side on a record, the admissions of one of them are not allowed to affect the others who happen to be joined with him, unless there is some joint interest, or privity in design between them, although such admissions, in proper cases, may be received against him who made them." But when the parties have a joint interest, as in the case of partners, an admission made by one is, in general, evidence against all.115 A mere community of interest, when the interest is not joint, is not sufficient; as, in the case of executors, the admissions of one do not bind the other.116

3084. Admissions made by third persons, strangers to the suit, are sometimes receivable in evidence. This happens when the issue is substantially upon the mutual rights of such persons at a particular time; in this case the evidence is admitted in the same way as if it was between the parties themselves. Other instances, when the admission of third persons may be allowed, occur when the party has referred expressly to such third persons for information in regard to an uncertain matter in dispute; or to an interpreter, whose statements of what the party says are treated as identical with what the party says himself. The admissions of the wife bind the husband only when he has authorized them, and their relation alone is not sufficient.117 The admissions of an attorney of record bind his client in all matters relating to the progress and trial of the cause. As to the effect of admissions of the principal as evidence against the surety upon his collateral obligation, it may be remarked that to be binding they must be made during the transaction of the business for which the surety was bound, so as to become a part of the res gesta. The admissions of a person are evidence against all who are privy to him in estate or by blood. Admissions made by the assignor of a personal contract or chattel will bind the assignee when made while the assignor remained the sole proprietor,118 but when made after he had no longer any interest in the thing assigned, the right of the assignee, holding by a good title, is not to be cut down by the acknowledgment of the holder that he had no title.119

121

agency.

122

The admissions of an agent bind his principal only when they are within the scope of his authority,120 and are made at the time of the act done for the principal.in Of course the declarations of an agent cannot be used to prove his 3084, a. In considering the effect of admissions, it is to be observed that the whole is to be taken together, and any part which is in favor of the party making the declaration is to be considered as well as the part which bears against him, but the jury may attach different weight to the different parts.123 Parol admissions are admissible only to prove such facts as could be established by parol evidence. Admissions are conclusive only against the party making them or his privies; when used against third parties they are only evidence for the consideration of the jury.

Estoppels are not encouraged, and parol admissions do not estop the party

114 Dan et al. v. Brown, 4 Cow. N. Y. 483.

115 Purham v. Laynal, 8 Bingh. 309; Mamlock v. White, 20 Cal. 598.

116 Forsyth v. Ganson, 5 Wend. N. Y. 558; Hammon v. Huntley, 4 Cow. N. Y. 493. 117 Benford v. Sanner, 40 Penn. St. 9.

118 Beedy v. Macomber, 47 Me. 451.

119 Burrough v. White, 4 Barnew. & C. 325; Woolway v. Rowe, 1 Ad. & E. 114; Tyler v. Mather, 9 Gray, Mass. 177; Horrigan v. Wright, 4 All. Mass. 514.

120 Hatch v. Squires, 11 Mich. 185; Sencerbox v. McGrade, 6 Minn. 484; Page v. Parker, 40 N. H. 47.

121 Craig v. Gilbreth, 47 Me. 416; Austin v. Chittenden, 33 Vt. 353; Caldwell v. Garner, 31 Mo. 131.

122 Woodbury v. Larned, 5 Minn. 339.

123 Yarborough v. Moss, 9 Ala. N. s. 382; Garey v. Nicholson, 24 Wend. N. Y. 350; Reynolds v. Manning, 15 Md. 510.

making them, but he may show them to be false.124 But if the party to whom the admissions are made has acted upon them, then they become conclusive in his favor.125

3085. The rules which govern confessions in criminal cases are, in general, the same as those which regulate admissions in civil cases. But it must be observed that no confession made by a third person or an agent can have any force against the accused, unless where several are acting together, and the acts of one are considered the acts of all; as, in the cases of riot, conspiracy, and the like, each is deemed as assenting or commanding what is done by any other in furtherance of the common object.' 126 But when the crime has been completed, and the criminals no longer act together, the declarations of one of them then made do not affect the others.

The evidence of admissions of guilt ought to be received with great caution, as instances of such confessions have been found to have been fatally incorrect. Confessions are direct confessions of guilt, or they are indirect confessions.

3086. A direct deliberate confession of guilt, when voluntarily made, is considered as the best evidence that can be produced, and as such it is generally satisfactory. These confessions are either judicial or extra judicial.

A judicial confession is one made before a magistrate, or in court, in the due course of legal proceedings. When voluntarily made, without any illegal influence, they are deserving of credit. A preliminary examination taken in writing by a magistrate lawfully authorized, pursuant to a statute, or the plea of guilty made in open court to an indictment, are sufficient to found a conviction upon them.

Extra judicial confessions are those made by the accused elsewhere than in court or before a magistrate, whether such expressions be express or implied. The prisoner's confession is not sufficient for his conviction unless the crime is proved independently to have been committed by some one.12

All confessions must be voluntary, for if they have been made under any threat or promise, they are not to be relied upon. A confession forced from the mind by the flattery of hope, or the torture of fear, comes in such questionable shape when it is to be considered as evidence of guilt that no credit ought to be given to it.128

To exclude the confession the inducement under which it was made must be some fear of personal injury or hope of personal benefit of a temporal nature.129 If the inducements are held out by one having authority over the prisoner, the confession will not be deemed voluntary, and will be rejected.130

But when the inducements are held out by a third party having no authority over the prisoner, it is a mooted question whether it is admissible.131

The rule seems to be that confessions should be excluded in all cases where the circumstances indicate that the accused may have been induced by powerful

124 Husbrook v. Strawser, 14 Wisc. 403; Ray v. Bell, 24 Ill. 444.

125 Kinney v. Farnsworth, 17 Conn. 355; Tompkins v. Phillips, 12 Ga. 52.

126 United States v. Gooding, 12 Wheat. 469; Commonwealth v. Eberle, 3 Serg. & R. Penn. 9; Wilbur v. Strickland, 1 Rawle, Penn. 458; Reitenback v. Reitenback, 1 id. 362. 127 Brown v. State, 32 Miss. 433; Bergen v. People, 17 Ill. 426; State v. Laliyer, 4 Minn. 368.

128 Warwickshall's Case, 1 Leach, Cr. Cas. 299; Knapp's Case, 10 Pick. Mass. 489. 129 State v. Grant, 22 Me. 171; Commonwealth v. Morey, 5 Cush. Mass. 461; Fife v. Commonwealth, 29 Penn. St. 429; State v. York, 37 N. H. 175.

130 Commonwealth v. Taylor, 5 Cush. Mass. 606.

131 That such confessions are admissible. Commonwealth v. Morey, 1 Gray, Mass. 461; State v. Simon, 15 La. Ann. 568; Shifflet's Case, 14 Gratt. Va. 652. Contra, State v. Walker, 34 Vt. 296; People v. Smith, 15 Cal. 408; Cain v. State, 18 Tex. 387; Jordan v. State, 32 Miss. 382.

motives of hope or fear to admit facts without regard to their truth, in order to obtain the promised relief or avoid the threatened danger. Whether the inducements have had this effect, or have tended to it, must depend on the particular circumstances of each case.' 132

It is not necessary that a confession should be the spontaneous act of the accused. It may be drawn out by diligent questioning, by the spiritual exhortations of a clergyman, or by any means, however reprehensible in themselves, which do not tend to produce an untrue confession by acting on the hopes or fears of the prisoner.133

If improper inducements have been used, but have wholly ceased to act when the confession is made, it is admissible.134

3087. Indirect confessions of guilt are those which in civil cases are usually termed implied admissions. A confession may be confirmed by circumstances which in themselves furnish matter of evidence, but coupled with the confession confirm and strengthen it, though it would otherwise be inadmissible. Thus, if in consequence of a confession extorted by hope or fear, the property stolen or the instrument of the crime is discovered, it is competent to connect this with the confession, and show that the discovery was made in consequence of the information furnished by the accused, for such confirmation tends to clude the possibility of falsehood in the confession, for which it would be inadmissible if standing alone.135

pre

3088. In the discussion of the nature of evidence, our next inquiry will be to consider when it is relevant and when it is irrelevant. Relevant evidence is that which is applicable to the issue and ought to be received; evidence is irrelevant when it is not so, and it ought to be excluded.

When facts are to be decided by the court without the aid of a jury, it is seldom useful to raise the question whether evidence is relevant or not, because before it is passed upon it must be known, and it must be read or heard by the judge in order to decide upon its nature and quality. But in trials by jury the presiding judge is required to determine all questions on the admissibility of evidence to the jury. When the admission depends on other questions of fact, such as whether the offered witness is interested, these preliminary questions of fact are in the first instance to be tried by the judge; and when the question is mixed, consisting of law and fact so intimately blended as not to be easily susceptible of separate decision, it is then submitted to the jury.

3089. The object of evidence is next to be considered. It is to ascertain the truth or falsehood of the allegations made by the parties in their pleadings. It has been discovered by experience that this is done most certainly by the adoption of the following rules, which are now binding as law: the substance of the issue must be proved, the evidence must be confined to the issue, and the affirmative of the issue must be proved.

3090. It is a general rule, both in criminal and civil cases, that the evidence shall be confined to the point in issue, and that it is sufficient if the substance of the issue be proved.

As to the manner of supporting the issue a distinction is made between allegations of matter of substance and the allegation of matters of essential description. The former may be substantially proved, and that will be sufficient, but

the latter must be proved with more strictness.136

132 State v. Wentworth, 37 N. H. 196; Fouts v. State, 8 Ohio, St. 98.

133 Rutherford v. Commonwealth, 2 Metc. Ky. 387; State v. Freeman, 12 Ind. 100.

184 State v. Fisher, 6 Jones, No. C. 478; Lynes v. State, 36 Miss. 617.

135

People v. Ah. Ki. 20 Cal. 177; Sarah v. State, 28 Ga. 576; Jane v. Commonwealth, 2 Metc. Ky. 30.

136 Glassford, Ev. 309; 1 Greenleaf, Ev. 56.

When the allegations of time, place, quantity, quality, and value are descriptive, they must be strictly proved; but when they are not descriptive of the identity of the subject of the action, they are immaterial, and need not be proved strictly as alleged. For example, in trespass to the person the material fact is the assault and battery; the time and place, not being material, need not be proved as alleged; but in an action on a bill of exchange the date alleged, being descriptive, must be proved.137

The party upon whom the burden of proof rests is required to prove the substance of the issue; a failure to prove it must therefore be fatal, for he has not sustained his cause; and when there is a departure by proving a different agreement, then is that fault known as a variance, which in a general sense is a disagreement or a difference between two parts of the same legal proceeding which ought to agree together, and in the sense in which it is used it is a disagreement between the allegation and the proof in some matter which in point of law is essential to the charge or claim. The following example will sufficiently point out the nature of such variance: In an action where the plaintiff declared in covenant for not repairing pursuant to a covenant in a lease, and stated the covenant as a covenant "to repair when and as need should require," and issue was joined on a traverse of the deed alleged, the plaintiff at the trial produced the deed in proof, and it appeared that the covenant was "to repair when and as need should require, and at furthest after notice," the latter words having been omitted in the declaration. This was held to be a variance because the additional words were material and qualified the effect of the contract.138 This, it will be observed, is a matter of substance; when the variance is to matter of form, it is not regarded.

3091. As the parties came into court to settle a matter of difference between them, it is but just that they should confine the proofs to the matter in issue, for the party upon the other side does not come prepared to answer any thing else. But to this general rule, that evidence must be confined to the issue, there are several exceptions, among which are the following:

In general, evidence of collateral facts is not admissible, but when such fact is material to the issue joined between the parties, it may be given in evidence; as, for example, in order to prove that the acceptor of a bill knew the payee to be a fictitious person, or that the drawer had general authority from him to draw bills with the names of a fictitious payee, evidence may be given to show that he had accepted similar bills before they could from their date have arrived from the place of date.139

Although when special damage sustained by the plaintiff is not stated in the declaration, it is not one of the points in issue, and evidence of it cannot be received, yet a damage which is the necessary result of the defendant's breach of contract may be proved, notwithstanding it is not in the declaration.140

When evidence incidentally applies to another person or thing not included in the transaction in question, and with regard to whom or to which it is inadmissible, yet if it bear upon the point in issue it will be received."

3092. The general rule which governs in the production of evidence is, that the obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue.142

There may be in many cases several distinct issues, upon some of which the

187 Glassford, Ev. 309.

138 Horsefall v. Tester, 7 Taunt. 385. See 1 Greenleaf, Ev. ? 66.

139 Gibson v. Hunter, 2 H. Blackst. 288.

140 Ward v. Wood, 11 Price, Exch. 19.

141 1 Phillipps, Ev. 158; Willis v. Bernard, 8 Bingh. 376.

142 Warren v. Chickasaw, 13 Iowa, 588; Stevenson v. Marony, 29 Ill. 532.

burden of proof rests on one party and in some on the other party. At the outset the burden rests upon the plaintiff, who is obliged to show affirmatively some cause of action. But if the defendant sets up some affirmative justification, then the plaintiff may rest his case, having proved sufficient facts to establish his ground of action, and the burden shifts to the defendant to establish the justification set up.14 Or the defendant may in his pleadings admit the whole ground of action set up in the plaintiff's declaration, and plead other matters as a defence; as, for instance, where the defendant admits that he owes the plaintiff the whole sum claimed, and pleads a larger sum due to him in set-off. In this case the burdc.. of proof is on the defendant.14 Under the old system of pleading and practice the party having the burden of proof was entitled to open and close the case, but this is now modified in some states.

In criminal cases, as in civil cases where the general issue is pleaded, the burden of proof never shifts. The government must prove beyond a reasonable doubt all the material facts and ingredients which are required to constitute a crime.145

3093. To the general rule there are some exceptions, among which are the following:

When a presumption of law arises in favor of the party who alleges the affirmative, the rule ceases to operate, and the negative must be proved; as, when the issue is on the legitimacy of a child, it is incumbent on the party who alleges the illegitimacy to prove it, provided the parents have never been separated by divorce, and have lived in lawful wedlock; or where a person once living is alleged to be dead, and he is not so old that the presumption of his death would arise, his death must be proved.146

When the plaintiff grounds his right of action upon a negative allegation, and where this negative is an essential element of his case; as where he sues for having been prosecuted maliciously, without probable cause, the plaintiff must show the want of probable cause by some affirmative proof, though the proposition be in negative terms.147

When the subject matter of a negative averment lies peculiarly within the knowledge of the opposite party, the averment is taken as true, unless disproved by that party.

148

When the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in these cases the law raises a presumption of innocence and quiet possession.149

In equity, when a bill is filed praying that a contract may be annulled on the ground that it was made with the defendant, who stood in a fiduciary relation to the plaintiff, the burden of proving its fairness is cast on the defendant.150

143

Clapp v. Thomas, 5 All. Mass. 158; Quimby v. Morrill, 47 Me. 470; Caulfield v. Sanders, 17 Cal. 569.

144 Page v. Osgood, 2 Gray, Mass. 260.

145 Commonwealth v. McKie, 1 Gray, Mass. 61.

146 2 Selwyn, Nisi P. 513; Morris v. Davies, 3 Carr. & P. 513; Wilson v. Hodges, 2 East, 313; Ripley v. Babcock, 13 Wisc. 425.

147 Ulmer v. Leland, 2 Me. 134; Gibson v. Waterhouse, 4 Me. 226; 1 Campb. 199; 9 East, 361; Horan v. Weiler, 41 Penn. St. 470.

148 Rex v. Turner, 5 M. & S. 206; Smith v. Jeffries, 9 Price, Exch. 257; Commonwealth v. Kemball, 7 Metc. Mass. 304; Rugely v. Gill, 15 La. Ann. 509; Solomon v. Dreschler, 4 Minn. 278.

149 United States v. Galacar, 1 Sprague, Dist. Ct. 545.

150 Cane v. Lord Allen, 2 Dow, Parl. Cas. 289; Gibson v. Jeyes, 6 Ves. Ch. 278; Montesquieu v. Sandys, 18 Ves. Ch. 313; Bellew v. Russell, 1 Ball & B. Ch. Ir. 104.