ADMISSIONS MADE AFTER ASSIGNMENT OF INTEREST. 503

harm can possibly result from giving full effect to his admissions. He may be supposed best to know the extent of his own rights, and to be least of all disposed to concede away any that actually belong to him. But admissions made after other persons have bonâ fide acquired separate rights in the same subject-matter, cannot be received to disparage their title, however they may affect that of the declarant himself. This most just and equitable doctrine will be found to apply not only to admissions made by bankrupts and insolvents, but to the cases of vendor and vendee, payee and indorsee, grantor and grantee, and, generally, to be the pervading doctrine, in all cases of rights acquired in good faith previous to the time of making the admissions in question (y). For instance, if an action be brought by trustees, who represent the interests of a variety of cestuis que trust, the statements of the person beneficially interested as tenant for life cannot be received as evidence for the defendant, so as to prejudice the rights of the remaindermen in fee. Indeed, before the declaration of a cestui que trust will be admitted at all against a trustee, the nature of the interest of the declarant in the trust estate must be shown, so that it may clearly appear that he alone is entitled to the benefit resulting from the action (z).

§ 538. In some cases, the admissions of third persons, strangers to the suit, are receivable. This arises when the issue is substantially upon the mutual rights of such persons at a particular time; in which case the practice is to let in such evidence in general, as would be legally admissible in an action between the parties themselves. Thus, in an action against the sheriff, either for not arresting a debtor on mesne process and making a false return of non est inventus, or for an escape on mesne process (a), any such

(y) Welstead v. Levy, 1 M. & Rob. 138; Bartlett v. Delprat, 4 Mass. 702, 708; Clark v. Waite, 12 Mass. 439; Bridge v. Eggleston, 14 Mass. 245, 250, 251; Phenix v. Ingraham, 5 Johns. 412; Packer v. Gonsalus, 1 Serg. & R. 526; Patton v. Goldsborough, 9 Serg. & R. 47; Babb v. Clemson, 12 Serg. & R. 328.

(*) Doe v. Wainwright, 8 A. & E. 691, 699, 700; 3 N. & M. 598, S. C.; May v. Taylor, 6 M. & Gr. 261.

(a) As to the special circumstances under which a debtor may still be arrested on mesne process, see 1 & 2 Vict. c. 110, §§ 1, 3, 4.

504

ADMISSIONS BY STRANGERS, WHEN RECEIVABLE.

acknowledgment of the debt by the debtor as would have been sufficient to have charged him in the original action, will also, as against the sheriff, support the averment in the declaration, that the party not arrested, or escaping, was so indebted (b). So, an admission of joint liability by a third person, has been held sufficient evidence, on the part of the defendant, to support a plea in abatement for the nonjoinder of such person as defendant in the suit; it being admissible in an action against him for the same cause (c). The admissions, too, of a bankrupt, made before the act of bankruptcy, are receivable in proof of the petitioning creditor's debt; but his declarations made after the act of bankruptcy, though admissible against himself (d), form an exception to this rule, because of the intervening rights of creditors, and the danger of fraud (e).

§ 539. The admissions of a third person are also receivable in evidence against the party who has expressly referred another to him for information in regard to an uncertain or disputed matter. In such cases the party is bound by the declarations of the person referred to, in the same manner, and to the same extent, as if they were made by himself. Thus, upon a plea of plene administravit, where the executors wrote to the plaintiff, that if she wished for further information in regard to the assets, she should apply to a certain merchant in the city, they were held bound by the replies of the merchant to her inquiries upon that subject (f). So, in assumpsit for goods sold, where the fact of the delivery of them by the carman was disputed, and the defendant said, "If he will say

(b) Sloman v. Herne, 2 Esp. 695; Williams v. Bridges, 2 Stark. R. 42; Kempland v. Macauley, Pea. R. 65; Rogers v. Jones, 7 B. & C. 89, per Bayley, J. (c) Clay v. Langslow, M. & M. 45, per Abbott, C. J.

(d) Jarrett v. Leonard, 2 M. & Sel. 265.

(e) Hoare v. Coryton, 4 Taunt. 560; 2 Rose, 158; Robson v. Kemp, 4 Esp. 234; Watts v. Thorpe, 1 Camp. 376; Smallcombe v. Bruges, McClel. R. 45; 13 Price, 136, S. C.; Taylor v. Kinloch, 1 Stark. R. 175; 2 Stark. R. 594. The dictum of Lord Kenyon, in Dowton v. Cross, 1 Esp. 168, that the admissions of the bankrupt made after the act of bankruptcy, but before the commission issued, are receivable, is contradicted in 13 Price, 153, 154, and overruled by that and the other cases above cited. See also Bernasconi v. Farebrother, 3 B. & Ad. 372. (ƒ) Williams . Innes, 1 Camp. 364, per Lord Ellenborough.

ADMISSIONS BY PERSON EXPRESSLY REFERRED TO. 505

that he delivered the goods, I will pay for them;" he was held bound by the affirmative reply of the carman (g).

§ 540. In the application of this principle it matters not whether the question referred be one of law or of fact; whether the person to whom reference is made, have or have not any peculiar knowledge on the subject; or whether the statements of the referee be adduced in evidence in an action on contract, or in an action for tort. Therefore, where two parties had agreed to abide by the opinion of counsel upon the construction of a statute, the party against whose interest the opinion operated, was held bound thereby in a subsequent action (); and a disputed fact regarding a mine, having been referred by consent to a miner's jury, their decision was received in evidence, when one of the disputants afterwards brought an action on the case against his adversary (i). In these cases the decisions, which partook of the nature of awards, were not stamped; but the Court held that this was immaterial, as the instruments, not containing any recital of the agreements, did not on their face purport to be awards. The doctrine under discussion may further be illustrated by the case of Downs v. Cooper (k). There the defendant had demised premises to the plaintiff, who entered and paid him rent. During the term a brother of the defendant's disputed his title, and to avoid litigation between brothers, both, within the knowledge of the plaintiff, agreed to abide by the opinion of a barrister, to whom a case was submitted. The opinion being adverse to the defendant, he thereupon gave up his title deeds, and permitted his brother's attorney to tell the plaintiff, that in future he must regard the brother as his landlord. The plaintiff paid his rent accordingly; but the defendant, being subsequently dissatisfied with the barrister's opinion, levied a distress, and an action of replevin was the consequence. The above facts being stated in the plea in bar, the Court held, that, though in general a tenant is estopped from denying his landlord's

(g) Daniel v. Pitt, Pea. Add. R. 238; 1 Camp. 366, n.; 6 Esp. 74, S. C.; Brock v. Kent, 1 Camp. 366, n.; Burt v. Palmer, 5 Esp. 145; Hood v. Reeve, 3 C. & P. 532.

(h) Price v. Hollis, 1 M. & Sel. 105.

(i) Sybray v. White, 1 M. & W. 435; Tyr. & Gr. 746, S. C. (k) 2 Q. B. 256.

506

ADMISSIONS BY PERSON EXPRESSLY REFERRED TO.

title, he was not so here, inasmuch as the conduct of the defendant amounted to an admission that his title had expired.

§ 541. In order to render the declarations of a person referred to equivalent to a party's own admission, it is not necessary that the reference should have been made by express words; but it will suffice if the party by his conduct has tacitly evinced an intention to rely on the statements as correct. Therefore, where a party, on being questioned by means of an interpreter, gave his answers through the same medium, it has been held that the language of the interpreter should be considered as that of the party; and that, consequently, it might be proved by any person who heard it, without calling the interpreter himself (1). So, if a party, on motion before a judge, uses the affidavit of another person, such affidavit is on any subsequent trial evidence as against him of the facts deposed to therein, and that, too, though the person who made the affidavit is present in court (m); and where a petitioning creditor, knowing that his servant could prove an act of bankruptcy, sent him expressly for that purpose to be examined at the opening of the fiat, the depositions so made were held to be evidence of the act of bankruptcy, as against the petitioning creditor, where that fact was put in issue in an action brought against him by the assignees (n). It has even been held, apparently on the authority of these cases, that, where the question in an action of trespass was whether the plaintiff or defendant was the tenant of a field, the deposition of a witness who, in a proceeding before justices for an alleged trespass on the same close, had been called by the plaintiff to prove his possession, but had in fact disproved it, might be put in evidence for the defendant, though the witness was alive (0). In this case, however, as the witness was abroad at the time of the trial, and as the litigants and the matter in dispute before the justices were identical with those before the Court, the depositions would seem to have been admissible, rather as secondary evidence of oral testimony (p) than as admissions by the accredited agent of

(7) Fabrigas v. Mostyn, 20 How. St. Tr. 122, 123, per Gould, J. (m) Brickell v. Hulse, 7 A. & E. 454; Johnson v. Ward, 6 Esp. 47, per Chambre, J. But see White v. Dowling, 8 Ir. Law R. 128.

(n) Gardner v. Moult, 10 A. & E. 464.

(0) Cole v. Hadley, 11 A. & E. 807.

(p) Ante, § 343.

WHETHER ANSWERS OF REFEREE ARE CONCLUSIVE.

507

the plaintiff. In this last light they could scarcely have been viewed, consistently with the opinion of the Court, as expressed in Gardner v. Moult (q), or Brickell v. Hulse (r); for in both these cases the judges expressly admitted, that a party was not bound by what his witness might say at Nisi Prius, any more than he would be by depositions which he had used in Chancery without knowing their contents; and other authorities are not wanting to show that such depositions are inadmissible (s).

§ 542. Whether the answer of a person thus referred to is conclusive against the party does not seem to have been settled. Where the plaintiff had offered to rest his claim upon the defendant's affidavit, which was accordingly made, Lord Kenyon held that he was conclusively bound, even though the affidavit were false; and he added, that, to make such a proposition and afterwards to recede from it, was not only a dishonest act, but was one which might be turned to very improper purposes, such as to entrap the witness, or to find out how far the party's evidence would go in support of his case (t). But in a later case, where the question was whether a horse in the defendant's possession was identical with one lost by the plaintiff, and the plaintiff had said that if the defendant would take his oath that the horse was his, he should keep him; and he made oath accordingly; Lord Tenterden observed, that, considering the loose manner in which the evidence had been given, he would not receive it as conclusive; though it was a circumstance on which he should not fail to remark to the jury (u). And certainly the opinion of Lord Tenterden, indicated by what fell from him in this case, more perfectly harmonises with other parts of the law, especially as it is opposed to any further extension of the doctrine of estoppels, which precludes the investigation of truth. The purposes of justice and policy are sufficiently

(2) 10 A. & E. 468, per Lord Denman, and Patteson, J.

(r) 7 A. & E. 456-458, per Lord Denman, and Coleridge, J.

(s) Rushworth v. Countess of Pembroke, Hard. 472; Atkins v. Humphreys,

1 M. & Rob. 523. See also R. v. Latchford, 6 Q. B. 567.

(t) Stevens v. Thacker, Pea. R. 187; Lloyd . Willan, 1 Esp. 178; Bretton v. Prettiman, Sir T. Raym. 153; Delesline v. Greenland, 1 Bay, 458, where the oath of a third person was referred to.

(u) Garnet v. Ball, 3 Stark. R. 160.