Trustees, &c.

65 sible only as to his own interest, where the trustee holds in trust not for him only, but for others. Thus where an action of ejectment was brought by a trustee having the legal estate in fee, and the defendant offered evidence of admissions made by the cestui que trust of a particular estate, it was considered doubtful whether such evidence could be received, inasmuch as the interest of the cestui que trust was not co-extensive with that of the lessor of the plaintiff, and the declarations were prejudicial to the remainderman. Doe d. Rowlandson v. Wainwright, 8 Ad. & E. 691. And according to May v. Taylor, 6 M. & Gr. 261, in order to make the statements of the cestui que trust admissible against the trustee, the interest of the cestui que trust ought to be identical with that of the trustee, and it is not enough to prove a subsisting trust without showing the nature and extent of it, or that the cestui que trust is the real party to the action, and the nominal party a mere agent. It is said in B. N. P. 237, that an "answer" by a trustee can in no case be used as evidence against a cestui que trust. It is, however, probable that this passage relates to evidence in equity; for it was there only that a cestui que trust could be party to the suit, and the trustee would be a co-defendant.

Admissions by tenants of the existence of rights or easements are not evidence against their landlords. Papendick v. Bridgwater, 5 E. & B. 166; 24 L. J., Q. B. 289. But where, in an action of ejectment, one of the defendants defended, in the character of landlord to the other defendants, their admissions were evidence against him. Doe d. Mee v. Litherland, 4 Ad. & E. 784.

On an appeal against an order of removal, the admissions of rated inhabitants of a parish are evidence against that parish, for they are the parties really interested. R. v. Whitley, 1 M. & S. 636. So in an action against the sheriff, the declarations of a party, who has indemnified the sheriff, are evidence against the defendant. Dyke v. Aldridge, cited 7 T. R. 665. So in trover for a deed, which the defendant detained at the request of W., and in the detainer of which W.was substantially interested, the declarations of W. in favour of the plaintiff's claim were held admissible. Harrison v. Vallance, 1 Bing. 45; and see Robson v. Andrade, 1 Stark. 372. So the declarations of the party for whose benefit the plaintiff sues on a bill; Welstead v. Levy, 1 M. & Rob. 138; or of a party from whom he received the bill or note when overdue, are evidence against the plaintiff. Beauchamp v. Parry, 1 B. & Ad. 89. Admissions by one of several trustees will not affect his co-trustees where they are not all personally liable. Davies v. Ridge, 3 Esp. 101.

The declarations of a party proved to be a joint contractor with the defendant, though not joined in the action, or though nol-prossed on a plea of bankruptcy, were admissible. Grant v. Jackson, Peake, 203; Wood v. Braddick, 1 Taunt. 104. But admissions by co-trespassers, or joint defendants, in actions for tort, are not generally evidence except against themselves, unless there be proof of common motive and object, and the declarations relate to them. Daniels v. Potter, M. & M. 501; and see the observations in R. v. Hardwick, 11 East, 578. Nor are they evidence in actions ex contractu, unless they relate to a matter in which there is an identity of interest: thus where the plaintiff in covenant alleged an eviction by two defendants under a prior lawful title, an admission by one of the defendants. after eviction was held no evidence of such title, although the defendants were co-executors of the covenantor, and had joined in the eviction. Fox v. Waters, 12 Ad. & E. 43.

An admission by a private individual of a corporation is not evidence against the corporate body. London, Mayor of, v. Long, 1 Cainp. 23. But where a corporation sues for a disturbance in exercising a corporate office, what is said by the officer respecting the exercise of it is evidence against the

VOL. I.

F

corporation. Id. 25 per Ld. Ellenborough. As to admissions by the agents of corporations and companies, see Admissions by agents, post, pp. 67, 68.

Where plaintiff sued as administrator durante absentia of the executor, the admissions of the executor were held inadmissible against the plaintiff. Rush v. Peacock, 2 M. & Rob. 162. In a suit by assignees of bankrupt, admissions by them before their appointment were received in evidence against them by Tindal, C. J., in Smith v. Morgan, Id. 257; but they were rejected in a previous case of Fenwick v. Thornton, M. & M. 51. In Legge v. Edmonds, 25 L. J., Ch. 125, letters written by a defendant, sued as administratrix, containing admissions made by her before letters of administration had been taken out, were rejected as evidence, against her. Perhaps the admissibility of statements made by executors, assignees, and others filling an official character, but before they were invested with that character, will be found to depend on the nature of the facts stated by them. So an admission, before probate, by an executor named in a will may perhaps be entitled to more consideration than the admission of a mere stranger who has afterwards obtained letters of administration. When an official manager of a company, appointed under the Winding-up Act, 11 & 12 Vict. c. 45, was substituted as defendant by order in Chancery, instead of a shareholder D., who had been sued by a creditor of the company "as nominal defendant," it was held that the declarations of D., while defendant, were not evidence against the official manager. Armstrong v. Normandy, 5 Exch. 409. The decision here turned on the misnaming of D. on the record as "nominal defendant only."

Admissions by guardian and prochein amy.] The admissions of a guardian are not evidence against an infant who sues by his guardian. Cowling v. Ely, 2 Stark. 366; Eggleston v. Speke, 3 Mod. 258. Nor the admission of prochein amy. Webb v. Smith, Ry. & M. 106.

Admissions by agents and servants.] Where a party to the suit directly or impliedly constitutes a third person his agent for the purpose of an admission, the admission so made is evidence. Thus, if a person agrees to admit a claim, provided J. S. will make an affidavit in support of it, such affidavit is proof against him. Lloyd v. Willan, 1 Esp. 178; Stevens v. Thacker, Peake, 187. And it is conclusive in an action founded on the special agreement. Amy v. Andrews, Freem. 133. But see Garnet v. Ball, 3 Stark. 160. So if the vendee of goods denies having received them, but adds, "If the carrier's servant says he delivered the goods, I will pay you," the answer of the servant when applied to on the subject may be given in evidence. Daniel v. Pitt, 1 Camp 366, n.; Williams v. Innes, Id. 364. In an action for the loss of a horse through the defendant's negligence in not fencing a shaft, defendant consented to pay compensation if a miners' jury should say the shaft was his; held that the finding of such jury was evidence against him of negligence, though not conclusive. Sybray v. White, 1 M. & W. 435. With regard to the admissions of agents in general, the rule is this: When it is proved that A. is agent of B. whatever A. does, or says, or writes, in the making of a contract as agent of B., is admissible in evidence against B., because it is part of the contract which he makes for B., and which therefore binds B.; but it is not admissible merely as the agent's account of what has passed. Per Gibbs, J., Langhorn v. Allnutt, 4 Taunt. 519. Thus the declaration of a servant employed to sell a horse is evidence to charge the master with a warranty, if made at the time of sale; but statements made at any other time are not admissible against him. Helyear v. Hawke, 5 Esp. 72. So where the servant of a horsedealer, who was employed to take a

By Agents and Servants.

67 horse to the stables of the purchaser, had signed a receipt containing a warranty, this receipt without proof of the servant's authority to give a warranty was rejected in an action against his master. Woodin v. Burford, 2 Cr. & M. 391. An admission by a servant, in a transaction not relating to the business in which he is employed, is not evidence against his master. Thus where a pawnbroker's shopman was heard to state that his master had lent 2001. at 5 per cent. on the security of certain plate, this was held inadmissible as against the master. Garth v. Howard, 8 Bing. 451. But if the statement had been made by him in the course of a transaction in the ordinary course of a pawnbroker's business, it would have been different. Id. 543; Schumack v. Lock, 10 B. Moo. 39. The letters of an agent to his principal, containing a narrative of past transactions in which he had been employed, are not admissible in evidence against the principal. Kahl v. Jansen, 4 Taunt. 565; Fairlie v. Hastings, 10 Ves. 128; Betham v. Benson, Gow. 45. An admission by a person who has generally managed A.'s landed property, and received his rents, is not evidence against A. as to his employer's title, there being no other proof of his agency ad hoc. Ley v. Peter, 3 H. & N. 101; 27 L. J., Ex. 239. So in an action against a surety, the admissions or declarations of the principal, to whom goods have been sent by the plaintiff at the defendant's request, are not evidence against the defendant either as to the receipt of the goods, or as to other facts respecting them. Evans v. Beattie, 5 Esp. 26; Bacon v. Chesney, 1 Stark. 192. But a letter from an agent abroad stating the receipt of money, coupled with the answer of the principal directing the disposition of the money, will be evidence of the receipt by the principal. Coates v. Bainbridge, 5 Bing. 58. The admissions of an under-sheriff are evidence against a sheriff, for he is the general agent of the sheriff; Drake v. Sykes, 7 T. R. 117; but not unless they accompany an act done, or they tend to charge himself; he being the real party in the cause. Snowball v. Goodricke, 4 B. & Ad. 541. The admissions of a bailiff are evidence against the sheriff, like the statements of any other agent, only when they form part of the transaction. North v. Miles, 1 Čamp. 389.

а

The admissions of a surveyor of a corporation respecting a house belonging to the corporation, are evidence against the latter in an action for an injury to the plaintiff's house by works done on the defendants' premises. Peyton v. S. Thomas's Hospital, 3 M. & Ry. 625, n.; and see London, Mayor of, v. Long, 1 Camp. 25, cited ante, p. 65; and R. v. Adderbury, East, 5 Q. B. 187. Evidence may be given against companies, of admissions made by their directors or agents relating to matters within the scope of their authority. In Meux's Executors' case, 2 D. M. & G. 522, a letter written by the secretary of a company by order of the acting directors, stating the number of shares held by M., was admitted on behalf of his executors, in proceedings against them. See also National Exchange Co. of Glasgow v. Drew, 2 Macq. 103. The secretary of a projected company has not, by virtue only of his office, any power to bind the members of the provisional committee by admissions; Burnside v. Dayrell, 3 Exch. 225. In Bruff v. Gt. N. Ry. Co., 1 F. & F. 345, Willes, J., rejected an admission of the secretary of a company as to the receipt of a letter. And an admission by the board meeting of a company registered under 7 & 8 Vict. c. 110, consisting of a less number of directors than was required by the deed of settlement, was rejected in Ridley v. Plymouth Banking Co., 2 Exch. 711. In an action against an incorporated company by one of its members on a bond, entries in a book kept by the clerk of the company, to which all members by the act of incorporation had access, cannot be used against the plaintiff as an admission. Hill v. Manchester, &c. Waterworks Co., 5 B. & Ád. 866. Admissions by servants of a company as to the ferocious habits of a dog, were not allowed to bind the

company, in the absence of evidence that these servants had the care of the animal. Stiles v. Cardiff S. Navigation Co., 33 L. J., Q. B. 310. As to admissibility of statements by servants of a railway company with reference to delay in delivery or loss of goods, see Gt. W. Ry. Co. v. Willis, 18 C. B., N. S. 748; 34 L. J., C. P. 195; and Kirkstall Brewery Co. v. Furness Ry. Co., L. R., 9 Q. B. 468, cited post.

Before the admissions of an agent can be received, the fact of his agency must be proved. This can be done by proving that the agent has acquired credit by acting in that capacity, and that he has been recognised by the principal in other instances of a similar character to that in question. In Watkins v. Vince, 2 Stark. 368, a guarantee signed by a son for his father was admitted upon proof of the son having signed for his father upon three or four previous occasions. But in Courteen v. Touse, 1 Camp. 43, n., where, in an action upon a policy, a witness proved that he had often seen B. sign policies for the defendant, but was not acquainted with any instance in which the defendant had paid a loss upon a policy so subscribed, it was held that the agency was not sufficiently proved.

A receipt for debt and costs, indorsed by the plaintiff's solicitor's town agent on a writ of summons, is evidence of payment against the plaintiff, without further proof of agency. Weary v. Alderson, 2 M. & Rob. 127. Where the statements of a party's agent are admissible, the statements of the agent's interpreter, made while acting as such in the agent's presence, may be given in evidence, without calling the interpreter. Reid v. Hoskins, 5 E. & B. 729.

Admissions by partner.] After prima facie evidence of partnership, the declaration of one partner is evidence against his co-partners as to partnership business; Nicholls v. Dowding, 1 Stark. 81: though the former is no party to the suit. Wood v. Braddick, 1 Taunt. 104; but see Rooth v. Quin, 7 Price, 198. And it is evidence, though made after the dissolution of partnership, if made as to a transaction which took place before the dissolution; Wood v. Braddick, supra; but not so as to bind his co-partner as to a transaction which occurred previously to the partnership, unless a joint responsibility be proved as a foundation for the evidence. Catt v. Howard, 3 Stark. 3. Admissions made by one of several partners after the dissolution of the partnership, are admissible to prove payment, after the dissolution, of a debt due to the partnership. Pritchard v. Draper, 1 Russ. & Myl. 191. A declaration by one of several partners, joint plaintiffs, that goods, the subject-matter of the suit, were his separate property, is evidence against all the plaintiffs; Lucas v. De la Cour, 1 M. & S. 249; but an admission by a partner as to a subject, not of co-partnership, but of joint ownership, of a vessel, is not admissible against his co-partner. Jaggers v. Binnings, 1 Stark. 64. In an action against two partners on a deed purporting to be executed by one defendant "for self and partner," a subsequent acknowledgment of the deed by the other defendant was held not evidence to prove the actual execution by him, without producing the authority under seal. Steiglitz v. Eggington, Holt, N. P. 141. But see Ball v.Dunsterville, 4 T. R. 313, post, p. 128. And in Harvey v. Kay, 9 B. & C. 356, letters of a member of a joint stock company, admitting that he was a partner in it, were received as proof of that fact, without any evidence of his having executed the deed of settlement by which the company was formed. A statement by one who became partner after the cause of action arose, is not evidence against his co-partner, who sues on it. Tunley v. Evans, 2 D. & L. 747, B. C., Wightman, J.

Admissions by wife.] In general, the admissions of a wife will not affect

By Wife.-By Counsel or Solicitor.

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69

the husband. Thus, the wife's receipt for money, or admission of a trespass, is not evidence against the husband. Hall v. Hill, 2 Stra. 1094; Denn v. White, 7 T. R. 112. But where the wife can be considered the agent of her husband, her admissions may be received as evidence against him. Emerson v. Blonden, 1 Esp. 142; Anderson v. Sanderson, 2 Stark. 204; S. C., Holt, N. P. 591. Thus, in an action for goods sold and delivered at the defendant's shop, an offer made by his wife to settle the demand, is admissible in evidence, if she was accustomed to serve in the shop, and to transact the business in her husband's absence; Clifford v. Burton, 1 Bing. 199; and her admission, under such circumstances, will take a case out of the Statute of Limitations. Palethorp v. Furnish, 2 Esp. 511, n. But her admissions are not evidence of the terms of her husband's tenancy of the shop, in a suit for the rent, although she is carrying on business in it by her husband's authority in his absence. Meredith v. Footner, 11 M. & W. 202. A wife's declaration that she agreed to pay 48. a week for nursing a child will charge the husband: it being a matter usually transacted by women. Anon., 1 Stra. 527. In an action against defendant, as administrator of his wife, for money lent to her before marriage, admissions of the debt made by her during coverture are evidence. Per Lord Tenterden, C. J., Humphreys v. Boyce, 1 M. & Rob. 140. But in an action by husband and wife for a loan by the wife dum sola, her admissions, after coverture, negativing the debt, were refused by Lord Kenyon, C. J. Kelly v. Small, 2 Esp. 716. So, where plaintiff sued, with his wife as executrix, her declarations were inadmissible. Alban v. Pritchett, 6 T. R. 680. A joint answer in Chancery by husband and wife is not evidence against her, being considered as the answer of the husband alone. Elston v. Wood, 2 My. & K. 678. In Shelberry v. Briggs, 2 Vern. 249, in a bill against husband and wife for payment of a legacy under a will, of which the wife was executrix, the answer was admitted against the wife after the death of her husband. See Wrottesley v. Bendish, 3 P. Wms. 238. In the case of a wife sued, with her husband, in respect of her separate estate, it would seem that her admissions, but not those of her husband, would be evidence against her. Where the conduct of the wife is in question, her declarations have in some cases been held admissible for her husband, in an action against him. Thus, in an action for necessaries supplied to the wife, the defence being that the husband had turned her out of doors for adultery, her declarations as to the adultery, made previously to her expulsion, were admitted by Abbott, C. J.; Walton v. Green, 1 C. & P. 621; this decision, however, as reported, seems unsatisfactory. See 1 Taylor, Evid., § 695. In an action for seduction, declarations of defendant's wife, tending to show that she aided and colluded with the defendant in seducing the plaintiff's daughter, were admitted as evidence in aggravation. Per Gurney, B. Knowles v. Compigne, Winton Sum. Ass. 1835.

Admissions by counsel or solicitor.] In Colledge v. Horn, 3 Bing. 122, Burrough, J., expressed an opinion, that if one of the parties to a cause was in Court and had heard an admission made by his counsel in his opening statement, this was evidence against him. In Haller v. Worman, 2 F. & F. 165, where, in an action of detinue, it was proved that the defendant's counsel had stated, while attending a summons at chambers, that his client had the papers in his possession; this was admitted at the trial, to negative the plea of "not possessed." When the counsel in a cause so conducts it as to lead to an inference that a certain fact is admitted by him, the jury may take it as proved; Stracy v. Blake, 1 M. & W. 168: and the judge is also warranted in acting upon such tacit admission. Semble, Doe d. Child v. Roe, 1 E. & B. 279. So, where a fact is assumed at Nisi Prius for the purpose of sup