CHAP. XIV.] ADMISSIONS AND CONFESSIONS SUBSTITUTES FOR PROOF. 595

CHAPTER XIV.

ADMISSIONS.

§ 653. UNDER the head of exceptions to the rule rejecting hearsay evidence, it has been usual to treat of admissions and confessions; considering them as declarations against interest, and therefore, as 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, 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. In this light confessions and admissions are regarded by the Roman law, as 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 made by third persons, are receivable on mixed grounds; partly as belonging to the res

1 Gr. Ev., § 169, verbatim.

As to when the admissions of a party with respect to written instruments may be substituted for the ordinary proof of such instruments by their production, see ante, §§ 381-384.

3 Mascard. de Prob. vol. i. quæst. 7, n. 1, 10, 11; Menochius de Præsump. lib. 1, quæst. 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 presumptio juris et de jure; thus constituting an exception to the conclusiveness of this class of

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.

2

§ 654. 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. This distinction will be better understood by an example. Thus, on the trial of Lord Melville, who was charged, amongst other things, with criminal misapplication of moneys received from the Exchequer, the admission of his agent and authorised receiver was held sufficient proof of the fact of such agent having received the public money; though had such admission been tendered in evidence to establish the charge of any misapplication of the money by the noble defendant, it would clearly have been rejected. The law was thus stated by Lord Chancellor Erskine. "This first step in the proof" (namely, the receipt of the money by the agent,) "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 be 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."

§ 655. As the rules of evidence, respectively applicable to admissions and confessions, differ in some respects, the two subjects will be discussed in separate chapters. And with regard

presumptions. But to give a confession this effect, certain things are essential, which Mascardus cites out of Tancred :—

"Major, spontè, sciens, contra se, ubi jus fit ;

Nec natura, favor, lis, jusve repugnet, et hostis." Mascard. ub. supr. n. 15, Vid. Dig. lib. 42, tit. 2, de confessis, Cod. lib. 7, tit. 59; Van Leeuwen's Comm., book v. ch. 21.

1 Gr. Ev., § 170, almost verbatim.

* Lord Melville's trial, 29 How. St. Tr. 746-764.

to ADMISSIONS, the first rule, which is important to be borne in mind, is, that the whole statement containing the admission must be taken together; for though some part of it may be favourable to the party, and the object is only to ascertain what he has conceded against himself, and what may therefore be presumed to be true; yet, unless the whole is received, the true meaning of the part, which is evidence against him, cannot be ascertained.' But though the whole of what he said at the same time, and relating to the same subject, must be given in evidence, it does not follow that all the parts of the statement should be regarded as equally deserving of credit; but the jury must consider, under the circumstances, how much of the entire statement they deem worthy of belief, including as well the facts asserted by the party in his own favour, as those making against him.'

3

§ 656. This rule, simple as it appears, is not without difficulty in its practical application; and it will therefore be convenient briefly to refer to a few of the leading decisions on the subject. And first the rule applies equally to written, as to verbal, admissions; and, consequently, where a defendant has rendered a debtor and creditor account to the plaintiff, which the latter produces in proof of his demand, it will be equally admissible in evidence of the defendant's set-off; though the plaintiff will be at liberty, while relying on the creditor side of the account, to impeach items which appear on the debtor side. Where, however, to an action on an attorney's bill of costs, the defendant pleaded a set-off, and put in an account furnished to him by the plaintiff, in which the plaintiff credited himself for the amount of his bill, and debited himself for the amount of goods sold, the Court held that the defendant could not exclude from the con

1 Thomson v. Austen, 2 D. & Ry. 361, per Abbott, C. J.; Fletcher v. Froggatt, 2 C. & P. 566, per id.; Cobbett v. Grey, 4 Ex. R. 729.

2 Bermon v. Woodbridge, 2 Doug. 788, per Lord Mansfield; Smith v. Blandy, Ry. & M. 259, per Best, C. J., Cray v. Halls, cited id. 258, per Abbott, C. J. See also Whitwell v. Wyer, 11 Mass. 6, 10; Garey v. Nicholson, 24 Wend. 350; Kelsey v. Bush, 2 Hill, R. 440.

3 Randle v. Blackburn, 5 Taunt. 245.

Rose v. Savory, 2 Bing. N. C. 145; 2 Sc. 199, S. C.

v. Newton, 3 De Gex & Sm. 307.

See Moorhouse

sideration of the jury so much of the account as related to the bill of costs, on the ground that no signed bill had been delivered; because the non-delivery of a signed bill does not bar the debt; but merely, if insisted on, prevents its recovery by action.'

§ 657. If the admission be contained in an affidavit, a written examination, a signed pleading,' an answer in Chancery, or other document complete in itself, the whole document must be read, though the jury need not give equal credit to every part of it, and will frequently lend an academic faith to such portions as make in favour of the declarant. So stringent is this rule, that where, on exceptions taken, a second answer to a bill in equity had been sent in, the defendant was allowed to insist upon having that also read, in order to explain what he had sworn in his first answer. It has also been held that a party, against whom an answer in Chancery is produced, may have the whole bill read as part of his adversary's case, on the ground that this is like the ordinary case of a conver sation, where the answers of a party cannot be given in evidence against him without also proving the questions which drew forth the answers. The jury, however, will in such case be warned, that the statements in the bill are not admissions of the facts contained therein, it being notorious that allegations, not consistent with fact, are frequently introduced into a bill, for the sole purpose of eliciting truth from the opposite party.

§ 658. In Goss v. Quinton, where the plaintiffs, who were

1 Harrison v. Turner, 10 Q. B. 482.

In Prince v. Samo, 7 A. & E. 630, Coleridge, J., asked whether the question had ever been decided as to depositions? To which the counsel replied, that no express decision had been found.

3 Marianski v. Cairns, 1 Macq. Sc. Cas. H. of L. 212. In the courts of common law at Westminster no pleadings are now signed, 15 & 16 Vict., c. 76, § 85.

4

Bermon v. Woodbridge, 2 Doug. 788, per Lord Mansfield; Blount v. Burrow, 4 Brown, C. C. 75, per Lord Hardwicke; Baildon . Walton, 1 Ex. R. 617; Percival v. Caney, 4 De Gex & Sm. 623, 624, per Knight Bruce, V. C.

R. v. Carr, 1 Sid. 418; B. N. P. 237; Lord Bath v. Bathersea, 5 Mod. 10; Lynch v. Clerke, 3 Salk. 154.

"Pennell v. Meyer, 2 M. & Rob. 98, per Tindal, C. J. ; 8 C. & P. 470, S. C. 83 M. & Gr. 825.

7 Id.

assignees of a bankrupt, gave in evidence an examination of the defendant before the commissioners, as proof that he had taken certain property, the Court held that they thereby made his crossexamination evidence in the cause; and as, in this cross-examination, the defendant had stated that he had purchased the property under a written agreement, a copy of which was entered as part of his answer, this statement was considered as some evidence on his behalf of the agreement and its contents; and that too, though the absence of the document was not accounted for, nor had notice been given to the plaintiffs to produce it. So, where a magistrate was sued in trespass for assault and false imprisonment, the warrant of commitment put in evidence by the plaintiff was held to be admissible on behalf of the defendant as proof of the information recited in it; and in an action against a sheriff, where an undersheriff's letter was produced by the plaintiff to affect the defendant, it was held to be some evidence also of certain facts stated therein, which tended to excuse the sheriff.

§ 659. The case of Bessey v. Windham3 purports to have been decided on the same principle. There, in order to fix a sheriff in an action of trespass, the plaintiff put in the warrant under which the seizure was made; and as this recited the writ of fi.-fa., the Court of Queen's Bench held that it was some evidence of the writ, and consequently that it tended to protect the sheriff, as showing that the seizure was made by the authority of the law. The Court of Common Pleas, however, on a more recent occasion,' has questioned this decision, on the ground that the warrant was offered in evidence, not as proof of the facts recited in it, but merely to show that the sheriff had ordered the goods in question to be seized. And it seems to be now tolerably clear from several authorities, that where a sheriff or bailiff seeks to justify a seizure as against any party but the execution debtor, he must produce both the writ of execution and the judgment,

1

Haylock v. Sparke, 22 L. J., M. C., 67; 1 E. & B. 471, S. C. This case seems to overrule Stephens v. Clark, 2 M. & Rob. 435, per Cresswell, J. 2 Haynes v. Hayton, 6 L. J., K. B. (O. S.), 231, recognised in Bessey r. Windham, 6 Q. B. 172.

36 Q. B. 166. See Ogden v. Hesketh, 2 C. & Kir. 772.

✦ White v. Morris, 11 Com. B. 1015.