of the drawer, though not of the indorsers, and of the authority of the agent, where it was drawn by procuration, as well as of the legal capacity of the preceding parties to make the contract. The indorsement, also, of a bill of exchange, or promissory note, is a conclusive admission of the genuineness of the preceding signatures, as well as of the authority of the agent, in cases of procuration, and of the capacity of the parties. So, the assignment of a replevin bond by the sheriff is an admission of its due execution and validity as a bond. So, where land has been dedicated to public use, and enjoyed as such, and private rights have been acquired with reference to it, the original owner is precluded from revoking it.2 And these admissions may be pleaded by way of estoppel en pais.3

§ 208. Truth or falsehood of admission immaterial, when. It makes no difference in the operation of this rule, whether the thing admitted was true or false: it being the fact that it has been acted upon that renders it conclusive. Thus, where two brokers, instructed to effect insurance, wrote in reply that they had got two policies effected, which was false: in an action of trover against them by the assured for the two policies, Lord Mansfield held them estopped to deny the existence of the policies, and said he should consider them as the actual insurers.5 This principle has also been applied to the case of a sheriff, who falsely returned that he had taken bail.6

§ 209. Not acted upon not conclusive. On the other hand, verbal admissions which have not been acted upon, and which the party may controvert, without any breach of good faith or evasion of

1 Scott v. Waithman, 3 Stark. 168; Barnes v. Lucas, Ry. & M. 264; Plumer v. Briscoe, 12 Jur. 351; 11 Ad. & El. N. s. 46.

2 Cincinnati v. White, 6 Pet. 439; Hobbs v. Lowell, 19 Pick. 405.

3 Story on Bills of Exchange, §§ 262, 263; Sanderson v. Collman, 4 Scott, N. R. 638; Pitt v. Chappelow, 8 M. & W. 616; Taylor v. Croker, 4 Esp. 187; Drayton v. Dale, 2 B. & C. 293; Haly v. Lane, 2 Atk. 181; Bass v. Clive, 4 M. & S. 13; supra, §§ 195-197; Weakley v. Bell, 9 Watts, 273.

4 [Where parties have agreed to act upon an assumed state of facts, their rights between themselves will be made to depend on such assumption, and not upon the truth. M'Cance v. Lon. & N. W. R. R. Co., 3 H. & C. 343.]

5 Harding v. Carter, Park on Ins. p. 4. See also Salem v. Williams, 8 Wend. 483; s. c. 9 Wend. 147; Chapman v. Searle, 3 Pick. 38, 44; Hall v. White, 3 C. & P. 136; Den v. Oliver, 3 Hawks, 479; Doe v. Lambly, 2 Esp. 635; 1 B. & A. 650, per Lord Ellenborough; Price v. Harwood, 3 Campb. 108; Stables v. Eley, 1 C. & P. 614; Howard v. Tucker, 1 B. & Ad. 712. If it is a case of innocent mistake, still, if it has been acted upon by another, it is conclusive in his favor. As, where the supposed maker of a forged note innocently paid it to a bona fide holder, he shall be estopped to recover back the money. Salem Bank v. Gloucester Bank, 17 Mass. 1, 27.

6 Simmons v. Bradford, 15 Mass. 82; Eaton v. Ogier, 2 Greenl. 46.

public justice, though admissible in evidence, are not held conclusive against him. Of this sort is the admission that his trade was a nuisance, by one indicted for setting it up in another place; the admission by the defendant, in an action for criminal. conversation, that the female in question was the wife of the plaintiff; the omission by an insolvent, in his schedule of debts, of a particular claim, which he afterwards sought to enforce by suit. In these, and the like cases, no wrong is done to the other party by receiving any legal evidence showing that the admission was erroneous, and leaving the whole evidence, including the admission, to be weighed by the jury.4

§ 210. Public policy. In some other cases, connected with the administration of public justice and of government, the admission is held conclusive, on grounds of public policy. Thus, in an action on the statute against bribery, it was held that a man who had given money to another for his vote should not be admit ted to say that such other person had no right to vote. So, one who has officiously intermeddled with the goods of another, recently deceased, is, in favor of creditors, estopped to deny that he is executor. Thus, also, where a ship-owner, whose ship had been seized as forfeited for breach of the revenue laws, applied to the Secretary of the Treasury for a remission of forfeiture, on the ground that it was incurred by the master ignorantly, and without fraud, and, upon making oath to the application, in the usual course, the ship was given up, he was not permitted afterwards to gainsay it, and prove the misconduct of the master, in an action by the latter against the owner, for his wages, on the same voyage, even by showing that the fraud had subsequently come to his knowledge. The mere fact that an admission was made under

1 Rex v. Neville, Peake's Cas. 91.

2 Morris v. Miller, 4 Burr. 2057, further explained in 2 Wils. 399, 1 Doug. 174, and Bull. N. P. 28.

8 Nichols v. Downes, 1 Mood. & R. 13; Hart v. Newman, 3 Campb. 13.

4 [But the effect of an admission cannot be rebutted by evidence that different statements were made at other times. Clark v. Huffaher, 26 Mo. 264; Jones v. State, 13 Texas, 168; Hunt v. Roglance, 11 Cush. (Mass.) 117. And see post, § 269.] 5 Combe v. Pitt, 3 Burr. 1586, 1590; Rigg v. Curgenven, 2 Wils. 395.

Reade's case, 5 Co. 33, 34; Toller's Law of Ex'rs, 37-41. See also Quick v.

Staines, 1 B. & P. 293. Where the owners of a stage-coach took up more passengers than were allowed by statute, and an injury was laid to have arisen from overloading, the excess beyond the statute number was held by Lord Ellenborough to be conclusive evidence that the accident arose from that cause. Israel v. Clark, 4 Esp. 259.

7 Freeman v. Walker, 6 Greenl. 68. But a sworn entry at the custom-house of certain premises, as being rented by A, B, and C, as partners, for the sale of beer, though conclusive in favor of the crown, is not conclusive evidence of the partnership, in a civil suit, in favor of a stranger.

oath does not seem alone to render it conclusive against the party, but it adds vastly to the weight of the testimony, throwing upon him the burden of showing that it was a case of clear and innocent mistake. Thus, in a prosecution under the game laws, proof of the defendant's oath, taken under the income act, that the yearly value of his estate was less than £100, was held not quite conclusive against him, though very strong evidence of the fact.1 And even the defendant's belief of a fact, sworn to in an answer in chancery, is admissible at law, as evidence against him of the fact, though not conclusive.2

§ 211. Admissions in deeds. Admissions in deeds have already been considered, in regard to parties and privies,3 between whom they are generally conclusive; and when not technically so, they are entitled to great weight from the solemnity of their nature. But when offered in evidence by a stranger, or, as it seems, even by a party against a stranger, the adverse party is not estopped, but may repel their effect in the same manner as though they were only parol admissions.*

§ 212. Receipts, accounts, &c. Other admissions, though in writing, not having been acted upon by another to his prejudice, nor falling within the reasons before mentioned for estopping the party to gainsay them, are not conclusive against him, but are left

Ellis v. Watson, 2 Stark. 453. The difference between this case and that in the text may be, that in the latter the party gained an advantage to himself, which was not the case in the entry of partnership: it being only incidental to the principal object, namely, the designation of a place where an excisable commodity was sold.

1 Rex v. Clarke, 8 T. R. 220. It is observable that the matter sworn to was rather a matter of judgment than of certainty in fact. But in Thornes v. White, 1 Tyrwh. & Grang. 110, the party had sworn positively to matter of fact in his own knowledge; but it was held not conclusive in law against him, though deserving of much weight with the jury. And see Carter v. Bennett, 4 Fla. 343.

2 Doe v. Steel, 3 Campb. 115. Answers in chancery are always admissible at law against the party, but do not seem to be held strictly conclusive, merely because they are sworn to. See Bull. N. P. 236, 237; 1 Stark. Evid. 284; Cameron v. Lightfoot, 2 W. Bl. 1190; Grant v. Jackson, Peake's Cas. 203; Studdy v.

Saunders, 2 D. & R. 347; De Whelpdale v. Milburn, 5 Price, 485.

& Supra, §§ 22-24, 189, 204. But if the deed has not been delivered, the party is not conclusively bound. Robinson v. Cushman, 2 Denio, 149.

4 Bowman v. Rostron, 2 Ad. & El. 295, n.; Woodward v. Larkin, 3 Esp. 286; Mayor of Carlisle v. Blamire, 8 East, 487, 492, 493. [It is scarcely necessary to say, that all estoppels in deed must be mutual; i.e., must bind both parties. Hence recitals in a deed may bind a party, in one relation or capacity, and not in another. 2 Smith's Lead. Cas. 442; Taylor's Evid. § 82. And writers of authority affirm, that "it is now clearly settled, that a party is not estopped from avoiding his deed by proving that it was entered into from a fraudulent, illegal, or immoral purpose." Taylor's Evid. § 80. So the tenant is so estopped to deny the title of his landlord, that he cannot take advantage of any formal defect therein, which appears in the course of the trial in a suit for use and occupation. Dolby v. Iles, 11 Ad. & El. 335.]

at large, to be weighed with other evidence by the jury. Of this sort are receipts, or mere acknowledgments, given for goods on money, whether on separate papers, or indorsed on deeds or on negotiable securities; the adjustment of a loss, on a policy of insurance, made without full knowledge of all the circumstances, or under a mistake of fact, or under any other invalidating circumstances; 2 and accounts rendered, such as an attorney's bill,3 and the like. So, of a bill in chancery, which is evidence against the plaintiff of the admissions it contains, though very feeble evidence, so far as it may be taken as the suggestion of counsel.*

1 Skaife v. Jackson, 3 B. & C. 421; Graves v. Key, 3 B. & A. 313; Straton v. Rastall, 2 T. R. 366; Fairmaner v. Budd, 7 Bing. 574; Lampon v. Corke, 5 B. & Ald. 606, 611, per Holroyd, J.; Harden v. Gordon, 2 Mason, 541, 561; Fuller v. Crittenden, 9 Conn. 401; Ensign v. Webster, 1 Johns. Cas. 145; Putnam v. Lewis, 8 Johns. 389; Stackpole v. Arnold, 11 Mass. 27; Tucker v. Maxwell, Id. 143; Wilkinson v. Scott, 17 Mass. 249 [infra, § 305. The acknowledgment of the receipt of the purchase-money in a deed of land is no evidence of the fact against a stranger. Lloyd v. Lynch, 28 Penn. St. 419. The receipt of the mortgagee, it

has been held, is not evidence of a payment by the mortgagor, at the date of the receipt, as against the assignee of the mortgage whose title dates subsequent to the date of the receipt. Foster v. Beals, 21 N. Y. Ct. of App. 247 (three judges dissenting)].

2 Rayner v. Hall, 7 Taunt. 725; Shepherd v. Chewter, 1 Campb. 274, 276, note by the reporter; Adams v. Sanders, 1 M. & M. 373; Christian v. Coombe, 2 Esp. 469; Bilbie v. Lumley, 2 East, 469; Elting v. Scott, 2 Johns. 157.

8 Lovebridge v. Botham, 1 B. & P. 49. 4 Bull. N. P. 235; Doe v. Sybourn, 7 T. R. 3. See vol. iii. § 276.

CHAPTER XII.

OF CONFESSIONS.

§ 213. Confessions. The only remaining topic, under the general head of admissions, is that of confessions of guilt in criminal prosecutions, which we now propose to consider. It has already been observed that the rules of evidence, in regard to the voluntary admissions of the party, are the same in criminal as in civil But, as this applies only to admissions brought home to the party, it is obvious that the whole subject of admissions made by agents and third persons, together with a portion of that of implied admissions, can of course have very little direct application to confessions of crime or of guilty intention. In treating this subject, however, we shall follow the convenient course pursued by other writers, distributing this branch of evidence into two classes; namely, first, the direct confessions of guilt; and, secondly, the indirect confessions, or those which, in civil cases, are usually termed "implied admissions."

§ 214. To be received with caution. But here, also, as we have before remarked in regard to admissions,1 the evidence of verbal confessions of guilt is to be received with great caution. For, besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear to make an untrue confession.2 The zeal,

1 Supra, § 200.

2 Hawk. P. C. b. 2, c. 46, § 3, n. (2); McNally's Evid. 42, 43, 44; Vaughan v. Hann, 6 B. Monr. 341 [Brister v. State, 26 Ala. 107]. Of this character was the remarkable case of the two Boorns, convicted in the Supreme Court of Vermont, in Bennington County, in September term, 1819, of the murder of Russell Colvin, May 10, 1812. It appeared that Colvin, who was the brother-in-law of the prisoners, was a person of a weak

and not perfectly sound mind; that he was considered burdensome to the family of the prisoners, who were obliged to support him; that on the day of his disappearance, being in a distant field, where the prisoners were at work, a violent quarrel broke out between them; and that one of them struck him a severe blow on the back of the head with a club, which felled him to the ground. Some suspicions arose at that time that he was murdered; which were increased