The admissibility of an admission is in no way dependent upon any question of the person to whom made. An (1875) 117 Mass. 273; Radclyffe v. Barton (1894) 161 Mass. 327, 37 N. E. 373; Keown v. Hughes (1919) 233 Mass. 1, 123 N. E. 98. Minnesota. Siebert v. Leonard (1875) 21 Minn. 442; O'Riley v. Clampet (1893) 53 Minn. 539, 55 N. W. 740; Humphrey v. Monida & Y. Stage Co. (1911) 115 Minn. 18, 131 N. W. 498.

Missouri. Dowzelot v. Rawlings (1874) 58 Mo. 75; St. Louis Mut. L. Ins. Co. v. Cravens (1878) 69 Mo. 72; Utley v. Tolfree (1883) 77 Mo. 307; Baum v. Fryrear (1884) 85 Mo. 151; Snyder v. Chicago, S. F. & C. R. Co. (1892) 112 Mo. 527, 20 S. W. 885; Kirkpatrick v. Metropolitan Street R. Co. (1908) 211 Mo. 68, 109 S. W. 682; Murphy v. St. Louis Type Foundry Co. (1888) 29 Mo. App. 541; Nichols & Co. v. Jones (1888) 32 Mo. App. 657; Bowman v. Globe Steam Heating Co. (1899) 80 Mo. App. 628; Watkins v. Kansas City & W. B. R. Co. (1920) Mo. App. - 209 S. W. 950.

Montana. Tague v. John Caplice Co. (1903) 28 Mont. 51, 72 Pac. 297.

Nebraska.-Paxton v. State (1899) 59 Neb. 460, 80 Am. St. Rep. 689, 81 N. W. 383, affirmed on rehearing in (1900) 60 Neb. 763, 84 N. W. 254. New Hampshire. Green v. Bedell (1869) 48 N. H. 546. New Mexico.-Albright v. Albright (1916) 21 N. M. 606, 157 Pac. 662.

New York. Cook v. Barr (1870) 44 N. Y. 156; Lecour v. Importers' & T. Nat. Bank (1901) 61 App. Div. 163, 70 N. Y. Supp. 419; Crombie v. Illinois Surety Co. (1918) 181 App. Div. 787, 169 N. Y. Supp. 181.

North Carolina.-Kiddie v. Debrutz (1796) 2 N. C. (1 Hayw.) 420; Alsworth v.

Richmond Cedar Works (1916) 172 N. C. 17, 89 S. E. 1008; Bloxham v. Stave & Timber Corp. (1916) 172 N. C. 37, 89 S. E. 1013, 14 N. C. C. A. 499.

North Dakota.-Union Nat. Bank v. Western Bldg. Co. (1919) - N. D.

175 N. W. 628.

Ohio. Broadrup v. Woodman (1875) 27 Ohio St. 553. Oklahoma.-Limerick v. Lee (1906) 17 Okla. 165, 87 Pac. 859.

Oregon. Walker v. Harold (1903) 44 Or. 205, 74 Pac. 705; Meagher v. Eilers Music House (1915) 77 Or. 70, 150 Pac. 266; Stone v. First Nat. Bank (1921) — Or. 197 Pac. 304.

West Virginia. Wilson v. Phoenix Powder Mfg. Co. (1895) 40 W. Va. 413, 52 Am. St. Rep. 890, 21 S. E. 1035.

Wisconsin. Meade v. Black (1867) 22 Wis. 241; Yeska v. Swendrzynski (1907) 133 Wis. 475, 113 N. W. 959.

England. Hennell v. Lyon (1817) 1 Barn. & Ald. 182, 106 Eng. Reprint, 67, 18 Revised Rep. 456; Ashmore v. Hardy (1836) 7 Car. & P. 501; Marianski v. Cairns (1851) 1 Macq. H. L. Cas. 212.

See as to withdrawn or superseded pleadings, infra, IV.

Where, in Kamm v. Bank of California (1887) 74 Cal. 191, 15 Pac. 765, plaintiff, who was suing a bank for the recovery of certain moneys alleged to have been remitted to it for investment, was also at the same time maintaining an action against another bank to recover the same moneys, it is held that his complaint in the one action is admissible on behalf of the defendant in the other to show "the fact of suit brought and of the nature of the action," and to such extent only. And the fact that he had not signed or verified the pleading was held immaterial, the action having been brought for him, and being prosecuted with his knowledge and consent.

So, in an action for mesne profits, the complaint filed by defendant as plaintiff in a prior action of the same kind against a third person, for the profits of the same land, is held admissible to show the value of the profits. Shafter v. Richards (1859) 14 Cal. 125.

Statements made in an attachment,

the statement. It is only in dealing with estoppel that the question of the privity of the party seeking to make

alleging that a sale made by the attachment debtor was fraudulent, are admissible in a subsequent attachment by other creditors of the attachment debtor, brought against the former attachment creditor after he has purchased the goods from the alleged fraudulent purchaser. Jewett v. Cook (1876) 81 Ill. 260.

In McCafferty v. Heritage (1877) 5 Houst. (Del.) 220, an allegation made by a wife in a petition for divorce, to the effect that she was living apart from her husband and was not supported by him, is held admissible against her in a subsequent action by a creditor for goods sold and delivered to her while living apart from her husband, and not supported by him.

So, an allegation in a verified petition for divorce is held in Murphy v. Hindman (1897) 58 Kan. 184, 48 Pac. 850, to be admissible against the plead er in a subsequent action of ejectment to which she is a party, on the question of whether or not she was an unmarried woman at a particular time.

In Solomon R. Co. v. Jones (1883) 30 Kan. 601, 2 Pac. 657, it is held competent for the plaintiff in an action. for personal injuries to introduce in evidence against defendant the petition filed by him in a prior proceeding for mandamus.

And in Wadsworth v. Duncan (1896) 164 Ill. 360, 45 N. E. 132, affirming (1895) 61 Ill. App. 156, a bill in chancery by the members of an unincorporated association, describing themselves as the association's stockholders, is held to be admissible against them in a subsequent action brought against them, wherein they raise a plea of nonjoinder.

In an action by a bank on a note, defended on the ground of forgery, the petition of the bank in a prior action brought by it on the bond of its president, alleging the president to be a defaulter, and stating that he had forged certain notes and placed them in the bank to conceal his default, is held admissible on behalf of defendant. First Nat. Bank v. Wisdom (1901) 111 Ky. 135, 63 S. W. 461.

And in an action against a railroad for work and labor performed for it at the instance of its agent, it is held in Chicago, R. I. & P. R. Co. v. Mashore (1908) 21 Okla. 275, 96 Pac. 630, 17 Ann. Cas. 277, that a bill of partic

use of the admission comes into consideration. It is there the view that a person not a party to an action cannot ulars filed by the plaintiff in a former suit brought by it against the agent for the same services is admissible as containing an admission.

In a tenant's action for a sum deposited as security for the payment of rent, it is held in Meagher v. Eilers Music House (1915) 77 Or. 70, 150 Pac. 266, that the complaint filed by the defendant in another action brought by it against the person to whom the premises had been relet is admissible against the pleader to show admissions on the question of his acceptance of the present plaintiff's surrender of the lease by the reletting.

In an action upon a contract for a sale of logs, in consequence of the making of which a previous contract for the sale of the logs to a third person was canceled, the latter having, by a new contract, agreed to take the logs in the event of the failure of the purchaser under the contract in suit to do so, the complaint in an action upon the new contract may be considered for the purpose of showing the history of the transaction, the relation of the parties, and the reasons why the contract in suit was executed, although the answer in the action at bar made no reference to that complaint, or to the contract to which it related. Stone v. First Nat. Bank (1921) Or. 197 Pac. 304.

In Frost v. Hirsch (1903) 16 Pa. Dist. R. 831, a complaint filed by the defendants in an action by them against a third person is held admissible as containing an admission by them of the existence of a partnership between them.

And a bill, sworn to by complainant, brought by the assignee of a contract against his assignor to rescind the transfer of the contract for fraud, is admissible against the pleader in a subsequent action brought by him on the contract, to show admissions therein that one of the defendants sued in the subsequent action is not a partner of the other defendant. Buzard v. McAnulty (1890) 77 Tex. 438, 14 S. W. 138.

Statements in a widow's petition for dower, as to the death of a daughter, are held, in Gibson v. Herriott (1891) 55 Ark. 85, 29 Am. St. Rep. 17, 17 S. W. 589, to be admissible as admissions against her in a subsequent suit brought against her as administratrix

take advantage of admissions made in pleadings therein by way of estoppel; but there is no reason to carry that

of her husband's estate, to establish the fact of such daughter's death.

So, a verified petition for letters of administration on an estate, in which petitioner describes the real estate left by intestate, is held in Stone v. Cook (1875) 79 Ill. 424, to be admissible against him in a subsequent proceeding brought by him, claiming to be the owner of the real estate described in the petition, by virtue of a verbal contract with the intestate in his lifetime.

And a petition for the appointment of an administrator, presented by the attorney of the heirs of the decedent to his widow for her signature, and signed by her, is held in Smith v. Randolph (1913) 159 Iowa, 159, 140 N. W. 411, to be admissible in a subsequent suit brought by her to impress a trust upon, and establish ownership of, a note held by the administrator, to show that in such petition it was stated that the deceased owned personal property of a value the same as the face of the note.

Where one of the heirs who is suing to set aside a sale of decedent's real estate under a claim of homestead was of age at the time of the filing of a petition by her mother for the assignment of dower, which purported to be by the widow and all the children, and which claimed other property as the homestead, such petition is admissible against the heir as an admission against interest. Russell v. Suddoth (1916) 123 Ark. 200, 184 S. W. 842.

Admissions with respect to the title to property, made in an answer to a bill of foreclosure, are held in Booth v. Lenox (1903) 45 Fla. 191, 34 So. 506, to be admissible against the party making them, in a subsequent suit for partition, arising between such party and third persons.

So, the answer of a trustee, filed to a bill in chancery in a suit brought against him by the person who deposited money with him for the creation of a parol trust, is held in Gordon v. Green (1851) 10 Ga. 534, to be admissible against him to show admissions made therein with respect to the trust, in an action of assumpsit brought against him by the cestuis que

trustent.

And in an action against a garnishee who denies the indebtedness to the

rule over into cases involving the use of pleadings as inconclusive evidence. It is possible, however, that this rule judgment debtor, an answer of the garnishee in a prior action of garnishment against it by third persons holding judgments against the same judgment debtor is admissible to show an admission of the indebtedness. St. Paul F. & M. Ins. Co. v. Brunswick Grocery Co. (1901) 113 Ga. 786, 39 S. E. 483.

An admission in an answer to a bill charging defendant with fraud in the acquisition of property of the complainant's ward is held, in Printup v. Patton (1893) 91 Ga. 422, 18 S. E. 311, to be admissible against him in a subsequent action brought against him by a third person, on the issue of his ownership of the property in question in the first case.

In Sons & Daughters of Job v. Wilson (1908) 4 Ga. App. 235, 61 S. E. 134, an action against a benevolent assessment company involving the disposition of death benefits upon the failure of the deceased to make a will, an answer filed by defendant in another action against it, admitting what the custom in such event is, is held admissible.

And in Allen v. United States Fidelity & G. Co. (1915) 269 III. 234, 109 N. E. 1035, affirming (1915) 193 Ill. App. 193, an action by the sureties on the official bond of a county treasurer, against the surety company who had issued to them an indemnifying bond, to recover money recovered from them on account of their principal's default, the answer filed by such sureties in the equitable suit in which the recovery against them had been had, in which they denied the default of their principal, is held admissible.

In Royall v. McKenzie (1854) 25 Ala. 363, a bill by an administrator to compel a settlement and account of an assignment executed to defendant by decedent, it is held that the admissions of the answer filed by defendant in a former action of the same nature, brought by the decedent, but subsequently compromised, are admissible against him, the court stating that "it makes no difference whether the parties are the same or not; it is received as a confession."

It is held in Johnson v. Russell (1887) 144 Mass. 409, 11 N. E. 670, that in an action upon an order for a sum of money to be paid out of money

in estoppel cases has been in the minds of the courts who have held to become payable to the drawer, drawn on defendant on behalf of plaintiff, the answer of the defendant in a prior action brought against him by the drawer, in which he set up the order and alleged his promise to pay it, and asked that the amount of the drawer's claim be reduced by that sum, is admissible; and it is held, further, that a statute providing that pleadings shall not be evidence "on the trial" does not apply so as to prevent their introduction in subsequent actions.

In an action by a patentee on a contract against a manufacturing company for royalties, the answer of the defendant in a prior suit against it by another manufacturing company for infringement, in which it sets up the contract sued upon in the later action, is admissible therein. Meissner v. Standard R. Equipment Co. (1907) 211 Mo. 112, 109 S. W. 730.

In Purcell v. St. Paul F. & M. Ins. Co..(1895) 5 N. D. 100, 64 N. W. 943, an action by the assignee of a claim against an insurance company for a loss, the answer of the company as to the amount of the loss, as adjusted between it and the insurer, filed in a garnishment proceeding brought by a creditor of the insurer, is held admissible on behalf of the plaintiff against the insurance company.

An answer filed by a mother as guardian ad litem for the benefit of her infant son is admissible against her in a subsequent action brought against her by a third person. Beasley v. Magrath (1804) 2 Sch. & Lef. (Ir.) 31.

Gardner v. Meeker (1897) 169 Ill. 40, 48 N. E. 307, affirming (1897) 69 Ill. App. 422, was an action on a note by the assignee thereof. Plaintiff offered answer of defendant, filed in an earlier action thereon by the payee, to prove admissions as to the state of account existing between the maker

and payee. The court says: "The

question as to how far statements made by a party to a suit, in pleadings filed in previous cases, are admissible in evidence, is one on which the authorities are conflicting; but the rule adopted in this state is that they are admissible, and their weight is to be determined from all the facts and circumstances under which they were made. . . . But in this case the

pleadings containing admissions inadmissible in proceedings other than plea and copy of account were not admissible without the declaration."

The objection, made by a party whose answers to interrogatories were filed in another suit between him and other persons, to the use of such answers against him in a later suit, on the ground that such answers were made with a view to the issues involved in the prior case, and that in such answers he had not made explanations pertinent to the present case, is not a valid one. Hood v. Chambliss (1852) 7 La. Ann. 106; Alford v. Hughes (1859) 14 La. Ann. 727.

In an action against the owner of a building for labor and materials furnished in its erection, it is held in Taft v. Little (1904) 178 N. Y. 127, 70 N. E. 211, reversing (1903) 78 App. Div. 74, 79 N. Y. Supp. 507, that a complaint filed by the plaintiff in a prior action, against the principal contractors, is admissible on the issue as to whether the defendant dealt with plaintiff as subcontractor or independent contractor.

So, it is held in Boulder & W. R. Ditch Co. v. Leggett Consol. Ditch & Reservoir Co. (1906) 36 Colo. 455, 86 Pac. 101, that a statement with respect to the capacity of a ditch, made by petitioner in a complaint asking for a readjudication of priorities in a water district, is admissible against petitioner in a subsequent action brought by him to re-establish certain water rights, in which he bases his claim upon certain allegations as to the capacity of the ditch.

Likewise the reply of complainant in a proceeding to enjoin entry upon his land for the extension of a street, in which he alleges his acceptance of the award, and the agreement that such acceptance is conditional upon the procurement by the town of the right of way over the adjoining land, is held in Holland v. Spell (1895) 144 Ind. 561, 42 N. E. 1014, to be admissible in a subsequent action of trespass brought by the owner of the land against the town marshal, to show the receipt of the money and the condition upon which he holds it.

In Stitch v. State (1913) 10 Okla. Crim. Rep. 441, 137 Pac. 887, it is held that a verified pleading, filed by a person in a civil action, admitting the purchase of whisky, is admissible

those in which filed, on behalf of strangers thereto.67 But where, in fact, the alleged admission is not against the interest of the pleader, it seems proper to deny its admissibility against him.68 To be admissible, the admission in the former pleading against him in a subsequent criminal action for selling the whisky, or having it in his possession with intent to sell.

See Barber v. State (1911) 64 Tex. Crim. Rep. 96, 142 S. W. 577, in which it is held that a pleading filed by a party in a civil action, especially where sworn to, is admissible in a subsequent criminal action brought against the pleader.

And see Munnerlyn v. Augusta Bank (1899) 94 Ga. 356, 21 S. E. 575.

67 In holding, in Keyser v. Pickrell (1894) 4 App. D. C. 198, that the pleadings filed by defendant in a prior action brought by a different party are not admissible against her, the court says that "the admissions or recitals of facts made by a party in the pleading in another and different case are generally held not to be competent evidence."

In Edinburgh American Land Mortg. Co. v. Briggs (1897) — Tex. Civ. App., 41 S. W. 1036, a pleading in an action charging pleader's grantor with liability on a covenant of warranty in the deed is held inadmissible against the grantee in a later action involving third persons, for the purpose of showing that he did not regard the grantor as a merely nominal party in making the deed. This is on the ground of the different issues and different parties in the two actions.

And where the maker of a note makes a payment to the holder which the latter applies to another account due a third person, and the maker, in an action against him on that account, sets up such payment in his bill of particulars, it is held in Starkweather V. Kittle (1837) 17 Wend. (N. Y.) 20, that such bill of particulars is not admissible against the maker in a subsequent action on the note.

Where a railroad is paid for its loss by an insurance company, and then brings an action in its own name, but on account of the insurance company, against the party causing the fire, an admission made in the railroad company's petition with respect to the fire is not admissible against it in a subsequent action brought against it by

must, of course, tend to establish a fact in issue in the subsequent suit.68a

3. Admissibility against person claiming under pleader.

A pleading is properly held to be admissible against parties claiming

a third person for the loss of goods in the fire. Netzow Mfg. Co. v. Southern R. Co. (1909) 7 Ga. App. 163, 66 S. E. 399. This is on the ground that, in the earlier action, the railroad was merely the nominal plaintiff.

And see Courtenay v. Haworth (1849) 2 Car. & K. (Eng.) 1018.

68 New York v. Fay (1889) 53 Hun, 553, 23 Abb. N. C. 390, 6 N. Y. Supp. 400, was an action against an executrix. Plaintiff sought to prove testator's partnership with a third person by an allegation made by the executrix in an answer verified by her upon information and belief, in an action brought against her by the alleged partner, in which she set up the partnership. The court says: "It is true that admissions in pleadings in an action between other and different parties have been received in evidence by the courts. The ground upon which these admissions have been received has been because they were admissions against the interest of the party making them, and because of the great probability that a party would not admit or state anything against himself or against his own interest unless it was true. And, furthermore, these admissions have been confined to those cases where the admissions contained the assertion of facts which, from the nature of the case, if true, must have been within the knowledge of the party making the admission, and the pleading is verified by him. . Therefore, an admission contained in pleadings between other parties, simply founded upon information and belief, where there is no presumption that the facts alleged or denied must have been within the knowledge of the party making the allegation or denial, and where the allegation or denial is not against the interest of the party making the same, cannot be received in evidence as establishing any fact. In the case at bar the alleged admission was not against the interest of the defendant, who was asserting a right in respect to a fact as to which there is no presumption that she had any personal knowledge whatever."

68a See, for example, Scholl v. Gray