Niles v. Rhodes

Christiancy J.: A preliminary objection is made to the form in which the errors are assigned. The 12th rule requires every assignment of error to be special. By this we understand that every error relied upon must be pointed out with such certainty that the defendant in error, and the court, may see from the assignment itself, every particular ground upon which a reversal of the judgment is claimed, and that the record may always disclose the grounds upon which the judgment may have been reversed or affirmed. — 379 — There were, in the court below, three distinct requests to charge, made by defendant’s counsel in writing. The court in answer to these several requests, charged substantially as requested. The counsel for plaintiffs also made three separate requests to charge, each of which was refused. In answer to two of these the court charged directly the contrary, without qualification, and simply refused the last. To each of these- charges and refusals plaintiffs took a distinct exception. These several requests, refusals and charges, are separately and distinctly set forth in the bill of exceptions. The assignment of errors clearly refers to the bill, which is thus in effect made part of it. By this reference the errors complained of become as certain and specific, as if the assignment had repeated each of these separate requests, refusals and charges, in hcec verba, with the usual allegation of error to each; and needless repetition is avoided. The words “ several instructions” used in the assignment are to be rendered distributively as applying separately to each. True the assignment does not, in so many words, allege any error in the instructions given in answer to the first and second of the plaintiffs’ requests, but as these instructions were the direct contrary of the requests, and exceptions were taken to the refusals,' the same questions are raised, This form of assignment would not, of course, be sufficient in any case where the grounds of error relied upon were not rendered certain by reference. Here they could have been rendered no more certain by repetition in the assignment. We must therefore consider the questions presented by the. exceptions. Before doing so it may be well to take a general view of some of the main features of the statute, under which the questions arise. By the first section, “No person shall be allowed to manufacture or sell at any time, by himself, his clerks, sex-vants or agents, directly or indirectly, any spirituous or intoxicating liquors, or any mixed liqxxors, a part of which — 380 — is spirituous or intoxicating, [except cider, beer, and wine of domestic manufacture,] and except, also, as hereinafter provided.” I have placed in brackets the words inserted by the amendment of February lith, 1851. The second section is in the following words: “ Sec. 2. All payments for such liquors hereafter sold in violation of law, shall be considered as having been received without consideration, and against law and equity, and any money or thing paid therefor may be recovered back by the person so paying the same, his wife, or any of his children; and all sales, transfers, grants, releases, quitclaims, surrenders, mortgages, pledges and attachments of real or personal estate, and liens and securities thereon, of whatever name or nature, and all contracts or agreements relating thereto hereafter made, the consideration whereof, either in whole or in part, shall have been the sale or agreement to sell any such liquor, shall be utterly null and void against all persons and in all cases, excepting only as against the holders of negotiable securities, or the purchasers of property who may have paid therefor a fair price, and received the same upon a valuable and fair consideration, without notice or knowledge of such illegal consideration; nor shall any suit at law or in equity be had or maintained upon any contract or agreement whatever hereafter made, the consideration whereof shall be either wholly or in part the sale of such liquors in violation of law, excepting only when such suit is brought by such bona fide holders of negotiable paper, or purchasers of property without notice: nor shall any demand, arising upon any such contract or agreement whatever, be offered or allowed as a set-off or defense in any action whatever.” By the third. and several following sections heavy penalties are imposed for the sale of liquors in violation of the law. By the fourteenth section those sellers of drugs and — 381 — medicines, and those only, are exempt from the penal provisions of the act, whose sole or principal business is the selling of drugs and medicines other than intoxicating liquors, and who shall, with ¡.sufficient sureties, give bond to the People of the state, a part of the condition of which is, that they wilT not sell any such liquors except to be used as medicines, as a chemical agent, in scientific, mechanical or manufacturing purposes, or wine for sacramental purposes; that they will sell to no one who they have reason to believe intends to use it as a beverage, &c. This section further requires certain precautions to be exercised by such druggists: they are to make special inquiries of the persons to whom they sell, of the purposes for which it is intended; and if they sell without the proper answers to such inquiries they lose the benefit of the exception in their favor. And if any person shall make false answer to such inquiries he becomes liable to the same penalties as for selling. By the nineteenth section it is provided, that this act shall not be construed as prohibiting the manufacture of the alcohol of commerce, containing not less than eighty per cent, of pure alcohol; Provided that the manufacturer shall not be at liberty to sell the same within this state, excepting only to the persons who may have given bond pursuant to section fourteen. The twentieth section is in the following words : “Sbc. 20. The provisions oí this act shall not be construed to apply to such liquors as are of foreign production, and which have been imported under the laws of the United States, and in accordance therewith, and contained in the original packages in which they were imported, and in quantities not less than the laws of the United States prescribe. To entitle any liquors to the exemption contained in this section, it must be made to appear by, positive proof, that they are of the character in this section ■described; nor shall custom house certificates of importa — 382 — tion, and proofs of marks on the casks or packages corresponding therewith, be received as evidence that the liquors contained in such packages are those actually imported therein.” In view of all these provisions, and of the act as a whole, I think it very clear that the effect of the act is to establish, as a general rule, that the sale of intoxicating liquors, including ale or beer, and wine, and contracts made wholly or in part in consideration of such sales, are Void and illegal; that the legality of such sales, and of such contracts, can only be maintained in virtue of some Specific exception of the statute which has the effect to take the particular sale or contract out of the general prohibitions of the act. Illegality is the rule; legality, the exception. And the party claiming the benefit of the exception, in civil cases, takes upon himself the burden of proving his case within it. Such was, by the unanimous decision of this court, held to be the rule in Paton v. Coit, 5 Mich. 505; not only in reference to the exception in the second section, in favor of bona fide holders of negotiable paper, but also as to the sale of the liquors there mentioned. The plaintiffs in this case could not, therefore, be allowed the benefit of the exception in the first section, exempting cider, beer and wine of domestic manufacture, without showing that the liquors sold were of the description in this section excepted. But the plaintiff’s bill, and the only one upon which he sought to recover, purported on its face to be for imported wines, ale and porter. He claimed pay.for it as such, and all the evidence introduced, Whether admissible or not, tended to show they were of foreign production. There was not a word of evidence, nor a circumstance, tending to show them of domestic manufacture. The jury could not, without a clear violation of their oaths, have found them to be of the latter description; had they done so, it would have been the duty of the court to set aside the verdict. — 383 — The court was therefore clearly right in charging according to defendant’s third request, and in refusing the third request of the plaintiffs. But it is argued by plaintiffs’ counsel, that all wines and ale must be either domestic or foreign: that the former are exempt under the first section, the latter under the twentieth section; and therefore, that' all wines and ale are exempt from the operation of the act. This argument lacks but one element of conclusiveness, and that is the truth of the premises. It assumes that the fact of foreign production is, of itself, sufficient, under the twentieth section, to exempt beer and wine from the prohibitions of the act. But the fact is directly the reverse. It is (since the amendment of the first section) their foreign character alone which deprives them of the benefit of the exception, in this or the first section, until other facts are shown. If shown to be domestic, they are, since the amendment, exempt. If shown to be foreign, without further proof, or if, as we shall presently see, the plaintiff claims to recover for the sale of them as of foreign production, they are subject to all the prohibitions of the act, until they are brought within the exemption contained in the twentieth section, by proof that they “have been imported under the laws of the United States, and in accordance therewith,” and that when sold, • they were “ contained in the original packages in which they were imported, and in quantities not less than the laws of the United States prescribe.” The plaintiff, therefore, when suing to recover the price of wine and beer, sold since the "amendment of the first section, can not be required to prove that they are of foreign production, any further than the fact of importation may show them to be so; as this would be requiring him to prove a fact, the only tendency of which, by itself, is to defeat his action, by bringing the sale within the prohibitions, and not within the exceptions, of the - act. The plaintiff is interested to disprove the foreign character of such liquors. — 384 — He, therefore, may, if he choose, as the plaintiffs did in this case, come into court, claiming and admitting its foreign character; thus admitting the sale prima facie, or presumptively illegal, and may then take upon himself to remove this presumption by showing that it was imported according to the laws of the United States, sold in original packages, &c. The object of the statute is to require clear proof of the legality of the sale; and the fact of its foreign production, only tending to show its illegality, and being, therefore, against the plaintiff’s interest, and in accordance with the presumption of the statute, may thus be taken upon his admission. Nor can it be for the defendant to prove them foreign, when the plaintiff in open court admits it, and claims to recover for them as such. The charge of the court, therefore, so far as it required the plaintiffs to prove the liquors to be of foreign production, was erroneous. But whether this error was material will be seen when we come to another branch of the case. No liquors are exempted from the prohibitions of the act simply because they are foreign. So far as the act makes any distinction between liquors of foreign and domestic production, it is in favor of the latter. And it is quite manifest from the whole act, that the exception in the twentieth section, was not made because the liquors were of foreign production, but to avoid coming in conflict with the Federal laws regulating foreign commerce and importations. It is evident the Legislature acted upon the idea, that it might not have the power to prohibit the sale in original packages, of liquors imported according to the laws of the United States. — See Brown v. State of Maryland 12 Wheat. 419, and License Cases, 5 How. 504 to 633. And this section shows very clearly the intent to prohibit the sale of foreign liquors, so far as it was competent to do so without the risk of conflict with the Federal laws, in a point where the latter were supposed to be paramount. But while they could not prohibit the sale, when permitted by — 385 — the laws of Congress, it was competent for the Legislature to require strict proof of full compliance with those laws Which alone stood in the way of a complete prohibition. Of this power they availed themselves to the utmost, by requiring positive proof, and by providing that custom house certificates, and proofs of the marks on the casks, &c., should not be received as evidence that the liquors contained in such casks, &c., were those actually imported therein. The primary object of requiring this strictness of proof, even before the amendment exempting wine and beer of domestic manufacture, was not so much to show that the liquors were of foreign production, as to show that they had been imported according to the Federal laws, sold in original packages,. &c. In other words, that the sale was such as the Legislature did not claim the power to prohibit. In view of these considerations, to construe the language of this section, in reference'to the “ character” of the liquors of which positive evidence is required, as confined simply to the foreign character of the liquors, must defeat the primary object of the statute; and this though the act had remained in its original shape. Still more clearly must it defeat its object as amended. The construction contended for by the plaintiffs finds as little support in the language as in the object of the statute. That portion of the twentieth section immediately preceding that which requires positive proof of the character of the liquors to be exempt, prescribes several distinct requisites in order to entitle the liquors to exemption under this section; they are all connected by the copulative conjunction, and it would be quite as reasonable, at least, to hold that positive evidence was only required as to any other of these requisites, as of its foreign production, even if the act were in its original shape. But it is claimed that the subsequent provision against the reception of custom house certificates and marks as evidence, has the effect to confine the word '“character,” and therefore the positive proof required; to — 386 — their character as foreign or domestic, according to the rule?. expressio unius est exclusio alterius. It is difficult to see any application of this rule to the present ca^e. This latter provision as to certificates and marks, has quite as direct a bearing upon the fact of importation according to the laws of the United States, and to that of being contained in the original packages, as it has to the foreign character: it bears, in fact, upon all. The rule cited is by no means universal, and can scarcely be said to be a general one. It is one always requiring great caution in its application, as it is often difficult to distinguish between instances expressly enumerated in a statute only as illustrations, and those intended to restrict a more general provision to the particular instances enumerated. The rule itself, like most other minor rules of construction, can only be applied as subordinate and auxiliary to the great cardinal principle, which requires the construction to be according to the in tent of the Legislature to be gathered from the whole statute; and where that intent is clear without it, as it is here, the rule has no application. The particular provision forbidding custom house certificates and marks as evidence of identity, is only, I think, to be treated as explanatory of the provision requiring positive proof — as inserted ex ábundanti cautela — to remove any doubt which might exist, whether such certificates and marks could be considered positive proof of the identity of the liquors imported. From these considerations it results, that positive proof was required that the liquors in question, in this case, were imported under the laws of the United States, the duties paid, and all the requisites of the law complied with, and that they were contained in the original packages in which they were imported, and in quantities not less than the jaws of the United States prescribe. Was the defendant’s admission of the correctness of the bill, when presented to him, as testified by the witness, such positive proof as the statute requires? — 387 — Independent of the statute, the evidence would doubtless have been sufficient that the amount shown to be due by the bill was correct, and perhaps that it was due for the particular quantities of ale, beer and wine respectively, stated in the bill. To this extent the party having a bill presented to him would naturally look: but the admission here proved would not, independent of the statute, be very satisfactory or conclusive evidence, though admissible, of its importation according to the laws of the United States, nor of its having been sold in the same original packages in which it was imported — though these things were carefully inserted in the bill. He may or may not have known whether these facts were true or false. The weight to be given to admissions depends upon the circumstances under which they are made, and the mode in which they are proved. Such evidence, though often the most satisfactory, is sometimes the most dangerous and least satisfactory of any. — See 1 Phil. Ev. by Edwards, 462. But the only question here is whether defendant’s admissions constitute positive proof, within the meaning of this statute. It is contended by plaintiffs’ counsel that the statute can not be construed to intend, by positive proof, such only as will establish the fact in controversy as an absolute certainty, beyond the possibility of doubt; as this would be to exclude all human testimony; but that, by positive proof, we are to understand the statute to require direct proof, as contra - distinguished from that which is circumstantial or merely presumptive. This view, I think, is substantially correct; or, in other words, the statute requires the sanction of an oath to the facts in controversy. Mi-. Greenleaf, in his work on evidence, uses the terms '■'■direct and positive'” as synonymous, and as opposed to circumstantial or presumptive evidence.— Vbl. 1,'§18. Tried ’ by this test, however, the admissions of the defendant in this case must be excluded, as neither direct nor positive. To constitute direct or — 388 — positive proof, as distinguished from circumstantial or presumptive, it must apply directly and immediately to the factum prdbandum, or fact to be proved, -without any intervening process. If it apply immediately only to collateral facts from which the fact in controversy is inferred, in consequence of the connection, near or remote, which may be supposed to exist between the collateral facts and the fact in controversy, it is, according to the definition of Mr. ’ Greenleaf, circumstantial or presumptive only. — See 1 Greenl. §11 and 13; and see 1 Phil. Ev. 4 Amer. ed. by Edwards, 598. Here the facta probanda, or facts in controversy, were, the importation of the liquors according to the laws of the United States, payment of duties, their sale in the original packages, &c. No witness here testifies to these. But these facts are sought to be inferred or presumed from the collateral fact of the defendant’s admission of them. The force of this inference, even if the admission had been clear and direct, must depend entirely upon the presumption, that, being against his interest, he would not have made the admission, if the facts admitted were not true. It is this presumption alone which makes admissions of this kind any evidence of the facts admitted, more than hearsay evidence generally. It is true there is another ground on which they are admitted, as will be presently noticed; not strictly as evidence of the facts admitted, but as a substitute for proof of those facts. But as evidence in themselves of the facts admitted, they are but hearsay, and tend to prove the facts admitted only by reason of the presumption above mentioned. “No evidence,” said Mr. Justice Buller (JV. P. 294), “is to be admitted but what is on oath; and if the first speech was without oath, an oath that there was such a speech makes it no more than a bare speaking, and so of no value in a court of justice.” Such would be the precise objection to the admission here in question, but for the presumption mentioned. — 389 — Mr. Phillips, in his excellent work on evidence (vol. 1, p. 402, 4 Amer. ed. by Edwards), treats admissions by parties as merely an exception to the rule excluding hearsay, and as being admitted in evidence chiefly on the ground of the presumption that, being against the party’s interest, he would not have made the admission if not true. Mr. Greenleaf (vol. 1, sec. 169), as to admissions of the character now in question, impliedly, I think, admits the correctness of the view taken by Mr. Phillips, but takes a distinction between these and certain other admissions. I quote his language: “Under the head of exceptions to the rule rejecting hearsay evidence, it has been usual to treat of admissions and confessions by the party, considering them as declarations against his interest, and therefore probably true. But in regard to many admissions, and especially those implied from conduct and assumed character, it can not be supposed that the party, at. the time of the principal declaration or act done, believed himself to be speaking or acting against his own interest; but often the contrary. Such evidence seems, therefore, more properly admissible as a substitute for the ordinary and legal proof, either in virtue of the direct consent and waiver of the party, as in the case of explicit and solemn admissions, of on grounds of public policy and convenience, as in the case of those implied from assumed character.’^ — See Ibid. §2V. Now, if the principle laid down by Mr. Greenleaf, in the passage just quoted, be correct, there is even less ground for holding the admissions in the case before us positive or direct proof, than under the principle stated by Mr. Phillips. For, according to the principle stated by Mr. Greenleaf, they are not received as evidence tending to prove the facts themselves, but as a substitute for such proof, on the ground of waiver, consent, or public policy and convenience. The provision requiring positive proof, I regard as in — 390 — tended to deprive parties of the right, by any arrangement between themselves, to make evidence differing from the actual facts of the case, or to create any substitute for the proof of such facts. Now, in cases where the interest of the plaintiff or defendant is alone in question, they are, of course, competent, if they see fit, to waive the proof of any fact which might operate against them, and to consent that it may be taken as true; in other words, to make an admission of the fact, as a substitute for proof of it. But the case before us is not of this character. It is not chiefly, if at all, for the protection of the purchaser of foreign liquors that the positive proof of the facts here in - question is required; but for the protection of the public, to discourage the sale and the drinking of intoxicating liquors, Avhich the statute, in its Avhole scope, assumes to be a public evil. It is on this ground that the defence here set up is allowed by the statute, and not for the sake of the defendant (for as to the defendant such a defence is often dishonest and unconscionable). While, therefore, a defendant may Avaive his own rights, and consent to admit the facts without proof, he can not so easily waive the rights of the public, which are not his to be waÍAred. The public have a right to insist upon the proof of the facts themselves, and to refuse to be bound by the mere admissions of the parties, made out of court, and not with reference to any suit. This, I think, the public have done by the statute before us, by requiring positive proof. And whether, in ordinary cases, admissions are to be considered in the light of direct or presumptive proof, is not material in the present ease. The only question here is, whether the particular admissions here in question can be considered positive proof under this statute; and, it seems to me, they fall very far short of that character, under any definition that can reasonably be given to the term positive proof. If the statute be construed to require no different kind — 391 — of evidence from that which would have been required without it, the whole provision, is rendered senseless. If, under this provision, mere admissions like this are not excluded, I can see no reason why any evidence should be excluded by it which would have been admissible without it; for the same course of reasoning which will make such admissions receivable under it, will, I think, admit any 'other evidence which would have been receivable had this provision never been enacted; and the statute is wholly •disregarded, or the court evades the duty of its construction by referring it to the jury. Admissions made in open court, or expressly for the purposes of a trial, stand upon a somewhat different ground, being analagous to admissions made -in pleading. — 1 Greenl. § 27. Upon admissions of the latter description, I express no opinion, as they are not involved in the case. Nor, for the like reason, do I express any opinion upon the admissibility of custom house certificates and marks on •casks, &c., to prove facts other than that of the identity of the “liquors imported therein.” But as the statute excludes them as evidence to show that the liquors in question in the suit were imported, and the duties paid, &c., they can be of little importance. It is not necessary here to consider whether some other possible construction might not be adopted, not in accord-ance with the ordinary import of the language, if, in the nature of things, direct or positive evidence of the facts in controversy were impossible; or if there was a clear defect of legislative power to require direct or positive proof. It is easy to perceive that there is nothing in the nature of the facts in controversy here to render direct or positive evidence impossible or impracticable. No one, in a ■case like the present, would be bound to trace back the liquors beyond the custom house. And proper precautions on the part of those who purchase from the importers, would enable them to identify the liquors, and to prove all — 392 — the necessary facts by positive evidence. It is true it maybe inconvenient, and, perhaps, expensive; but these considerations present only a question of expediency, not of legislative power. Such questions are for the Legislature, and not for the courts. There was no error in the charge of the court below, nor in the refusals to charge, except that already noticed in the charge in answer to defendant’s first request. And there being no legal evidence in the cause from which a jury could, under any proper charge, have found a verdict for the plaintiffs, this slight error becomes entirely immaterial. The judgment of the. court below must be affirmed. Manning J.: I do not think the admissions of defendant are positive evidence, within the statute, that the liquors in question had been imported under the laws of the United States, and that they were sold to defendant in the casks and packages in which they were imported. It is doubtful whether anything' more can be claimed for them than that defendant had purchased of plaintiffs liquors to the amount stated in the bill. Conceding, however, they go to the extent claimed, that is, to all the requirements of the statute, I still think them not such evidence as the statute requires. It is clear, to my mind, the Legislature intended the evidence should be of such a character as not to leave a reasonable doubt on the subject. This is evident from that part of the section which declares custom house certificates of importation, and proofs of marks on the casks or packages corresponding therewith* shall not be received as evidence that the liquors contained in such packages are those actually imported therein. Such evidence would, for all ordinary purposes, when uncontradicted, be sufficient proof that the liquors in the casks and packages were the liquors imported in them. But the Legislature foresaw that the law might be evaded by a change of the liquor after the casks or packages had left the cus — 393 — tom house, and before a sale. The custom house marks and certificates are not excluded as evidence. They are competent proof of the importation of the casks or packages with liquor in them, but they are not of themselves, under the statute, evidence that the liquor in them at the time of sale was the same identical liquor imported in them; and to prove this, other and additional evidence must be given. They are more satisfactory proof the statute has been complied with than the confessions [of parties would be under any circumstances. In the making of them, there is no inducement to evade the law, while parties to a sale of liquors are not wholly free from such an imputation. In a prosecution against a vendor for selling liquor, the declarations of the vendee would not be evidence; and what would not be evidence in such a case, to bring the transaction within the exception of the statute, is not competent for that purpose[in an action brought for the price of the li. quor by a vendor against a vendee. The statute requires no greater evidence in the one case than in the other. The policy of rhe law is the same in both. It not only imposes a penalty on the vendor for selling, but declares the contract of sale void, authorizes the money or-other thing paid by the vendee to be recovered back by him, and declares all sales, transfers, and all grants of real and personal estate, in consideration of such sale, utterly null and void. In a suit for liquor sold, the public, as well as the parties, are interested, and the question is not what the parties have said in regard to it, but whether the transaction was within the exception of the statute. I think the judgment should be affirmed, Martin Ch. J.: The object of the act of February 3d, 1855, was, as its title indicates, to prevent the manufacture and sale of spirituous liquors as a beverage. This object stands promi. nently forth in all its .provisions, and can not be lost sight — 394 — of in the construction of the act as a whole, or in that of any of its parts. But as liquors of foreign production, imported according to the laws of the United States, were not, if sold in the original packages, supposed to be within the scope of the state legislation, and as the Legislature designed expressly to except them, from the operation of the act, provision was made by the twentieth section for such exception, and, at the same time, for protection against evasion of the law by the fraudulent use of casks and packages having government marks, and of custom house certificates. It was well understood that the cask or package, with its mark, was a customary means of imposition upon the public, by the manufacturers and vendors of intoxicating liquors; while custom house certificates were as easily transferable as the casks themselves. Hence, it was enacted that positive proof of the foreign production of the liquors, and of their importation, and of their being contained in the original packages in which they were imported, should be requisite to a recovery for liquors sold; and that such casks, marks, and custom house certificates should not afford such evidence. As, however, under the act, as it was amended in 185?, wine, beer, and cider, of domestic manufacture, are excepted from its operation, I concur with my brother Christiancy that the plaintiff, as he sought to recover for foreign wines and ale, and in his action claimed them to be such, would, not be required to show anything further than that they were lawfully imported, and sold in the original packages. This follows from his claim of their foreign character; as, had his claim been for the sale of domestic wines and ale, proof only that they were of domestic manufacture would be required. In other words, as wines and ale are either of foreign or domestic manufacture, they are either excepted from the statute, or may be sold, if imported according to law, and offered in the original package. The reason, then, for proof of their foreign character, does not exist in actions — 395 — for the price of these liquors as it does in actions for that of ardent spirits; for these, whether foreign or domestic, are not within the exception of the first section, but only of that of the twentieth. But, as in this case, no proof was offered that the wines and ale were imported, and the duties paid, the error of the judge in his charge in this particular, I regard as purely technical, and unimportant. The circuit judge was correct in charging that the admission of the defendant was not positive proof that the wines and ales were of foreign production, and imported under the laws of the United States, and in accordance therewith. If the admission were admissible as evidence, its weight was a question for the jury. But what was that admission, and under what circumstances was it made? Crosby, one of the attorneys of the plaintiffs, having the demand for collection, presented it to Rhodes for payment. The bill, it is true, describes the liquors as imported, and in the original packages; but it does not allege that the duties were paid, and, if smuggled, they would still answer the description of the bill. The admission, then, if receivable, would not cover the requirements of the law. But Crosby, in presenting the bill, had in view only its payment, and his presentation and demand only suggested to Rhodes, the inquiry whether the bill was correct in items and amount. The very utmost, beyond this, that Rhodes’ admission of its correctness can be claimed to embrace, is. 'that the bill, in its items, corresponds with the representations of the plaintiffs, as to the character of the liquor sold to him. Rhodes’ admission, therefore, can, upon no reasonable ground, be held to embrace more than the correctness of the items and prices contained in the bill; and it is claiming too much to insist that he thereby admitted facts to which his attention was not directly called; or those which can not be presumed to have been within his knowledge; or, still more, those to which the bill makes — 396 — no reference. The truth is, the fair construction of the admission is, that he admitted the purchase of the articles charged, and for the prices demanded. Now, an admission,, before it can be made evidence, must clearly appear to have been made deliberately and distinctly to the fact to which it is claimed to relate, and the attention of the party making it must appear to have been directed to the subject it is claimed to embrace. No one can reasonably sup, pose that Crosby, when he presented the bill for payment, called Rhodes’ attention to any such facts as it is now contended are involved in his admission of the correctness of the bill; and his reply that it was correct except that he thought he was entitled to a further credit not given in the bill, shows that his attention was directed solely to the amount of his indebtedness. If the question had been left to the jury, I can see no reasonable ground upon which they could have found Rhodes’ admission to have embraced anything beyond his liability, and it was most certainly not the duty of the court to give the extraordinary effect to, the admission which is claimed for it by the plaintiff’s counsel. Nor did the circuit judge err in refusing to charge that admissions of the defendant are positive proof, &c. Whether admissions are or may be positive proof, or not, is a question of law with which the jury had no concern. It was, under the statute, one of competency, not of sufficiency; and, as such, must have been determined by the judge upon the question of their admissibility. This is especially the case under the statute which defines the evidence requisite to establish a right of recovery. But whether admissions can, in no case, be received as such evidence, is a question upon which much controversy exists. I do not, however, regard it as fairly before us in this case, and shall therefore express no opinion upon it. It is sufficient for a court to declare the law as applicable to the case before it, without dealing in abstract principles, with which juries have no concern. And here is the error — 397 — of tbe plaintiffs’ counsel in-the .request to tbe court below. Whether admissions are positive proof or not, was immaterial to the jury, and to the court, until one was proven. The request was to charge an abstract proposition of law, and one which belonged to the court alone, to be applied in the exclusion or reception of testimony — and under such circumstances no error can be assigned, even for the refusal to charge a true proposition of law. The court could only have been requested to withdraw the evidence by admission from the consideration of the jury, or to have instructed them as to the manner of considering it. I can conceive of no greater hindrance to the course of justice than the habit of requesting a charge of abstract propositions of law, having no special reference to the case, or with the duty of the jury. Such a charge, if given, would only tend to confuse and mislead, and it is not the duty of a court to give it — nor can error be assigned upon a refusal. I think the judgment should be affirmed.