not in general binding, but this is subject to some exceptions, which will be found collected in the case of Molton v. Camroux (y). There it was argued before the Court of Exchequer, that although executory contracts by all such persons were void, executed ones bonâ fide entered into with them must be deemed valid; but the court, after taking time for consideration, said, that without laying down so general a pro may often be of the utmost importance as indicative evidence. "There are a kind of men so loose of soul, That in their sleeps will mutter their affairs. Nay, this was but his dream. But this denoted a foregone conclusion. 'Tis a shrewd doubt, tho' it be but a dream." OTHELLO, Act 3, Sc. 3. The following excellent instance is taken from Mr. Arbuthnot's Reports of Criminal Cases in the Court of Foujdaree Udalut, of Madras, p. 61. Five prisoners; named respectively DasiNayakan, Nachan, Venkatachalam, Tandavarayan, and Chokan; were tried in September, 1834, for the wilful murder of one Perumal Naik. The deceased having been found murdered and much mutilated, the head lying on an ant-hill away from the rest of the body, suspicion fell on one Venkatasami, with whom he was on bad terms. Venkatasami's answers when questioned on the subject not being satisfactory, he was kept under surveillance in the house of a neighbour, and in the course of the following night was heard to talk in his sleep, allowing the following expressions to escape him, which clearly referred to a murder committed by him and the other prisoners. "Dasan, catch hold of the hands. Nachan, cut off the head. Tandavaraya, Chokan, and Venkatachalam, catch hold of his leg-come, we may go home after we have deposited the head on the top of an anthill." These words having been next morning reported to the authorities, Venkatasami was taken into custody and taxed with the murder, which he at once confessed, criminating the prisoners, whose names had been mentioned by him in his sleep, and who, on being apprehended, likewise confessed their guilt. Venkatasami and Nachan died before trial, but the other four were convicted, chiefly on their own confession, and left for execution. (y) 2 Exch. 487; affirmed on error, 4 Id. 17. R R Self-disserving statements made under or law. position, it might safely be concluded, "when a person, apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bonâ fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic or those who represent him." § 512. A party is not in general prejudiced by selfdisserving statements made under a mistake of fact. mistake of fact "Non videntur qui errant consentire," said the civilians, and "Non fatetur qui errat (z)." So, money may be recovered back which was paid under a forgetfulness of facts once within the knowledge of the party paying (a). But it is very different when the confession is made under a mistake of law,-" Non fatetur qui errat, nisi jus ignoravit (b)." Neither is a party to be prejudiced by a confessio juris (c), although this must be understood with reference to a confession of law not involved with facts, for the confession of a matter compounded of law and fact is receivable. Every prisoner or defendant who pleads guilty in a criminal case, admits by his plea both the fact with which he is charged and the applicability of the law to it. And on indictments for bigamy the first marriage, even though solemnized in a foreign country, may be proved by the admission of the accused (d). (z) Poth. Obl. § 800. (a) Kelly v. Solari, 9 M. & W. 54, and the cases there referred to. (b) Dig. lib. 42, tit. 2, 1. 2; Poth. Obl. § 800. (c) 1 Greenl. Ev. § 96, 4th Ed. (d) 1 East, P. C. 471; R. v. Newton, 2 Moo. & R. 503; R. v. Simmonsto, 1 Car. & K. 167; R. v. Flaherty, 2 Id. 782. § 513. Admissions and confessions may in general be Admissions and confessions by made either by a party himself, or by those under whom made. whom he claims, or by his attorney or agent lawfully authorized another application of the maxim "Qui per alium facit, per seipsum facere videtur (e)." This of course means that the party against whom the admission or confession is offered in evidence is of capacity to make one. On this subject the civilians laid down "Qui non potest donare non potest confiteri (f)." So there are some acts which cannot be done by attorney, and some persons who cannot appoint one,-as, for instance, infants. And the person appointed to act for another cannot delegate this authority to a third, it being a maxim of law, Delegata potestas non potest delegari (g)," "Delegatus non potest delegare (h).” SECTION II. ESTOPPELS. § 514. An important distinction runs through the Estoppels. whole subject of self-disserving evidence, namely, that, while in general its value is to be weighed by a jury, the law has invested some forms of it with an absolute and conclusive effect. Such are technically termed "Estoppels," -a doctrine, the exposition of which in all its branches belongs to substantive rather than adjective law. Some notice of its nature, and the general principles by which it is governed, are however indispensable here; and estoppels in criminal cases will be more particularly considered in the next section (i). (e) Co. Litt. 258 a. (g) 2 Inst. 597. (h) 3 M. & W. 319. Nature of § 515. Much prejudice and misconception have arisen from the unlucky definition of estoppel given by Sir Edward Coke, namely, that it is where "a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth (k)." This is defining by the genus and non-essential difference or accident-a proceeding condemned by the rules of logic - and one would imagine from the above language, that truth was the enemy which the law of estoppel was invented to exclude. So far however is this from being the case, that its object is to repress fraud and harassing litigation, and render men truthful in their dealings with each other; and there can be no question that, rightly understood and properly applied, it often produces those effects, and is a valuable auxiliary in the hands of justice. The definition given in the Termes de la Ley (1) is much better: "Estoppel is when one man is concluded and forbidden in law to speak against his own. act or deed; yea, though it be to say the truth." Still "forbidden to say the truth" sounds harsh; and both definitions are inadequate, as not including all the cases to which the term "Estoppel" is applicable. On the whole, an estoppel seems to be, when, in consequence of some act, generally speaking some act to which he is either party or privy, a person is concluded from shewing the existence of a particular state of facts. Estoppel is based on the maxim, "Allegans contraria non est audiendus (m);" and is that species of præsumptio juris et de jure where the fact presumed is taken to be true, not as against all the world, but as against a particular party, and that only by reason of some act doneit is in truth a kind of argumentum ad hominem (n). (k) Co. Litt. 352 a. See also 2 Co. 4 b. (1) Termes de la Ley, tit. Estoppel. See to the same ef fect, 1 Lill. Pr. Reg. 542. (m) 4 Inst. 279; Jenk. Cent. 2, cas. 63. (n) See the judgment of the Hence it appears that estoppels must not be confounded with conclusive evidence; the former being conclusions against parties drawn by law from particular facts, while by the latter is meant some piece or mass of evidence sufficiently strong to generate conviction in the mind of a tribunal (o). § 516. "Estoppels," observes J. W. Smith, "is a Use of. head of law once tortured into a variety of absurd refinements, but now almost reduced to consonancy with the rules of common sense and justice. * * * In our old law books truth appears to have been frequently shut out by the intervention of an estoppel, where reason and good policy required that it should be admitted. However, it is in no wise unjust or unreasonable, but, on the contrary, in the highest degree reasonable and just, that some solemn mode of declaration should be provided by law for the purpose of enabling men to bind themselves to the good faith and truth of representations on which other persons are to act. Interest reipublicæ ut sit finis litium—but if matters which have been once solemnly decided were to be again drawn into controversy, if facts once solemnly affirmed were to be again denied whenever the affirmant saw his opportunity, the end would never be of litigation and confusion. It is wise, therefore, to provide certain means by which a man may be concluded, not from saying the truth, but from saying that that which, by the intervention of himself or his, has once become accredited for truth, is false. And probably no code, however rude, ever existed without some such provision for the security of men acting, as all men court in Collins v. Martin, 1 B. & P. 648. (0) See the observations of the Barons in Machu v. The London |