29 CONFESSION.27 The acknowledgment of some fact,28 of a fault or wrong, or of an act or obligation adverse to one's reputation or interest;2 admission of something done antecedently;30 the acknowledgment of a crime or fraud.31 an CONFESSION AND AVOIDANCE.32 A plea in confession and avoidance is one which avows and confesses the truth of the averments of fact in the declaration, either expressly or by implication, but then proceeds to allege new matter which tends to deprive the facts admitted of their ordinary legal effect, or to obviate, neutralize, or avoid them.33 CONFESSION BY CULPRIT. The acknowledgment by a criminal of the offense charged against him when charged by any person or called upon to plead to the indictment.34 CONFESSION OF DEFENSE. In English practice, where defendant alleges a ground of defense arising since the commencement of the action, the plaintiff may deliver confession of such defense and sign judgment for his costs up to the time of such pleading, unless it be otherwise ordered.35 CONFESSION OF FAITH. The construction which a particular religious organization gives to 27. Confession: Generally see Criminal Law [12 Cyc 459 et seq]. See also Confession of Judgment post this page; Relative Confession [34 Cyc 1038]. "Admission" distinguished see Admission 1 C. J. p 1363 text and note 8; Criminal Law [12 Cyc 418, 459]. "By confession" construed see By 9 C. J. p 1109 note 73. "Confession in open court" see Perjury [30 Cyc 1453]. "Simple 'confession"" see Simple [36 Cyc 458]. 28. Adams v. Tator, 57 Hun 302, a 304, 10 NYS 617. [b] Confession of negligence.-In a 29. Century D. [quot Hunter v. Eddy, 11 Mont. 251, 262, 28 P 296, per De Witt, J., dis. op.]. 30. Uhler v. Browning, 28 N. J. L. 79, 82. 31. Webster D. [quot State Jones, 33 Iowa 911]. V. 32. Confession and avoidance: Generally see Pleading [31 Cyc 128, 215]. Plea in: Action on official bond of sheriff Suit to quiet title see Quieting 33. Black L. D.; Turner v. Stephens, (Tex. Civ. A.) 155 SW 1009 [quot Cyc]. [a] The term "new matter constituting a defense" has been construed as having the same meaning as "matter in confession and avoidance." Finley v. Quirk, 9 Minn. 194, 86 AmD 93. CONFIDE. To put into one's trust or keeping.45 CONFIDENCE. Trust;46 reliance; ground of 34. Wharton L. Lex. See also assist the defendant in laboring for Confession ante this page; Criminal one day was not specially confined Law [12 Cyc 459-485]. to his protection and care within the meaning of the statute. State v. Arnold, 55 Mo. 89, 90. 35. Black L. D. 36. Boyles v. Roberts, 222 Mo. 613, 659, 121 SW 805. 37. Confession of judgment: Authority of attorney as to see At- By insolvent corporation in favor of 1264]. In justice's court see Justices of the Insolvent corporation obtaining pref- Invalidity of, after issuing of order Children "entrusted or confided" to another see Parent and Child [29 Cyc 16771. 46. Black L. D. [a] "Trust" as synonymous.— On bill or note see Bills and Notes Black L. D. 44. A maxim meaning "A person [a] Applied in: Powlter's Case, 11 Standard D. [a] Female confided to care of another-1 Wagner St. 500 $ 9, providing that if any guardian of any female under the age of eighteen years, or any other person to whose care or protection any such female "shall have been confined," shall defile her, he shall be punished, etc., means that the other person alluded to should occupy a position similar to that of a guardian, or stand in some attitude in which a peculiar or confidential trust was reposed. It is not necessary that he should be the legal protector of the female. but it is essential that she should have been committed to his special care with the expectation that he should exercise a supervision over her; and hence a female who was allowed by her father to go and 47. no Black L. D. [a] As belief. Where in an action for malicious prosecution, the justice before whom plaintiff had been tried and acquitted testified on cross-examination that he had permitted him to go at large on his promise to appear, and on his reexamination, in answer to a question why he had not required bail, stated that he had "confidence" in plaintiff who had agreed to appear, the court said: "As affecting the merits of the case, we think the reason why the justice indulged the plaintiff as he did was immaterial; but we cannot see that the mere use of the word 'confidence' could have the effect upon the minds of the jury which counsel claim it must have had. It amounts to no more than an expression of a personal belief, entertained at the time by the justice, that the plaintiff would appear at the hearing on the day fixed, without reference to any notion he might have had that the plaintiff had theretofore borne a good reputation. Under the circumstances, it was but natural for the inquiry to be made. and the answer was only such as the jury would naturally supply in their own minds, even though it had trust.48 CONFIDENCE GAME.49 Any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler;50 a kind of swindle practiced principally in large cities upon unwary strangers,51 the swindler, usually under the not been made and the måtter called to their attention." Martin v. Corscadden, 34 Mont. 308, 318, 86 P 33. 48. Black L. D. 49. See also Bunco 9 C. J. p 1004; and generally False Pretenses [19 Cyc 384]. 50. Webster Int. D. [quot Wheeler v. Peo., 49 Colo. 402, 407, 113 P 312, AnnCas1912A 755; Lace v., Peo., 43 Colo. 199, 204, 95 P 302; Du Bois v. Peo., 200 Ill. 157, 161, 65 NE 658, 93 AmSR 183; Maxwell v. Peo., 158 Ill. 248, 256, 41 NE 995 (quot Peo. v. Weil, 243 Ill. 208, 216, 90 NE 731, 134 AmSR 357; Hughes v. Peo., 223 Ill. 417, 421, 79 NE 137); State v. Theriot, 139 La. 741, 743, 72 S 191, LRA1916F 683 (quot Cyc); State v. Edgen, 181 Mo. 582, 80 SW 942, 946]; Peo. v. Warfield, 261 Ill. 293, 328, 103 NE 979; Peo. v. Depew, 237 Ill. 574, 579, 86 NE 1090; Peo. v. Talmage, 233 Ill. 560, 563, 84 NE 655; Peo. v. Turpin, 233 Ill. 452, 457, 84 NE 679, 17 LRANS 276; Juretich v. Peo., 223 Ill. 484, 486, 79 NE 181. [a] Similar definitions.-(1) "Any scheme whereby a swindler wins the confidence of his victim, and swindles him out of his money by taking advantage of such confidence, is a confidence game." Peo. v. Poindexter, 243 Ill. 68, 74, 90 NE 261. (2) "Confidence game' can hardly be defined in a manner which would cover all cases, for the reason that schemes, the purposes of which is to swindle others, are, as has been frequently stated, 'As various as the mind of man is suggestive.' erally speaking, it is a swindling operation by means of which advantage is taken of the confidence reposed by the victim in the swindler. The offense intended to be covered by the statute is obtaining money by means or use of that which is false or bogus." Elliott v. Peo., 56 Colo. 236, 238, 138 P 39. Gen [b] Statutory definition.-"A confidence game" has been defined by statute (act of Febr. 27, 1867) to be the obtaining, or attempting to obtain, from any person, money or property by means of the use of any false or bogus check, or by any other means, instrument or device, commonly called the "confidence game.” Morton v. State, 47 Ill. 468, 474. in a saloon. a [c] lustrations. (1) Inducing men to bet on the top or bottom of dice and procuring money from man for that purpose, or getting possession of his pocketbook for the purpose of betting, is enough of a "confidence game" to sustain a conviction therefor and distinguish it from is robbery, although fear aroused in him for the loss of his money by threats and insinuations in regard to the danger of gambling Van Eyck v. Peo., 178 Ill. 199, 202, 52 NE 852. (2) Where defendant obtained the confidence of prosecutor by representing that he would engage in a contemplated real estate business with prosecutor as his partner in another city, and by reason of the confidence so inspired induced prosecutor to pay money to M for the purchase of certain city lots, and defendant had not intended to engage in the business at all, but falsely pretended that he would do so to induce prosecutor to pay his money for the lots which were of little or no value, defendant was guilty of obtaining money by the "confidence game," and not of a mere "breach of a contract." Chilson v. Peo., 224 Ill. 535, 539, 79 NE 934. (3) In a prosecution for obtaining money by "confidence game," under pretence of old acquaintance, gaining the confidence. of his victim and then robbing or fleecing him at cards or betting or otherwise.52 It is very often practiced by the use of cards, dice, checks, or other means, instruments, or devices in which the victim gets nothing, but is simply swindled out of his intent to cheat and defraud, shall obtain any money or property from another by means of any trick or false representations or pretenses, or by any other means, commonly called the "confidence game," etc., shall, on conviction, be punished. It was held that such section ap-, plied to a case in which the victim consented to the parting of title and possession to the money obtained, and was not applicable where the property was obtained by a trespass, in which case the person obtaining the same with intent to deprive the true owner thereof was guilty of larceny. State v. Copeman, 186 Mo. 108, 118, 84 SW 942. (10) Accused advertised for a man "to take half interest in fine office business; will pay $100.00 a month; $250.00 gets half interest;" and, when prosecuting witness called at the address given, he found accused occupying office equipped with telephone, desks, carpet, chairs, etc., and was told that accused, in partnership with another, was doing a good real estate business, and that his partner desired to sell on account of illness, and was given the partner's address by accused and later met the partner at the same office and bought a half interest in the business for one hundred and fifty dollars cash and a note for one hundred dollars. Mills Annot. St. § 1332, where the only evidence against defendant was that she told the prosecuting witnesses that she could see gold all around them, etc., and that she was interested in certain mines, these words, however false and fraudulent, are insufficient to establish the crime. Wheeler v. Peo., 49 Colo. 402, 407, 409, 113 P 312, AnnCas1912A 755. (4) Where the complaining witnesses were not deceived by defendant in reposing confidence in her, or misled by any device, scheme, or swindling operation in which advantage was taken of their confidence, the fact that contrary to their expectations promised investments were not made, or, if made, proved a failure, does not transform the transaction into a "confidence game." Wheeler v. Peo., supra. (5) Obtaining money by loans or advancements by false representations in regard to solvency, or ability or purpose to make profitable investments and return large profits, is not within Mills Annot. St. § 1332, regarding prosecutions for obtaining money by game." means of a "confidence V. or Wheeler v. Peo., supra. (6) To constitute the offense of obtaining money by "confidence game," within Mills Annot. St. § 1332, the money or property must have been obtained or the attempt thereto made by means of some false or bogus means, token, symbol, or devicc, as distinguished from mere words, however false or fraudulent. Wheeler Peo., supra. (7) Rev. St. (1899) § 2213, provides that "every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any other person or persons, any money, property or valuable thing whatever, by means by use of any trick or deception or false and fraudulent representation or statement or pretense, or by any other means or instrument or device, commonly called the 'confidence game,' or by means or by use of any false or bogus check, or by any other written or printed or engraved instrument, or spurious coin or metal, shall be deemed guilty of a felony," etc. It was held to be manifestly directed against obtaining confidence has first been secured by money or property from one whose false and fraudulent representations in connection with acts done, with intent to cheat and defraud, to provide for a class of false representations not included in some other section dealing with ordinary false representations, and to be intended to reach a class of offenders known as "confidence men," ," who obtain money by some trick or representation designed to deceive. State v. Wilson, 223 Mo. 156, 165, 166, 122 SW 701. (8) Where a person, after gaining the confidence of another by misrepresenting his name, and that he was a friend of a person who is the other's friend, and that he was in the employ of a certain company, obtained money from the other on the representation that he had lost his own money and would return the sum borrowed on the following morning, and left a worthless watch and his I. O. U. for thirty dollars, which he never intended to pay, he was guilty of obtaining money by the "confidence game," although the transaction assumed the form of a business transaction. Peo. v. Weil, 243 Ill. 208, 216, 90 NE 731, 134 Am SR 357. (9) Rev. St. (1899) § 2213, provides that every person who, with an The alleged firm did not have any paying business, and prosecuting witness finally sold out to accused the interest purchased for one hundred and fifty dollars, paid by notes which were never actually paid by accused. It was held that accused was guilty of obtaining by the "confidence game,' money contrary to Rev. St. (1908) § 1783. Elliott v. Peo., 56 Colo. 236, 237, 138 P 39. (11) Prosecutor was approached by W who showed him a lock capable of being opened without a key. Thereafter they met defendant who pretended to be a countryman with a large sum of money, for dollar that he could open the whereupon W offered to bet dollar lock without a key. Defendant handed W his money, and W took out his money putting it with defendant's, when they turned to prosecutor and asked him how much his money, and W pulled it out of money he had. Prosecutor took out his hand, handed him the lock, and said, "While [defendant] counts ten you open the lock." Defendant counted ten but the lock did not open, whereupon defendant snatched the money which W handed to him, and, after prosecutor stated that they had robbed him, they departed. It was held that prosecutor never intended to part with the title to his money, and hence the offense constituted larceny, and not obtaining money by a trick or confidence game prohibited by Rev. St. (1899) § 2213. State v. Copeman, 186 Mo. 108, 112, 84 SW 942. [d] Transaction in legitimate form. The fact that the transaction is made to assume the form of a legitimate contract is not material, if in fact it is a swindling operation. Peo. v. Depew, 237 Ill. 574, 579, 86 NE 1090. 51. Century D. [quot Wheeler v. Peo., 49 Colo. 402, 407, 113 P 312, AnnCas1912A 755; DuBois V. Peo., 200 Ill. 157, 161, 65 NE 658, 93 AmSR 183: State v. Edgen, 181 Mo. 582, 80 SW 942, 946]. 52. Century D. [quot State V. Edgen, 181 Mo. 582, 594, 80 SW 942]. 53 money by some trick or device.5 The distinctive features of confidence games is that their authors obtain from their victims money or property without any intention of ever returning to them anything whatever, or anything at all equivalent in commercial value to that which the authors of the scheme receive.54 CONFIDENCE MAN.55 One who practices or assists in a confidence game." 56 CONFIDENCE OPERATOR. A term implying that the one to whom it applies is one engaged in swindling operations in which advantage is taken of confidence reposed by the victim in the 53. Juretich v. Peo., 223 Ill. 484, | Gardiner, 33 App. 486, 79 NE 181. NYS 451]. V. Harris, 136 54. Rosenberger Fed. 1001, 1004. [a] The essential ingredient While the devices, schemes, and plans, invented and made use of by persons who resort to this means to swindle others, are "as various as the mind of man is suggestive," its essential ingredient is a swindling operation, in which advantage is taken of the confidence reposed by the victim in the swindler. Powers v. Peo., 53 Colo. 43, 49, 123 P 642. See also Bunco 9 C. J. p 1004. Standard D. 55. 56. [a] Illustrations.—(1) Two or more confederates who, by gaining the confidence of a stranger on the ground of alleged professional acquaintance with him or his friend, lure him to a place where he is afterward fleeced at some game, or robbed of his money, or otherwise victimized, are "confidence men." Peo. v. Simmons, 125 App. Div. 234, 236, 109 NYS 190. (2) In construing Penal Code § 489, providing that "every person who, with intent to cheat and defraud, shall obtain from any other person any money, property, or valuable thing whatever, by means or by use of any trick or deception, or false or fraudulent representation, or statement of pretense, or by any other means or instruments, or device, commonly called the 'confidence game' shall be deemed guilty of a felony," the court said: "This section, taken from Missouri, so far as its provisions which we have discussed are concerned, is intended to reach a class of offenders sometimes known as 'confidence men,' who, with intent to cheat and defraud, obtain through some false representation, trick, or deception the money of their victim whose confidence has first been secured through some false representation or deception." Kimball v. Terr., 13 Ariz. 310, 312, 318, 115 P 70. (3) Penal Code (1901) § 489, was intended to reach the class of offenders known as "confidence men," who obtain, through some false representation, trick, or deception, the money of their victim, whose confidence has first been secured through some false representation or deception, and does not cover a case where a party obtains money by falsely pretending that he is an attorney and can obtain а divorce for the party defrauded; such offense being covered by § 481, dealing with the subject of ordinary false representations, and providing, that any person who, by false or fraudulent representations or pretenses, defrauds any other person of money or property, and thereby fraudulently gets possession of money or property, is punishable as therein provided. Erickson v. State, 14 Ariz. 253, 261, 127 P 754. 57. Ex p. Hayden, 12 Cal. A. 145, 146, 106 P 893. 58. Standard D. [quot Peo. V. swindler.57 CONFIDENTIAL. Having or enjoying another's confidence; 58 having private or secret relations with another;59 trusted;" 60 intimate,61 as a confidential clerk;62 given or imparted as a secret or in confidence.65 63 It has two elements, that of secrecy and that of trust and confidence.64 V. [a] The term "confidential creditors" has been given to creditors of a failing debtor who furnished him with the means of obtaining credit to which he was not entitled, involving in loss the unsuspecting and fair dealing creditors. Gay v. Strickland, 112 Ala. 567, 572, 20 S 919. 60. Standard D. [quot Peo. V. Gardiner, 33 App. Div. 204, 207, 53 NYS 451]. Cer CONFIDENTIAL COMMUNICATIONS.65 tain classes of communications, passing between persons who stand in a confidential or fiduciary relation to each other, (or who, on account of their relative situation, are under a special duty of secrecy and fidelity,) which the law will not permit Div. 204, 206, 53 | proceedings in court, to preserve the minutes, supply copies to the court, 59. Standard D. [quot Peo. attorneys, and the parties, and owing Gardiner, 33 App. Div. 204, 206, 53 no duty of a confidential nature to NYS 451]. the presiding justice holding trial terms away from the county of his residence. Peo. v. Milliken, 72 Misc. 430, 130 NYS 1. (5) The position of a subpoena server in the office of the district attorney of New York county is not "strictly confidential," within the meaning of the proviso to L. (1884) c 312 § 1, as amended by L. (1896) c 821; and therefore an honorably discharged veteran who occupies it cannot be removed except for incompetency or misconduct shown after a hearing on notice and charges. Peo. v. Gardiner, 33 App. Div. 204, 205, 53 NYS 451. (6) The position of stock transfer tax examiner, under the Tax Law (Consol. L. [1909] c 60) § 270, imposing a stock transfer tax, and prohibiting the sale of stamps denoting the payment of the tax except by agents of the comptroller, is not a "confidential position" within the civil service law (Consol. L. [1909] c 7), empowering the civil service commission to make rules for the classification of offices and employments in the classified service, and the action of the commission in exempting the position from the competitive classes is unauthorized, although the examiner occupies a confidential relation to corporations, transfer agents, and stockbrokers examined to determine whether the law has been complied with. Merritt v. Kraft, 71 Misc. 492, 502, 129 NYS 636. (7) L. (1896) c 112 § 110, provides that special agents appointed by the state commissioner of excise "shall be deemed the confidential agents of the state commissioner." The duties of such agents are to perform acts in the name of the commissioner which are secret, and which involve trust and confidence. It was held that notwithstanding the civil service commission placed the position of special agent in the list where competitive examinations are required, such an agent holds a "confidential position," which is expressly excepted from the operation of L. (1896) c 821, providing that Union veterans shall be preferred in civil service appointments. Peo. v. Lyman, 157 N. Y. 368, 52 NE 132. a [a] Confidential position.-(1) Where the duties of a position are not merely clerical, and are such as especially devolve on the head of the office, which, by reason of his numerous duties, he is compelled to delegate to others, the performance of which requires skill, judgment, trust, and confidence, and involves the responsibility of the officer or municipality which he represents, the position should be treated as confidential. Chittenden v. Wurster, 152 N. Y. 345, 360, 46 NE 857, 37 LRA 809 [quot Peo. v. Wheeler, 56 Misc. 289, 106 NYS 450, 453, and cit Peo. v. Palmer, 152 N. Y. 217, 46 NE 328]. (2) Under L. (1896) c 821, prohibiting the removal of a veteran from office, except on hearing for cause, but providing that it shall not be construed to apply to the position of private secretary or deputy of an official or department, or to any other person holding strictly "confidential position," the secretary of the fire department whose duties require him to open all letters addressed to the commissioners, to supervise the keeping of the department records, to make disbursements for office expenses, to maintain discipline in the office, and to grant leave of absence to employees, is liable to removal. Peo. v. Scannell, 51 App. Div. 360, 361, 64 NYS 593. (3) The registrar of a water bureau who is appointed by the commissioner of public works and whose duties are delegated to him by the commissioner, and who is given special charge of the general office, having supervision over many subordinates who receive all the water rates paid to the city, and is required to examine vouchers for expenditures of the water bureau for maintenance and pipe extensions, and in the absence or inability of the deputy commissioner is charged by the commissioner with the entire control of the bureau, and whose duty it is to hear and adjust complaints made by users of water, and who would be liable on his bond for misappropriating funds of the city, holds a "confidential position." Peo. v. Wheeler, 56 Misc. 289, 291, 106 NYS 450. (4) The court stenographer of a judicial district does not hold a confidential position, within the civil service law; the stenographer being only required to attend the terms of court, to make stenographic record of all 61. Standard D. [quot Peo. v. Gardiner, 33 App. Div. 204, 207, 53 NYS 451]. 62. Standard D. [quot Peo. v. Gardiner, 33 App. Div. 204, 207, 53 NYS 451]. 63. Standard D. [quot Peo. v. Gardiner, 33 App. Div. 204, 207, 53. NYS 451]. 64. Peo. v. Palmer, 152 N. Y. 217, 220, 46 NE 328 [quot Peo. v. Gardiner, 33 App. Div. 204, 207, 53 NYS 451]. 65. Confidential communications: As privileged against disclosure in evidence see Witnesses [40 Cyc 2352 et seq]. Discovery of see Discovery [14 Cyc 323]. to be divulged, or allow them to be inquired into in a court of justice, for the sake of public policy and the good order of society.66 68 69 CONFIDENTIAL RELATION.67 In 'law, a relation of parties in which one is bound to act for the benefit of the other and can take no advantage to himself from his acts relating to the interest of the other; a peculiar relation which exists between client and attorney, principal and agent, principal and surety, landlord and tenant, parent and child, guardian and ward, ancestor and heir, husband and wife, trustee and cestui que trust, executors or administrators and creditors, legatees or distributees, appointer and appointee under powers, and partners and part owners;" any relation existing between parties to a transaction wherein one 70 In respect to liability for defamatory character of see Libel and Slander [25 Cyc 375]. Any communication" distinguished see Any 3 C. J. p 236 note 79. 66. Black L. D. 67. Confidential relation: Generally see Agency §§ 1, 353; Attorney and Client § 211; Brokers $$ 34-42; Executors and Administrators [18 Cyc 233]; Factors [19 Cyc 116]; Guardian and Ward [21 Cyc 101]; Trusts [39 Cyc 17]. As affecting: Contract see Contracts [9 Cyc 410, 456]. Validity of deed see Deeds [13 Cyc 5821. Will see Wills [40 Cyc 1148]. Disclosure of communication between persons in, on trial of cause see Witnesses [40 Cyc 2352]. [a] "Fiduciary relation" synonymous. (1) "The phrases 'confidential relation' and 'fiduciary relation' seem to be used by the courts and law writers as convertible terms." Robins v. Hope, 57 Cal. 493. 497 [quot Hemenway v. Abbott, 8 Cal. A. 450, 97 P 190, 195; Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813]. To same effect Dick v. Albers, 243 Ill. 231, 90 NE 683, 134 AmSR 369. (2) "A 'fiduciary relation' in law is ordinarily synonymous with a 'confidential relation.'" Bacon v. Soule, 19 Cal. A. 428, 434, 126 P 384. [b] "A 'strictly confidential relation' means much more than the imposition of important duties, requiring the exercise of intelligence or trained ability or integrity. It necessarily implies personal contract between the officer and his superior, where the officer occupying the position holds towards his superior a position of confidence and trust; where the person occupying the position has the power, or in consequence of the relation that exists between himself and his superior, to impose upon the superior liabilities and obligations which the superior is bound by law to discharge. It must be shown that the officer holding the position has the power of so performing his duties, in consequence of his relations to his superior and the business that the superior is bound to prosecute, or by a betrayal of information acquired in consequence of the personal relations necessary because of the office which he holds, as to impose liability or obligations upon the superior which the superior will be compelled to meet." Gardiner, 33 App. Div. 204, 207, 53 NYS 451. the Peo. v. 68. Century D. [quot Peo. V. Palmer, 152 N. Y. 217, 220, 46 NE 328 (quot Peo. v. Gardiner, 33 App. Div. 204, 207, 53 NYS 451)]. 69. Robins v. Hope, 57 Cal. 493, 497 [quot Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813]. 70. 1 Story Eq. Jur. 218 [quot Robins v. Hope, 57 Cal. 493, 497; Hemenway v. Abbott, 8 Cal. A. 450, 97 P 190, 195; Ewing v. Ewing, 33 Okl. 414, 126 P 811] (where it is also said: "In these and the like 73 71 of the parties is in duty bound to act with the ut cases the law, in order to prevent | Scattergood v. Kirk, 192 Pa. 263, 43 [a] Similar definitions.(1) "Such are the known relations of trustee, and cestui que trust, guardian and ward, attorney and client, principal and agent, husband and wife, but the number or character of the relations are not defined by law." Holt v. Agnew, 67 Ala. 360, 368 [quot Harraway v. Harraway, 136 Ala. 499, 503, 34 S 836]. (2) Such a relation will undoubtedly be presumed in certain cases; as for instance, in that of a guardian and ward, parent and child, attorney and client, and also in that of principal and agent, and may exist in many other situations." Brown v. Mercantile Trust, etc., Co., 87 Md. 377, 390, 40 A 256. (3) "Confidential relations are presumed to exist between husband and wife, partners, parent and child, priest and parishioner, principal and agent, guardian and ward, counsel and client, etc., and in each of said relations the party in whom the confidence is reposed must stand in his dealings with the other party unimpeached of the slightest abuse of the confidence reposed, and if he derives or claims any advantage from the relation, the law places upon him the burden of showing that the transaction out of which the advantage arose was fair and just and fully understood and consented to by the party confiding in him." Bacon v. Soule, 19 Cal. A. 428. 434, 126 P 384. [b] Brother and sister.-"While it is true that the relationship of brother and sister is a material circumstance to be considered in determining whether or not in any given case a confidential relation actually existed nevertheless the mere fact that the parties to the transaction are brother and sister does not in and of itself create a confidential relation." Bacon v. Soule, 19 Cal. A. 428, 434, 126 P 384. 71. Bacon v. Soule, 19 Cal. A. 428, 434, 126 P 384. 72. 2 Pomeroy Eq. Jur. § 955 [quot Thomas v. Whitney, 186 Ill. 225, 230, 57 NE 808 (quot Stahl v. Stahl, 214 Ill. 131, 73 NE 319 321, 105 AmSR 101, 68 LRA 617, 2 AnnCas 774; Mayrand v. Mayrand, 194 Ill. 45, 48, 61 NE 1040; Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813), where the term was used in connection with undue influence]. [a] Precise limits not defined— "A good deal has been said as to what constitutes a confidential relation within the operation of the principle, but Courts have always been careful not to fetter the operation of the principle by undertaking to define its precise limits." Zimmerman v. Bitner, 79 Md. 115, 125, 28 A 820 [quot Horner v. Bell, 102 Md. 435, 62 A 736, 740]. 73. Darlington's Est., 147 Pa. 624, 629, 23 A 1046, 30 AmSR 776 [quot A 1030, 1032 (quot Hemenway v. Abbott, 8 Cal. A. 450, 97 P 190, 195; Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813)]. To like effect Holt v. Agnew, 67 Ala. 367 [quot Harraway v. Harraway, 136 Ala. 499, 504, 34 S 836]; Brown V. Mercantile Trust, etc., Co., 87 Md. 377, 40 A 256. 74. Darlington's Est., 147 Pa. 624, 629, 23 A 1046, 30 AmSR 776 [quot Scattergood v. Kirk, 192 Pa. 263, 43 A 1030, 1032 (quot Hemenway v. Abbott, 8 Cal. A. 450, 97 P 190, 195; Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813)]. [a] Similar definitions.-(1) "The cases of parent and child, guardian and ward, trustee and cestui que trust, principal and agent, are familiar instances in which the principle applies in its strictest sense. But its operation is not confined to the dealings and transactions between parties standing in these relations, but extends to all relations in which confidence is reposed, and in which dominion and influence resulting from such confidence, may be exercised by one person over another." Zimmerman v. Bitner, 79 Md. 115, 125, 28 A 820 [quot Horner v. Bell, 102 Md. 435, 62 A 736, 740]. (2) "The rule [as to undue influence] embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another." 2 Pome-. roy Eq. Jur. § 955 [quot Thomas v. Whitney, 186 Ill. 225, 231, 57 NE 808 (quot Hemenway v. Abbott, 8 Cal. A.. 450, 97 P 190, 196; Stahl v. Stahl, 214 Ill. 131, 73 NE 319, 321, 105 AmSR 101, 68 LRA 617, 2 AnnCas 774; Mayrand v. Mayrand, 194 Ill. 45, 48, 61 NE 1040; Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813)]. (3) “A confidential relation such as the law infers always exists as between parent and child, guardian and ward, counsel and client, principal and agent, but it also exists in numerous cases where only the facts warrant the inference.' Stepp v. Frampton, 179 Pa. 284, 289, 36 A 177. 75. Century D. [quot Peo. V. Palmer, 152 N. Y. 217, 220, 46 NE 328 (quot Peo. v. Gardiner, 33 App. Div. 204, 208, 53 NYS 451; Merritt v. Kraft, 71 Misc. 492, 129 NYS 636, 638)]. [a] Similar definitions.—(1) While no exact definition of the terms "confidential relations" and "relations of confidence" applicable in all cases can be given, such relations exist when the parties to a transaction do not meet on an equality, one having a full knowledge of the subject of traffic, and the other but slight knowledge, and no ability to acquire full knowledge, and the innocent person relies on and places confidence in the representations made by the other party to the transaction. Liland v. Tweto, 19 N. D. 551, 125 NW 1032. (2) "It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused,-in which confidence has been reposed and be 422 [12 C. J.] CONFIDENTIAL RELATION-CONFINEMENT other" falls within the general term "confidential relations.'' 76 CONFINE. To shut up within an enclosure;" to restrain or oblige to stay indoors, as by ill health, an accident, or the like.78 trayed." 2 Pomeroy Eq. Jur. § 955 [quot Thomas v. Whitney, 186 Ill. 225, 230, 57 NE 808 (quot Hemenway v. Abbott, 8 Cal. A. 450, 97 P 190, 195; Stahl v. Stahl, 214 Ill. 131, 73 NE 319, 321, 105 AmSR 101, 68 LRA 617, 2 AnnCas 774; Mayrand v. Mayrand, 194 Ill. 45, 48, 61 NE 1040; Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813)]. re [b] Illustrations.—(1) In construing a statute prohibiting the of veterans without cause moval holding appointive positions, except such as hold confidential relations to the appointing officer, the court said: "The statute which we have under consideration has reference to officials, and the confidential relations mentioned undoubtedly have reference to official acts, and include not only those that are secret, but those trust and confidence that involve which are personal to the appointing officer. If, therefore, the casts upon an officer a duty involving a liability skill or integrity, and either personal or on the part of the represents, municipality which he and he intrusts the discharge of this duty to another, their relations bePeo. v. Palmer, come confidential." statute 152 N. Y. 217, 220, 46 NE 328 [quot [c] Exercise CONFINEMENT.81 80. Century D. Confined. Restrained within limits;79 imprisoned.80 The state of being con.83 restraint within fined; 82 restraint within limits; doors by sickness, especially by childbirth;85 any [a] Similar definition.-"Any of county commissioners will afterward be presumed to be the genuine relations shall be deemed confidensignatures of legal voters of the This was really the only tial, arising from nature or created by law, or resulting from contracts, county. where one party is so situated as to question presented to the court by counsel, or decided by the court; alhave exercise a controlling influence over though other questions may the will, conduct, and interest of anbeen in the case"). other; or where, from similar relation of mutual confidence, the law requires the utmost good faith; such as partners, principal and agent,' etc.' Ga. Civ. Code § 4627 [quot Netherton v. Netherton, 142 Ga. 51, 82 SE 449 (holding that in an action for cancellation it is not error to instruct the jury in reference to the subject of confidential relations as contained in the code on evidence showing that one of defendants, a stepson, enjoyed the fullest confidence of the maker of an instrument, the court saying: much of that section as relates to confidential relations arising from contracts, or created by law, and etc., and was surplusage the relations of partners, principals, agents, should have been omitted, the mere inclusion of these irrelevant parts of the law in regard to confidential relations could scarcely have been harmful to the defendants")]. "While so [b] Determination as to confiden- case. we etc., Co., 87 Md. 377, 390, 40 A 256. courts. "No part of the jurisdiction v. Bitner, 79 Md. 115, 126, 28 A 820 [d] Origin immaterial.-"The origin of the confidence and the source immaterial." are influence of the 955 [quot 2 Pomeroy Eq. Jur. § Thomas v. Whitney, 186 Ill. 225, 226, 57 NE 808 (quot Hemenway v. Abbott, 8 Cal. A. 450, 97 P 190, 195; Stahl v. Stahl, 214 Ill. 131. 73 NE 319, 321, 105 AmSR 101, 68 LRA 617, 2 AnnCas 774; Mayrand v. Mayrand, 194 Ill. 45, 48, 61 NE 1040; Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813)]. 76. Holt v. Agnew, 67 Ala. 367, Harraway, 368 [quot Harraway v. (quot 136 Ala. 499, 503, 34 S 836 Ewing v. Ewing, 33 Okl. 414, 126 P 811, 813)]. To same effect Brown v. Mercantile Trust, etc., Co., 87 Md. 377, 40 A 256, 257 836]. 77. Standard D. 79. Century D. 67 V. same [a] "Prohibited from running at is nothing in the statute that re- etc., R. Co. v. Mossman, supra, the to a [a] As implying actual impris-. onment. (1) Under a statute providing that it should not be lawful to confine the person of any female for debt, it was held that an arrest and constituted an imprisonment, came within the meaning of the act. Blight v. Meeker, 7 N. J. L. 97. (2) Under the act of June 16, 1836, § 47, providing that in certain cases the of pleas county, in which any person may be confined by sentence or order of any shall court of the commonwealth, son on his making application, it is have power to discharge such imprisonment in jail, as in contemnot necessary that there be an actual plation of law a man is "confined" the moment he is handed over to the Kishbaugh's sheriff under sentence. Pet., 135 Pa. 468, 472, 19 A 1063. (3) In a statute relating to habeas corbeen pus the word "confined" has defined as referring "not only to the actual, corporeal, and forcible detention of a person, but likewise to any and all coercive measures by threats, menaces or the fear of injury whereby one person exercises a control over the person of another and detains him within certain limits." Tex. Code Crim. Proc. art 170 [quot Ex p. Snodgrass, 43 Tex. Cr. 359, 361, 65 SW 1061]. [b] Fine for contempt.-Vt. St. § 1610 (Pub. St. § 1965), entitling one "confined" for contempt to a writ of habeas corpus, does not apply where the penalty imposed is merely a fine, as it applies only to cases where the relator is actually in confinement for noncompliance with some order of court. In re Consolidated Rendering Co., 80 Vt. 55, 63, 66 A 790, 11 Ann Cas 1069. 81. Confinement: In: Prison see Prisons [32 Cyc 330]. Liability of seducer for expenses of To house by accident or sickness See also Close 11 C. J. p 918 note 34; Solitary Confinement [36 Cyc 511]. "Actual confinement" construed see Actual 1 C. J. p 1183 note 25. 82. Century D. 83. Century D. 84. Webster D. [quot Searle v. Carroll, (N. J.) 91 À 600]. 85. Webster D. [quot Searle v. due to pregCarroll, (N. J.) 91 A 600]. [a] "Confinement nancy."-It appeared from the evidence that some two weeks before the deceased member of a beneficial association died she had slipped and fallen on her abdomen, being at the time pregnant, and that thereafter she suffered pain in the region of the abdomen, being attended once by a physician at her home, who prescribed for her; that on becoming she was taken, very much hospital where she died the next day. practically in a dying condition, to a as testified to by the hospital physician, from septic peritonitis, the worse later cases, developments |