convicted if the witness were confirmed as to A. and derived credit from such con- firmation ; and yet if they were to be tried separately, then, notwithstanding the faith-worthiness of the witness, yet, if
ACCOMPLICE.
10
tlioro were no confirmation tlif jury oncrlit ti) aCM|uit B. ; so tlial It. iiiii;ljt In- liulilo to l)e couviftwl or ii(!(iMitti'il acconlin'^ly as he wud tried juiritly with A. or se|)ii- rutcly. It is also ohscrvahjc, tliat if inerft (confirmation as to thi; tacts iiiinicdiatcly coniit'cteil with tliu I'Dnmiission of the; crinio wen; snfiicit'iit, t!ic nih? would hf of littiu iin])ortaiK'C', for it rarely hapjinis that tliqre is not some couiirniation as to the curpii.1 (Mict'i.
Tlie followin;^ arc the principal autliori- tlps on till! siilijcet. — In the case of ^1/- ■irooUv. lii)l)inii,cor. IJullcr, l-cacli, (". C. !,. •yi\, Md c.lit., tlie accomplice was con- Hrrni'd as to the circumstances of a lii<f|i- way rohljcry, as to the conversation win'ch took place at the time, and as to the luini- lier of rol)hers, l)ut tiiere was no evidence as to till! identity of the other two. The jury haviujx found the prisoners jruilty, the learned Juiljie referred tlii! fiuestioii to tiu! consiileratioii of tlu; twelve Judges, on the doiilit whellier the evidence of an iH'vomyiWco, uncoil finned, hj' any other evi- dence tiiat could materially affect the case, was sutlieieiit to warrant a conviction, and the .1 mitres nnanimonsly held, that the con- viction was le^al, and sentence of death was passed. It is reniarkahle, that in this case the Judjjes, at least the learned .fudge who tried the prisoners, did not coni;eivc the confirmation as to the carjiits tlelicti to he that which could inateriuUij affect the case. In the siihsequent ease of JJurhain Si; Croinler, Leach's C. C. L. 538. t3d ed. which occurred very s:)on after- wards, it was hell! tliat tlie prisoners were properly convicted of a hurjilary on the sole testimony (as far as regarded the prisoners personally) of a pawnhroker, who had for years been a common re- ceiver of stolen goods. Tiie court seem in this case, as well as the former, to have decided on the "ground that no confirma- tion as to the jjrisoners was necessary, and that the evidence of an accomplice niiiiht l)e left to a jury, though it was en- tirely uusubshmtiated by any other evi- dence. It was, however, observed, that rieniinsf the witness, was to be considered as an accessory after the fact, rather than as an accomplice. If the o])inion of the Judges in this case is to be considered as fonnileil on the assumption that Fle- ming was to l)e regarded as an accom- plice, the decision seems to go the full length of wholly dispensing with the ne- cessity for confirmation, even as Ji discre- tionary rule, for there was no confirmation whatsoever of the witness as far as ap- pears, not even as to the corjiua delicti : and though it is rei)orteil to have been said in that case, that the practice of re- jecting an unsupported accomplice was rather a matter of discretion with the court than a rule of law, yet it is difli- ciilt to understand how it can be looked upon as any rule at all, if it may be ut- terly dispensed with and disregarded. In
other instances, some confirmation of tin- testimony of an accomplice \\nii l)e(ii lul- initted to be necessary. In the case of the King v. Ueitjmrd, Howell's St. Tr. vol. -2S, p. 34(5, the Attorney-general (Mr. Perceval) says, " It shall not be contended l)y us that an aecomjdice does not re(|uire to he confirmed hy collateral testimony, Iti- foro a jury should implicitly give him cn- dit." And he adds, "The confirmation that is re(|uireil for an accomplice, is l/j show that the story as related by him coin- cides with other circumstances wliicli are by unexceptionable ti-stimony ])rovei| to have existed, and where such circumstances falling in with the testimony of the accom- plice cannot so easily be accounted for iiy any other supposition than that of the truth of the story." In the case of T/ic Kinij V. Jonei, 2 Carnj). i;J2, Lord Hllen- borough says, " Xo one can seriously doubt that a conviction is legal, thon'.;h it j)roceed on the evirlence of an ai>prover only. Judges in their discretion will ad- vise a jury nut to heliere an (iccomji/ici: iinlesa fie !.■< conftrined, or only in (injur ag he is confirmed ; but if he is believed, his testimony is unquestionably sntfieient t<» establish the fact which he deposed." In the case of T/ie Kimj v. Sn-ulloin and others, York Trials, lt<l;i, ]i. l(i, Mr. Uaron Thomson stated to the jury as follows: — "If an accomplice is materially con- firmed in his evidence by such testimony as the jury think is unimpeachable, then, notwithstanding the character in which he st^inds before them, he is to be heard and to be credited by them. And yon were riglitlyalso informed, that it was not necessary an accomplice shonlil be con- firmed in every circumstance he details in evidence — that would l)e almost a matter of impossibility ; and if every circumstance to which he has spoken could be confirmed by other evidence, theri! would hardly be occasion to take the accomiilice from the bar as a prisoner to make him a witness here : that is certiiinly too nmch to be ex- pected, and never is required. It is (|uite sufiieient to see that iu some material facts the witness who shall have been an accom- ])lice, is confirmed to the satisfaction of a jury ; and that confirmation need not be of circumstiinces which go to jirove that he speaks truth witli respect to all the ))risouers, and with respect to the share they have each taken in the transaction ; for if tlie jury are satisfied that he speaks truth in those parts iu which they see luiimpeachable evidence brought to con- firm Jiim, that is a ground for them to believe that he speaks also truly with re- gard to the other prisoners as to whom there may be no confirmation."
In the case oi Birkett and Brady, Russ. i: Ry. '251, it is stated that tliC Jiul-res were ofopinion,thatanaccom]>licedidnot rcqiiin- confirmation as to tin' yvcr.vo;; be charued, it he was confirmed as to the particulars of his storv.
16
ACCORD,
ACCORD.
Must be An Accord and Satisfaction, Imforo tho Inte alterations in tlio rules of pleail-
plcadeil. jjjg^ yf^^ evidence in an action upon tho case, under tlie general issue {p) ; but in an action of trespass a special plea was necessary, as it now is generally. An accord must be shown to have been received in full satisfaction of the tiling demanded (q) ; and although the plaintiff has agreed to take it in satisfaction, it will not be a bar to the action, unless it operate in satisfac- tion (r). A less sum cannot operate in satisfaction of a greater {s) ; but it is otherwise where an additional security is given for the payment of a less sum by a third person {t). So if a debtor assign over all his effects to a trustee, to raise a fund for the payment of a composition to his creditors (m), the general rule is, that the court will see that there has been a reasonable satisfaction (?;).
As accord and satisfaction must be specially pleaded, tlie evidence must of course depend upon the nature of the plea, and the issue taken.
When the accord has been proved by means of a witness, or by the admis- sion of the other party, the performance of the terms accc rdingly must also be proved where it is executory in its nature. After evidence of an agree- ment between the plaintiff and defendant, with other creditors of the defen- dant, to accept a composition in satisfaction of their respective debts, to be paid within a reasonable time, it would not be sufficient to prove a tender, and a refusal on the part of the plaintiff to accept the composition {x). If
So it has been held, that if an accom- plice be confirmed as to one or more of several prisoners, another as to whom there is no confirmation may legally be con- victed on his testimony. Thus in R. v. Jones, 2 Camp. 133, Lord Ellenborough observes, " Within a few years a case was referred to the twelve Judges, where four men were convicted of burglary on the evidence of an accomplice who received no confirmation concerning any of the facts which proved the criminality of one of the prisoners ; but the Judges were unanimously of opinion that the conviction was legal, and upon that opinion they all sufiered tlie sentence of the law." The same was ruled by Bayley, J. in the case of The King v. Dauber, 3 Starkie's C. 34. In the late case oilt.Y.Welh and others, 1 Mood k. M. C. 326, on an indictment against a princi- pal and accessories, the testimony of an accomplice was confirmed as to the acces- sories, but not as to the principal, and it was held that both principal and accesso- ries ought to be acquitted.
For further observations on this impor- tant subject, the reader is referred to a very able essay, written by a gentleman of the Irish bar, intituled, "Observations on tlie Confirmation of the Testimony of Accomplices;" the object of which is to show, that in principle some confirmation as to the personal identitij of the prisoner is necessary to warrant a conviction.
(/>) Huxhani v. Smith, 2 Camp. 19. Lane v. Applcyatc, 1 Starkie's C. 'J7. Paramorc v. Johnson, 1 Lord Raym. i(!(j ; 12 Mod. 37G. It is always a good plea
where the action is founded on a covenant, with subsequent damages, secus where the del)t arises tempore confectionis scripti. BlaJie's Case, 6 Co. 44. Accord and satis- faction by one, is a bar for all ; Com. Dig. Accord, [A.] 1.
(q) See Com. Dig. Accord, [B.] 1.
(r) See Edcjcomhew. Hodd, 5 East, 294, as to what amounts to a legal satisfaction ; and Com. Dig. Accord, [B.] 1. A judg- ment without satisfaction is no payment, Tarleton v. Allhmen, 2 Ad. & Ell. 32. An executory agreement may after breach, be discharged by accord and satisfaction, B. N. P. 152 ; or by a valid agreement, substi- tuting a new cause of action for the old. Case V. Earlier ; T. Ray. 450.
(s) Fitch V. Sutton, 6 East, 230. Lynn V. Bruce, 2 H. B. 317. Heathcote v. Cruickshanks, 2 T. R. 24. Vid. infra, note {x).
{t) Steinman v. Magnus, 11 East, 390.
(m) Heathcote v. CruicJishanlis, 2 T. R. 24.
(r) Cumber \. Wane, Stv.A^^G. PinneVs Case, 5 Rep. 117. Co. Lit. 112. b. Vid. infra, note (.r).
{x) Heathcote v. Cmickshanhs, 2 T. R. 24. This was on demurrer to a plea. "Where there is an agreement to pay money in satisfaction, it is not enough to show that he has always been ready to pay it, or a tender and refusal. Com. Dig. Ac- cord, [B ] 4. Peyton's Case, 9 Rep. 79. b. But in Bradley v. Gregory, 2 Camp. 383, it was held that a creditor who had agreed with other creditors to execute a composition deed, with a release, on receiv-
ACCORD.
17
a plaintiff in an action against several for a tort accept a sum from one; to forego the action, he cannot, it seems, proceed against the rest (y).
\n^ a composition, secured |)iirtly l)y the acceptances of a tliinl jxTson, and ])artly by tliose of the debtor, couhl not, after u tender and refusal of tlie acceptances, sue for tlic ori[,Mnal debt, on the frround that tlie aijreeiiicnt ()])erati'd an satisfaetion.
See furtli(,T on this iieail, Ciimhrr v. Wdiir, Str. 4"J(!, wliere it wa« lu-ld that a payment of a ])roniis3ory note for bl. could be no satisfaetion of a debt of \<)l. ; F'dch V. Suttuti,^) K;ist,'2:]0, above cited ; Katrs- Inlte V. Morfj(i)i,^> T. 1{. 513, where it was - lield that tiie defendant nii^^ht plead that lie indorseil a jiroinissory note, of which lie was payee, to the plaintiff, in satisfaetion of tlie demand. The fjiviiig the security of a third person for jxirt of a debt only, as for part of a stii'iilated composition, will be no bar. ( Wdlhcr v. Scahonie, 1 Taunt. .020.) Hut if, upon the faitli of an agreement amongst creditors to take less than their wiiole demand, a tliird j)erson liecomes surety for tlie amoiiiit, a crcilitor, after receiving tlie amount, cannot sue the debtor, because it would l)e a fraud upon tlie surety. Steinmun v. Mdfjnus, 2 Camj). 124; 11 East, ."!)0. If creditors agree to give time to their debtor ibr jiayment of their respective debts, and to take his promissory notes for their amount, they cannot, unless the agreement has been broken by the debtor, sue him for the amount. Bonthhcy v. Sowdeti, 3 Camp. 175. See Cninleij v. HilUiry, 2 M. & S. 122. Brndley v. Gre(]ory, 2 Camp. 383. The defendant agreed to accept a sum to be paid on a day fixed, and a cotjnoi-lt for the residue; after the day passed, the money not being paid, he issued execution against the plaintiff for the wliolc amount; the jdaintiff obtained a Judge's order for his discharge from the arrest on certain terms, but which he did not act upon, but brought his action for the taking in execution beyond the amount mentioned in thecognovit, and recovered large damages; the Court, on the ground of the damages being excessive, granted a new trial. Parke, J. held that the action was not maintain- able, the .luilge's order upon being drawn up being in the nature of an agreement, and one of the terms being tliat the plaintiff should not bring any actii)n for the impri- sonment. Weiitwurth v. BiiUer, i) B. & C. 840. In an action against several, the de- fendants jileaded a former action brought by the ])laintiffs for the same cause against one of the defendants, and that he ])aid a small sum into court, upon which the plain- tiffs taxed and received tlieir costs up to that time, and uftiTwards discontinued the action, and the defendant received his taxed costs ; it was held that the issue in the se- cond action, that tlie plaintiff accepted the said sum and taxed costs in full satisfac- tion, was not proved l)y the fact of the
VOL. II.
plaintiff liuving received the costs only, and that the defendant by accepting the taxid costs had assented to thediscoutinuanee of the action. Pmrnr v. IJuicfii-r, 10 H. i: <". 329. It is not sndieient to hImw that tlie jilaiiitilF agrei'd to receive u composition, and oil the ilefendant's assigning particular (h.'bts to creditors to execute a general re- lease, anil that all the other creditors ac- cepted the comjiosition and executed tlic release, without jiroving a tender <>f the notes to the ]daintiff. Craiiley v. Ififl/in/, 2 M. .*.: S. 120, and sec Walker w Saihon'n; I Taunt. 52(i. Oinjhton v. Trnttcr, 2 N. iV .M. 71. But it would it seems be puffi- eient to show that the notes were tendered. Oiujhton V. Trotter, 2 N. & M. 71, and see Bnidley v. Gruynnj, 2 Camp. 3H3. Butler v. Ithodes, 1 Esp. C.2.30. Creditors agreed to accept payment by tlic debtor's cove- nanting to jiay to a trustee of tlieir nomi- nation one-third of his annual income; the creditors nomiiiated no trustee, and the agreement was not acted on, but it was lield that the agreement though not properly an accord and satisfaction was a good defence under the general issue, it being a new agreement with the defendant, the consi- deration of which to the creditor was fur- bearance by all tii(> other creditors. (Jood v. Cheesinlin, 2 B. & A. 320. And where an agreiiuent with cnulitors has been jiartly executed, and terms afterwards disjiensed with by a part only of the creditors, it was held that a creditor party to the agreement but not to the dispensation could not sue for his oriiiinal debt. Cock v. Soiunhr.i, 1 B. k A. 40. The plaintiff and other credi- tors of the plaintiff agreed to take a com- position of 5a'. in the pound, jiayablc by notes at four and eight months, but tlierc being a dispute between the jdaintitfs and defendants as to the balance due, the plain- tiffs promised to adjust their account with one of the defendants, and the defendants said they would do as the other creditors did ; after some dispute as to the amount, the plaintiffs' attorney offered to pay the composition on the sum claimed by the de- fendants, which was the sum really lUic; the plaintiffs' attorney refused and claimed the whole balance, and it was held that the plaintiffs, although no tender had been made, were entitled to no more than the composition u])ou tlie balance. licay v. White, 1 Cr. &: M. 746. But if the debtor wilfully prevent the creditor from receiving the beuelit of the composition, the latter is remitted to his right, (ittmird v. Wolrcr, 8 Biiig. 258. So such an agreement may 1)0 defeated by evidi'iice of fraud, r.s if the debtor wilfully withhold from the creditor informalioii respecting liis estate. Vine v. Mitchell, 1 M. & R. 337.
(i/) Dufrexne v. llntchititon, 3 Taunt. 117.
c
18 ACCOUNT. — ADMISSIONS,
An accord in resport of which a party may have remedy for a broach, is binding (z).
All agreement after action brought for an unliquidated demand, by which tlie phiintifF agrees to take a sum in discharge of the demand, is a good consideration for a promise by the plaintiff to stay the proceedings and pay his own costs (a).
ACCOUNT.
Foil the evidence to support a count upon an account stated, see Assump- sit.— With respect to the evidence in an action of account little need be said, since the proceeding seems to be obsolete. The evidence depends upon the nature of tlie plea in bar, which alleges that the defendant never was bailiff or receiver to the plaintiff, or that he has accounted, or that the jilaintiff has released him (b), &c.
Upon a plea that he was never receiver, the defendant cannot show that he received the money from the plaintiff by way of bailment, to deliver to another person, and that he did deliver it accordingly ; for he did receive the money although lie was to be accountable only conditionally, and there- fore the evidence does not support the plea (c). Neither under such a plea can he give a release in evidence (d). The burthen of proof on such a plea lies upon the plaintiff (e). Where he charges the defendant as receiver by the hands oi A., it is sufficient for him to prove that A. directed the defend- ant to borrow of another to pay the plaintiff, and that the defendant borrowed accordingly, and that A. gave his bond to the lender (_/").
ACKNOW^LEDGMENT. -SeeADlVIISSION.— FRAUDS, STATUTE OF.
ACQUITTAL. See Vol. I. P. II. tit. JUDICIAL INSTRUMENTS.
xiCTION, COMMENCEMENT OF, HOW PROVED. See WRIT.— LIMITATIONS.— TIME.
ACTS OF PARLIAMENT. See tit. STATUTE.
ADMINISTRATOR. See tit. EXECUTOR.
ADMISSIONS.
Nature of It is a matter of obvious and daily remark, how much of the materials of
admissions, evidence in ordinary practice is derived from the admissions, direct and indirect, of the parties themselves, and how difficult it would frequently be, if not impossible, to establish the truth by means of any other evidence. Evidence of this kind admits of great variety both in its nature and appli- cation. In many instances the admission is directly and eajn'cssly made with a view to establish the fact, and in order to supersede the necessity of any other proof; as where it arises upon the face of the pleadings, or is made by matter of record ; or by specialty, by which the party is estopped
(z) CartwrifjM v. Coolie, 3 B. & Ad. 701 . latter has repudiated all knowledge of such
An accord is good with mutual promises to an agreement; the presumption is tliat
perforin, although the thing be not per- none was concluded, and the former may
foruK'd at tlio time of the action. Com. sue on his original right. Smithy. Dickin-
Dig. Accoui), [B.] 4. son, 3 B. & P. 0.30.
(«) Willdnmn v. BycvR, 1 Ad. & Ell. {!>) 1 Roll. Ab. 121.
lOG; and semhle, per Littledale, J., so it (c) 2 Roll. Ab. 683. Selw. N. P. 5.
would in case of liquidated demand. A {d) Willonghhy v. Small, 2 Brownl. 24.
treaty is proved between two for the re- (e) Hob. 3G.
nunciation by tlie one of E right of action {/) Harrington v. Deane, Hob. 36. against the other; it is also proved that the
ADMISSIONS, NATURE OF. 19
from afterwards donyin}^ tlio iidniKnMl fact. In other instancon, althongli tlierc ])e no direct and exjiross adinission for kucIi a ])urposo, y<!t if ii r('|trc scntiition be made of any fact, with a view to influence tlie conduct of another, or to derive an advantage to the j)arty, and whi<di cannot after- wards be denied without a breach of good faith, sucli an admission will not only be evidence of the fact, but will usually preclude the party who hii-« nnule it from insisting upon the contrary. In such cases tiie ailmission does not operate merely as presumptive evidence of the actual truth of the fact, which must give way to positive ])roof of the contrary, but precludes, and as it were estops the parti/, on grounds of policy, from repudiating his own representation, and renders the actual truth of the fact immaterial. In other instances again, such evidence rests simply on the presumption that the party would not have admitted a fact contrary to liis own interest, unless it had been true : such admissions are frequently of the most forcible nature, as in the case of a confession of guilt by a prisoner (g). It is a most general and extensive rule, that all a man's acts and declarations shall be admitted in evidence whenever they afford any presumption against him: for it is to be presumed that he acted or spoke consistently with his knowledge of the truth. All presumptions founded upon a man's conduct may be referred to this head, for a man's acts and conduct are in- dications which frequently afford presuni})tions as strong as express decla- rations; the very silence of a party will frequently supply a strong in- ference ; as, for instance, where one makes a claim upon another, before witnesses, the justice of which the latter does not deny (A).
The admissibility and effect of evidence of this description will be con- Admissions sidered generally, with respect to the nature and manner of the admission "'•"''^ "'•'•
itself; and secondly, with respect to the parties to be affected by it. In ,.vi,i,.
the first place, as to the nature and manner of the admission, it is either made,j^r6'^, expressly with a view to evidence ; or, secondly, with a view to induce others to act upon the representation ; or, thirdly, it is an uncon- nected or casual representation. In general, aparty cannot contradict that by evidence which he has admitted on the pleadings ; nor can the jury find any fact contrary to such admissions, for they are sworn to try the matter in issue between the parties, so that nothing else is properly before them (J).
It is a general rule that what is admitted on record must be taken to be proved, and cannot be disproved {k). And also that whatever is pleaded and not denied is to be taken as admitted (/). But it seems that where a party
{(j) Vide infra, Admissions in Cri- {h) B. N. P. 298. And see Eratis v.
MINAL Cases. Ocri/vie, 2 Y. i: J. 79.
(h) See as to an admission by a de- (/) Winihush v. Tmlhnis, Plowd. 48.
fendant that Ids trade is a nuisance, R. v. 2 Liztw. 1215. 13. N. P. 298. In such case
Neville, Peake's C. 91. Admissions Im- tlie jurj cannot find to tlie contrary,
plied from the acquiescence of a party, 2 Lutw. 121 '>. But no more is iidndttcd
Neale \. Parldii, 1 Esp. C. 229. I)oe\. tiian is stated. Williams \. Sills, '2 Can\p.
Pyc, 1 Esp. C. 304. An admission tiiat a 509. Watson v. Kivtj, 4 Camp. 272.
dc(»t was not due to an insolvent wlio had Infra, tit. Covenant. Dumton v.
omitted to insert it in liis schedule, Tr^sider, i> T. R. 2. Infra, tit. Tres-
NichoUs V. Doicnes, 1 M. & 11. 13. pass. Tlie plea of non-assumi>sit does not
(i) B. N. P. 298. So tlie payment of admit any iunnatcrial allcjration in the
money into court admits the character in imhiceiiu'iit. Jiennion v. iJurisou, :l M.
wliicii the plaintitr suis, and his rii^ht to & W . ti42. Nor any title but sucli as is
recover at least to the amount of tlie money stated in tlie declaration. ^\■ here tlie de-
so paid. 4 T. R. o79. 2 T. R. 275. See claration states letters of nihninisti-ati.m
tit. Pav.micnt into Court. wiiich on the face of tiiem are void, tlio
c2
20
ADMISSIONS, NATURE OF.
Admissions in pleading admits, because he does not deny, a part alleged by the au- witli a view versary, it is not to Ije taken as if proved in evidence, so as to warrant such oeviteuce. j„fgp(>,^j,pg ^g niiglit have been made had the fact been proved in evi- dence (?//.). A plea of the general issue usually admits the title of the plaintiff to sue in the special character of executor or admiidstrator (n) ; in respect of a cause of action arising in the life time of the testator or testa- trix. In an action by a husband and wife, the plea of the general issue admits the marriage («). In an action on the case for negligent driving of a carriage by the defendant's servant to the injury of the ])laintiff's person, the owncrshi}) of the carriage and the fact of its having b(!en driven by the defendant's servant is admitted ])y the plea of not guilty (//).
An admission upon a plea does not operate as an admission with respect to the proof of an issue upon any other plea (q) • and although the form of protestations is still adhered to in pleading, for the purpose of precluding the inference (?•) that the party pleading one matter meant to admit another, they seem to be but of little use at the present day.
By letting judgment go by default the defendant admits a cause of action, and therefore he cannot after\vards insist on fraud on the part of the j)laintitf (,s). Where a plea to a count in indebitatus assumpsit is pleaded as to a precise sum, that sum, although laid under a videlicet, is admitted to be due, and must be covered in order to warrant a verdict for the defend- ant (t). So where a party has solemnly admitted a fact under his hand and seal, he is estopped not only from disputing the deed itself, but every fact which it recites (u). Thus, if one deed be recited in another, which latter
plea of tlie general issue does not admit a title sufficient to enable the plaintiff to recover. Adams v. Sdvage, 6 Mod. 134. A new assignment of unnecessary violence to a plea by the defendant of an entry to abate a nuisance, admits tlie nuisance. Picherimj v. Riidd, 1 Starkie's C. 56.
(/?i) Per Alderson, B. in Edmonds v. Groves, 2 M. & W. 642, supra. But note, that it was unnecessary in that case to decide the point. Tlie defendant pleaded, by way of set-off, that the plaintiff made his pro- missory note payable to A. C, and that the administrator of A. C. indorsed it to the defendant. Replication that the sup- posed cause of action did not accrue to tiie defendant within six years. The making of the note and the indorsement were liehl to be admitted hy the replication, and also that the defendant might avail himself of a memorandum of the payment of interest written on the note by A. C. to bar the Statute of Limitations. Gall v. Copere, 1 Ad. & Ell. 102.
(m) See tit. Executor.
(o) See tit. Husrand and Wife.
(p) Emery v. Clarlte, 2 j\Io. & Ry. 200. Tuverner v. Little, o Bing N. C. 678. Wolfe V. Beard, Q. B. cited 2 Mo. St R. 261.
{q) Vol. I. p. 3.37. Nor can a notice of set-off or particular of it. be used as evi- dence on the other side. lb. And see Miller v. Johnson, 2 Esp. C. 602. Stracy V. Blake, 1 M. fc ^V. 168. The statements ia a ])lea held bad on demurrer are not
evidence for the plaintiff on the general issue. Montgomery v. Riehardson, 5 C. & P. 247. Neither a plea nor demurrer to a bill in equity is evidence by way of admission against the defendant in another transaction. After a demurrer to a bill in equity overruled, the party may still go on and answer; and consequently the demurrer is not to be taken as an absolute admission of the facts charged. And on the same principle a plea in equity cannot be so, for it amounts merely to a state- ment of circumstances to prove that, sup- posing the facts charged to be true, the defendant is not bonnd to answer. Tom- kins v. Ashby, 1 INI. & M. 32. A plea in a discontinued action is not evidence against the defendant in another action. Allen V. Hartley, Doug. 20. A de- murrer admits those facts only which are well pleaded.
(/•) See Co. Litt. 124, b. Doct. PI. 29.5. 2 Will. Saund. 103, n. 1. Montfjomery v. Biehardson, 5 C. 6c P. 247. Firmin v. Crucijix, lb. 98.
(s) East India Company v. Glover, 1 Stra. 612.
{t) Cousins V. Paddon, 2 C. M. & R. 547. But the plea is for this purpose divisible. lb. And see Green v. Marsh, 4 Dow, P. C. 669.
(«) B. N. P. 298. See Vol. I. Ind. tit. Estoppel. Iu otlier cases, although the parties may be estopped, the jury are not. Goddard's Case, 2 Co. 4, b. ; B. N. P. 298.
ADMISSIONS, NAll'ltE OF,
21
is i/roved to be executed by tlie party, the recital will be cvitlence of the execution of the recited deed (x). In the case of Shelli-y v. Wr'u/ht {y) it was liehl that the oblij^or of a bond was estopped from averrint^ u<,'ainht the obli<,'ee, that lie had not received certain sums of money f(ir the obligee, recited in tiic condition of the bond to liave been ho received by him. Sou recital of a lease in u deed of release is evidence of the execution of sucii u lease (r). So the date of a lease is evidence that it was executed the same «iay («). But the whole of a recital is to be taken; and therefore if a jiatent 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 (//). Where ii 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 trj be evidence of the bond (c). The subscri])tion of a paper by one as a witness is not of itself proof of acquiescence in the contents {d).
So in an action against a master for not inserting the true consideration in an indenture of ap|»renticeship, the recital in that jiart of the indenture executed by the defendant, that A. li. pnt himself ;ijij)rentice, &c, is evi- dence of the fact against the defendant (c). So a grant to a corporation by a l)articular name is evidence as against the grantor, that the corporation was at that time known by that name (/). But a recital will not operate as un estoppel, or as evidence against one who was neither a party to the deed, nor claims under a party {g). Although he may claim title under a deed containing such recital (/«). Where a counsel in a cause admits a fact, even by inference, it is to be taken as proved (i).
Secondli/, there is a strong line of distinction between admissions or con- duct upon which a party has induced others to act, or by means of which he has acquired some advantage to himself, and those admissions which have been made without any reference to the matter litigated, and which are not immediately connected with it : in the former case the ])arty is usually concluded absolutely by such an admission ; as where he makes an
Ailinissions wliicli liave liccii acte<i
UJHJU.
{x) See tit. Recital. — Deed; and 1 Salk. 18G. The recital of an ancient rliarter in a inoderu one is evideuce. Per Altljott, J. Gervls v. Great Western Canal Company, 5 M. & S. 78.
(;/) Willes, 9. See also Cossens v. Cos- Kens, Willcs' R. 2-3. And see Botontan v. T(i>)h,r, 4 N. & M. 264. Rees v. Luyd, W'ijjht. li>3.
(z) Per Holt, J. Fiwd v. Grvrpj, 1 Salk. 18(5. Com. Digr. Estoppei-, [B.] 5. Crease v. Barrett, 1 C. M. & K. !)1!).
{a) 1 Salk. 4H."j. In trespass against a siu'ritt", a bill of sale, reciting tlie writ, the takiiiLf, and the sale of the c;uods, is evidence against liim of these facts. Wuvd- icaril v. Lark'uKj. 3 Ksp. C. ii8G.
{h) 2 Vent. 171. 1 Com. Dig. Evi- DKNCE, [H.] i). A recital in a l)i)nd tliat the parties had agreed to exeente a Imnd in the sum of ij(H)l. does not contine tlie lioiid to that snm if actu;illy executed in tiie penal sum of 1,0U0/. Imjlehyw Swift, :)M.&S. 488. 10 King. 84.
(f) 2 P. Wni9. 432. Marchioness of Aiinandale v. Harris.
(il) 1 Esp. C. 57. ^V'ile^c a jiarty exe- iiited a deed (for raiding money <ui an an-
nuity) reciting a will, and that the trustees liad not sold, and tliat he was iu possessiou by their permission ; held that such ad- mission was evidence to sliow that he was not till! legal owner of the estate. Doe v. Colli thred, 2 Nev. & P. Ki-j.
(c) Biirlciijh V. Stibhs, 1 T. R. 4fi."j.
( /■) Mai/or of Carlisle v. Blanure, 8 East, 4!)3.
(q) 1 Salk. 18G. Com. Dig. Eviuexce, [H.j.O. Ibid. Estoppel, [A.] 2. B.it it may be seeondaiy eviilcnee where the ori- ginal is lost. 1 Salk. 28(;. Com. Dig. Evi- dence, [H.J Tj. But it opcratts against tiiose wiio claim under tlie paitv . Fitz- ijerald v. Eustace, Bac. Ab. Ev. 047. 2 P. Wms. 432.
{Il) \ deed conveying an estate to B., but to w liieh B. is no party, recites the bankruptcy of yl.; ii. conveys the estate liy a deed wliicii contains no such recital ; tlie foiMuer deed is not evidence against B. of the bankruptcy of ,l.in a suit as to other lands. JJoe v. Shcltun, 3 Ad. & Ell. 2Go.
(/■) SI racy v. Blake, 1 -M. .t W . 1(W. .\s to admissions liy an attorney, see tiL Atiou.nev.
22 ADMISSIONS, NATURE OF.
admission for the purpose of trial (k). Where a man has cohabited with a woman, and treated lier in the face of the workl as his wife, he cannot afterwards o1)ject to a creditor who supplied her with goods, that she is not his wife (/). So where a man has held himself out to the world in a particular character, he cannot afterwards divest himself of it, in order +o claim that to which under the assumed character he is not entitled (m). A man who acquiesces several years in a commission of bankruj)t, 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 jjleading a misnomer, although he is no party to the recogni- zance (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 admis- sion in rem., by giving his promissory note, or hj 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 o-iven 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, ao^ainst the parish which granted it, and conclusive as to the parish to which it was directed (?/). 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 sub- mission 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 (t»). But the
{k) Such an admission must either be {t) Price v. Harioood, 3 Camp. 108;
proved to have been signed by the attorney and see Bass v. Clive, 4 M. & S. 13.
on the record, or by the authority of tlie (m) See Nash v. Turner, 1 Esp. C. 117.
party himself. See Vol. I. and Ind. tit. Solomonson v. Turner, 1 Starkie's C. 51.
Adjiissioxs. Vid. infra, Assumpsit.
{I) Watson V. Tlirellwld, 2 Esp. G37. (x) Stratton v. BustuU, 2 T. E. 366.
Rohimonv.Nahon, I Camp. 24:5. Munru Bensoiiw Bennett, \Odm\i.WA.. Bristoio
T. De Chemant, 4 Camp. 215. v. Eastman, 1 Esp. C. 172.
(;«.) Watson v. Thre/keld, 2 Esp. 637. (y) 4 T. R. 256. R. v. Headcorn, Buit.
Robinson v. Nahon, 1 Camp. 245. S. C. 253.
(h) Lilte V. Hon-e and Rogers, 6 Esp. C. (~) Lipscomb v. Holmes, 2 Camp. 441.
20. Flou-er v. Heebee, 2 Ves. 236. ggg Chorley v. Bolcoit, 4 T. R. 317.
(o) Harmerw Davis, I Moore, mo. /xxr •, j ,^ t. ^w -a r-^
(p) Meredith v. Hodrjes, 2 N. R. 453. («) Haviland v. Cook, 5 T. R. 6d5.
{q) DoeCi.Nepean\.Budden,b'&.&c A. (b) Goldie v. Gunstone, 4 Camp. 381.
626. See tit. Use and Occupation, Mercer v. Wise, 3 Esp. 219. Watson v.
and tit. Ejectment. Wace, 5 B. & C. 153. Seeus, if he make
(?•) Doe d. Eyre v. Lambley, 2 Esp. C. the admission merely in a transaction with
636. tliird persons. Heane v. Ro(jers,i) B. &C.
(s) R. \. Justices of Carmarthenshire, 577. 4 B. & Ad. 563.
ADMISSIONS, NATURE OF.
23
mere surrender of the bankrupt is notsuttieient, ljecau??e it isconipulsDry (r). The tact that a jjarty lias proved a debt under a coniiuission orbankrn|)t i-, not even jrriinu facie evidence, in an action by the assignees of the baiikru]it ai^ainst tliat party, of the requisites to snjjport the eoinniission (^7j ; for a credit(jr has not the means of kno\vin<f wliat was the evi(U;nce upon wliich the ]tarty was declared a bankrupt; and by proving tlie debt he at nio-t gives credit to the jjetitioning creditor, ami the commissioners, tliat thr former has not sued out a commission, nor the latter declared the party bankrupt, without ])roper grounds (c) ; and it is not reasonable that lu- sliouid 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. Sucii admissions (/'), though they be conclusive, are not estoppels in the strict and technical sense, which, to be conclusive, must be pleaded ; but are conclusive uj)on the evidence, on the principles of good sense and sound policy {(/).
Thirdli/. Where the admission or declaration is quite foreign to the ques- Collateral tion pending, although admissible, yet it is not in general cuncluswe evi- aflmissions «lence ; 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 in- duced 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 (/<). Proof tliat B. has dealt with A. as the farmer
(r) Per Ld. Ellenborough, 4 Camp. 382. Neither is lie precluded by a petition to the ('hancellor to eiilarije the time of siir- reiiderinu:. Mercer v. Wise, 3 Es]). C. 'illJ. Nor Iiy an api)lication to a commissioner to ap))oint an oiiieial assij^nee. Munk v. Clarke, 2 Bing. N. C. 2UU.
(d) Ranhin v. Horner, 16 East, 191. Sfeirart v. Riehinan, 1 Esj). C. 108. It had before been licld, that the ))roving a debt under a coniniission of a bankrupt extopped the jiarty from afterwards dis])uting it. Per Lord MansHeld, Wnlker v. Newell, cited 3 T. R. 3-2-2.
(t) Hiinldn v. Horner and another, ] G East, 191. But see Malthij v. Christie, 1 Esp. C. 340. Walker v. Burnell, Dougl. 303; 3T. 11. 321.
(./■) See further Vol. II. tit. Pkesump- TiON. An executrix who uses the tes- tator's goods as her own, and afterwards as her husband's, cainiot object to their being taken in execution for the husband's debt. Qnick v. Staines, 1 M. & P. 293. See tit. SiiKKiFF. \ petitioning creditor cannot dispute the debt in an action by the assignees. Hurmer v. Davis, 1 Moore, 300. A distress on one as tenant is evi- dence of the tenancy. Lord Falmouth v. Sn-ann, 8 1$. & C. 4,J9. Wlier.' A. B. ex- ecuted a warrant of attorney in the name of C. a., held that judgment was properly entered up, and a _/7../«. issued and exe- euted against him, by that name, lleeces \ . Slater, 7 13. 5: C.'873. The obligor of
a bond represented to a purchaser that it Wits a valid instrument, and would be paid when (hie; he cannot afterwards set up as a defence that it was void, as having been given for a gaming debt. Davison v. Franklin, 1 B. & Ad. 142. One of a com- mittee of a company empowered by Act ol Parliament to carry on certain works, is not estopped by having joined in makinu calls on subscribers, or by j)aymeiit of calls, from disputing tlieir validity, if ille- gal ; for such calls being against law, no person could be misleil. Stratford and Moreton Jlaihray Company v. Strattun. 2B. &Ad. ol8. A relator who did nnt C(aicur in the election of the defendant, although he appeared afterwards to liavi acted and attended corporate meetings with him, may still sustain the a]iplicatioii for a quo warranto, li. v. lienney, 1 B. & Ad. {i84; and see R. v. Clarke, 1 Hust, 38. Secus where he had concurred in the election of OtIuTS at tlie time when the same oiyection to tlu; title of tlie elected, and of wliich he sought to avail himself ou tile motion, was made and overruled. R. v. Parki/n, 1 B. & Ad. 090 ; and see R. \ . Si/mdnds, 4 T. R. 223. R. v. Mortlock, 3't. R. 300.
((/) !?ee ilie observations of Abbott, L. C. J., 5 B. & C. 15o.
(//) 15urr. 20r>7; 2 Wils. 399; and Lord Kllenborough's observations, 1 M. ..^ S. ()3G.
c i
24 ADMISSIONS, NATURE OF.
Collateral of tlie post-horse duties is evitlenre in an action ])y A. against B., to prove
admissions, that he is so (i). Upon an indictment under the 27th of Eliz. for remaining
in tliis 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 (I). In an action for not setting out titlies, proof that the defendant has paid tithes to the plaintiff is evidence of his title to receive them (m). An acknowledgment by the de- fendant that his trade is a nuisance, is admissible, although not conclusive evidence against him, upon an indictment for setting up bis trade at another place (n). Proof that A. B., as the proprietor of a newspaper, had given security for the ])ayment 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 descrijition 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 (q).
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 J.. B. was a bankrupt (r). In an action for slandering the plaintiff in his pro- fession 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 bank- ruptcy, proof of his submission to a commission was held to be evidence of bankruptcy without proof of anj^ 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. 67. Accounting- with one as farmer of the
And see Peacock v. Harris, 10 East, 104. tolls of a turnpike, who has assumed that
Lister v. Priestley, Wightw. 67. character by consent of those concerned,
(Jt) It. V. Kerne, 2 St. Tri. 694. H. v. estops the party from disputing the validity
Brommich, 2 St. Tr. 966. of his title, when suing by account stated
(Z) Bevan v. Williams, 3 T. R. 635. for those tolls. Peacock v. Harris, 10
(in) Per Lord Kenyon, 3 T. R. 635 ; East, 104. In an action against overseers,
4 T. R. 867, per Buller, J. acts done by them in that capacity are
(n) B.. V. Neville, Peake's C. 91. evidence of their being overseers. Mer-
(o) B. V. Topham, 4 T. R. 126. rilVs Lessee v. WhiteclmrcJi, Salisbury
(;;) B. V. Gardner, 2 Camp. 513. assiz. 1817. But they are not concluded
(q) Ibid. by the acts of former overseers, without
(?•) Maltby v. Christie, 1 Esp. C. 340. regular proof of their appointment. Or
Booth V. Coioard, 1 B. & A. 677. Inglis by the act of a co-defendant previous to
V. Spence, 1 Cr. M. & R. 432. So where the commencement of his overseership.
the defendant, with a view to a commis- {t) Doe v. Hodgson, cor. Abbott, L.
eion, made affidavit that the party had C.J. Sitting after Easter T. 1823.
become bankrupt. Ledbctter v. Salt, 4 (?/) B. v. Clarke, 8 T. R. 120. So a
Bing. 623. return under the stat. 1 & 2 G. 4, c. 87,
(«) Berripnan v. Wise, 4 T. R. 366. of corn in the possession of a party, as
Pearce v. Whnle, 5 B. & C. 39 ; and see sold and delivered to B., docs not pre-
Vol. II. tit. LlBEJ>. In a (fd tarn action elude him from showing that it was deli-
against a collector of taxes, it is not ne- vered to D. on account of B., but that B.
cessarj' to give in evidence Jiis warrant. was not to have possession before payment.
Proof that he has acted as collector is Woodlcy v. Brown, 2 Bing. 527.
sufficient. Lister v. Priestley, Wightw. {x) 3 Camp. 13.
ADMISSIONS, NATIJHE OF. 26
tlio ndmittance is evidence of the devise against the lord, although it wouhi ColJ- u- I not have been so against the heir {y). julmisBiouB.
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 tlie party solieited had a right to vote (z).
In tlie case of Morris v. Miller (a) it was hehl, tliat, in an action for rriiniiuil conversation, an admission by tlie defendant that he had committed adultery with the wife of the jdaiutiff 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 lie ha<l lain with the j)luintift''s wife, would not be sufficient alone to convict him in that action ; but if it were jiroved tliat the defendant had seriously and solemnly recognized that he knew the woman he had lain with was the plaintift''8 wife, we think it would be evidence proper to be left to a jury, without proving a marriage."
Answers in Chancerj', 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 oljjec- tion 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 bj'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 authen- ticated and proved in a formal and solemn manner, and the existence of the fact includes legal considerations not likely to be understood by the jfarty, better evidence than his simple oral admission is frequently required ; as, where a prisoner upon an indictment for bigamy has admitted the former marriage (f) ; for this, it has been held (g). does not supersede the neces- sity of formal proof of the first marriage.
A mere voluntary affidavit is evidence against the party who makes it as a confession (//). So, as has been seen in some cases, a bill in equity is evi-
(ij) Lord Raym. 735. the lessor of the plaintiff in ejectment that
(z) Coombe v. Pitt, Burr. 1586; and he has assigned a lease is evidence of the
Rif/ff V. Cuvfjoivev, 2 Wils. 395. In botli fact. Doe v. Watson, 2 Starkii's C. 230. those cases the hribee was admitted to (<■') Doe v. W<itso7i, 2 Starkie's C. 230.
vote, which was Iicld to be the strongest But a party's admission of liaving exi'-
cvidence of liis right to vote ; but Lord cutcd a bond does not supersede the ordi-
Mansfield and the rest of the Court (Burr. nary proof. Abbott \. Plunibc, Doug.
1500), hehl expressly, that a man wlio 205.
had given money to anotlier for his vote (/) See tit. Polygamy. So where the
should not be admitted to say that he had plaintiff in assumpsit bad admitted his
no vote. discharge under an insolvent act, whieii
(«) Burr. 2057. Qu. whether this is the was set up as a defence. See 3 Camp. i:M3.
same with the case cited 2 Wils. 39!), un- So an admission by the pluiiitifi' at a
dcr tlie names of Dr. Smith v. Miller ? tavern that he had been diseliarged as an
(b) 2 Wils. 390. insolvent was helii to be inconelusive, as
(c) Supra, Vol. I. tit. Judicial In- comprising matter of law as welhis of fact. STKUMENTS. Suiiiiiierset v. Ailanison, 1 Biiig. 73.
{d) Per Le Blanc, J., Call v. Dunning, (y) By Le Biane, J., York Assizes.
4 Kast, 53 ; Abbott v. Plumh, Dougl. 205. (//) Style, 440. Sticli.rvrcl v. Sac/unnl,
But it has been held, that a declaration 1)V Bac. Ab. Ev. 028. An answer to u bdl ni
26
ADMISSIONS, NATURE OF.
Indirect admissions.
(lence against tlie roTnjjlainaiit (/). So u paper written by a defendant, though signed by a third ])erson, is evidence against him (A).
In general an admission may be presumed, not only from the declai-ation 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 encroach- ments, and call for resistance and opposition, are evidence, as a tacit admis- sion that such acts could not legally be resisted (/).
AVherc notice to ([uit is served jjcrsonally upon a tenant, and he makes no objection to the time specified in the notice, his prima facie evidence of ad- mission 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 exjjressions and acts which afford but remote and weak presumptions as to the particular fact in (juestion ; 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 jnirpose, as it is usually termed, of buying peace, is not allowed to be taken advantage of for the purposes of evidence,
Cliancery filed against the defendant by a stranger, may be read to show the ad- mission of a particular fact, tliough it is not evidence of a judicial proceeding. Grant v. J"acfcow, bart. and others, Feake's C. 203. An answer in Chancery, stating that the defendant " believes that H. M. was possessed of the leasehold premises mentioned in the bill," is evidence against hun in an action of ejectment brought by the executor of H. M. to show that the testator had a chattel interest in the pro- jjerty. Doe d. Dighy v. Steele, 3 Camp. 115. The holder of a bill overdue gives in a blank schedule under an insol- vent act. This is not such an acknow- ledgment that the bill has been satisfied as will discharge the defendant, the ac- ceptor. Hart v. Neioman, 3 Camp. C. 1 3. See R. v. Feversham, 8 T. R. .352. A let- ter by a party, in whicli he speaks of a ship as his own ship, does not conclude him from showing that he used these ex- pressions as agent to a third person. Tul- loch v. Boyd, Holt's C. 487. In assumpsit for a copyhold fine, the defendant is not estopped by the rent reserved by him on the pri'niises from showing the real value. Lord Verulani v. Howard, 7 Bing. 327, and 5 M. & P. 148 ; and see Halton v. Hassell,2 Str. 1042.
{i) Vide aide, Vol. 1. Ind. tit. Judicial Instuumej?ts.
Qi) Alexander v. Broivn, 1 Carr. 288.
(J) See the observations of Abbott, Ld. Ch. J. in Steel v. Prichett, 2 Starkie's C. 471. If -1. Iiaving title to premises in the possession of J3., sulfer JJ. to make altera- tions inconsistent with such title, it is evidence to go to a jury of recognition of
A. of the right of B. J)oe d. WincMey v. Pye, esq. Principal of Barnard's Inn, 1 Esp. C. 304. 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 Terra, 1823, cor. Abbott, L. C. J . The drawer of a dis- honoured 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. 7\.lthough 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 im his statement; for in such proceedings a ngularity and order of proceeding is adopted which pre- vent 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. Andreics, 1 Mood. & M. 33G.
{m) See E.iectment by L.vxnr.ouD.
[n) Thomas d. Jones v. Thomas, 2 Camp. 559. Doe v. Forster, 13 East, 405. Doe V. Briggs, 2 Taimt. 109.
ADMISSIONS, NATUni: OF, 07
sirico tlio offer may have rf.'sulted, not from a conscioufsncss of the truth of
llic claim, but a desire to avoid litijjatioii(«). And, therefore, where it uj»-
pears to be probable that such was the motive, the evidence i» not admis- *
Hible(7;), But the offer of a sum of money by way of compensation is ad-
niiKsible, unless it be accompanied with a notification that it is made witiiouf
prejudice, or is confidential (</).
So an admission made conditionally, where the condition has not I)een r..n<Jitioiiul perfornn'd, or with reference to particular circumstances, or to the particu- a<i"«"»ioai). lar state of the jdeadings, &c., is not admissible in evidence under different circumstances. It was once held, that admissions made upon a refen;nce which turned out to be ineffectual, were not afterwards admissible ; but Lord Kenyon said, in a subsefpient case, that this was fToins^ too far, and that he should receive all sucii admissions as tin; i)arty would be compelled to make by a bill of discovery (rj, and the arbitrator may be called as a wit- ness to prove them.
An afjreement to admit a fact on the trial applies to every trial which the Court may direct (n).
Admissions by a bankrupt upon an examination before commissioners rompul- are evidence against him, although he might have demurred to the ques- »<»ry lulmU- tions(^), because they might subject him to penalties. And so it seems are ■*'""*•
(o) 3 Esp. C. 1 1 3. B. N. B. 23G 1 Esp. C. 14.3.
(p) And therefore it is said, that if A. sue B. for 100/., and J3. offer to pay 20/., it sliall not be received as evidence, for tiuit neither admits nor ascertiiins any di'ht, and is no more tliun sayiujj hewouhl give 20/. to get rid of tiie action; but tliat if an account consist of ten articles, and U. admit that such a one is due, it will be good evidence for so much. Peake's Ev. 19, citing Bull. N. P. 230. In the case of Waldridije v. Kennison, 1 Esp. C. 143, Lord Kenyon is stated to have held, that an admission or confession nuule pending and under the faith of a treaty, and into wliicli the ])arty might have been led by the confidence of an expected compromise, could not be given in evidence to his prejudice; but tliat, under such circumstances, the admission of a fact, such as the handwriting of the party, ■which was not comiected with the merits, might l)e received in evidence. Tlie rule docs not extend to an offer to refer, for that is not a concession for tlie purpose of peace, 'Thomas v. Austen, 2 D. & R. '3f)i) ; nor to a treaty whieli is con- cluded, Frofjwell v. Llewellijn, 8 Price, J 22.
(7) Wallace v. Small, M. & JI. 44G. Hill V. Elliott, 5 C. & P. 436. Watts v. Lawson,l\).AAl. The rule is a])plicable only to treaties for the purjjose of ending suits which are not eventually !)rougbt to a conclusion ; but does not api)ly to agree- nu'uts perfected and executed, altliougli the subject-matter and objects of such agreements may be ii compromise of i)re- vionsly existing dili'ereiiees betwciii the parties. Fnn/seH v, Lcwclyn, D Pri. 122.
The defendant was sued for work done on premises in the occupation of his tenant ; and upon an interview betwecai theijlaintifT and his attorney, the defendant and his tenant, it was agreed that tlie tenant out of the rent should pay the debt (wliicii he accordingly did), and that the defi-ndants should pay two-tliirds of the costs ; this not being done, the jjlaintiff proceeded in the action. At tlie trial be failed in prov- ing tlie defendant's liability for the work, but relied on the an~angement so made as an admission of the debt. Ilehl (per Lit- tledale and Ilolroyd, J. J., diss. Bajley, J.) that, if even it were admissible in evidence, as being u|)on a negotiation for a compro- mise, it did not sliow an original rigiit of action, although it might iiave been evi- dence to support a new ground of action on that agreement. Lofts v. Hudson, 2 M. & lly. 481.
(/•) Slack V. Buchanan, Peake's C. 5. Gregorij v. Howard, 3 Esp. C. 113. JJoe v. Evans, 3 C. & P. 21!). Turton v. Bin- son, 1 P. Wms. 41)0. Harinan v. Van- hatton, 2 Vern. 717. Wentlake v. Collard, B. N. P. 23G.
(.s) Elton v.Larliins, 1 Mo. & It. VM. Altiiough the attorney of the i)arty ntnict it before the new trial. Buc v. Bird, 7 P. A: C. G. So a special case si'ttlid on one trial, has been admitted as evitleucc on a second. Van Wart\. Wolley,K.Sc. M. o.
(/) Smith v. BcadnaU, 1 Camp. 30. Stochjlcth v. Be Tastet, 4 (.'amp. 10. (iil- linij V. Summerset, cor. .Abbott, Ld. C. J. \Vest. Sitt. aftir Midi. 1H23. Jinlmm \. Mcnindcr, 1 \i. ic I'. 418. AlthougU (lart onI.\ of wlint he ^wore was taken down, hilicard v. Furhet, 4 Esp. C. 172.
28
ADMISSIONS BY PARTIES.
By a ])arty to the re- cord.
all answers made by a witness in examination in a court of justice, although he might have oltjoctetl to answering the questions (?<). So is evidence given l)y the party in court, altliougli he had no ojjjjortunity of entering into an explanation of the circumstances under which the fact took place(ar). So is evidence given under comjjulsory authority before a committee of the House of Commons {y). But a compelled admission is not evidence of an account stated {z). But it will be seen that admissions or confessions ex- torted hy any kind of duress or threats are not evidence in criminal cases.
The admission oi ti party on the record is evidence, although he be but a trustee for another, and although it appear from the admission itself that he is such (ff). And, therefore, an admission by the obligee of an assigned bond, in whose name the action must necessarily be brought, is evidence to bar the action {h). And in an action by the consignor of goods, on behalf of the consignee against the captain, it was held that a letter written by the plaintiff was evidence against him (c).
And an admission by one who sues as the assignee of a bankrupt, made before his appointment of assignee, is inadmissible against him in that cha- racter {d).
But the admission by a guardian, although he be the plaintiff on record, is not evidence against the infant (e) ; nor can the answer of the guardian in Chancery be read against the infant {f).
In settlement cases, all declarations by rated parishioners are evidence
It has been held that a bankrupt is com- pellable to answer questions by commis- sioners, on examination, whicli may sub- ject him to penalties for gaming or trading as a smuggler, or being a clergyman. Ex parte Meynolt, Atk. 200. Ex jmrte Ban; Cooke, 200. And that one who Las money of the bankrupt's in his hands, must account for it, though he may sub- ject himself to penalties. Exjjarte Syines, 11 Ves. 521 Where tlie examination of the defendant is 7;Hm«_/acie admissible for the plaintiff, the opposite party caunot interpose evidence to qualify or show that it was inadmissible, but it ought after- wards to be given as part of the defendant's case.
(m) Infra, 28.
(or) Collett V. Lord Keith, 4 Esp. C. 212.
(?/) B. V. Merceron, 2 Starkie's C. 366.
(r) Tucher v. Barroic, 7 B. & C. 62.
(a) Bauennan v. Radenius, 7 T. R.663. This was an action by the plaintiffs, who were the shippers of goods on behalf of Van Dycke & Co., against the defendants, for the damaging of goods in the course of tlie carriage ; and the question was, wliether a letter from the nominal plain- tiffs, from which it appeared that Van Dycke &; Co. were the real plaintiffs, and had indemnified them, could be read, in order to prove an admission that tlie de- fendants were wholly free from blame. The evidence was rejected upon the trial ; but the Court of K. 13. were afterwards of opinion that the evidence ouglit to liave been admitted, on the ground that the plaintiff in a cause must be considered as
having an interest in the action ; and Lawrence, J. observed, that he had looked into the books, and could not find one case in which it had been lield that an admission by the plaintiff on record was not evidence. See Gibso7i v. Winter, 5 B. & Ad. 96; Salk. 260. Paj/ne v. Rogers, Dougl. 407, where the tenant, a nominal plaintiff, having given a release to the de- fendant, the Court ordered it to be given up on an application by the landlord. See Craib v. IJ'Aeth, 7 T. R. 670, in note. In Buller's N. P. 237, it is laid down, that the answers of a trustee can in no case be admitted as evidence against a cestui que trust.
{b) Craib v. D'Aeth, 7 T. R. 670, in the uote.
(c) 7 T. R. 668. See note (a).
(d) Fenwick v. Thornton, M. & M. 51. {e) Eggleston v. Speke, 3 Mod. 258.
Cowling v. Ely, 2 Starkie's C. 366. See James v. Hatjield, 1 Str. 548. So an ad- mission by a prochein and is not evidence against an infant. Webb v. Smith, 1 Ry. & M. 106. It was held by Lord Eldon,in JDavies v. Ridge, 3 Esp. C. 101, that in an action against two trustees, an admission by one that he had trutst property in his hands was not evidence of the fact against the other.
(/) Eggleston v. Speke, 3 Mod. 258, For by the opinion of the Court of K. B., on being consulted Ity the Judges of C. P., upon a trial at bar, the answer of the guardian is but to bring the infant into <-ourt. See Carth. 79 ; 2 Vent. 72 ; Lord Itayni. 312; Prec. Cii. 229; 1 P. Wms. 344 ; 3 Due. Ab. 148 ; 3 Bro. P. C. 1.
ADMISSIONS BY TIIIUD PERSONS. 20
afTdinst tlifi parish, for tlipy am parties to tlie cause (jj). Ami it is not necessary to show ])reviou8ly tinit the party has refused to he exaniineil (/i). *
But an admission hy a corjjorator is not evidenee in actions agrainst tlie corj)oration (i), unless it he nnide in an official ca])acity.
So the admissions of the party really interested, although he l)e no jiarty Hy ].:irt\ in to the suit, are evidence against him ; for the law, with a view to evidence, iiit'n-»i. regards the real parties. Thus, in an action upon a hond conditioned for the payment of money to /,./)., it was held, tliat the declarati(jn of Z. D. that the defendant owed nothing, was evidence for the latter(A). So in an action on a bill of exchange, for the benefit of another (/). So the declaration by the under-sheriff, in matters relating to the execution of the office, is evidence against the sheriff, since he is the responsible person (m). So it is where the party interested indemnifies a party to the record (h). So in actions upon policies (o), the declarations of the parties really inten-sted are admi-;- sible. So, in an action by the master forfreiglit, is the dcclarati<m of the ship-owner (p), where the action is brought for his benefit. So win n- thr; party in the action is indemnified hy another ; as when the sheriff is in- demnified by a third person, the declarations of that person are evidence against the sheriff (//). Where a defendant in trover for a deed admitted that he detained it on the request of another, it was held that the declarations of the latter were properly received (?•).
An admission or declaration by a third person is, upon principles already Hy tliini adverted to, in general inadmissible. It ceases to be so, where the ])arty P*^'"'"""*- making such admission or declaration can be considered as identical in interest and authority with the other, or to be his mere instrument or agent; since, if a man authorize another to make a declaration, it is the same tiling in reason and in law as if he had made it Iiimself.
Where a party refers to another for an answer on a particular subject. By nn the answer is, in general, evidence against him, since he makes the referee at''""'- his accredited agent for the jmrpose of giving the answer. The defendant in an action for goods sold and delivered, said, "If CVw;wfs will say tliat lie
(g) It. v. Whitley Lower, 1 M. & S. debt did not amount to 100/., was admi'<-
fiSO ; 11 East, 578. R. v. Wobitrn, 10 sible in evidence. Seealso 1o«h(/ v. A'//////i,
East, :V,).'i, 40'2. And therefore a rated 6 Esp. C. 1'21.
inhabitant could not be examined by the (o) In Bell v. Ansley, 16 East, 14.3,
adverse party. But now see the stat. Lord Ellcnborougli observed, tliontfli an
54 Geo. 3, c. 170. action on a policy uiiiy be brouj^lit in the
(A) 1 M. & S. nnn. name of tiie person wlio effected it, tliouirh
(i) Mdi/or of Lo)iil(in V. Long, 1 Camp. lie Ix; not the jitTson actually intercsti'd,
22. Mayor of London v. Jollijff, '2 Keb. yet tiie persons interested are so far looked
295. Lord Dorset v. Carter, 3 Keb. ;]00. upon as parties to the suit, tluit the deela-
R. v. City of London, 1 Vent. 351 ; 2 Lev. rations of any of tlieui are received as ad-
231 ; 1 Vent. 254 ;2 Vern.351. Videetiam niissible evidence against tlie plaiiiliir,
Dufie V. Aldridge, 11 East, 584, n. ; 7 and what would be a defence a£;ainst tliem
T. R. 0(15. Infra tit. Pakties. would, in many iustiinces, be a defence
(A:) Hanson v. Parlter, 1 AVils. 257. against tlie i)laintirt".
(/) Wehtead v. Lcry, 1 Mo. & 11. 138. (/>) Smith v. Lyon, 3 Camp. AC^^t.
So as to the declaration of a ])arty from (</) Duke v. Alilridije, cur. Lord Mnns-
whom the ])laintiff received a bill or note field, cited in liauernian v. liudcniiif, 7
where evidence, Beaucliamp v. Pacy, 1 B. T. 11. G(>5. Supra, notes (//i) and (;i). & Ad. 89. (/•) Harrison v. Vallance, 1 Biug. 4.J,
(/;() Yabsley v. Doble, Lord Raym. 190. and see Rohson v. Andrade, 1 Starkie's C.
(/() iJoicdcn V. Fou'le, 4 Camp. 38. 372. But yet the mere fact tlait a party
The acticni was brouglit a'>ainsttlic slieritf has acted as tlie agent of anotlicr, is imt in
for a false return, ami was defeudeil by the general sullicient to let in evidence of tli<'
assignees of the execution debtor; and it declarations of tlie ))rincipal, unless lie has
wns held that the declaration of one of indemnified the agent. Tliusa dc-chiration
them (being petitioning creditor), that the by a party under whom a defendant in re-
30
ADMISSIONS BY THIRD PERSONS.
did deliver the goods, I will pay for them." Upon the trial it was proved that Coomes, on application to him, did say that he had delivered the goods, and the evidence was held to be admissible (.«). So where an executor referred a creditor of the testator to J. S. for information concerning the effects of the testator, it was held that an admission of assets by J. S. was conclusive upon the subject (<). So, in general, what an agent says, who is employed by another to make a proposal for him, is also evidence against the latter (z/). So an admission by an agent, in the course of transacting the business which he is appointed to perform by the principal, is, in general, evidence against the principal (x). But in such case it is necessary to prove the authority, either expressly or impliedly, as by showing what the usual mode of dealing has been (y) ; for an agent cannot bind his principal, either by act or declaration, beyond the scope of his authority (z).
But it seems to be a general rule, that what an agent does or saj^s within the scope of his authority, is binding upon the principal, whose instrument he is ; so that not only an agreement made by an agent is binding upon the principal, but so are all the declarations of the agent at the time, which in any manner affect or qualify the nature of the agreement (n) ; but what the agent says at another time, and of his own authority, is not evidence against the principal.
The act or admission of an under-sheriff accompanying official acts, is, in general, obligatory upon his principal, the sheriff, because he is notoriously the agent of the sheriff for transacting all that appertains to the office, and he indemnifies the sheriff, and consequently by his admission charges him- self (Z*); but the authority of a bailiff, who is not the general officer of the
plevin makes cognizance, is not evidence for the plaintiff. Hart v. HorJie, 2 Camp. 92.
(s) Daniel v. Pitt, 2 Camp. 366, in note, cor. Ld. Ellenborough. And see Stevens \. ThacJier, Feake's C. 187. Ga?-- nett v. Ball, 3 Starkie's C. 160, 1 M. & W. 438. 441. The plaintiff's horse having been injured through alleged neg- ligence on the part of the defendant, in not fencing a shaft, the defendant agreed to pay if a miner jury would say that the shaft was his ; held that their so finding was admissible but not conclusive evi- dence for tlie plaintiff. Sybray v. White, 1 M. & M. 435.
(t) Wdliams v. limes, 1 Camp. 364. If a party declare that he will be bound by the oath of a third person, and that person makes the oath accordingly, it is binding. Per Bayley, J., Trin. T. 182o ; and see Lloyd v. Willan, 1 Esp. C. 178; Godbolt, 291; 21 Hen. G, fo. 31, pi. 17. ^. takes a forged note from B. ; on its being returned, B. says he received the note from C, to whom he refers A. for infor- mation. C's statement is evidence against B. ; Brock v. Kent, 1 Camp. C. 306, n. Tile holder of a bill agrees not to sue the drawee, provided the latter will make an affidavit that the acceptance is a forgery. If the affidavit be made, though false, the holder is concluded, Stevens and another v. Thacher, Peake's C. 187. See Brayne y. Bcal, 3 Lev. 240, 241. The defendant, in reply to inquiries respecting the account,
referred to a party who he said was pos- sessed of his sentiments, and referred the inquirer to him thereon ; held to be a suffi- cient acknowledgment of him as an agent to make his declaration as to the account binding, Hood v. Reeve, 3 C. & P.,532. And see tit. Agext.
{u) Gainsfordy. Grammar, 1 Camp. 9 ; and where the agent was tlie attorney em- ployed by the party, an authority for making the proposal was presumed. Ibid.
{x) For the cases relating to this point, and the various distinctions upon the sub- ject, see tit. Agent.
iy) Ibid. And see 7 T. R. 088.
{z) Fenn v. Harrison, 3 T. R. 757. A. being the agent of two companies, B.&cC., makes an admission as the agent of B. ; this is not evidence against C. ; Guthrie v. Fisher, 3 Starkie's C. 151 ; and see tit. Limitations; and Atkins r. Tredcjold, 2 B. & C. 23.
(a) See Agent. And see Palethorpv. Furnish, 3 Esp.C. 51 1 ; Helyarv. Hawke, 5 Esp. C. 74; Peto v. Hufjue, 1 Esp. C. 135; Alexander v. Gibson, 2 Camp. 555. Action against ^4. and B. as owners of a ship ; an undertaking to appear for them, given before the commencement of the action, by tlie person who subsequently acted as their attorney in defending it, iu which he describes them as owners, is evi- dence of ownership. Marsliall v. Cliff, 4 Camp. 133.
{b) Yabsley v. Boble, Lord Raym. 190.
ADMISSIONS IJY TIIIIID PEKSONS. 31
sheriff, must be proved in every particular case, and then liis declarations ill the course of his agency arc evidence (c). In B'ujgs v. Lawrence (tl), it was held ut Nisi Prius(e), tliat where A. had ordered floods of Ji., to he delivered to C, an U(;knowIedgnient, in the haiid-writinjj of C, of tiie delivery, was evidence against A.(f). liut the sanie point was frerpiently ruled dificreiit]\ hy Lord Kenyon(//); and the case was afterwards decided uj)on anotlur ground, viz. the ilh;gality of the contract. And the admission of tiie under- sheriff is not admissible unless it accompany an official act, or unless he charge himself, being in fact the real party in the cause (h).
A community of interest or design will frequently make th(! declaration rommunitv of one the declaration of all. Thus in the case where partners, or others, of intt-rfst. possess a comnmnity of interest in a particular subject, not only the act and agreement, but the declaration of one in respect of that subject-matter, is evidence against the rest(j). The admission of one of several makers of a joint and several promissory note, that it has not been paid, is evidence against all (/r). Such an admission, however, ought to be clear and unef|ui- vocal.
A declaration by one partner, concerning a subject of joint interest, is Partner, evidence against another, although the former be no party to the suit. Thus in an action against some of the members of a firm, the answer of another person, ])roved to be a ])artner, was admitt. d in evidence as an admission against all (/).
An admission by one partner, after the dissolution of the co-partnership, is evidence to charge the other partner (»«) ; but a declaration made by one of two partners during an existing co-partnership is not evidenc^e to bind his partner as to a transaction which occurred previous to the partner- ship (h), unless a joint responsibility be proved as a foundation for such evidence (o). So a declaration male by one partner that he contracted on his own sole account, is evidence against all the partners, to the e.xclusion of their joint action (p). Entries in a book kept by the clerk of an incor-
(c) North V. Miles, \ Camp. 389. Sow- ticular fact known to liave occurred, but to sher v. CalUj, 1 Camp. 391. See tit. prove the criA-totre of the act itself. Sheriff. (j/) See 7 T. R. 008: Dougl. lo\.
(d) 3 T R 454 ^''^ Snowball v. Goodrich, 4 U & Ad.
o41 • (c) By Buller, J. (i) n East, 589, per Le Blanc, J. Where
(_/') The case is wrongly abstracted in a suit is jiending afjainst a great numl)cr
tlu' marginal note, 3 T. R. 4o4 ; the agent of persons who liave a eomnion intenst in
was not employed to buy goods, Qu. the decision, a declaration maile by one of
whether tlie receipt was given at the time tlioso persons conceruiug a material fact
of tiie delivery ? In tlu^ case of fV/t/7/t' v. within iiis knowledge, is evidence against
Jldxfi/H/.i, 10 Ves. jail. ]'i3, this ])oint was Iiim and all the other parties to the suit,
treated by tlie Master of the Ktills as a See tit. Ahatement; Lucas and ut/iirs
very material one. It is diHicuIt to con- v. De la Cour, 1 M \' S. •J4'J. ceive how any authority to a person to re- {It) Wliitconib v. \Vhitinij, Doug. OoO.
ceive goods for anotlier can make the mere (/) Wood v. Brnddick, 1 Taunt. 104.
admission of tlie latterevidenee against the Grant v. Jachwu, Feakc's C. 203. NicIioIk
owner. No such authority is necessarily v. JJowdimj, Starkie's C. 81 ; and see
to be im])licd, nor will the fact that it was Keinblc v. Farren, 3 C. & P, O'l'd. See tit.
made agiiinst the interest of the i)arty re- Limitation.s. — 1'autxeus. cei\ing, make his receipt or declaration (m) Wood v. liraddicli, I Taunt. 104.
evidence, where his testimony may be had ; (/*) Catt v. Howard, Ciuildliall Sittings
neither, as it seems, will the cireumstanee after Ilil. T. 1820, cor. Abbott, L. I". .1.
that the receij)! was given at the time of 3 Starkie's C. 3. Pritchiird v. Draper.
delivery, make any material difference in I Russ. & M. 191. principle, for such evidence would be ad- (o) Ibid,
mitted not to explain the nature of a par- {p) Lucas v. De la Cour, 1 .M. .v •■^.-■t'J.
32 ADMISSIONS BY TIIIUD PERSONS.
porated company were held to be iriiidinissible against a member of the corporation in an action on a contract with him, although the act of incor- poration directs the clerk to keep such a book ; for the ground on which partnership l)ooks are admissible in evidence against partners is, that they are ))ooks kejjt by themselves, or by their authority ; but the clerk of the coni])any, 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 affi- • davit 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). By a wife. 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 evi- dence (f). So where wages had been earned by the wife, it was held, that her admission of the receipt of 20 Z. 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 (z), her declarations are like those of any other agent; accordinglj^, the admission of the wife as to an agreement for suck- ling 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 \. The Manchester and Salford husband and wife cannot be read in evi-
Watenvorks Coinp., 5 B. & A. 8G6. dence against the wife. Hodson v. Merest,
(/•) Vicary's Case, Bac. Ab. Ev. 623. 9 Price 556. In an action by the husband But an admission by one part-owner of a and wife to recover a loan by the wife, ship does not bind another part-owner. dvm sola, a declaration by her during co- Jagcjers v. Binn'mgs, 1 Starkie's C. 64. verture was held to be inadmissible. Kelly And it has been held, in an action against v. Small, 2 Esp. C. 716. But in an action two partners on a deed purporting to have against the defendant as administrator of been executed by one for self and partfier, his wife, for money lent to lier before mar- that an admission by the otlier that he had riage, her admission of the debt during co- given authority to lais partner to execute verture was hehl to l)e admissible. Hum- on his behalf, is not sufficient without pro- jjfiretjs v. Boyce, 1 Mo. & M. 240. ducing the authority. Ste<jlitz\. Egging- (n) Hall v. Hill, Str. 35; P. Will. 175. ton, Holt's C. 141. . Bac. Ab. Ev. 62-2.
(s) Davis V. Kioge, 3 Esp. C. by Lord (x) 7 T. R. 112.
Eldon. But in an action against a corpo- (y) 3 P. Wms. 238 ; Salk. 350 ; Tern,
ration, a declaration by a mere member not 60. 109, 110.
relating to any oificial situation is not ad- (r) Held that the jury might infer au-
missible. Mayor of London, ^'c. v. Long, thority from two instances of her appearing
1 Camp. 22. to conduct his business relative to the
{t) Alban and others v. Pritchett, 0 T. transaction in question at his country house.
R. 680. In an action by the husband and Palmer v. Sells, 3 N. & M. 422.
wife for assaulting the wife, the defendant («) Str. 527. See also Emerson v. Blon-
justified the turning the wife out to obtain den, 1 Esp. C. 141, and infra tit. Agent ;
possession of the plaintiff's house; it was and Anderson v. Sanderson, 2 Starkie's C.
held by Parke, B. that a declaration by the 204, where the admission of the wife as to
wife as to the terms of the agreement under a sum due for articles supplied to the shop,
which the hus band held as tenant were of which she had the sole management, was
inadmissible. Neifton v. Harlnnd, York received. S. P. Clifford v. Barton, 1
Summer Ass. 1837. Tiie joint answer of a Bing. 199.
ADMISSIONS, BY THIRD PERSONS.
33
charge of being concerned in the robbery, was evidence for the defendant (i). So in an action against the husband for goods sohl to his wife(f) during the time wli«3n he occasionally visited her, it was hold, that a letter subse- quently written by the wife, acknowledging the debt, was evidence.
The rule, that where there is a community of interest and design, the Uv a con declaration 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 toatt'ect any other person, for it is niercdy 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, tiie acts or defdarations of any one of them in furtherance of the general objeft are no longer to be consi- dered as res inter alios with respect to the rest; they are identiBed with each other in the prosecution of the scheme ; they are partners fur a bad purpose, and as much mutually responsible as to such purjiose, 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 conspi- racies, and other crimes of a like nature (f).
An admission by the party represented is usually admissible in evidence Against a against the representative (y").
An admission by the owner is sometimes evidence against one who claims title through him (</).
representa- tive.
(6) Carey v. Adkins, 4 Camp. 92.
(c) I'nlethorp y. Furnish, 2 Esp. C. 211 ; 5 Esp. C. 14.5. Gregory v. Parker, ] Camp. 594.
(rf) See Lord Ellenborough's observa- tions, 11 East, 584, infra, tit. Trespass.
(c) See tit. Coxspiracy. — Bankrupt.
{f) See Executor. — Bankrupt. — An admission made by a bankrupt before his bankruptcy, is evidence to cbargcbis estate with a debt. P. C. 5 T. R. 513. Seais,as to subsequent admissions. So admissions made by an insolvent subsetiucnt to his in- solvency, are not admissil)le against the trustees of his estate. Smith v. Siinines, 1 Esp. C. 330. In an action against trus- tees for creditors, a declaration of the debtor is evidence of the plaintiff's debt. Jtohson v.Andrade, 1 Starkie'sC. 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. Macanley, Peake's C. G5 ; and see Dyke v. Aldridge, 7 T. R. ()0.j ; 1 1 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 thelevy, the plaintiffmay give in evidence an admission made by one of the petitioning creditors as to any fact respecting his dciit. Yourir/ v. Smith, 0 Esp. C. 121. To prove a bill of sale, fraudulent declarations made by the
VOL. II.
vendor at the time of executing it, are evidence, Phillips v. Earner, 1 Esp. C. 357. .S'fcws, of declarations made at any- other time. Where the defence to an action against an acceptor is, that after tlie bill was <lue the amount was settled in account I)et\veen himself and the then liolder, under whose indorsement the plaintiff claims, tlie declarations of such holder are not evidence, as lie might l)e called and examined. Duckham v. Wntlis, 5 Esp. C. 251 ; and see tit. Bill of Ex- change. A. indorsed a bill to P. as a se- curity for a running account ; P., after the bill became due, indorsed to C. ; an entry or declaration liy P. respcetiiif; the state of his account with A. is not evidence for the latter unless made contemporaneously witli the first indorsement. Collenridyew Far- quharson, 1 Starkie's C. 2.')9 ; Cutler v. Newiin, cor. Holroyd, J., Wincli. Si>riiig Ass. 1810; Manning's Ind. Evidence, 2.J3 ; and see Paeon v. Chesney, 1 Starkie's C. 192. An admission in an answer by a for- mer owner of projierty, docs not I)ind a sub- sequent owner. See tit. .Vnswicr in Equi- ty. Gully v. Pighop ofjJj-cter,ij IJingh. note (m). Appx. to St. Tr. 29 Hargruve's edit, and 0 St. Tr. 42.">.
(y) See leatt \. Finrh, 1 Taunt. 141; also suj))-a Vol. Land index, tit. IIi;ar- SAV K^•U)^:N(•E. An adniisi^iiin by a pr<>- prictor or an occuj'ier possessing au iu-
D
34
ADMISSIONS,
The whole is to be read.
Admission under rule ol'iWili. 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 evi- dence (/f). 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 jjarty 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 (/).
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- ture and extent of the interest, especially if it be connected with any act relating to the enjoyment. An admission by a former occupier of a tenement in respect of which common is claimed, is, it is said, evidence to negative the existence of the ritrJit, though the tenant be alive. WalJier v. Bradstock, 1 Esp. C. 458 ; and see Doe d. Human v. Pettet, 5 B. & A. 223; Barj- galey v. Jones, 1 Camp. 307. Vol. I. and Woohcay v. Boice, 1 Ad. & Ell. 114. But an admission made by one who takes abank- rupt's goods in execution, that he knew that an act of bankruptcy had been com- mitted, is not evidence against one who takes the goods by assignment from the sheriff, the admission being subsequent to the assignment. Beady v. Harrison,
1 Starkie's C. 60. And as to a declaration by the holder of a negotiable security, vide infra, Bill of Exchange. Covi- peieticy. To prove a forfeiture by under- letting, declarations of persons found in possession were admitted in evidence against the lessee. Boe d. Hivdiey v. Ricltarhy, 5 Esp. C. 4, cor. Lord Alvanley, ted qncere.
(h) Z»/ra, tit. Shekiff. See tit. Res INTER Alios.
(/) //(//•({, tit. Surety. Hart v. Horn,
2 Camp. 1)2. See Percluird v. Tindall, 1 Esp. C. 3U4. Bifra, tit. Replevin.
( k) Bandle v. Blackburn, .^ Taunt. 24r>. Smith V. Young, 1 Camp. 439. Jacob v. Lindsay, 1 East, 402. Barrymore v. Taylor, 1 Esp. C. 325. Green v. Biiun, 3 Camp. 215. So in an answer in ChanoHiy, if a party charge and discharge himself contemporaneously. Smith v. Lundie, 7 Ves. 588. Where the only evidence against a party charged with murder, was his own confession, which admitted tliat he was present at the lime, but took uo 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. Base 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 takea as true, but it is for the jury to say if they think it consistent with the other evidence. Bex V. Steptoe, 4 C. & P. 397. The pro- secutor 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. Hitjgins, 3 C & P. 609 ; Cray v. Halls, ib. Eq. C. Ab. 10; Thomson v. Lunihe, 7 Ves. 583 ; Bidgway v. Bawson, 7 Ves. 404. Giving credit in a particular, foradeniand of the opposite party, is not an admission of tlie debt. Miller v- Johnson, 2 Esp. C. 602. UnderaruleoftlieCourtto admit a notarial copy of the condemnation of a vessel in evidence, such copy only esta- blishes the fact of the condemnation, and is not evidence of the particular defects upon which the condemnation purports to be grounded. W right \. Barnard, 2 Esp. C. 700. The plaintiff cannot give in evi- dence the examination of the defendant takeu before Commissioners of Bankrupt on one day,withoutalso reading those taken on another day, 5 Sim. 39. Nor can he give the cross-examination of a defendant in evidence, without reading his exami- nation 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. Evi- dence, [B.] 5.
(/) Bandle v. Blacltburn, 5 Taunt. 245. Thompson v. Austen, 2 D. & R, 361, and see note (A) and Vol. I.
BY RULE OF CHJIJUT. 35
and unless such adverse party bliull have refused or neglected to make tuch A<lnii»i,ion admission. undir rule
And it is further ordered, that the expense of a witness called only to ^'^'''^^'"•^ prove the handwriting to or tlie execution of any written instrument stated upon the i)h'ii(lings, shall not be allowed, unless the adverse partv shall, upon summons before a Judge^a reasonable time before the trial (such sum- mons stating therein the name, description, and place of abode of the inten<ied witness), have neglected or refused to admit such han<lwriting or execution, or unless the Judge, upon attendance before him, shall indorse upon such summons that he does not think it reasonable to retpiire such n<lmission.
And by a (ieneral Rule of Hilary Term, 4 Will. 4, it is ordered that either 4 Will. 4. party, after ph^a ])leaded anil a reasonable time before trial, nuiy 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 writ- ten 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 reijuired, 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 admis- sion, 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 j)residing officer, certified by his indorsement thereon, shall be paid by the party so required, whatever may he 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 Jiidge may give such time for inquiry or examina- tion 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 the trial witli that inspected at the Judge's
documents in the form prescribed by th(^ cliambers. Uuc v. ^mith, 8 Ad. i*>: Ell.
rule, one of them was described as a counter- 2oo.
part of a lease from J5. T. to the defendant, (n) The application must l)e made to
date 2G December 1829. The order was, a Judge at chambers ; the Court Imvo no
Take order by consent for admittini; all autliority under this rule. ^mit/i v.
hut the three wills, &c. The plaintift' Uird, 3 Dowl. 641 ; Jervis's New Rules,
produced on the trial an instrument in the 111.
form of a lease from, and executed by .E. T., (o) Notice having been given, and ad-
and also executed by the defendant, indorsed mission refused, and aJudge's order having
" counterpart", and having a H. 10 s. stamp, been made, certified by liis indorsement,
which was sufficient for a counterpart but that the documents were jiroduced to his
not for a lease, and it was held that the effect satisfaction, the ])arty is entitled to costs,
of the admission was, that a document had although a new trial is granted, previously
been executed of a character corresponding to which the docununts are admitted,
with that in the notice, and that the defend- Lciri.i v. Howell, Ct Ad. t\ Ell. 7G'J. The
ant eould not object that the instrument certificate in sucii case is tn be granted
was in effeetalease and not a counttrpart ; hy the Judge jircsidiiig at the first trial,
and it was held tliat proof was unnecessary Ih. of the identity of the document produced at
Confessions in criniiiml eases.
Voluntary.
86 ADMISSIONS, IN CRIMINAL 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 lie may think fit respecting the costs of the application, aiid tlie 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; 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).
A confession can never be received in evidence, where the defendant has been inHuenced by any threat or promise {q). To say that it will be better for him if he will confess, or worse if lie 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 svibsequent admissions of the same or of the like facts, must be rejected, if they have residted from the same influence (s). It is, however, a question for the court, and not for the jury, to decide, whether nnder the particular circumstances the confession be admissible {t). The general prin- cipal on which the decisions on the subject seem to have proceeded, seems to be tliis, 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) WarrichshaU's Case, Leacii's C. C. L. 3d edit. 298; Cowp. 334; 2 Haw. c. 46, s. 3G. Two men were charged with the murder of one who (as it afterwards ap- peared) was still living, and yet one of them upon a promise of pardon, confessed himself to be fcuilty of the crime. Note to WarnchshulVs Case, Leach's C. C. L. 301, 3d edit. Ami an instance is men- tioned 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 surffeon who was called in upun a case of administering poison, after telling the prisoner that she was suspected and had better tell all slie knew, was held to render the statement of the prisoner inadmissible. R. v. Kiiig- tton, 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 lie did not tell him who was his partner he would commit him to prison as soon as he got to N. R.\. Paratt, 5 C. & P. r)70.
(.v) By the Judges, in the case of Sarah Nute, Mich. T. 1800.
(O lb.
(u) Upon the trial oi Hall, for burglar^', proof wa.i offered that the prisoner had de- sired Last to apply to the justice to admit hiin as a witness for the Crown ; but the evi-
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 magis- trate 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 ch arly to appear that the prisoner understood such warning, before his subsequent confession could be given in evidence; East's P. C. Oi>8, And in a similar case, before Bayley, J. w here 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 com- mitment, that it would be better for him to confess, the confession was admitted. R. V. Hardwicke, cor. Wood, B., Notting- liam Lent Assizes, 1811, and afterwards before the Judges. Where the prisoner was admonished by a stranger, in the pre- sence of a constable, that he had better tell
ADMISSIONS, IN CRIMINAL CASES. 37
Where a prisoner had been admitted king's evidence, and confessed, and Voluntary, upon tlie trial of his accomplices refused to give evidence, he was convicted upon his own confession, even although it had previously ])iitn J'uImIi/ repre- sented to him by a constable that his accomplices were in custody (x). Where a witness answers questions upon his examination upon a trial, tend- ing to criminate himself, and to which he might have deinurretl, his answers may be used for all purposes (?/). Where a fact has been ascertained in <'oii- sequence of an admission improperly ol)taiued, it may still be proved, for the fact cannot have been affected by the influence used(r); therefore, upon an indictment for receiving stolen goods, where, in consequence of the confession, which had been unduly obtained, the stolen property had been
the tnitli, his subsequent confession to the constalilc was admittid. 2?. v. liotv, Ap- pc^nd. to Burn's Just. tit. EviniixCE, 23 edit. p. 102.) Tliough tlie prosecutor, in the presence of a niasjistratc, desire the prisoner to speak the trutli, and suggest tliat lie had bettor speak out, yet if the magistrate or liis c\ork iuiinediatcly check tlie prosecutor, desiring tlie prisoner not to regard liim, tlie confession is still admis- sible. Jt.y. Ed>rnrds,E.T. ISO'2. And where the constable told the prisoner tliat he might do himself some good by con- fessing, and the prisoner afterwards asked the magistrate; if it would be any benefit to him to confess, and tlie magistrate said he could not say that it would, ou which the prisoner declined to confess but on iiis way to prison he confessed to another constable, and confessed again in prison to another magistrate, the Judges held una- nimously, that the confessions were admis- sible in evidence, on the ground that the magistrate's answer was sutKcient to efface any expectation which tlie constable might have raised. Ji. v. Rosier, ou a case reserved for the Judges, East. Term, 1821.
So if the expressions be not calculated to raise any hope of some benefit or ad- vantage of a mere temporal nature, it seems that they will not exclude a con- fession. Upon the trial of Hvdy.son a girl at York, for arson, evidence was offered of declarations made by the prisoner to INIrs. Kichardsim, her mistress, after the latter had told her it would be better if she would confess if she were guilty, for she would never be easy in her mind till she had confessed. Plolroyd, J. after con- sulting Bayley, J. was of opinion tiuil the evidence was receivable, but it was after- wards excluded on other grounds. A police otticer having a boy in his custody on a charge of arson, without a warrant, told him that after the prevarications he had made, thi^-e was no doulit of his guilt, and aske.l who was concerned with hiiiu The prisoner luid been apprehended about noon, and had no food till he made a con- fession, in answer to tlie nftieer's inquiries, between five and six in the afternoon ; and seven of the Judges were of opinion tiiat the evideucc was receivable, no threat or
promise having been used ; hnt three were of the contrary opinion. li. v. Thornton, 1 R. & M. 27.' Where the eonstable who had charge of the prisoner left tlie room, and shortly after the constable to whom the prisoner made the statement entered, the Judge refused to receive the statement without calling the other constable to negative any promise or threat, as other- wise it might lead to collusion by constables ; but it appeiiring that the prisontr was not under charge at the time, but detained only as an unwilling witness, the Court received the statement without previously calling the other constable R. v. Sivut- Innjs, 4 C. i*t P. 550. Where a pro- mise or threat has l)een held out, it will usually exclude the statement made to the s<aiue person. R. v. JJimn, 4 C. & 1*. 54;). But where the prisoner made a confession to a magistrate after the per- suasions of a clergyman, but not with any view of temporal benefit, and after cau- tions that it would ]irobably be given in evidence against him, it was held that such confession was pri)])irly admitted. Gil/iain's Cane, 1 By. 6c M. C, IHG. And where a justice had held out promises of interference to induce a confession, but afterwards had informed the prisoner that there was no ho])(! of pardon, and the prisoner subsequently sent for the coro- ner, and made a full disclosure notwith- standing he was cautioned that it would be used against liiiu, held that it was admissible. (a:) a. V. Burleijy supra, tit. AccoM-
PLICK.
(//) Supra,'21 ; and see Stocl/Jieth \. De Tastet, 4 Camp. 10. In the case of R. v. ]\ferceron, cor. Abbott, J., 2 Starkie's C. :iH(i, a statement by the defendant, upon cxainiuatioii before a committee of the House of C'ommons, was received in evi- dence, although it was objected that the defendant could not refuse to answer the question without incurring a contempt of the House.
(;r^ R. V. Warrickshall, Leach's C. C I~ 21)8, 'M I'dit. llurvei/s Case, East's P. C. (i58. Mozei/'s C\tse, Leacli's C. C. L. 301. Luckhart's Case, Ibid. 4:)0. Butchcr'i Case, Ibid. ; 2 Haw. c 40,3. 3«.
D 3
Piismipr's exiiiiiiiiu- tioii.
'^S ADMISSIONS, IN CRIMINAL CASES.
fimiul roiu'oiiled between the sackings of the prisoner's bed, it was held by the twelve Judges, that the fact of findingr the stolen property in the pri- soner's custody was clearly evidence («). But in such case nothing is to be left to tiie jury but the fact of the prisoner's having directed the witness where to find the goods, and his finding them, but not the acknowledg- ment (/»). No evidence can be received of any act done by the prisoner in conse(juencc towards discovering the property, unless the goods be actually discovered thereby (c).
Any voluntary admission or confession by a defendant is evidence against Iiim at common law (d), whether it be made to a private person or to a magistrate {c). The statutes of Philip and Mary, which directed the jjrisoner's examination to be taken (/'), made no difference as to the admis- sibility of evidence (//). The same observation is applicable to the stat. 7 Geo. 4, c. 04, s. 3. But no parol evidence of a confession can be given, where the confession has been taken down in writing, for the general rule ai)])]ips, that it is not the best evidence (?i). The statute directs that the examination of the prisoner shall be reduced to writing; the court will tiierefore ^'resume that the magistrate has acted in conformity with the statute (I), consequently no parol evidence can be given of a prisoner's declaration before a magistrate, without previous proof that it was not taken down in writing (A). But a written examination before a magistrate will not exclude evidence of a previous parol declaration, which has not been reduced to writing (I).
The prisoner is not to be examined upon oath (m), for this would be a
(a) Wa)-rickshall's Ca.te, Leach's C.C.L. 298, 3(1 edit. Ho, if after a promise the prisoner bring money, and prives it up to the prosecutor as part of that which had been stolen from him. R. v. Griffin, 1 Russ. & Ry. 151. But where the prosecutor said he wanted his money, and that if the pri- soner gave liim that, he mi^ht go to the devil if he pleased, and the prisoner took money out of his pocket, and said it was all he had left, it was held that the con- fession ought not to have been received. R. V. Jonea, 1 Russ. & Ry. lo2.
^ {h) Per Le Blanc, J. R. v. Grant and Craig; R. v. Marian Hodffe,W'e]hSmmn. Ass. cor. Grose, J. East's P. C. 658.
(c) R. V. Jenkins, 1 Russ. & R. C. C. L. 492.
{d) 2 Haw. c. 4(), s. 23 ; Dy. 214 ; 6 St. Tr. 58. R. v. Tang, Kel. 18, 1 9! R. v. Wheeler, Leach's C. C. L. 349, 3d edit. R. V. Payne, 5 Mod. 105.
(e) 2 Haw. c. 46, s. 33. R. v. Dore, And. 301 . Marshall's Case, 2 St. Tr. 1 002 : Leach's C. C.L.2i)8, 3d edit.
(/) An examination of a prisoner, though elicited by the magistrate's ques- tions, is admissible against him where no threat or promise was used by the magi- strate. R. V. Ellui, 1 Ry. & ^,l. C. 437. Where the prisoner's statement was reduced into writing before the witnesses against him had been examined, it was admitted by Garrow, B. with great doubts of its legality. /?. v. Fagg,A C. k P. b^ ; but see R. V. Bell, 5 C. & P. 162.
{g) R. V. Lamb, Leach's C. C. L. 625, 3d edit, per Grose, J.
{h) 1 Hale, 284; Summ. 263.
(i) R. V. Jacobs and others. Leach's C. C. L. 349, 3d edit. R. v. Hickman, lb. 349. R. V. Fisher, lb. R. v. Hall, lb. 240. R. V. Fearshire, lb. ; B. N. P. 298 ; 2 Haw. c. 46, s. 43.
{k) R. V. Hall, cited in R. v. Lamhe, Leach's C. C. L. 635, by all the Judges, except Gould, J. Phillips v. Winbum, 4 C. & P. 273. R. v. Hollingshead, lb. 242.
{I) R. V. M'Carty, Sp. Comm. Dublin, 797. Macnally on Ev. 45. Action by bankers to recover money paid on a check purporting to be drawn by the defendant, but alleged to be a forgery, minutes of the defendant's examination on a charge made against a party as having forged the check, are receivable, although he afterwards signed a regular deposition. Williams v. Woodward, 4 C. & P. 346.
(m) B. N. P. 242 ; Kel. 2. It generally happens that a party who is examined upon oath before the magistrate, is exa- mined as a icitness against others, and under the expectation that he will not be prosecuted. It has been said that a pri- soner ought not to be questioned by a magistrate ; and in the case of R. v. Wil- son, Holt's C. 597, cor. Richards, C. B., the prisoner's statement was, on this ground, rejected as inadmissible ; but by the statute of Philip & Mary fonnerly, and uow by the stat. 7 G. 4, c..64, s. 3,
ADMISSIONS, IN CRIMINAL CASES.
39
species of duress, and a violation of the maxim, that uo one is bound to criminate himself. And where the examination i)urported on the face of the nia<^istrate's return to have been takt-n upon oath, tlie Jndt'e reiected parol evidence to sliow that no oath had in fact been taken (n).
In Lambe's Case (o) it was held, by a majority of the twelve Judges, that Proof of ex a confession made by the prisoner before a magistrate might be read in auinuition, evidence, upon proof, that when it was read over to the prisoner he said it was all true enough, although he declined to sign it, and although it had not been signed by the magistrate ; for even a parol confession was evi- dence at common law before the statutes of Pliilij) &c Mary ( w).
By the statute 7 Geo. 4, c. G4, s. 3, the examinations must be returned by the justices to the next general gaol delivery, to be held within the limits of their commission. The identity of the examination (q) is usually prove<l by the magistrate, coroner, or his clerk, who took it down (r), and it shouhl be shown that it contains the substance o^ what the prisoner said (s). It should also appear that the confession was made freely {t) ; but it is not
the magistrate is to take the examina- tion of tlie prisoner ; and at the Carlisle Sp. Ass. 18-24, Holroyd, J. admitted tlie prisoner's examination to he used as evi- dence against him, notwitlistanding this objection. \Vh(>re a statement l)y a de- fendant, made betbr(! a committee of the House of Commons, was objected to on the ground that the statement had been made under a compulsory ])roces9, tlie objection was overruled. R. v. Merceron, 2 Starkie's C. ;?GG. Before a statement made by a prisoner to the magistrate he was sworn by mistake, but as so(m as it was disco- vered, the deposition was destroyed, and the party cautioned ; his sul)se([uent state- ment is receivalde. R. v. Wchb, 4 C. & P. 564. A party is examined on oath upon a charge made against another, he not being himself charged or suspected of any offence, upon his being afterwards charged and indicted, his former deposition is ad- missible. R. v. Hawortk, York Spring Assizes, 1830, Parke, J.
(/i) R. v. Smith and atiother, cor. Lc Blanc, J. 1 Starkie's C. 24-2. In tlie case of R. v. Wilson, 1 Holt,C. i)'.)7,cor. Richards, L. C. B. it was held, thiit an examination of a prisoner, wliich c<insisted in answers to questions put by the magistrate, could not be received in evidence, although no threats had been held out.
(o) Leach's C. C. L. G2d ; and see 2 Haw. c. 4G, s. 31.
(p) In the case of the King v. Telicote, cor. Wood, Banm, York Summer Assizes, 1810, 2 Starkir's C. 483, wliere a prisoner, after his examination had been read over, refused to sign it, and did not say (as in Lamb's Cane) that it was true, the learned Judge rejected the evidence. But in the later case of R. v. Deichitrst, Lancaster Spring Assizes, 182."), where the magistrate liimself had taken down the examination, which was read over to the prisoner, who made no objection to it, but did not sign it, Buyley, J. held that the magistrate
might at all events refresh his memory by the writing, and give evidence of the statement ; but ultimately the examination itself was read. Minutes of a iirisomr's examination, wliich have not been sii,med by him, or read over to him, may be used as minutes to refresh the memory of the witness. Layer's Crt.fe, 24 Howell's St. Tr. 214; G Hargreave's St. Tr. 221). Where the examination of a prisouer taken in writing is inadmissible from some irregu- larity, parol evidence of what he saiil ujiou the examination is admissible. R. v. Reed, 1 Mood. & M. C. 403.
{q) It has been said that the examina- tions ought not to be taken before the grand jury, (lilb. Ev. by Loft, 2IG; but the rule seems to apply to depositions only; and, in ])ractice, the examinations are frecjuently (by leave of the court,) taken before the grand jury.
(r) Parke, B. was opinion, that it is sufficient to prove the magistrate's signa- ture ; but Lord Denman held, that this was not sufficient wlun the prisoner made his mark only, without writing his name.
(.s) 1 Hale, 284. The safest course is to tiike down tiic very words. Tlie statute recinires the justices to take the cxamiiia- tiou, and to put the same, or so much thereof as is material, into writing. .\ prisoner said, " Give me a glass of gin, and I'll tell you all about it," and two glasses of gin were given by an officer to the prisoner, who then made a confission, Hiid the officer afterwards wrote down from recollection what the prisoner had said, and the officer read over what iiiut been so written before the committing magistrate, and the magistrate told tlie prisoner that a confession might do him harm, upon which the prisoner said tliiit what had been read was the truth, and sitcned the paper. Best, J. refused to ad- mit the evidence. R. v. Sexton, Norwich, Summ. Ass. 1822.
(/) I Hale's P. C. 284. D 4
40 ADMISSIONS. AFFIDAVIT. — ACxENT.
absolutely incumbent on the magistrate to warn the prisoner not to con- fess (u). The whole of the confession must be read (:r). Force and A prisoner may bo convicted upon his own confession, without other effect evidence (y).
It is a -(eneral rule, founded upon principles already adverted to (2), that the admission or coniession of one defendant is not evidence against any but himself (a) ; except, indeed, such a privity and community in the same original design be proved, as to render that which has been said or done by one, in furtherance of the common object, fair and reasonable evidence of the general design and project itself. It was ruled in Tong's Case (b), upon the soundest princijiles, that the confession of one shall not be evidence against another. Where several are tried at the same time, and the con- fession of one implicates another, the evidence cannot on that account be rejected ; the usual course is for the court to inform the jury that the con- fession is evidence against that party only by whom it is made (c). In some instances, the confession of one, taken in the presence and hearing of another prisoner, may be very material evidence to explain the expressions and conduct of the latter upon that occasion ; for any declarations of his, by which he assented to what was confessed by another, to his own pre- judice, would be admissible evidence against him. The confession of the other may also, it seems, be evidence for the purpose of explaining such declarations {d).
ADMISSION TO A COPYHOLD. See COPYHOLD.— EJECTMENT.
ADULTERY. See CRIMINAL CONVERSATION.
AFFIDAVIT.
An affidavit sworn before a Judge is receivable in the court of Avhich he is
a Judge, though not entitled of that court, but not in any other court unless
entitled of that court (e).
AFFIRMANCE OF CONTRACT. See Index, tit. Waver.
AGENT (/).
If a., authorize B., to do an act, it is in law the act of A., and may be
so alleged in pleading, except in cases of felony ; for then, if A. be absent
when the fact is committed, he is but an accessory before the fact(<7). Ac-
(m) R. v. Magill, Macnally, 38. ing of such a confession should not operate
(x) R. V. Payne, 5 Mod. 165 ; 2 Haw. to the prejudice of the parties implicated;
c. 4fi, s. 42. in some instances the inconvenience might
{y) Stone's Case, Dy. 214. Francis's be obviated by separate trials.
Case, 6 St. Tr. 58. Fisher's Case, Leacli's (d) But a confession by one of several
C. C. L. 3d edit. 349. Wheeler's Case, lb. prisoners before a magistrate, which impli-
Even tliough there be no positive proof cates all, cannot be read in evidence merely
that the offence was committed. R. v. for the purpose of drawing an inference
JSldridfje, Russ. & R. C. C. L. 440. R. v. from their silence as to the parts which
Falhier, lb. 481. R. v. White, lb. 508. affect them. R. v. Applebi/ and others,
R. V. Tippett, lb. 509. 3 Starkie's C. 33, cor. Hol'royd, J. who
(2) Vol. I. See Index, tit. Admis- said that it had been so held by several of
810NS. the Judges on a case from Chester, and that
(a) 2 Haw. c. 4G. The contrary was he was of that opinion,
unjustly ruled in r/fTOi/wor^ow'* Crtse, 1 St. (e) Reg. G., H. T. 2 W. 4. The addi-
Tr. 70. Earl of Essex's Case, \h.\Ql -fSiaA. tion of every person making an affidavit
Sir Walter Raleigh's Case, 1 Jac. 1. must be inserted therein, lb. When sworn
(fc) Kel. 18. before the attorney on record or his agent,
, (c) R. v. Heamc and others, 4 C. & P. lb.
215. See the observations of Wood, B. in (/) For other evidence on this head, see
Bullcn V. Michell, 2 Price, 299. It is, tit. Ad.missions. — ACCESSORIES,
however, morally impossible that the hear- (jf) See Accessory.
agent: proof of authority. 41
cordingly, on an allegation (in a civil action) that tlie- master and servunt drove ungovernable horses in Lincoln's-Iun-Fields, both were found guilty, although the servant alone was present f/<). So an allcgiition that the de- fendant negligently drove his cart, is supported by proof that it was driven by his servant (i). Before the act oi' B. can be given in evidence as the act of A., it must be proved that B. was the agent of A. This proof may either be, — 1st, direct, or it may result, 2(lly, from the relative situation ofA. and B.; or 3dly, from their habit and course of dealing, or other special circum- stances; or, 4thly, from ^.'s recognition of iJ.'s act, or his acrpiiescence in it. 1st. May be direct{h). As where the agent is called as a witness and Dirfci eri- proves that he was authorized to do the act, or transact the particular '^'^"'-■•' "f business. The fact of agency may be proved by collateral evidence without calling the agent (Z). If the authority was in writing, it must be produced, in order that it may be seen whether it has been pursued (m). If he acted under a ])Ower of attorney, the instrument must be produced and proved («) And parol evidence of the autliority is inadniissible, where the authority from its nature must have been in writing (r>). This, however, does not appear to be necessary, where the authority can be clearly inferred from the course of dealing, or from the recognition of the agent's acts by the principal. And therefore in the case of The King v. Bigy (p), which was an indictment for a felonious erasure of an indorsement upon a bank-note, although it was contended, on behalf of the prisoner, that it was necessary to prove the appointment of Adams as the agent of the Bank of England, being a corporate body, under their seal (q), it was held to be sufficient to show that Adams had been used to sign bills and notes, which from time to time had been duly paid, and answered by the Bank. It was found by the special verdict that Adams had been intrusted and employed by the Governor
(h) Michael v. AUcstrce, 2 Lev. 172. to receive the price; and that the priiiri-
(i) Brucker v. Froinont, G T. It. Go9 ; pals could not avow the act of their ujient
and see Tuberville v. Stamp, Ld. Ilaym. as to one part, and repudiate it as to tlie
264. other. Capel v. Thornton, 3 C. i: P. :?53. (k) A letter authorizing an apent to draw {I) Owen v. Barrow, 1 N. K. lol ; infra,
to a certain amount, coupled with a power tit. Usuky. Where goods were IVaudu-
of attorney to enter into and complete con- lently obtained by 1)., the affent of W., the
tracts, make purchases, &cc., is a sufficient purchaser, and also of the defendants,
autliority to such agent to raise money for without any intention of being jiaid for,
the purposes of his employers; and a party and were immediately sold to the defend-
advancing monies to such agent is not ants ; held, in trover, that the handwrit-
bound to call for those instruments, and ing of i>. to various contracts as the agent
inquire what money has been already ad- of W. mitrlit be proved, and as steps in
vanced on the letter. Withingtonw. Her- proving the fraud, without calling him
ring, 5 Ming 442. See Attwood v. Mun- as a witness, although the jury found that
nings, 7 B. &i C. 278. A direction to an the defendants were not privy to the fraud,
agent to enter upon premises (in mortgage) Irving v. Motleij, 7 King. 54.'). and sell the stock, &c., which was declared (/«) Johnson v. Mason, 1 Esp. C. 89.
to be for the benetit of the ])laintiff, and Coore v. Calloway, lb. llo. amounting to an authority to jiay over the (ri) Ibid.
amount to him, being in consideration of (o) Ibid; but see 3 P. Wms. 427, Ilia postponing the sale of the estate, is an R. v. Bigg. irrevocableauthority, and the plaintiff may (p) 3 P. Wms. 427. sue the agent for money had and received. (q) It was alleired in the indictment, Metcalfv. Cloiigh, 2 M. &: Ry. 178. The that one Joshua Adamt was intrusted and Steward of a manor cannot appoint a de- employed by the Governor and Company puty without special authority. Barker of the Bankof England to siu'u bank-notes V. Kett, 3 Sulk. 124. The office is grant- for the said company ; and it was fnuiid able in reversion; lb. Where the agent by the sjiecial verdict that he was so in- had in his own name always sold the goods trusted and employed by the Governor, ic and received the amount, held that having bid not wider their common ual. aa authority to sell, lie had au implied ouc
42
AGENT : I'UOOF OF AUTHOIllTY.
From tlic rt'Iutive sitiialiiin of the parties.
From liiibit and course of dualjii''.
and Company, but not by any instrument under their seal. A majority of the Judfjeswere of opinion that the evidence was sufficient, and the prisoner was tniiisported.
Si'cnmlljf. From relative Sihiation. — AVhere the autliority results from the relative situation of tlie parties, it is sufficient to prove such rehitive situa- tion (r). Thus, to afi'ect tlie shcritf with the act of the under-sheriff it is uniu'cessary to show more than that the latter is the under-sheriff (s). But n bailiff is not the general officer of the sheriff, and therefore the particular authority must be proved {t). Proof of the sale of a book by a serurnt in a bookseller's shop is prima facie evidence of a sale by the master (m). The answer of a clerk at a banking house, transacting the business of his prin- cipals, is evidence against the latter (x). Where the captain of a vessel orders goods for the use of the ship, the owners are responsible (ij). So it is the common course upon trials at Nisi Prius, to read the admissions of the attorney on record of either of the parties ; and a plaintiff is bound by the act, not only of his attorney, but of his agent in town {z), in the course of the cause.
A letter written to the plaintiffs, respecting the pulling down an adjoining house belonging to a corporation by their surveyor, and who had the manage- ment of their buildings, may be presumed to have been written by him in that capacity, and therefore is evidence against them (a).
Thirdly, From, habit, course of dealing, 8fc. — In mercantile transactions, tlie fact of the usual and general emiiloyment of a particular agent in the transaction of business is the most usual evidence of authority {b). Thus,
(r) See 7 T. R. 1 13. The plaintiffs, cor- respondents in England of a foreign mer- chant, had in May 1827 a Bank of England note remitted in part-payment of the ac- count due to them, which had been stolen in February 18'26, and when presented at the Bank, was detained ; it was held in trover, that the plaintiffs must be taken to be the agents of the foreign merchant, and could only recover upon his title, and there- fore were bound to show tliat it had been received without any grounds of suspicion tliat the note had been improperly ob- tained. De la Chauinette v. Bank of Enfflatid, 9 B. & C. 208. A deed signed by the chief clerk and solicitor of a com- pany is binding on them, unless it be shown that he exceeded his authority ; and it makes no difference whether the object of producing it were to enforce it or bind the company in any other way by its con- tents. JJoe i\. Macleod v. East London Waterworks Company, 1 Mood. & M. C. 149. Agents, authorized to draw bills for a company, drew them in tlieir own names, and not as agents, although for the pur- poses of the company ; lield that the mem- bers of the comjmny were not liable on the bills, but, sendile, tliey were liable as part- ners for the money lent. Ducarrey v. GUI, 1 JNIo. & M. 451, and 4 C. &; P. 121.
is) Ibid.
{t) Ibid.
(M) It. v. Alnion, Burr. 2G86. See tit. Libel.
(ar) Price v. Martk, 1 Carr. C. 60.
The employment of a ship is evidence of an authority from the owner to the master, in respect of every lawful contract made by him relative to such emplovment of the ship. Abbott's L. S. 112. 122; 1 Vent. 19(3. 238. An assignment of a lease under a fi. fa. by A. B. as under-sheriff, is evidence that he is under-sheriff. Doe d. James v. Broicn, 3 B. & A. 243. The drawing of bills by the consignor of goods on the consignee or factor, against the consignment, does not authorize the latter to pledge tlie goods. Gill v. Kymer, 5 Moore, 518. Duclos v. Jtyland, cited lb. See Guichard v. Morgan, 4 Moore, 36 ; Paterson V . Gandesequi, 15 East, 62 ; Daubigny v. Duval, 5 T. R. 604 ; Field- ing V. Kymer, 2 B. & B. 639. By the stat. 4 G. 4, c. 83, a person may take a deposit or pledge of goods to the extent of the consignee's interest.
(y) 1 T. R. 108 ; and so is the captain also ; aliter, if they be ordered before his appointment, although not delivered till after. Farmer v. Davis, Ibid. And see tlie last note.
{z) Griffitlis V. Williams, 1 T. R. 710, 711. See Hays v. Perkins, 3 East, 568.
(«) Peyton v. Governors of St. Tho- nim's Hospital, 3 C. & P. 363. Tlie an- swer of a clerk at a banking-house, trans- acting the business of his principals, is evidence against them. Price v. Marsh, 1 Carr. C. 60.
(h) See R. v. Biggs, 3 P. Wins. 427, and supra, note (x).
AGENT : PUOOl' OF AUTIIUinTV. 43
the genenil aiitliority ol' brokers to sell, so us to bind tJK'ir principuls in From Imhii respect of the purchase, is to be collected from their {^cncriil deulint'H, and i"»<l i'"ur»c not merely from their private instructions as to the jmrticulur parcel of "'^*^*^1"'K- goods; and if a general authority can l)c inferred from tiic usual course and liabit of dealing, the ])rincip5»l will be bound by the contract although it be contrary to tlie particular instructions (c). Where an agent had been em- ployed for a length of time to pay for work of a ])articular descriptii>n, and workmen were always referred to him, his acknowledgement of a debt was held to be l)inding upon his principal (f/). A master, who in a single instance authorizes his servant to take up goods on credit, is afterwards liable (e). So where the defendant's wife usually gave orders for good?, her acknowledgement of a debt being due within six years, was held to be evidence against her husband (/). So where the wife had taken lodgings for herself and her husband, and afterwards gave notice of (piitting, upon an action brought for use and occupation, it was held that tli<; acknowledgment of the wife was evidence against her husband ; and Lord Kenyon said, that where a wife acts for her husband in any business or dei)artment by his authority, and with his assent, he thereby adopts her acts, and must be bound by any acknowledgment, or any admission made by her respecting that business in which she has acted for him (g). In such respects, the wife does not differ from any other agent. So an admission by a clerk usually em- ployed in corresponding on business, is evidence (/*)• i
An authority to receive payment on bonds, bills, &c. is usually evidenced by the custody of the instruments themselves (i). And it was held, that a payment to one who usually received money for an obligee of a bond, was not sufficient, unless he had the custody of the bond (Ji).
Fourthly. A recognition by the princi2)al of the agency in the particular Heiw^nii- instance, or in similar instances, is evidence of the authority to the latter. ''""' As, where one subscribes policies in tlie name of another, and, upon a loss liappening, the latter pays the amount ; this would be evidence of a general authority to subscribe policies (I). So where the defendant's son had, in three or four instances, signed bills of exchange by the direction of his father, it was held to be sufficient evidence for presuming an authority from the father to the son to sign a guarantee {vi).
(c) Whitehead V. 7hicJiett,\5 East, 400. 95. See tit. Goods t?OLD and djj-
(d) Burt v. Palmer, b Esp. C. 145. liverkd.
Tlie plaintiff, aftur repeated applicntions (./■) Palcthorp v. Furnish, 2 Esp. Cas.
for payinciit to the (Icteiidant, receiving no 21 1. See tit. Admissions, 21), 30.
answer, applied to an attorney, supposed {(/) Einerson\. lilotidvii,\ E»]\ V.\4'2;
to act for the defendant, for payment, wlio and see Anderson v. Sanilemon, 2 Starkie's
answered the letter, anil paid part, and to C. 104. So where the wife kejit a shop in
a suhsequent letter replied, pnmiising pay- the ahsence of the hushand, and admitted
inent of the remainder; held, that as it a debt for goods sold and delivered. J'eto
apixared that he was the agent at one v. Hague, 5 Esp. C. 134. Clifford v.
time, this was evidence to go to the jury Burton, \ Bing. 199.
tliat he continued to be so. Roberts v. (/() llarduuj v. Carta-, Park on Ins.
(Jresletj, 3 C. & P. 380. 4; vide.«i//;rrj, j). 42.
(e) The defendant sent a waterman to (i) 1 Chan. Cas. 193. Oicenw Barrow, the plaintiff for iron, on trust, and paid 1 N. R. 101 ; 12 Mod. 504. Sec tit. for it afterwards ; he sent the same water- Pay mi: NT.
man a second time with ready money, (A) Gerard v. Baher, 1 Ch. Ca. 94.
wild received the goods, hut did not i)ay l^uhe of Cleveland v. JJa*hicoo(l, 2 E<j.
for them. Tlie C. J. ruled that the send"- Cas. All. 709.
ing him on trust the first time, and paying (/) Courtren ". Touse,l Cnmp. 43, 11.
the money, gave him credit, so as to cliargc (a) Neal v. Irring, 1 Esp. C. (il. Jlaui/h-
the, defendant on the second contract. ^y« v. AV/^aw/i, 4 Cnmp. 8rt ; nlthougli tlie
Hazard v. Tradwcll, Str. 500; and see agent acted under the power of attorney. Busbi/ v. Scarlett, d Esp. C. 7G ; 1 Show, ' (m) Watkint v. rt;icc,2 Starkie's C. 3(.">8.
Recocni- tiuu of au thority.
44 AGENT, DECLARATION BY.
Mere evidence, however, that the a^ent lias done acts in the name of a principal, will not bind the latter without some evidence of recognition on his i)art; and therefore, where a policy had been signed by one Butler, and it WHS jiroved that Brttler had signed other policies in the name of the defendant, but no evidence was adduced of any authority given in the par- ticular case, or of tlie defendant's having ever paid a loss on such policies, the evidence was held to be insufficient («). If an agent has autliority to subscribe a policy, he has also authority to adjust it («).
Where the defendant in an action on a policy of insurance had used an affidavit, made by a third person, for the purpose of putting off the trial, it was licld, that the statement in the affidavit, that the deponent had sub- scribed the jiolicy on the behalf of the defendant, was admissible to prove the fact (p).
If a master send a servant to receive money, and the servant instead of money receives a bill, the master may, as soon as he knows it, dissent, and will not be bound by the payment ; but acquiescence, or a small matter, it was said, in the case of Ward v. Evans (q), will be proof of the master's assent, and that will make the act of the servant the act of the master. In Thorokl V. Smith (r), the servant having been sent for money received a cheque, which he kept in his own hands, without the knowledge of his master, and upon the banker's failure the servant sent back the bill ; and Holt, Chief Justice, and Powell, J. seem to have been of opinion, that it was a question of fact for the jury, whether the servant, under the cir- cumstances of the case, had authority from his master to receive bills instead of money ; and a new trial was granted, for the purpose of ascer- taining the fact (s).
Where the defendants' agent abroad received by their orders money on their account, and communicated the fact to them, which they acknow- leged, and directed the disposal of it ; it was held that the agent's letters were admissible as against the defendants to charge them with the receipt of the money, they having adopted and acted upon the assertions of their agent (^). A duty arising out of particular relations or circumstances, is properly alleged as an implied promise (?i).
Such presumptions and implications of authority are in general applicable
declarations to civil cases only. Evidence of a wilful trespass by the servant will not
o an agen • g|,Qy^r that the master is a trespasser, without express evidence that the act
was done by his direction ; for an authority to commit a trespass cannot be
implied (x). But fraud will vitiate a contract, although the principal take
Acts and
(w) Courteen v. Toiue, 1 Camp. 43, n. («).
(o) Riehardton v. Anderson, 1 Camp. 43. n. (a).
{]}) Johnson v. Ward, 6 Esp. C. 48. See also 2 T. R. 189, in not. ; 2 Ld. Raj-m. 930 ; 11 Mod. 88.
(7) Ralk. 442. Watkint v. Vince, 2 Starkie's C. 3G8.
(r) 11 Mod. 87.
f s) But Holt., C. J. intimated his opinion that a jury at Guildhall would fincl pay- ment by a bill to be a good payment, ac- cording to the common practice of the city; and Powell, J. said he supposed that the servant had many times received bills for his master, which was au authority for
the purpose ; but that that was matter of evidence, being according to the common practice of the world.
{t) Coates V. Bainbridge, 5 Bing. 58 ;
1 M. &P. 142.
(u) Callender v. Delriche, 5 Bing. N. C, 58.
(x) Macmatiusv. Crickett,! East, 106;
2 11. B. 443. See also Harding v. Green- ing, Holt's C. 531 ; and H. v. Julmston, 7 East, G5, infra, tit Libel. The tort of a servant or deputy does not affect the master. Mo. 777. 787; Com. Dig. Officer, [K.] 3. Although an informa- tion for penalties is a criminal proceeding, yet it is also in the nature of a civil pro- cess to recover the Crown's debt; a party therefore carrying on trade by his ser\ant5,
AGENT, DECLARATION BY.
45
no part in it, for lie is civilly responsible for the acts of his apent (z). It is Acu anJ a freneral rule, that an agent cannot hind his princij)al by any act beyond «li*clara- tlie scope of the authority delejijatcd to hinif«). Where the fact of agency *"^'"'' "*^ "^ has been proved, either exi)ressly or jiresuuijitively, the act of the agent, co-extensive with the authority, is the act of the principal (b), whose mere instrument he is; and then, whatever the agent says, within the scope of his authority, the principal says, and evidence may he given of such acts and declarations as if they had been actually done and made liv the prin- cii)al(f) himself; and it makes no difi'erence whether tlie declaration be true or false, for they are just as binding upon the principal as if they hud been actually made by him. But where the agent makes any declaration or representation of his own, and not as the instrument of his master, that declaration will not be evidence, but the agent himself must be called (f/) to prove any fact within his knowledge; consequently, a letter written by
andderivinnprofitsfrointhciracts,isrespon- Biblu for penalties incurretl by their violation of the revenue laws. Atturney General v. Siddon, 1 Cr. & J. 220 ; 1 Tyrw. 41 ; and Bce R. v. JJixon, 3 M. & S. 11 ; and E. v. Gutch, 1 Mof)d. & M. C. 4'33. In tlie case of an illepil distress, as damage feasant, by a serviint, an authority to make the illecfal distress cannot bo inferred from lawful authority given in other instances, Lyons v. Martin, 3 N. & P. oOD.
(r) Doe V. Martin, 4 T. R. 39. A prin- cipal is bound by the fraud or misrepre- sentation of an agent in making a contract for him. Fitzherhert v. Mather, 1 T. II. 12, Park. Ins. 321.320. See further, Apj). Ao.
(a) Fcnn v. Harrixon, 3 T. It. 3.j7. A factor cannot pledge the goods of his prin- cipal by indorsement of tlie bill of lading, or even by delivery of the goods them- selves. Neicsoni v. Thornton, Ci East, 17. Dauhi(jmj v. Duval, 5 T. K. n04. Pater- ton v. Tash,-2 Str. 1 178. Martini v. Coles, 1 M. & S. 140. Even although he has accepted bills on thefaiih of such consign- ments. Graham \. Dystcr,2 Starkie'sC. 21. Fieldimj v. Kyin'er,'! B. .^ H. 03!); 6 Moore, supra, 42, note (.r). But tlie rule does not apply to a banker who pledges an indorsed negotiable security deposited in his hands. 1 Bos. & Pull. 648. Gol. The plaintiffs previously to a sale issued catalogues, ami by one of the conditions of sale, payment was to be made on delivery by good bills on London, at four months from the date of tiie sale ; one of the catalogues being sent to the defendants by their broker, they directed him to pur- chase certain lots, which he accordingly did, in bis own name, and immediately drew on the defendants at four months, which they accepted, and paid wlieu due. It ap- peared that at the sale the terms of pay- ment were varied to known ])urcluiscrs to " payment two and two niontlis," by which the brokers were allowed to iiave the goods without giving bills at the time, and they subsequently became bankrupts. In an action against the defendants as the real
purcliasers, it was held that the defendants not having authorized any contract dif- ferent from that mentioned in the condition, viz. a payment on deliver^' by good bills, and on the faith of whicli they might pro- perly accept the bills, they were not bound by the contract varied at tlie sale, and that the plaintiffs therefore were not en- titled to recover. Ilorsfall v. Faunt- leroy, 10 B. & C. 7.'>o.
{it) The declaration of a servant em- ployed to sell a horse is evidence to charge the master with a warranty, if made at the time of sale ; if made at any other time, the facts must be ])roved by the servant himself. Helyarw IIairkc,,'i Esp. C". 72; and see Irriny v. Motley, 7 Bing. o43. Garth v. Hoicard, 8 Bing. 4.01. Schiunan V. LocJ/e, 10 Moore, 39. And see note (/).
(c) As to payments to an agent, see tit. Payment, and Steicart v. Aberdeen, 4 M. & W. 211.
(d) See Ka?d v. Jansen, 4 Taunt, on.j. and Langhorn \. Allnutt, 4 Taunt, .jll. In the first of these cases the Chief J. observed, " when it is proved that A. is the agent of B., whatever A. docs or says, or writes, in the making of a contract, as agent of B., is admissible in evidence, because it is part of the contract which he maki's for B., and which therefore l)in(is him, but it is not admissible as the agent's account of what passes." See also Mes- taers v. Abraham, (1 Esp. C. 375); the question was, whether the defendant, the purchaser of goods, had agreed to find liugs for the carriage of tiiem : accordiiitr to the report of the case, the jilaiutift' offered in evideuce the letter of the broker who sold the goods, (being the plaintiffs own agent,) written to the j)laintifr, saying that the bags would be ready by a certain day ; the broker was then in the box, and Lord Kenyoii s;iid, that he would admit evideuce of what be iiad ilone on aocount of the defendant, but that it should l)e learned from himself, and not from his letter. See Ashford v. Price, 3 Starkie's C. 18j, ii^'ra, note {(/).
Defoiico by an u<;ciit.
4fi AC.KNT, DEFENCE <