extent he would have been bound, probably no further, and certainly not as to any other persons than those landlords. This appears to us to be the rule of law, and we are of opinion that the bankrupt was not by law, by his notice and offer to surrender, estopped; and indeed it would be a great hardship if he were precluded by such an act. It is admitted that his surrender to his commissioners is no estoppel, because it would be very perilous to a bankrupt to dispute the commission, and to try its validity by refusing to surrender.' A similar observation, though not to the same extent, applies to this act; for whilst his commission disables him from carrying on his business, and deprives him for the present of the means of occupying his farm with advantage, it would be a great loss to the bankrupt to continue tenant; paying a rent and remaining liable to the covenants of the lease, and deriving no adequate benefit; and it cannot be expected that he should incur such a loss, in order to be enabled to dispute his commission with effect. It is reasonable that he should do the best for himself in the unfortunate situation in which he is placed."

2

a

§ 819. The doctrine propounded in Heane v. Rogers, that 8743 party is always at liberty to prove that his admissions were founded on mistake, unless his opponent has been induced by them to alter his condition, is as applicable to mistakes in respect of legal liability, as to those in respect of matters of fact. In all cases, therefore, of this nature, the jury, with the view of estimating the effect due to an admission, will be justified in considering the circumstances under which it was made; and if it should appear to have been made under an erroneous notion of legal liability, they may qualify its effect accordingly."

§ 820. In a former part of this work, we have treated of estoppels 744 by deed, alluded to those by record, and discussed that particular class of estoppels in pais, which relates to the rights of landlord and tenant; and in the present chapter it has already been shown

5

1 See Flower v. Herbert, 2 Ves. Sen. 326.

3 Newton v. Liddiard, 12 Q. B. 927, per Ld. Denman.

29 B. & C. 577.

Newton v. Belcher, 1 Q. B. 921; and Newton v. Liddiard, 12 Q. B. 925.

that admissions solemnly made in the course of judicial proceedings, whether as a substitute for regular proof, or in a case stated for the opinion of the court, are on motives of policy and justice, deemed to be conclusive.' It remains, then, only to examine the law as it regards other conclusive admissions; and these will, in general, be found to range themselves under one or other of the following heads. First, admissions expressly or tacitly made by pleadings; secondly, admissions which have been acted upon by others. To these may be added a few cases of fraud and illegality, and some admissions on oath, where the party is estopped on grounds of public policy.

2

§ 821. With respect to admissions by pleading, it was at one 745 time thought that a party might, by bringing an action on a contract, estop himself from denying the obligatory force of the agreement in a subsequent action against himself. In conformity with this view of the law, a strong opinion was expressed by Chief Justice Tindal, in the case of the Fishmongers' Company v. Robertson, that if a corporation were to enter into an executory contract, which was invalid against themselves for not being under seal, and were then to sue thereon, this would amount to an admission on record, that such contract was duly entered into on their part, so as to be obligatory on them; and such admission would estop them in a cross action, from setting up an objection that it was not sealed by their common seal. The doctrine, thus propounded, has on several occasions been brought under the notice of the courts; but although it is unquestionably based on substantial justice, it has hitherto met with little favour, and will probably ere long be expressly overruled. The law, as at present understood, seems to be, that the statements which are contained in any pleading, though binding on the party making them for all purposes in the cause, ought not to be regarded in any subsequent action as admissions of the truth of the facts stated.*

'Ante, ¿? 772, 783.

25 M. & Gr. 192, 193.

See Copper Miners' Co. v. Fox, 16 Q. B. 229; Boileau v. Rutlin, 2 Ex. R. 681, per Parke, B.; Buckmaster v. Meiklejohn, 8 Ex. R. 637, per id.; The May. of Kidderminster . Hardwicke, 43 L. J., Ex. 9; 9 Law Rep., Ex. 13, S. C. 4 Cases cited in last note.

§ 822. Still less will any admission, which has been incidentally 740 or tacitly made in pleading in one suit, estop the party who has made it from denying in another suit, where precisely the same matter is not litigated, the fact so admitted. For instance, where a plea to an action on a bond set out a corrupt agreement between the parties irrespective of the bond, and then went on to aver that the bond was given to secure, among other moneys, the sum mentioned in the said agreement; and the replication, tacitly admitting the corrupt agreement, traversed the fact of the bond having been given in consideration thereof, but the plaintiff failed on this issue; it was held, that the admission was available for the purpose of that suit only; and, consequently, the plaintiff was at liberty to dispute the corrupt nature of the agreement, in a subsequent action on a deed, which was signed by the defendant at the same time with the bond by way of collateral security.'

2

§ 823. Although, as a general rule, an admission made in one 747 suit by pleading or omitting to plead, cannot conclusively bind the party in any subsequent suit, an exception to this rule must be recognised, where the second action is brought on a judgment recovered in the first. For example, if an executor or administrator confess judgment, or suffer it to go against him by default, he thereby admits assets in his hands, and is estopped to say the contrary in an action on such judgment, suggesting a devastavit. Some proof must indeed be given that the assets have been wasted, in order to charge the executor or administrator personally in such a case; but the slightest evidence will suffice for this purpose; and the mere issuing of a writ of fieri facias, directed to the county where the action was laid, and a return of nulla bona thereto, has, for a long time past, been deemed evidence enough. So, where, to an action against three executors, two had pleaded plene adminis

3

1 Carter v. James, 13 M. & W. 137. See Rigge v. Burbidge, 15 M. & W. 598; 4 Dowl. & L. 1, S. C.; and Hunt v. Morrell, 3 Ex. R. 241, per Pollock, C. B.

2 Skelton v. Hawling, 1 Wils. 258; Re Trustee Relief Act, Higgins' Trusts, 2 Giff. 562.

3 Leonard v. Simpson, 2 Bing. N. C. 176, 180, per Tindal, C. J.; 2 Scott, 335, S. C.

traverunt, and the third had admitted assets to the amount of 3831., the court held, that, in a subsequent action against the third executor, suggesting a devastavit, the plaintiff was entitled to recover, on proof that the 3831. had been deposited with bankers to the credit of the executorship account, and that the defendant, after judgment in the former action, had given the plaintiff a cheque for the amount, which was dishonoured, as not being signed by the co-executors.1

§ 824. The questions which usually arise with respect to admis- 74 sions in pleading relate to their effect in the same suit; and here it may be laid down broadly, that "every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition." The proper understanding of this rule is the province of the pleader: 3 and in works on pleading a detailed explanation of its effects must be sought. It may, however, be here pointed out that the rule operates only with respect to material allegations. If, therefore, a statement of defence denies a particular fact alleged in the statement of claim, it does not thereby admit all the immaterial averments, which the pleader has chosen to introduce as part of the plaintiff's case.*

§ 825. Thus, where a declaration in assumpsit,—after stating 749 that the defendants were owners of a vessel, on which the plaintiff caused to be shipped some potatoes to be carried by them, as owners of the vessel, to Liverpool; in consideration whereof, and of freight, they promised to carry the potatoes safely as aforesaid,-alleged as a breach, that through their negligence the goods were damaged: it was held, that the general issue did not admit that the defendants

1 Cooper v. Taylor, 6 M. & Gr. 989.

2 Rules of Sup. Ct., 1883, Ord. XIX., R. 13. But see, and attempt to reconcile, this Rule with R. 13 of Ord. XXVII., cited post, 829.

3 Van Sandau v. Turner, 6 Q. B. 785, per Ld. Denman.

Bingham v. Stanley, 2 Q. B. 127; Bennion v. Davison, 3 M. & W. 179; Dunford v. Trattles, 12 M. & W. 534, per Parke, B.; King v. Norman, 4 Com. B. 884.

were owners, so as to raise the inference that the captain was their agent, the allegation of ownership being regarded as immaterial. The declaration in this case would have been equally good had no such allegation been made; since the statement, that, in consideration of the plaintiff having shipped the goods, and of the freight, the defendants promised to carry them safely, would have been quite sufficient, when coupled with an averment that the goods were not safely carried, to have made a complete case of liability against the defendants.'

it.

§ 826. Next, the omitting to traverse a material allegation so 8 753 far admits it, that the party who thus pleads over cannot disprove This accords with the old law, and therefore, where, in trover for bales of silk, the defendant pleaded that A. was factor of the plaintiffs, and as such, before and at the time of the pledge mentioned in the plea, was intrusted by them with, and was in possession of, dock-warrants relating to tho' bales; that he delivered the dockwarrants to the defendant, and pledged with him the bales, as security for a loan which the defendant then advanced to him on the faith of the said dock-warrants; and that the defendant had no notice that the factor was not the actual owner; it was held that the plaintiffs, by simply traversing the allegation that the defendant advanced the money on the faith of the dock-warrants, were debarred from proving that the dock-warrants were not deposited at the time of the advance, and were not, in fact, then in existence.'

§ 827. Under order XXXII, Rule 6, of the Rules of the Supreme Court, 1883, any party may, at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court or a judge for such judgment or order as, upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court or a judge may upon such application make such

1 Bennion v. Davison, 3 M. & W. 179, 182, 183, per Parke, B.; recognised by Alderson, B., in Dunford . Trattles, 12 M. & W. 532. See, also, Grew v. Hill, 3 Ex. R. 801; 6 Dowl. & L. 664, S. C.

2 Bonzi v. Stewart, 4 M. & Gr. 295. See, also, Carter v. James, 13 M. & W. 145, 146, text and note.