refused to admit the declarations of the executor as evidence against the plaintiff. Rush v. Peacock, 2 M. & Rob. 162. And in an action by assignees of a bankrupt, admissions made by them before their appointment were held inadmissible against them in their character of assignees. Fenwick v. Thornton, M. & M. 51. But Tindal C. J., admitted their declarations, stating that he was not aware of any distinction between the admissions of parties suing in a representative character and in their own right. Smith v. Morgan, 2 M. & Rob. 257. In an action by a bankrupt against his assignees to try the validity of his commission, depositions of deceased persons taken under the commission and inrolled by the assignees, are not evidence against them as admissions by reason of such inrollment. Chambers v. Bernasconi, 1 C. M. & R. 347. Where a covenantor and covenantee submitted the amount of damages or a breach of covenant to arbitration, in an action on the covenant the award was held a conclusive admission of the amount of damages, Whitehead v. Tattersall, 1 A. & E. 491.

As to admissions by parties identified in interest, see antè, tit. "Hearsay,” p. 36.

66

so paid as Bottrell v. Nor is the

It was

Receipts.] The acknowledgment, in a deed, of the receipt of money, is conclusive evidence, as between the parties to it, of such receipt. Baker e. Dewey, 1 B. & C. 704. Rowntree v. Jacob, 2 Taunt. 141. But such receipt will not be conclusive, where the recitals of the deed show only an "agreement to pay," and the receipt is of money above mentioned; as is usually done in purchase deeds. Summers, 2 Y. & J. 407. Lampon v. Corke, 5 B. & A. 607. receipt indorsed on the back of a deed conclusive. Straton v. Rastall, 2 T. R. 366. In general, a receipt not under seal is only a prima facie acknowledgment that the money has been paid; and therefore may be contradicted or explained. Graves v. Key, 3 B. & Ad. 318. however held, both by Lords Kenyon and Ellenborough, that a receipt in full of all demands, given with a knowledge of all the circumstances, is conclusive, though there was no payment in fact. Bristow v. Eastman, 1 Esp. 172. Alner v. George, 1 Camp. 392. A receipt given in such a case seems, in fact, to be equivalent to an executed gift of the money. Semb. Bramston v. Robins, 4 Bing. 11. As between the underwriter and the assured, the acknowledgment in the policy of the receipt of the premium, by the broker, is conclusive; Dalzell v. Mair, 1 Camp. 532.; unless there has been a fraud practised by the assured, to induce the broker to give credit to him. Foy v. Bell, 3 Taunt. 493. If an agent, employed to receive money and bound by his duty to his principal to communicate to him whether the money is received or not, renders an account, from time to time, which contains an intentional mis-statement that the money has been received, he is so far bound by that account that he cannot make his principal refund monies paid on such account. Shaw v. Picton, 4 B. & C. 729. Skyring v. Greenwood, ib. 281.

Admissions implied from the acts of the party.] The plaintiff's title to sue, or the character in which the plaintiff sues, or in which the defendant is sued, is frequently admitted by the acts and conduct of the opposite party; and in some cases the admission, though not strictly

an estoppel, is conclusive. Thus, if B. has dealt with A. as farmer of the post-horse duties, it is evidence in an action by A. against B., to prove that he is such farmer. Radford v. M'Intosh, 3 T. R. 632. And see Peacock v. Harris, 10 East, 104. So in an action for slandering the plaintiff in his profession of an attorney, the words themselves, importing that the defendant would have the plaintiff struck off the roll of attornies, were held to be an admission of the plaintiff's character as attorney. Berryman v. Wise, 4 T. R. 366. Pearce v. Whale, 5 B. & C. 39. In an action for penalties against a collector of taxes, proof of the defendant having collected the taxes is sufficient proof of his being collector, though the appointment is by warrant under an act of parliament. Lister v. Priestley, Wightw. 67. So payment of tithes by a parishioner to the plaintiff, is evidence against the former of the plaintiff's title to the living. Chapman v. Beard, 3 Anstr. 942. But subscription of a paper, as witness, is not in itself proof of an admission of its contents. Harding v. Crethorn, 1 Esp. 58. An admission by a defendant that a third person has become bankrupt, as where an auctioneer advertised for sale "the property of J. S., a bankrupt," is evidence of the title of the assignees in an action brought by them against the auctioneer. Maltby v. Christie, 1 Esp. 340. And such an admission is evidence on a plea denying the title of the assignees. Inglis v. Spence, 1 C. M. & R. 432. So where the defendant, with a view to obtaining a commission against the party, swore an affidavit stating that he had become bankrupt. Ledbetter v. Salt, 4 Bing. 623. So it has been held, that a bankrupt, who has petitioned for his discharge under stat. 49 G. 3. c. 121. s. 14., cannot, in an action against his assignees, dispute the validity of the commission. Watson v. Wace, 5 B. &C. 153. But where the admission, that he has become bankrupt, is made in the course of a transaction with third persons, the bankrupt is not thereby estopped from showing, in an action against his assignees, that he has not become bankrupt. Heane v. Rogers, 9 B. & C. 577. Nor is he precluded from disputing the commission by surrendering, or by petitioning the Chancellor to enlarge the time for surrendering; Mercer v. Wise, 3 Esp. 219.; nor by having applied to a commissioner to appoint an official assignee, for investigating the petitioning creditor's debt, &c. Munk v. Clark, 2 New Ca. 299. So, as against a creditor, the merely proving a debt under the commission is not such an admission as will dispense with regular proof of the bankruptcy, when disputed. Rankin v. Horner, 16 East, 191. See post, tit. "Actions by assignees."

Admissions by trustees; or of persons not parties to the suit, but interested in it.] An admission is evidence whether made by a trustee, or nominal party, who sues for the benefit of another; Bauerman v. Radenius, 7 T. R. 664.; Gibson v. Winter, 5 B. & Ad. 96. ; or by the person really interested in the suit, but not named on the record. Thus in an action on a bond conditioned for the payment of money to L. D., the declaration of L. D. that the defendant owes nothing is evidence. Hanson v. Parker, 1 Wils. 257. So in an action by the master of a ship for freight, brought for the benefit of the owner, the admissions of the latter are evidence. Smith v. Lyon, 3 Camp. 465. So in actions on policies, the declarations of the parties really interested are admissible. Per Lord Ellenborough, Bell v. Ansley, 16 East, 143. But where an action of

ejectment was brought by a trustee having the legal estate; and the defendant offered evidence of admissions made by the cestui que trust of a particular estate; it was considered doubtful whether such evidence could be received, inasmuch as the interest of the cestui que trust was not co-extensive with that of the lessor of the plaintiff, and the declarations were prejudicial to the remainderman. Doe v. Wainwright, 8 A. & E. 691. On an appeal against an order of removal the admissions of rated inhabitants of a parish are evidence against that parish. R. v. Whitley, 1 M. & S. 636. So in an action against the sheriff, the declarations of a party who has indemnified the sheriff are evidence against the defendant. Dyke v. Aldridge, cited 7 T. R. 665. So in trover for a deed, which the defendant admitted he detained at the request of W. R. and in the detainer of which W. R. was substantially interested, the declarations of W. R. in favour of the plaintiff's claim are admissible. Harrison v. Vallance, 1 Bing. 45.; and see Robson v. Andrade, 1 Stark. 372. So, the declarations of the party for whose benefit the plaintiff sues on a bill. Welstead v. Levy, 1 M. & Rob. 138. Or of a party from whom he received the bill or note when overdue. Beauchamp v. Parry, 1 B. & Ad. 89.

Grant

The declarations of a party, proved to be a joint contractor with the defendant, though not joined in the action, or though the co-contractor has been nol-prossed on a plea of bankruptcy, are admissible. v. Jackson, Peake, 203. Wood v. Braddick, 1 Taunt. 104. But admissions by co-trespassers, or joint defendants in actions for tort, are not generally evidence except against themselves, unless there be proof of a common motive and object, and the declarations relate to them. Daniels v. Potter, M. & M. 501.: and see the observations in R. v. Hardwick, 11 East, 578., and Phillipps on Ev. P. 1, Ch. 5., Sec. 4. Nor are they evidence in actions ex contractu, unless they relate to a matter in which there is a community of interest: thus where the plaintiff in covenant alleged an eviction by two defendants, under a prior lawful title; an admission by one of the defendants after eviction was held no evidence of such title, although the defendants were co-executors of the covenantor, and had joined in the eviction. Fox v. Waters, 12 A. & E. 43.

An admission by one of several trustees will not affect his co-trustees where they are not all personally liable. Davies v. Ridge, 3 Esp. 102. And an admission by an indifferent individual of a corporation is not evidence against the corporate body. Mayor of London v. Long, 1 Camp. 23. But where a corporation sues for a disturbance in exercising a corporate office, what is said by the officer respecting the exercise of it, is evidence against the corporation. Id. 25., per Lord Ellenborough.

Admissions by guardian, trustee, and prochein amy.] The admissions of a guardian are not evidence against an infant who sues by his guardian. Cowling v. Ely, 2 Stark. 366.; but see James v. Hatfeild, 1 Stra. 548. Nor the admission of prochein amy. Webb v. Smith, R. & M. 106. Nor, as it is said, those of a trustee against a cestui que trust. B. N. P. 237. Sed quære?

Admissions by agents.] Where a party to the suit constitutes a third person his agent for the purpose of an admission, the admission so

made is evidence. Thus, if a person agrees to admit a claim, provided J. S. will make an affidavit in support of it, such affidavit is proof against him. Lloyd v. Willan, 1 Esp. 178.; Stevens v. Thacker, Peake, 187. But is not conclusive; Garnet v. Ball, 3 Stark. 160.; except in an action on such special agreement; Amy v. Andrews, I Freem. 132. So if the vendee of goods denies having received them, but adds, "If the carrier's servant says he delivered the goods, I will pay you," the answer of the servant, when applied to on the subject, may be given in evidence. Daniel v. Pitt, 1 Camp. 366. (n). Williams v. Innes, 1 Camp. 364. In an action for the loss of a horse through the defendant's negligence in not fencing a shaft, defendant consented to pay compensation if a miner's jury should say the shaft was his held, that the finding of such a jury was evidence against him, though not conclusive. Sybray v. White, 1 M. & W. 435. With regard to the admissions of agents in general, the rule is this: When it is proved that A. is agent to B., whatever A. does or says or writes, in the making of a contract as agent of B., is admissible in evidence, because it is part of the contract which he makes for B., and which therefore binds B.; but it is not admissible as the agent's account of what has passed. Per Gibbs J., Langhorn v. Allnutt, 4 Taunt. 519. Thus the declaration of a servant, employed 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 proved by the servant himself. Helyear v. Hawke, 5 Esp. 72.; and see Irving v. Motly, Bing. 543. An admission by a servant, in a transaction not relating to the business in which he is employed, is not evidence against his master. Thus, where a pawnbroker's shopman was heard to state that his master had lent 2007. at five per cent. on the security of certain plate, this was held inadmissible as against the master. Garth v. Howard, 8 Bing. 451. But if the statement had been made by him in reference to a transaction in the ordinary course of a pawnbroker's business, it would have been different. Id. 453. Schumack v. Lock, 10 B. Moo. 39. The letters of an agent to his principal, containing a narrative of the transactions in which he had been employed, are not admissible in evidence against the principal. Kahl v. Jansen, 4 Taunt. 565.; Fairlie v. Hastings, 10 Ves. 128.; Betham v. Benson, 1 Gow. 45. So in an action against a surety, the admissions or declarations of the principal, to whom goods have been sent by the plaintiff at the defendant's request, are not evidence against the defendant either as to the receipt of the goods, or as to other facts respecting them. Evans v. Beattie, 5 Esp. 26. Bacon v. Chesney, 1 Stark. 192. But a letter from an agent abroad stating the receipt of money, coupled with the answer of the principal directing the disposition of the money, will be evidence of the receipt by the principal. Coates v. Bainbridge, 5 Bing. 58. The admissions of an under-sheriff are evidence against the sheriff; Drake v. Sykes, 7 T. R. 117.; but not unless they accompany an act done, or tend to charge himself; he being the real party in the cause. Snowball v. Goodricke, 4 B. & Ad. 541. And the admissions of a bailiff are evidence against the sheriff, like the statements of any other agent, when they form part of the transaction. North v. Miles, 1 Camp. 389. The admissions of a surveyor to a corporation respecting a house belonging to the corporation, are evidence against the latter in an action for an injury to the plaintiff's house by works done on the defendant's premises.

Peyton v. Governors of St. Thomas's Hospital, 4 M. & R. 625. (n); and see Mayor of London v. Long, 1 Camp. 25.

In all cases, before the admissions of an agent can be given in evidence, the fact of his agency must be established; and evidence that the party has acted as agent in other instances, in which the principal has recognised his acts, will be evidence of a general authority. Neal v. Erving, 1 Esp. 61. Watkins v. Vince, 2 Stark. 368. A receipt for debt and costs, indorsed by the plaintiff's attorney's town agent on a writ of summons, is evidence of payment against the plaintiff without further proof of agency. Weary v. Alderson, 2 M. & Rob. 127.

Admissions by partner.] After prima facie evidence of partnership, the declaration of one partner is evidence against his co-partners; Nicholls B. Dowding, 1 Stark. 81.; though the former is no party to the suit; Wood r. Braddick, 1 Taunt. 104. ; but see Rooth v. Jauney, 7 Price, 198.; and it is evidence, though made after the dissolution of partnership, if made as to a transaction which took place before the dissolution; Wood v. Braddick, 1 Taunt. 104.; but not to bind his co-partner as to a transaction which occurred previously to the partnership, unless a joint responsibility be proved as a foundation for the evidence. Catt v. Howard, 3 Stark. 3. Admissions made by one of several partners, after the dissolution of the partnership, are admissible to prove payment, after the dissolution, of a debt due to the partnership. Pritchard v. Draper, 1 Russ. & Myl. 191. A declaration by one of several partners, joint plaintiffs, that goods, the subject matter of the suit, were his separate property, is evidence against all the plaintiffs; Lucas v. De la Cour, I M. & S. 249.; but an admission by a partner, as to a subject, not of co-partnership, but of joint ownership in a vessel, is not binding on his co-partner. Jaggers v. Binnings, 1 Stark. 64. Entries in a book, kept by the clerk of an incorporated company, are not evidence against a member suing them on a contract with him, although the act of incorporation directs the clerk to keep such book, and gives liberty of inspection to all members. Hill v. Manchester Water Works, 5B. & Ad. 866. In an action against two partners on a deed purporting to be executed by one defendant "for self and partner," an admission by the other defendant that he had given due authority to execute on his behalf is not evidence to prove the execution by both without producing the authority. Steiglitz v. Egginton, Holt, N. P. 141.

Admissions by wife.] In general, the admissions of a wife will not bind the husband. Thus, the wife's receipt for wages earned by her is not evidence against the husband. Hall v. Hill, 2 Stra. 1094. But where the wife can be considered the agent of her husband, her admis sions may be received as evidence against him. Emerson v. Blonden, 1 Esp, 142.; Anderson v. Sanderson, 2 Stark. 204., S. C. Holt, 591. Thus, in an action for goods sold and delivered at the defendant's shop, an offer made by his wife to settle the demand is admissible in evidence, she being accustomed to serve in the shop, and to transact the business in her husband's absence; Clifford v. Burton, 1 Bing. 199.; and her admission under such circumstances will take a case out of the Statute of Limitations. Palethorp v. Furnish, 2 Esp. 511. (n). Pratt C. J. admitted the wife's declaration, that she agreed to pay four shillings per week for nursing a child, to charge the husband;