CHAPTER XI. OF ADMISSIONS. § 169. The ground upon which admissions against interest are received. 170. Distinction between confessions and admissions. Admissions. 171. Those of the party of record, and of such as are in same interest, admissible. 172. If the party of record have no interest, his admissions will not affect the party really in interest. 173. The American courts adhere more strictly to the rule than the English. 174. The admissions of one joint party binds all, in the absence of fraud. 175. The English courts regard the inhabitants of a parish as parties; but the rule seems otherwise in America. 176. Community of interest required to make admissions of joint party receivable. 177. The joint interest must be shown as the basis of admitting declarations of one party against others. 178. The same rule applies to the answer of one defendant in chancery, as against others. 179. Admissions of a representative party evidence only against himself, and as affecting matters for which he is responsible. 180. Admissions of the party in interest generally receivable. 181. The declarations of third parties admissible, where they are the real party to the question. 182. A party bound by declarations of one to whom he refers. 183. Declarations of interpreter the same as of the party. 184. How far declarations of party referred to are conclusive. 185. Declarations of wife bind husband to extent of her agency. 186. The solemn admissions of attorney bind the party, but none others. 187. Admissions of principal bind surety within the transaction. 188. Judgment against surety, with notice to principal, binds him. 189. The admissions of those in privity with party bind him. 190. Declarations of the assignor good evidence against assignee. 191. It is not necessary to prove admissions by the party making them. 192. Offers to induce compromise, or without prejudice, not admissible. 193. Constraint, short of legal duress, no ground of rejecting admissions in civil causes. 194. Incidental admissions as much evidence as those more direct. 195. Admissions may be implied, from the character one assumes. pleadings in an action inter alios. 196. So also from the conduct of the party. 197. Acquiescence in a claim concludes the party. So too from 197a. Silence no ground of presumption, unless the occasion fairly demand some thing to be said. Pleadings. $198. Presumptions of acquiescence from constant access to documents. 199. Great caution required in making inferences from silence. 200. So also in regard to oral admissions of party. 201. The whole admission must be received. 202. Answer in chancery, the whole taken together. All not equally reliable. 203. Oral admissions will not supply the place of writings. 204. Estoppels in pais, how far conclusive. 205. Payment of money into court admits the cause of action to that extent. 206. Court may relieve counsel from concessions made by surprise, accident, or mistake. 207. Party estopped to deny what he has induced other parties to act upon. 208. It is not important whether it be really the fact or not. 209. Admissions not acted upon by others may be controverted. 210. Many admissions held conclusive on grounds of public policy. 211. Estoppels by deed not conclusive upon strangers. 212. Receipts, accounts rendered, and accounts stated, &c., not conclusive.] § 169. UNDER the head of exceptions to the rule rejecting hearsay evidence, it has been usual to treat of admissions and confessions by the party, considering them as declarations against his interest, and therefore probably true. But in regard to many admissions, and especially those implied from conduct and assumed character, it cannot be supposed that the party, at the time of the principal declaration or act done, believed himself to be speaking or acting against his own interest; but often the contrary. Such evidence seems, therefore, more properly admissible as a substitute for the ordinary and legal proof, either in virtue of the direct consent and waiver of the party, as in the case of explicit and solemn admissions, or on grounds of public policy and convenience, as in the case of those implied from assumed character, acquiescence, or conduct. It is in this light that confessions and admissions are regarded by the Roman law, as is stated by Mascardus. Illud igitur in primis, ut hinc potissimum exordiar, non est ignorandum, quod etsi confessioni inter probationum species locum in præsentia tribuerimus; cuncti tamen fere Dd. unanimes sunt arbitrati, ipsam potius esse ab onere probandi relevationem, quam proprie probationem. Many admissions, however, being 1 See supra, § 27. 2 Mascard. De Probat., vol. 1, Quæst. 7, n. 1, 10, 11; Menochius, De Præsump., lib. 1, Quæs. 61, n. 6; Alciatus, De Præsump., Pars. 2, n. 4. The Roman law distinguishes, with great clearness and precision, between confessions extra judicium, and confessions in judicio; treating the former as of very little and often of no weight, unless corroborated, and the latter as generally, if not always, conclusive, even to the overthrow of the præsumptio juris et de jure; thus constituting an exception to the conclusiveness of this class of presumptions. But to give a confession this effect, certain things are essen made by third persons, are receivable on mixed grounds; partly as belonging to the res gestæ, partly as made against the interest of the person making them, and partly because of some privity with him against whom they are offered in evidence. The whole subject, therefore, properly falls under consideration in this connection. § 170. In our law, the term admission is usually applied to civil transactions and to those matters of fact, in criminal cases, which do not involve criminal intent; the term confession being generally restricted to acknowledgments of guilt. We shall therefore treat them separately, beginning with admissions. The rules of evidence are in both cases the same. Thus, in the trial of Lord Melville, charged, among other things, with criminal misapplication of moneys received from the exchequer, the admission of his agent and authorized receiver was held sufficient proof of the fact of his receiving the public money; but not admissible to establish the charge of any criminal misapplication of it. The law was thus stated by Lord Chancellor Erskine: "This first step in the proof" (namely, the receipt of the money), “must advance by evidence applicable alike to civil, as to criminal cases; for a fact must be established by the same evidence, whether it is to he followed by a criminal or civil consequence; but it is a totally different question, in the consideration of criminal, as distinguished from civil justice, how the noble person now on trial may be affected by the fact, when so established. The receipt by the paymaster would in itself involve him civilly, but could by no possibility convict him of a crime."1 § 171. We shall first consider the person, whose admissions may be received. And here the general doctrine is, that the declarations of a party to the record or of one identified in interest with him, are, as against such party, admissible in evidence.2 If tial, which Mascardus cites out of Tan- tions of the parties, which are not put in cred: Major, spontè, sciens, contra se, ubi jus fit; 1 29 Howell's State Trials, col. 764. issue by the pleadings, and which there was not, therefore, any opportunity of Toulmin, 7 Clark & Fin. 350, 373; Ausexplaining or disproving. Copeland v. tin v. Chambers, 6 Clark & Fin. 1; Atwood v. Small, Id. 234. But in the United States this rule has not been adop ted; and it is deemed sufficient if the proposition to be established is stated in the bill, without stating the particular kind of evidence by which it is to be proved See Smith v. Burnham, 2 Sumn they proceed from a stranger, and cannot be brought home to the party, they are inadmissible, unless upon some of the other grounds already considered. Thus, the admissions of a payee of a negotiable promissory note, not overdue when negotiated, cannot be received in an action by the indorsee against the maker, to impeach the consideration, there being no identity of interest between him and the plaintiff. 2 § 172. This general rule, admitting the declarations of a party to the record in evidence, applies to all cases where the party has any interest in the suit, whether others are joint parties on the same side with him, or not, and howsoever the interest may appear, and whatever may be its relative amount. But where the party sues alone, and has no interest in the matter, his name being used, of necessity, by one to whom he has assigned all his interest in the subject of the suit, though it is agreed that he cannot be permitted, by his acts or admissions, to disparage the title of his innocent assignee or vendee, yet the books are not so clearly agreed in the mode of restraining him. That chancery will always protect the assignee, either by injunction or otherwise, is very certain; and formerly this was the course uniformly pur 612; Brandon v. Cabiness, 10 Ala. R. 156; Story, Equity Plead. § 265a, and note (1), where this subject is fully discussed. And in England, the rule has recently been qualified, so far as to admit a written admission by the defendant of his liability to the plaintiff, in the matter of the pending suit. Malcolm v. Scott, 3 Hare, 63; McMahon v. Burchell, 1 Coop. Cas. temp. Cottenham, 475; 7 Law Rev. 209. See the cases collected by Mr. Cooper in his note appended to that case. It seems, that pleadings, whether in equity or at common law, are not to be treated as positive allegations of the truth of the facts therein stated, for all purposes; but only as statements of the case of the party, to be admitted or denied by the opposite side, and if denied, to be proved, and ultimately to be submitted to judicial decision. Boileau v. Rutlin, 2 Exch. 665. [Answers of a party to a suit to interrogatories filed in the ordinary mode of practice are competent evidence against him of the facts stated therein, in another suit, although the issues in the two suits be different. Williams v. Cheney, 3 Gray, 215; Judd v. Gibbs, Ib. 539. See Church v. Shelton, 2 Curtis, C. C. 271; State v. Littlefield, 3 R. I. 124.] 1 Supra, §§ 128, 141, 147, 156. There must be some evidence of the identity of the person whose admissions are offered in evidence, with the party in question. Thus, where the witness asked for the defendant by name, at his lodgings, and a person came to the door professing to be the one asked for; the witness being unacquainted with the defendant's person then and since; this was held sufficient to admit the conversation which then was had between the witness and this person, as being, primâ facie, the language of the defendant. Reynolds v. Staines, 2 C. & K. 745. [Admissions of a party may be proved, although they relate to a written instru ment. Loomis v. Wadham, 8 Gray, 556.] 2 Barough v. White, 4 B. & C. 325, Bristol v. Dan, 12 Wend. 142. 3 Bauerman v. Radenius, 7 T. R. 663; 2 Esp. 653, s. c. In this case the consignees brought an action in the name of the consignor, against the ship-master, for a damage to the goods, occasioned by his negligence; and without supposing some interest to remain in the consignor, the action could not be maintained. It was on this ground that Lawrence, J., placed the decision. See also Norden v. Williamson, 1 Taunt. 378; Mandeville v. Welch, 5 Wheat. 283, 286; Dan et al. v. Brown, 4 Cowen, 483, 492; [Black v. Lamb, J Beas. ley, 108.] sued; the admissions of a party to the record, at common law, being received against him in all cases. But, in later times, the interests of an assignee, suing in the name of his assignor, have also, to a considerable extent, been protected, in the courts of common law, against the effect of any acts or admissions of the latter to his prejudice. A familiar example of this sort is that of a receipt in full, given by the assignor, being nominal plaintiff, to the debtor, after the assignment; which the assignee is permitted to impeach and avoid, in a suit at law, by showing the previous assignment.1 § 173. But a distinction has been taken between such admissions as these, which are given in evidence to the jury, under the general issue, and are, therefore, open to explanation, and controlling proof; and those in more solemn form, such as releases which are specially pleaded, and operate by way of estoppel; in which latter cases it has been held, that, if the release of the nominal plaintiff is pleaded in bar, the courts of law, sitting in bank, will administer equitable relief by setting aside the plea, on motion; but that, if issue is taken on the matter pleaded, such act or admission of the nominal plaintiff must be allowed its effect at law to the same extent as if he were the real plaintiff in the suit.2 The American courts, however, do not recognize this distinction; but where a release from the nominal plaintiff is pleaded in bar, a prior assignment of the cause of action, with notice thereof to the defendant, and an averment that the suit is prose cuted by the assignee for his own benefit, is held a good replication. Nor is the nominal plaintiff permitted by the entry of a retraxit, or in any other manner injuriously to affect the rights of his assignee in a suit at law.* 1 Henderson et al. v. Wild, 2 Campb. 561. Lord Ellenborough, in a previous case of the same kind, thought himself not at liberty, sitting at Nisi Prius, to overrule the defence. Alner v. George, .1 Campb. 392; Frear v. Evertson, 20 Johns. 142. See also Payne v. Rogers, Doug. 407; Winch v. Keeley, 1 T. R. 619; Cockshott v. Bennett, 2 T. R. 763; Lane v. Chandler, 3 Smith, R. 77, 83; Skaife v. Jackson, 3 B. & C. 421; Appleton v. Boyd, 7 Mass. 131; Tiermen v. Jackson, 5 Peters, 580; Sargeant v. Sargeant, 3 Washb. 371; Head v. Shaver, 9 Ala. 791. 2 Alner v. George, 1 Campb. 395, per d. Ellenborough; Gibson v. Winter, 5 B. & A. 96; Craib v. D'Aeth, 7 T. R. 670, note (b); Leigh v. Leigh, 1 B. & P. 447; Anon. 1 Salk. 260; Payne v. Rogers, Doug. 407; Skaife v. Jackson, 3 B. & C. 421. 8 Mandeville v. Welch, 5 Wheat, 277 283; Andrews v. Beeker, 1 Johns. Cas. 411; Raymond v. Squire, 11 Johns. 47; Littlefield v. Story, 3 Johns. 425; Dawson v. Coles, 16 Johns. 51; Kimball v. Huntington, 10 Wend. 675; Owings v. Low, 5 Gill & Johns. 134. 4 Welch v. Mandeville, 1 Wheat. 233. "By the common law, choses in action were not assignable, except to the crown. The civil law considers them as, strictly |