Purchase Short-Term Access to HeinOnline, Prices starting as low as $29.95!!

12 Wash. L. Rev. & St. B. J. 181 (1937)

handle is hein.journals/washlr12 and id is 189 raw text is: WASHINGTON LAW REVIEW
VOLUME XII.                 JULY, 1937                 NUMBER 3
Personal and Adoptive
In Greenleaf's first edition, he adopted the dictum of Mascardus
that an admission is not evidence but a substitute for proof.,
This was repeated in the first fourteen editions following, was
copied by Taylor, was accepted by Wharton, apparently acqui-
esced in by Thayer, and later strenuously insisted upon by Pro-
fessor Gifford at Columbia. Unless the dictum be given the inter-
pretation put upon it by Gifford, that it takes the place of proof
so long as the jury does not disbelieve it, it would seem to mean
that an extra-judicial admission stands on the same basis as an
admission made in the pleadings or by stipulation in open court:
if it once be established that the admission was made, then the
matter admitted is beyond the realm of dispute in the case. And
there are a few English cases appearing to hold just that. When
Mr. Wigmore came to edit the sixteenth edition of Greenleaf, he
saw at once that these English cases were no longer law anywhere;
but he accepted Greenleaf's conclusion that an admission is not
evidence, by taking from it all its supposed power to establish the
matter stated in it and giving it only an impeaching effect.2 It is,
he said, like any unsworn contradictory statement of a witness,
which may be admitted to destroy his story on the stand but can
not be used to establish the opposite. He, therefore, defined it as
a statement inconsistent with the position which the admitter is
taking at the trial. It is receivable even if the admitter has not
testified, for it is contrary to the statements made or reasonably
implied in his pleadings; and no foundation by way of calling his
attention to the prior contradictory statem:ent is necessary. In the
first edition of Wigmore's own work, he took the same position;
but in the second, he bows to the practically unanimous holding
of the courts that an admission is receivable for the truth of the
*Acting Dean and Professor of Law, Harvard Law School.
1GnEENLEAF, EVIDENCE (1st ed. 1842) § 169.
2Id. (16th ed. 1899) § 169. For Professor Gifford's criticism of Dean
Wigmore's view, see (1924) 24 Columbia L. Rav. 442444.

Already a Subscriber?

What Is HeinOnline?

Learn More About the Law Journal Library (pdf)

We also offer annual subscriptions to universities, colleges, law firms, organizations, and other institutions. To request a quote please visit http://home.heinonline.org/subscriptions/request-a-quote/

Please note: the content in the Law Journal Library is constantly changing and some content has restrictions as required per the license. Therefore, please review the available content via the following link to ensure the material you wish to access is included in the database. For a complete list of content included in the Law Journal Library, please view http://www.heinonline.org/HOL/CSV.csv?index=journals&collection=journals