Jury. Implied authority. down. (1) There a witness, who had been employed by the defendant to convey certain proposals to the plaintiff, explained them to him by an interpreter, from whom also he received the answer: the question was, whether the words of the interpreter could be given in evidence by the witness, as the answer of the plaintiff: or whether the interpreter himself ought to be called, as the witness understood neither the questions put to the plaintiff, nor the answer made by him. But Mr. Justice Gould ruled, that the evidence of the witness was clearly admissible, and sufficient. Here the interpreter was the accredited agent of the parties, acting within the scope of his authority, and in the execution of his agency. In a case where it was proved, that the defendant had said that if another jury were called, and they should find a particular fact, he would pay a sum of money, it was held that this finding of the jury, coupled with the declaration, was evidence against the defendant, upon the principle of the authorities, which make the declarations of persons referred to equivalent to their own admissions; for the jury were to be considered in the nature of accredited agents. (2) The admissions of an under-sheriff are not admissible in evidence against the sheriff, unless they tend to charge himself where he is the real party in the cause; as, in an action for an escape. In an action against the sheriff for taking illegal poundage, declarations of the under-sheriff, after he was out of office, were held not to be admissible to prove, that the bailiff, charged with having committed the extortion, was the sheriff's authorized agent. (3) Where, indeed, the declarations of the (1) 11 St. Tr. 171. (2) Sybray v. White, 1 M. & Wel. 441. It does not appear to have been necessary to determine in the cases above mentioned, whether the party making the reference would have been concluded by the result. In Lloyd v. Willan, 1 Esp. 178, the evidence appears to have been thought conclusive. In Garnet v. Ball, 3 St. 160, it was said, that to make such evidence conclusive, it ought to be very clear. See Whitehead v. Tattersall, 1 Ad. & E. 491. Stevens v. Thacker, Peake, 187. Doe d. Morris v. Rosser, 3 East, 15. Hunter v. Rice, 15 East, 100. (3) Snowball v. Goodricke, 4 B. & Ad. 541. The decision impugns under-sheriff accompany official acts, they are in the nature of original evidence; (1) though the admissions of a bailiff or sheriff's officer, where the authority is limited to the particular duties specified in his warrant, are not evidence against the sheriff. (2) What a bailiff says whilst he has a party in custody, (3) concerning the circumstances of the arrest may be admissible against the sheriff as part of the act for which he is responsible. And it has been held, that the relation of sheriff and officer continues whilst the writ is in course of execution, and therefore that the sheriff may be affected by the officer's declarations after the return of a fieri facias, and before a warrant is made for sale, so long as the goods are in the hands of the officer. (4) In such cases the declarations of the officer are properly original evidence, and not in the nature of hearsay or admission. Though a husband will not in general be bound by any ad- Wife. missions made by his wife, even where he is suing in jure uxoris, (5) the general doctrine of Lord Kenyon in Drake v. Sykes, as to the sheriff being identified with the under-sheriff to all intents. (1) Yabsley v. Doble, 1 Lord Raym. 190. Drake v. Sykes, 7 T. R. 117. Kempland v. Macauley, Peake, 65, where it was considered that the circumstance of the bailiff giving a bond of indemnity which was relied on in Yabsley v. Doble, with regard to the under-sheriff, did not make a bailiff's admission receivable. (2) Drake v. Sykes, 7 T. R. 117. By Lord Ellenborough, in North v. Miles, 1 Camp. 389, that a bailiff's general conversation with an indifferent person is not evidence against the sheriff. The bailiff's authority must be proved in every particular case, ib. (3) Bowcher v. Calley, 1 Camp. 391, n. In North v. Miles, 1 Camp. 389, it was held, that what was said by a bailiff, when asked by the plaintiff's attorney before the return of the writ, why he did not execute it, was evidence against the sheriff. The action was for a false return of non est inventus. Lord Ellenborough said, that the conversation must be considered as (4) Jacobs v. Humphrey, 2 Cr. (5) Alban v. Pritchett, 6 T. R. 680, wife's receipt for wages earned by her, not receivable. Hill v. Hill, 2 Str. 1094. See Anon. 1 Str. 527. Kerslake v. Shepherd, Esp. Dig. N. P. 741. Denn v. White, 7 Esp. 112. Wife's admis Guardians. yet a wife's admissions will be binding on the husband, if an authority to make them can be inferred. Thus it was held, in Gregory v. Parker, (1) that where goods had been furnished for the wife's accommodation, while her husband occasionally visited her, she might be regarded as her husband's agent respecting them; and that her letters, containing an admission of the price of the goods being unpaid, were evidence to take the case out of the statute of limitations. The authority of a wife to bind her husband by her admissions seems to have been inferred in a more unobjectionable manner, in the case of Palethorp v. Furnish, (2) where it was proved that the wife managed her husband's business, and generally gave orders and paid for goods. The declarations of a guardian are not admissible in evidence against a minor who sues by his guardian. (3) And the infant's answer in Chancery by his guardian cannot be read in evidence against the infant; for the guardian is sworn and not the infant, and the guardian has not authority to prejudice the infant by his admissions. (4). sion of a trespass, 3 P. Wms. 238; (1) 1 Campb. 395. It seems to (2) 2 Esp. 511, n. of conducting. In Emerson v. been led away from defining the limits of her agency, by considering the point whether she could be an agent or not. See further Anderson v. Sanderson, 2 St. C. 204. Holt, 591. S. C. Str. 527. Admission relating to agreement for suckling a child. Willes, 577; 7 T. R. 112; 6 T. R. 176; 4 Campb. 70, 92; 5 Esp. 145; Str. 35. Petty v. Anderson, 3 Bing. 170. Barlow v. Bishop, 1 East, 432. Cotes v. Davis, 1 Camp. 485. Barker v. Wray, 2 Russ. Ch. C. 70. B. N. P. 28. As to facts from which the wife's agency may be inferred, see Palmer v. Sells, 3 Nev. & M. 422. (3) Cowling v. Ely, 2 Stark, C. 366. Webbv. Smith, R. & M. 106, declarations of a prochein amy before action brought. Eggleston v. Speke, 3 Mod. 258. See James v. Hatfield, 1 Str. 548. (4) Eccleston v. Petty, Carth. 79. Gilb. Ev. 44. 3 P. Wms. 237, n. E. An answer, purporting to be the answer of a minor by his mother and guardian, may be read With respect to admissions made by attorneys, they are Attornies. considered as having an implied authority to make any admission for the purpose of obviating the necessity of proving any fact upon a trial; as where an attorney gives a formal admission of the execution of a deed, or of a dishonour of a bill, or where he makes propositions on behalf of his client. But whatever an attorney may happen to state in the course of conversation is not evidence in the cause. (1) With respect to the point who is such an attorney in the cause as may bind a party by his admission, it is, in general, enough to prove that the person making the admission is the attorney upon the record; (2) yet it has been held, that a letter written to a plaintiff's attorney before action brought, by the attorney who afterwards appears in the cause for the defendant, is not evidence of a fact admitted therein without further proof, that the defendant authorized the communication. (3) against the mother in another cause, in which she is defendant in her own capacity. Beasley v. Magrath, 2 Sch. & Lef. 34. (1) Young v. Wright, 1 Campb. 141. Griffith v. Williams, 1 T. R. 610. 1 East, 568. Truslove v. Burton, 9 B. Moore, 64. Goldie v. Shuttleworth, 1 Campb. 70, where it was held that the admission by the attorney, of the execution of a deed, did not preclude an objection on the ground of variance. Milward v. Temple, 1 Campb. 375, where it was held, that the admission of the handwriting of a person attesting a deed, was tantamount to an admission of the execution by the defendant. Marshall v. Clift, 4 Campb. 133. Holt v. Squire, R. & M. 282. That an attorney has an implied authority to make propositions, either before or after the commencement of a suit, see Gainsford v. Grammar, 2 Campb. 9. See Roe v. Wilkins, 3 Bing. N. C. 86, admission by attorney that his client claimed under a particular deed, by way of statement. In Young v. Wright, 1 Campb. 141, Lord Ellenborough says, "it is clear, that whatever the attorney says in the course of conversation, is not evidence in the cause;" the witness had been asked, whether he had not been told by the attor- (2) Marshall v. Cliff, 4 Campb. (3) Wagstaff v. Wilson, 4 B. & Ad. 339. And see Burghart v. Angerstein, 6 C. & P. 695. In Marshall v. Cliff, 4 Campb. 133, the attorney's letter relied upon to prove the joint-ownership, contained an undertaking to appear for them, which was a step in the cause. In Roberts v. Lady Gresley, 3 C. & P. 380, the party whose letter was produced had already acted as agent for the defendant. If an attorney leaves the conduct of a cause to By counsel. Authority. Criminal case. An admission for the purpose of the trial of a cause may be used upon a new trial. (1) With respect to admissions by counsel, it has been held, that a special case, signed by the counsel on both sides, for the opinion of the Court above, and stating facts proved at the trial of the cause is admissible as evidence of those facts on a new trial. (2) Whether admissions, made by the defendant's counsel on a former trial, can be received as evidence against the client on a new trial, even supposing the client to have been present and within hearing, is a question upon which doubts have been entertained. Such evidence has been rejected in one case at nisi prius. (3) Evidence of facts, by the admissions of agents, is receivable in criminal as well as in civil cases. Thus, on the impeachment of Lord Melville, (4) the House of Lords decided that a receipt given in the regular and official form by Mr. Douglas (who, as it was proved, had been appointed by Lord Melville to be his attorney, to transact the business of his office of treasurer of the navy, and to receive all necessary sums of money, and sign receipts for the same) was admissible as evidence against Lord Melville, to establish this single fact, that a person appointed by him, as his paymaster, did receive from the Exchequer a certain sum of money, in the ordinary course of business. "The first step in the proof of the charge," said the Lord Chancellor, "must advance by evidence applicable alike to civil and to criminal cases; for a fact must be established by the same evidence, whether it is to be fol his clerk, what the latter does (1) Elton v. Larkins, 1 M. & Ro. (2) Vant Wort v. Wolley, R. & M. 4. In equity a party has been obliged to produce cases submitted for the opinion of counsel, but not the opinions. Preston v. Carr, 1 Y. & J. 175. See Bolton v. Corporation of Liverpool, 1 P. Coop. 22. That a statement prepared by an attorney for the opinion of counsel, is evidence against a party, or those identified in interest with him. See Bishop Meath v. Marquis of Winchester, 3 Bing. N. C. 211. (3) See Colledge v. Horn, 3 Bing. 119. (4) 29 Howell's St. Tr. 746, 763. |