Id. See also Bailey v. Macaulay, 13]Q. B. 815. Such a mistaken impression, however, will not exclude his admission, though it will impair its weight as evidence against him. Newton v. Belcher, 9 Q. B. 612. The value of an admission depends on the circumstances under which it was made; where it is a mere inference drawn from facts, the admission goes no further than the facts prove. See Bulley v. Bulley, L. R., 9 Ch. 739. An admission that his trade is a nuisance is evidence, though not conclusive, against a defendant. R. v. Neville, 1 Peake, 91.

By Rules, 1883, O. xxxii., r. 1, “any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party."

Admissions made with a view to a compromise and in order "to buy peace," are not evidence against the maker. B. N. P. 236. But an acknowledgment of a party's handwriting, though made pending a treaty of compromise, is evidence against him. Waldridge v. Kennison, 1 Esp. 143. So an admission of facts before arbitrators. Gregory v. Howard, 3 Esp. 113. An offer of a specific sum by way of compromise is evidence, unless accompanied with a caution that the offer is confidential, or without prejudice. Wallace v. Small, M. & M. 446; Nicholson v. Smith, 3 Stark. 128. But generally, neither letters written "without prejudice," nor replies to such letters, though not similarly guarded, can be used as evidence, Paddock v. Forrester, 3 M. & Gr. 903; Hoghton v. Hoghton, 15 Beav. 278; 21 L. J., Ch. 482, 725, 728, and see In re River Steamer Co., L. R., 6 Ch. 822. So, where a correspondence has begun with a letter written "without prejudice," that covers the whole correspondence. Ex parte Harris, 44 L. J., Bky. 33. Offers made without prejudice have, however, sometimes been allowed to be given in evidence for the person making the offer, to show a willingness to settle the dispute. Jones v. Foxall, 15 Beav. 388; 21 L. J., Ch. 725; Williams v. Thomas, 2 Dr. & S. 29; 31 L. J., Ch. 674.

Admissions on compulsory process.] It is no objection to the proof of an admission that it was made under compulsory process; thus, an answer to a bill in Chancery, filed against the defendant by a stranger, may be read against him, to show the admission of a particular fact. Grant v. Jackson, Peake, 203. So, the defendant's answer to interrogatories administered by the plaintiff to him in another suit is admissible against him. Fleet v. Perrins, L. R., 3 Q. B. 536, Ex. Ch. ; L. R., 4 Q. B. 500. But semb. the compulsion must not be illegal. R. v. Garbett, 1 Den. C. C. 236. See R. v. Coote, L. R., 4 P. C. 599. The examination of a party before commissioners of bankrupt is evidence against him; Robson v. Alexander, 1 Moore & P. 448; R. v. Wheater, 2 Moo. C. C. 45; although there was an irregularity in the proceedings which had been waived by the appearance of the bankrupt for examination; R. v. Widdop, L. R. 2 C. C. 3; or though part only of his deposition was noted down; Milward v. Forbes, 4 Esp. 172; or though the compulsory power was exercised on irrelevant matters. Stockfleth v. De Tastet, 4 Camp. 10. So testimony given in Court may be used in an action against the witness, though he was prevented from entering into an explanation of the circumstances under which the fact took place, it being irrelevant. Collett v. Keith, Ld., 4 Esp. 212. So testimony on process to compel attendance before the House of Commons. R. v. Merceron, 2 Stark. 366. See obs. in R. v. Gilham, 1 Moo. C. C. 203. But such compulsory admission is no evidence of an account stated. Tucker v. Barrow, 7 B. &

C. 623.

Admission of the contents of documents.] Though the contents of a written instrument cannot in general be proved by a witness without production of

Contents of Documents.

61

it (see ante. p. 1); yet what a party to the record says is primary evidence against himself as an admission, though it relates to the contents of a written instrument, and though the contents be directly in issue in the cause. This was first deliberately ruled in Slatterie v. Pooley, 6 M. & W. 664; followed by King v. Cole, 2 Exch. 628; Fox v. Waters, 12 Ad. & E. 43. The doctrine has been impugned and regarded as objectionable. See Lawless v. Queale, 8 Ir. L. Rep. 382; it is, however, established by subsequent cases. There can be no doubt, however, that such an admission ought in some cases to have no weight; as where the party relying upon it is manifestly withholding more satisfactory evidence in his own power; or where the admission assumes a degree of knowledge, whether of law or of fact, which the party admitting is not likely to possess ; as the construction of a deed of settlement; the contents of a fine or recovery, &c "If the plaintiff is himself in the box, you may ask him as to the contents of a document, and his answer will be good evidence. Perhaps the judge might say that the document ought to be produced. I should do so myself in some cases." Per Pollock, C. B., in Farrow v. Blomfield, 1 F. & F. 653. See also the observations in Boulter v. Peplow, 9 C. B. 493; 19 L. J., C. P. 190. To make such oral admission of any value when it relates to a written document, it ought to be clear and distinct; thus where the defendant, in order to show that an expired lease had been renewed by the ancestor of the plaintiff, proved a statement by the ancestor many years ago, that the land had been "new-lived" by him, without more, it was held insufficient. Doe d. Lord v. Crago, 6 C. B. 90.

A statement made by the plaintiff that his demand for work done had been referred to an arbitrator, who awarded that nothing was due, was admitted as evidence against him. Murray v. Gregory, 5 Exch. 468. The registered copy of a deed, signed and certified by the plaintiff, was held to be primary evidence of its contents against him. Boulter v. Peplow, supra. A copy of a document sent by a party is primary evidence against him. See Stowe v. Querner, L. R., 5 Ex. 155, 159. A machine copy of a letter written by the plaintiff to a third person, may be used as an admission on the part of the plaintiff, though not admissible as a letter. Nathan v. Jacob, 1 F. & F. 452. So an abstract of title containing recitals, which had been relied upon by the defendant in a suit in Chancery, was admitted as evidence against him in a subsequent action of the matters so recited, without producing the original deeds. Pritchard v. Bagshaw, 11 C. B. 459; 20 L. J., C. P. 161. See also R. v. Basingstoke, 14 Q. B. 611.

The following are some of the earlier cases bearing on the same doctrine-The terms of a lease may be proved by oral admissions. Howard v. Smith, 3 M. & Gr. 254. An oral admission of a debt is evidence on an account stated, though it refers to a written instrument not produced. Newhall v. Holt, 6 M. & W. 662. A defendant in an action for the recovery of land may prove an admission of the plaintiff that he had sold and assigned his lease to a third person, though such assignment must be in writing. Doe d. Lowden v. Watson, 2 Stark. 230. A notice signed by partners, stating that the partnership "has been dissolved," is evidence against them to the dissolution, though the partnership was by deed. Doe d. Waithman v. Miles, 1 Stark. 181; 4 Camp. 373. It was formerly held, that an admission in an answer in Chancery of the execution of a deed was only secondary evidence, and did not supersede the necessity of proving it in the regular way. Call v. Dunning, 4 East, 53; Cunliffe v. Sefton, 2 East, 187, 188. So with regard to matters of record and judicial proceedings, as the insolvency and discharge of the plaintiff, oral evidence of admissions has been held insufficient. Scott v. Clare, 3 Camp. 236. But since the case of Slatterie v. Pooley,

ante, p. 61, the cases of Scott v. Clare, Call v. Dunning, ante, p. 61, and other earlier cases are open to question.

Admissions by acquiescence.] Admissions may sometimes be presumed from the silence or conduct of a party when certain statements are made. On this ground it is that the uncontradicted statements of any one, made in the presence and hearing of the party against whom they are offered, are evidence. Bessela v. Stern, 2 C. P. D. 265, C. A. But of course no inference against him can be reasonably drawn, if the fact stated before him be one which is plainly not within his own knowledge; for he may be unable either to admit or contradict it. So the deposition of a witness, taken in a judicial proceeding against a party, is not evidence in another proceeding against that party merely on the ground that he was present, and did not cross-examine or contradict the witness; Melen v. Andrews, M. & M. 336; for the nature of a judicial proceeding prevents a party from interposing to contradict or comment on the statement of a witness, as he would in common conversation. Accord. per Alderson, B., in Short v. Stoy, Winton Sum. Ass. 1836. Cases, however, may occur, in which the refusal of a person to contradict or cross-examine a witness, even in a judicial proceeding, may be admissible. See Simpson v. Robinson, 12 Q. B. 511, cited post, Action for defamation; Proof of malice.

It should be observed, that although silence has been considered to be evidence of assent to a statement made orally in the presence of the party, no such inference can be fairly drawn from the mere omission of a party to reply to a letter; Felthouse v. Bindley, 11 C. B., N. S. 869, 875; 31 L. J., C. P. 204, 206, per Willes, J.; Richards v. Gellatly, L. R., 7 C. P. 131, per Id.; unless sent under circumstances which entitle the writer to an answer. See Edwards v. Towels, 5 M. & Gr. 624; Richardson v. Dunn, 2 Q. B. 218. A statement which may be, but is not, immediately contradicted without further trouble than an oral denial, may be presumed to be true; but no one is, or ought to be, expected to answer every officious letter that is written to him. It has been held, however, that such a letter may sometimes be used as evidence of a demand, and of so much as may explain the demand. Thus, where the plaintiff discovered that he had inadvertently paid a debt to the defendant twice over, and his accountant wrote repeatedly to the defendant, explaining how the mistake arose, and requesting repayment, but the defendant took no notice of the letters, it was held that the letters were all admissible in evidence against him in an action to recover back the payment. Gaskill v. Skene, 14 Q. B. 664; and see Fairlie v. Denton, 3 C. & P. 103. So in the case of a letter written by A. to B., to which the position of the parties justifies A. in expecting an answer,- -as where the subject of it is a contract or negotiation before pending between them, the silence of B. may be important evidence against him. See Lucy v. Mouflet, 5 H. & N. 229; 29 L. J., Ex. 110, cited post, Action for goods sold ; where the plaintiff puts in the letter written in his behalf by a third person to the defendant, the defendant is entitled to put in his answer to it, although it states, as a fact, a circumstance which, if true, is a defence to the action, for it shows that that circumstance has been brought under the defendant's notice. Carne v. Steer, 5 H. & N. 628; 29 L. J., Ex. 281.

The following are also examples of admissions implied from negative conduct or acquiescence-If A. having title to premises in the possession of B., suffers B. to make alterations inconsistent with such title, it is evidence to go to the jury that A. has recognised the right of B., and has done such acts as are necessary to confirm it. Doe d. Winckley v. Pye, 1 Esp. 364. So where, upon a building lease of 59 feet, more or less, the lessee took 62 feet, but the ground taken agreed with the abuttals in the lease, and the

lessor marked out the ground, and saw the progress of the defendant's building without objection, this is evidence of the lessee's title. Neale d. Peroux v. Parkin, Id. 229. And in action for a debt, evidence that the plaintiff was an insolvent debtor, and had not inserted the debt in question in his schedule, was an admission, as against him, of its not being due. Nicholls v. Downes, 1 M. & Rob. 13. But it was held that the attesting witness of the schedule must be called to prove it. Streeter v. Bartlett, 5 C. B. 562. As to which see, however, Bailey v. Bidwell, 13 M. & W. 73, post, p. 126.

To this head may also be referred the case in which the depositions or statements of third persons have been held to be evidence against a party who has, on a former occasion, caused them to be made and used them as true for his own purposes. Brickell v. Hulse, 7 Ad. & E. 455; Gardner v. Moult, 10 Ad. & E. 464; Richards v. Morgan, 4 B. & S. 641; 33 L. J., Q. B. 114, cited post, Effect of depositions; and the comments per curiam, in Boileau v. Rutlin, 2 Exch. 679, 680. But in an action by a bankrupt against his assignees to try the validity of his commission, depositions of deceased persons taken under the commission, and enrolled by the assignees, were not evidence against them as admissions by reason of such enrolment. Chambers v. Bernasconi, 1 C. M. & R. 347.

As to admisssions by parties identified in interest, see ante, tit. Hearsay, p. 48; and see post, p. 64, et seq.; Admissions by trustees, &c.

Receipts.] At common law the acknowledgment in a deed of the receipt of money was conclusive evidence as between the parties to it of such receipt. Baker v. Dewey, 1 B. & C. 704; Rowntree v. Jacob, 2 Taunt. 141. But not where the recital of the deed showed only an "agreement to pay," and the receipt was of money so paid as above mentioned;" as usual in purchase deeds. Bottrell v. Summers, 2 Y. & J. 407; Lampon v. Corke, 5 B. & A. 606. Nor was the receipt indorsed on the back of the deed conclusive. Straton v. Rastall, 2 T. R. 366. In equity the absence of a receipt at the back of the deed would put a subsequent purchaser on inquiry as to whether the purchase money had been paid; see Kennedy v. Green, 3 Myl. & K. 699 ; for the land in the hands of a purchaser with notice that the prior purchasemoney remained unpaid, or of a volunteer, would be liable to lien for it notwithstanding the conveyance express the consideration to have been paid, and there is an indorsed receipt. S. C.; Winter v. Anson, 3 Russ. 488. See notes to Mackreth v. Symmons, 1 White & T. Lead. Cases. But now in case of deeds executed after 31st December, 1881, the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 55, provides that "a receipt for consideration money or other consideration in the body of a deed or indorsed thereon shall, in favour of a subsequent purchaser not having notice that the money or other consideration thereby acknowledged to be received was not in fact paid or given wholly or in part, be sufficient evidence of the payment or giving of the whole amount thereof." In general, a receipt not under seal is only a prima facie acknowledgment that the money has been paid; and therefore may be contradicted or explained. Graves v. Key, 3 B. & Ad. 318. Even though expressed to be " in full of all demands ;" Fitch v. Sutton, 5 East, 230; Lee v. Lancashire and Yorkshire Ry. Co., L. R., 6 Ch. 527, 534; see also Bowes v. Foster, 2 H. & N. 779; 27 L. J., Ex. 262. These two last cases overrule Alner v. George, 1 Camp. 392, cor. Ld. Ellenborough. See further notes to Cumber v. Wane, 1 Smith's L. Cases. A receipt given in the settlement of an account may be evidence of sums being allowed on the settlement, and such allowance being equivalent to the payment of money cannot be afterwards recovered by the person making the allowance. Bramston v. Robins, 4 Bing. 11. As between the underwriter and the assured, the acknowledgment in the policy of the receipt of the

premium by the broker is conclusive; Dalzell v. Mair, 1 Camp. 532; and see Xenos v. Wickham, L. R., 2 H. L. 296, 319; unless there was a fraud practised by the assured to induce the broker to give credit to him. Foy v. Bell, 3 Taunt, 493. If an agent employed to receive money, and bound by his duty to his principal to communicate to him whether the money is received or not, renders an account from time to time which contains an intentional misstatement that the money has been received, he is so far bound by that account that he cannot make his principal refund moneys paid to him on it. Shaw v. Picton, 4 B. & C. 729; Skyring v. Greenwood, Id. 281. As to proof of receipts for legacies, vide post, tit. Stamps; Receipt.

Admissions implied from the acts of the party.] The plaintiff's title to sue, or the character in which the plaintiff sues, or in which the defendant is sued, is frequently admitted by the acts and conduct of the opposite party; and in some cases the admission, though not strictly an estoppel, is conclusive. Thus, if B. has dealt with A. as fariner of the post-horse duties, it is evidence in an action by A. against B. to prove that he is such farmer. Radford v. M'Intosh, 3 T. R. 632. And see Peacock v. Harris, 10 East, 104. So in an action for slandering the plaintiff in his profession of an attorney, the words themselves, importing that the defendant would have the plaintiff struck off the roll of attorneys, were held to be an admission of the plaintiff's character of attorney. Berryman v. Wise, 4 T. R., 366; Pearce v. Whale, 5 B. & C. 38. So in the case of a libel on the plaintiff as envoy of a foreign state; Yrisarri v. Clement, 3 Bing. 432. In an action for penalties against a collector of taxes, proof of the defendant having collected the taxes is sufficient proof of his being collector, though the appointment is by warrant. Lister v. Priestley, Wightw. 67. So payment of tithes by a parishioner to the plaintiff is evidence against the former of the plaintiff's title to the living. Chapman v. Beard, 3 Anstr. 942. Where an auctioneer has advertised for sale the "property of J. S., a bankrupt," this is evidence of the bankruptcy in an action brought by the trustee against the auctioneer for the proceeds. Maltby v. Christie, 1 Esp. 340. The cases relating to the admission of bankruptcy, and of the title of the trustees, by matters in pais, are collected, post, Part III., tit. Actions by trustees of bankrupts ; Proof of title of trustee, when dispensed with by implied admission.

Where A. brings an action against B. to recover possession of land, he thereby admits B.'s possession of the land. Stanford v. Hurlstone, L. R., 9

Ch. 116.

Mere subscription of a paper, as witness, is not in itself proof of his knowledge of its contents. Harding v. Crethorn, 1 Esp. 58.

As to estoppel arising from the acts of a party, vide post, p. 73.

Admission by trustees; or of persons not parties to the suit, but interested in it.] An admission is evidence whether made by a trustee, or nominal party, who sues for the benefit of another; Bauerman v. Radenius, 7 T. R. 664; Gibson v. Winter, 5 B. & Ad. 96; or by husband in action by him and his wife; Moriaty v. L., Chatham, & Dover Ry. Co., L. R. 5 Q. B. 314; cited ante, p 59; or by the person really interested in the suit, but not named on the record. Thus in action on a bond conditioned for the payment of money to L. D., the declaration of L. D. that the defendant owes nothing is evidence against plaintiff. Hanson v. Parker, I Wils. 257. So in an action by the master of a ship for freight, brought for the benefit of the owner, the admissions of the latter are evidence. Smith v. Lyon, 3 Camp. 465. So in actions on policies, the declarations of the party really interested are admissible. Per Lord Ellenborough, Bell v. Ansley, 16 East, 143. But the statement of a cestui que trust is either wholly inadmissible against his trustee, or admis