ADMISSIONS WHEN CONCLUSIVE.

543

party's presence which is evidence against him, but it is his own conduct and demeanour in consequence of such statement which is the evidence, and the sole evidence. Magistrates often make a mistake on this subject; but it is highly important that the distinction should be observed (x).

§ 582. We are next to consider the effect of admissions, when proved; and with regard to their conclusiveness, it is first to be observed, that the genius and policy of the law favour the investigation of truth by all expedient methods; and that the doctrine of estoppels, by which further investigation is precluded, being an exception to the general rule, and being adopted only for the sake of general convenience, and for the prevention of fraud, is not to be extended beyond the reasons on which it is founded (y). It is also to be observed, that estoppels bind only parties and privies; and not strangers. Hence it follows, that, though a stranger may often rely on an admission, which parties or privies might have specially pleaded by way of estoppel, yet, in his case, it is only matter of evidence, to be considered by the jury. This subject was very clearly illustrated by Mr. Justice Bayley, in delivering the judgment of the Court, in Heane v. Rogers (2), which was an action of trover, brought by a person against whom a commission of bankruptcy had issued, against his assignees, to recover the value of goods which, as assignees, they had sold. The defendants contended that the plaintiff was estopped from bringing this action, as, in addition to other evidence of his acquiescence in their title, it appeared that after the issuing of the commission, he had given notice to the lessors of a farm which he held, that he had become bankrupt, and was willing to give up the lease, whereupon the lessors accepted the lease, and took possession of the premises. The question, therefore, was, whether he was precluded by this surrender, from disputing the commission in the present suit. On this point the language of the learned Judge was as follows:"There is no doubt but that the express admissions of a party to

(x) Per Alderson, B., at Maidstone Sp. Ass. 1842, MS.; Doe v. Frankis, 11 A. & E. 793, per Lord Denman. (y) See ante, § 72.

(~) 9 B. & C. 577, 586, 587. See also Welland Canal Co. v. Hathaway, 8 Wend. 483; Jennings v. Whittaker, 4 Monroe, 50,

544

ADMISSIONS HOW FAR CONCLUSIVE.

the suit, or admissions implied from his conduct, are evidence, and strong evidence, against him; but we think that he is at liberty to prove that such admissions were mistaken or were untrue, and is not estopped or concluded by them, unless another person has been induced by them to alter his condition; in such a case the party is estopped from disputing their truth with respect to that person (and those claiming under him), and that transaction; but as to third persons he is not bound. It is a well established rule of law, that estoppels bind parties and privies, not strangers (a). The offer of surrender made in this case was to a stranger to this suit; and though the bankrupt may have been bound by his representation that he was a bankrupt, and his acting as such, as between him and that stranger to whom that representation was made, and who acted upon it, he is not bound as between him and the defendant, who did not act on the faith of that representation at all. The bankrupt would probably not have been permitted, as against his landlords,-whom he had induced to accept the lease without a formal surrender in writing, and to take possession, upon the supposition that he was a bankrupt, and entitled under 6 Geo. 4, c. 16, § 75, to give it up,-to say afterwards that he was not a bankrupt, and bring an action of trover for the lease, or an ejectment for the estate. To that 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 it, and try its validity by refusing to do so (b). 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 to do so; paying a rent and remaining liable to the covenants of the lease, and deriving no adequate benefit; and it cannot be

(a) Co. Lit. 352 a; Com. Dig. Estop. C.

(b) See Flower v. Herbert, 2 Ves. Sen. 326.

ADMISSIONS WHEN CONCLUSIVE.

545

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."

§ 583. We have already, in a former part of this work, treated of estoppels 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 (c); and in the preceding pages of the present chapter, we have shown 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 (d). 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.

§ 584. With respect to admissions by pleading, a party may, as it seems, by bringing an action on a contract, estop himself from denying the obligatory force of the agreement in a subsequent action against himself. For instance, if a corporation enter into an executory contract, which is invalid against themselves for not being under a common seal, and then sue thereon, there is little doubt but that this will amount to an admission on record, that such contract was duly entered into on their part, so as to be obligatory on them; and that such admission on the record would estop them in a cross action, from setting up an objection that it was not sealed by their common seal (e). However this may be, it is clear, that an admission made in one suit, by pleading or omitting to

(c) Ante, §§ 72-84.

(d) Ante, §§ 547, 555.

(e) Fishmongers' Co. v. Robertson, 5 M. & Gr. 192, 193, per Tindal, C. J.

N N

546

ADMISSIONS IN PLEADING.

plead, will conclusively bind the party, should a subsequent action be brought for the same cause. Thus, if an executor or administrator confesses judgment, or suffers 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 (f). It is true there must be some proof that the assets have been wasted, in order to charge the executor or administrator personally in such a case; but the slightest evidence will be sufficient 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 (g). So, where, to an action against three executors, two had pleaded plene administraverunt, and the third had admitted assets to the amount of 3837., 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 (h).

§ 585. An admission, however, incidently or tacitly made in pleading in one suit, will not estop the party making it from denying the fact so admitted in another, where precisely the same matter is not litigated. 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 monies, 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,

(f) Skelton v. Hawling, 1 Wils. 258.

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

(h) Cooper v. Taylor, 6 M. & Gr. 989.

ADMISSIONS IN PLEADING.

547

which was signed by the defendant at the same time with the bond by way of collateral security (¿).

§ 586. The questions which usually arise on this subject relate to the effect which admissions in pleading have in the same suit; and here it may be laid down as a general rule, that, whenever a material averment well pleaded is passed over by the adverse party without denial, whether it be by pleading in confession and avoidance, or by traversing some other matter, or by demurring in law, or by suffering judgment to go by default, it is thereby, for the purpose of pleading, if not for the purpose of trial before the jury, conclusively admitted (k). The proper understanding of this rule is the province of the special pleader; and it is in works on pleading that a detailed explanation of its effects should be sought. We may, however, here refer to a few leading decisions whereby its general operation is defined: and first, it is only with respect to material allegations that the rule operates; and therefore a demurrer admits no more than is well pleaded (1); and, if a plea denies a particular fact alleged in the declaration, it does not thereby admit all the immaterial statements which the pleader has chosen to introduce as part of the plaintiff's case (m). Thus, where a declaration in assumpsit,-after stating 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 they were damaged; it was held that the plea of non-assumpserunt did not admit that the defendants were owners, so as to raise the inference that the captain was their agent, the allegation of ownership being regarded as wholly immaterial. The declaration in this case would have been equally good had there been no such allegation; since the statement, that,

(i) Carter v. James, 13 M. & W. 137. See Rigge v. Burbidge, 15 M. & W. 598; 4 Dowl. & L. 1, S. C.

(k) Com. Dig. Pleader, G. 2; Stephens on Plead. 248; Jones v. Brown, 1 Bing. N. C. 484; De Gaillon v. L'Aigle, 1 B. & P. 368; Stephen v. Pell, 2 Dowl. 629; Green v. Hearne, 3 T. R. 301.

(1) Van Sandau v. Turner, 6 Q. B. 785, per Lord Denman.

(m) Bennion v. Davison, 3 M. & W. 179; Dunford v. Trattles, 12 M. & W. 534, or horman 11 Jur. C.P 924.823

per Parke, B. Huiz