applied against a person, who has recognised the character or office of another; but it embraces, in its principle, any representation or language in regard to himself. Thus, to illustrate the second branch of the rule first,-where one has assumed to act in an official character, this is an admission of his appointment or title to the office, so far as to render him liable, even criminally, for misconduct or neglect in such office.' This doctrine has been held to apply, among other cases, to actions or prosecutions against clergymen, for non-residence;' against military officers, for returning false musters; against popish priests, for remaining forty days within the kingdom, when this was considered an offence of no less magnitude than high treason; against letter-carriers, for embezzlement; and against solicitors, tollgatherers, and collectors, for penalties." 7 5 3 § 802. So, under the first branch of the rule,-where one has 727 recognised the official character of another, by treating with him in such character or otherwise, this is at least primâ facie evidence of his title against the party thus recognising it. For instance, where a person had received credit from the renter of turnpike tolls, and had afterwards accounted with him in that character, and made him a partial payment, he was not permitted to question the legality of his appointment; 10 and where a farmer-general of post-horse duties brought an action for certain statute penalties against a person who let out horses for hire, proof of his appointment was waived, the defendant having previously accounted with 1 See ante, ? 171. 2 Bevan v. Williams, 3 T. R. 635, a, per Ld. Mansfield. 3 R. v. Gardner, 2 Camp. 513, per Ld. Ellenborough. R. v. Kerne, 7 How. St. Tr. 714; R. v. Brommich, id. 722; R. v. Atkins, id. 728. The Act of 27 El., c. 2, under which these poor wretches were tried, is now repealed by 7 & 8 V., c. 102. 5 R. v. Borrett, 6 C. & P. 124, per Littledale and Bosanquet, Js., and Bolland, B. The prisoner was indicted under 2 W. 4, c. 4, now repealed by 24 & 25 V., c. 95. 6 Cross v. Kaye, 6 T. R. 663. 8 Lister v. Priestly, Wightw. 67. • Peacock v. Harris, 10 East, 104. 10 See ante, 88 173-175. 2 him as farmer-general.' So, the clerk of the trustees of a turnpike road has not been allowed to show, that a person who had acted as one of the trustees, and had been treated as such by himself, while clerk, was not duly qualified; and in an action by the trustee of a bankrupt against a debtor, who has made him. a partial payment, or has acknowledged his title in letters to the solicitor under the bankruptcy, the plaintiff need not prove his title as trustee, though notice to dispute it has been given. Again, where a solicitor brought an action against a defendant for defamation, in charging him with swindling, and threatening to have him struck off the rolls, this threat was held to imply an admission that the plaintiff was a solicitor; and in a similar action brought by a physician, where the plaintiff was spoken of as "Doctor L.," and the defendant, who was an apothecary, had made up medicines prescribed by him, the Court of Common Pleas was equally divided upon the question, whether the defendant's words and conduct amounted to an acknowledgment of the plaintiff's character. In actions of this kind, however, if the words complained of charge a want of qualification and not mere misconduct, the plaintiff must prove that he possesses the character which has been impugned, for the slander in such case does not admit it.' 6 5 § 803. The case of Lipscombe v. Holmes affords a good 728 example of both branches of the rule in question. That was an action for work and labour as a surgeon; and the defence was that the plaintiff was a physician, and therefore incapable, by the law then in force," of maintaining an action for fees. It was 1 Radford v. M'Intosh, 3 T. R. 632. 2 Pritchard v. Walker, 3 C. & P. 212, per Vaughan, B. 3 Dickinson v. Coward, 1 B. & A. 677. 4 Inglis v. Spence, 1 C. M. & R. 432; Crofton v. Poole, 1 B. & Ad. 561. 5 Berryman v. Wise, 4 T. R. 366. Smith v. Taylor, 1 N. R. 166; Sir J. Mansfield, and Heath, J., aff., Rooke and Chambre, Js., neg. 7 Id. 207; Collins v. Carnegie, 1 A. & E. 703, per Ld. Denman. 2 Camp. 441. See further on this subject, R. v. Barnes, 1 Stark. R. 243; Cummin v. Smith, 2 Serg. & R. 440; Divoll v. Leadbetter, 4 Pick. 220. 'See now 21 & 22 V., c. 90, 31; Gibbon v. Budd, 32 L. J., Ex. 182, 2 shown that he had written prescriptions and signed himself M. D., upon which Lord Ellenborough was on the point of nonsuiting him, saying that "if a person passes himself off as a physician, he must take the character cum onere." It appearing, however, that the defendant had paid money into court, his lordship thought that this act removed the objection, being tantamount to an admission of the plaintiff's right to sue as a surgeon. 2 3 § 804. Admissions implied from the conduct of the party are 729 governed by the same principles; and although this class of admissions has already been adverted to, while treating of the law of presumptions, it deserves further illustration in this place. Thus, an attempt by a plaintiff to suborn false witnesses is cogent evidence, in the nature of an admission by conduct, that his cause is an unrighteous one. So, the suppression of documents is an admission that the contents were deemed unfavourable to the party suppressing them. The entry of a charge to a particular person in a tradesman's book, or the making out of a bill of parcels in his name, is an admission that the goods were furnished on his credit. The delivery, too, by a tradesman, of an invoice. or account in which goods are described as bought from him, is strong, but not conclusive evidence, that he was the real vendor." The omission of a claim by an insolvent in a schedule of the debts due to him given on oath, is an admission that it is not due; though whether it amounts to a conclusive admission may H. & C. 92, S. C.; and by-law by the Royal College of Physicians, that no 2 Ante, 107, 116, 117, 178, 555. 3 Moriarty v. Lond. Chat. & D. Ry. Co., 39 L. J., Q. B. 109; 5 Law Rep., Q. B. 314, S. C. ✦ James v. Biou, and Owen v. Flack, 2 Sim. & St. 606, 607; Bell v. Frankis, 4 M. & Gr. 446; Curlewis v. Corfield, 1 Q. B. 814; 1 G. & D. 489, S. C.; Clifton v. U. S., 4 Howard, S. Ct. R. 242; R. v. Lond. Bright. & S. Coast Ry. Co., 20 L. J., M. C. 145, per Coleridge, J.; Sutton v. Devonport, 27 L. J., C. P. 54; Edmonds v. Foster, 45 L. J., C. P. 41. 5 Storr v. Scott, 6 C. & P. 241, per Ld. Lyndhurst. See Thomson v. Davenport, 9 B. & C. 78, 86, 90, 91. Holding . Elliott, 29 L. J., Ex. 134; 5 H. & N. 117, S. C. See post, 1153. be a question of some doubt.' Payment of money is an admission against the payer, that the receiver is the proper person to receive it; but not against the receiver, that the payer was the person who was bound to pay it; for the party receiving payment of a just demand may well assume, without inquiry, that the party tendering the money was the person legally bound to pay it.2 § 805. Relief given at various times to a pauper while residing 730 in another parish, is cogent, though not conclusive, evidence that he is settled in the relieving parish;3 and even a single instance of such relief having been given will warrant a similar conclusion.* Of course the effect of such evidence will be much stronger, if the examination states a distinct head of settlement in the relieving parish, though the technical proof may fail to establish it satisfactorily. On the other hand, the relief of a pauper, while residing in the relieving parish, is no evidence whatever of a settlement, however frequently it may have been bestowed; but this rule rests, not so much on the absence of any presumption deducible from the conduct of the relieving parish, as on the impolicy of permitting such evidence to have any weight; for if parochial officers, by giving relief to a pauper, were to make evidence against themselves 1 In Nicholls v. Downes, 1 M. & Rob. 13, Ld. Tenterden held it to be conclusive, apparently questioning Hart v. Newman, 3 Camp. 13, where Ld. Ellenborough treated it as entitled to little weight. See Tilghman v. Fisher, 9 Watts, 441. 2 James v. Biou, 2 Sim. & St. 606; Chapman v. Beard, 3 Anstr. 942. 3 R. v. Barnsley, 1 M. & Sel. 377, 380, per Ld. Ellenborough; R. v. Wakefield, 5 East, 335; R. v. Stanley cum Wrenthorpe, 15 East, 350; R. v. East Winch, 12 A. & E. 697; R. v. Yarwell, 9 B. & C. 894; 4 M. & R. 685, S. C.; R. v. Carnarvonshire, Js., 2 Q. B. 325. Formerly the relief must have been giver. by the churchwardens and overseers in order to furnish evidence against the parish, but the board of guardians now represent for this purpose every parish within the union. See R. v. Crondall, 2 Sess. Cas. 667; 10 Q. B. 812, S. C.; and the clerk to the guardians represents the board; R. v. Wigan, 14 Q. B. 287. R. v. Edwinstowe, 8 B. & C. 671. 5 R. v. Bedingham, 1 Sess. Cas. 114, per Ld. Denman. R. v. Chatham, 8 East, 498; R. v. Trowbridge, 7 B. & C. 252; 1 M. & R. 7, S. C.; R. v. Coleorton, 1 B. & Ad. 25; R. v. St. Giles-in-the-Fields, 5 Q. B. 872. as to his settlement in their parish, they would perform their duty to casual poor with great reluctance.1 § 806. A distinct promise by the drawer to pay, or indeed any 731 acknowledgment by him of liability upon, a dishonoured bill,-as, for example, the suffering judgment by default in a prior action, brought by a former holder of the instrument, will raise an inference that he has either received or waived due notice of dishonour,2 and, in the case of a foreign bill, that it has been duly protested;3 and a jury will be justified in coming to the same conclusion on less positive evidence; as, for instance, if the drawer, in disclaiming liability when threatened with an action, did not rest his defence on the want of notice, but on some different ground. The maxim, expressum facit cessare tacitum, will here raise a presumption, which a defendant may find it difficult to rebut. The suing, or distraining," for rent accruing due since a forfeiture of which the lessor has had notice, as also the acceptance of such rent,' and, perhaps, even the mere demand of it, will,—unless an action to recover the property 8 5 1 R. v. Chatham, 8 East, 501, per Ld. Ellenborough; R. v. Coleorton, 1 B. & Ad. 27, per Bayley, J. 2 Rabey v. Gilbert, 30 L. J., Ex. 170; 6 H. & N. 536, S. C.; Woods v. Dean, 32 L. J., Q. B. 1; 3 B. & S. 101, S. C.; Cordery v. Colvin, 14 Com. B., N. S. 374; S. C. nom. Cordery v. Colville, 32 L. J., C. P. 210; Killby v. Rochussen, 18 Com. B., N. S. 357. 3 Hicks v. D. of Beaufort, 4 Bing. N. C. 229, 232; Campbell v. Webster, 2 Com. B. 258; Patterson v. Becher, 6 Moore, 319; Brownell v. Bonney, 1 Q. B. 39; Pardoe v. O'Connor, 12 Ir. Law R. 63. See Bell v. Frankis, 4 M. & Gr. 446; Holmes v. Staines, 3 C. & Kir. 19. Wilkins v. Jadis, 1 M. & Rob. 41, per Ld. Tenterden; Curlewis v. Corfield, 96, c; Dendy v. Nicholl, 27 L. J., C. P. 6 Doe v. Peck, í B. & Ad. 428; Cotesworth v. Spokes, 30 L. J., C. P. 220; 10 Com. B., N. S. 103, S. C.; Ward v. Day, 33 L. J., Q. B. 3, 254; 4 B. & S. 337; and 5 B. & S. 359, S. C. 7 Warwick v. Hooper, 3 M. & Gord. 60, 69, per Ld. Truro, C.; Croft v. Lumley, 25 L. J., Q. B. 73; 5 E. & B. 648, S. C.; 27 L. J., Q. B. 321, S. C. in Dom. Proc.; 6 H. of L. Cas. 672, S. C.; Price v. Worwood, 4 H. & N. 512; Davenport v. The Queen, L. R., 3 App. Cas. 115, per Pr. C.; 47 L. J., P. C. 8, S. C. See Keene v. Biscoe, 47 L. J., Ch. 644. 8 Doe v. Birch, 1 M. & W. 402. |