porting one issue, it must be taken as admitted for the purpose of disproving another issue. Semble, Bolton v. Sherman, 2 M. & W. 403. And if counsel for the plaintiff open a fact from which his client's possession of a document may be presumed (as payment of a cheque), though he offers no proof of it, yet defendant may give secondary evidence of it after notice to produce, without further proof of the plaintiff's possession. Duncombe v. Daniell, 8 C. & P. 222. Where after a verdict subject to a special case a new trial has been directed, the special case, signed by counsel on both sides, is evidence of the facts there stated. Van Wart v. Wolley, Ry. & M. 4. In a case where the statement of counsel as to the limitations of a deed on a former trial was offered as secondary evidence of its contents, the admissibility of it was considered questionable, even if the parties had been the same; but it was rejected on the ground that the defendant, against whom it was offered, was different. Doe d. Gilbert v. Ross, 7 M. & W. 102.

An admission made by the solicitor of one of the parties to prevent the necessity of proving a fact on the trial is sufficient evidence of that fact; Young v. Wright, 1 Camp. 141; as where he admits the handwriting of an attesting witness. Milward v. Temple, Id. 375; and see Truslove v. Burton, 9 B. Moore, 64. See also Rules, O. xxxii. r. 1, cited ante, p. 60.

Admissions made by the defendant's solicitor, when making proposals on behalf of his client respecting the plaintiff's demand (the solicitor refusing to be examined), are evidence against the defendant; and proof that they were made by the solicitor on the record will be sufficient to establish his agency. Gainsford v. Grammar, 2 Camp. 9. But an admission made in a letter written by a solicitor (who was afterwards the solicitor in the cause) before the commencement of the action, is not evidence against the defendant, without some proof of his having authorized the communication. Wagstaff v. Wilson, 4 B. & Ad. 339; Ley v. Peter, 3 H. & N. 101, 111 ; 27 L. J., Ex. 239, 242, per Watson, B. See also Blackstone v. Wilson, 27 L. J., Ex. 229. And an admission made in the course of conversation between the two solicitors respecting the cause, but not with a view to dispense with proof, cannot be given in evidence. Petch v. Lyon, 9 Q. B. 147. See Parkins v. Hawkshaw, 2 Stark. 239. An undertaking to appear for "Messrs. T. and M., joint owners of the sloop A.," given by the solicitor on the record, is evidence of the joint ownership. Marshall v. Cliff, 4 Camp. 133. An agreement by the solicitor "to admit on the trial of this cause," &c., may be used on a new trial; Elton v. Larkins, 1 M. & Rob. 196; even though the solicitor retracts it before the new trial. Doe d. Wetherell v. Bird, 7 C. & P. 6.

Admission under a notice to admit.] By Rules, 1883, O. xxxii. r. 2, "Either party may call upon the other party to adinit any document, saving all just exceptions: and in case of refusal or neglect to admit after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the court or a judge certify that the refusal to admit was reasonable, and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense." By rule 4, "Any party may, by notice in writing, at any time not later than 9 days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within 6 days after service of such notice, or within such further time as may be allowed by the court or a judge, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the court or

Under a Notice to Admit.

71

a judge certify that the refusal to admit was reasonable, or unless the court or a judge shall at any time otherwise order or direct. Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purpose of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice: provided also, that the court or a judge may at any time allow any party to amend or withdraw any admission so made on such terms as may be just." By rule 7, “ An affidavit of the solicitor or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents or facts shall be sufficient evidence of such admissions if evidence thereof be required."

It would seem that "sufficient evidence," in rule 7, means prima facie evidence only; see Barraclough v. Greenhough, L. R., 2 Q. B. 612, Ex. Ch., post, p. 141.

The above provision as to a notice to admit facts is new forms of such notice and of admissions thereunder are given by rule 5 and App. B., Forms Nos. 12, 13. A form of notice to admit documents is given by rule 3, and App. B., Form No. 11; but this form is only applicable where the document is in the custody of the party giving the notice. See Rutter v. Chapman, 8 M. & W. 388. Prior to R. G. H. T. 1853, r. 29, which gave a form identical with the above, by rule H. T. 4 W. 4, a judge's order to admit was required. The judge is not now called upon to interfere except on application for a certificate by the refusing party at the trial, and only in such case need the notice to admit be proved.

The above provisions apply to every document a party means to adduce in evidence, and are not confined to documents in his custody or control; Rutter v. Chapman, supra ; in which case the costs of proving signatures to a petition for a charter, under 1 Vict. c. 71, s. 49, were not allowed, no notice to admit having been given. It seems that "any document" includes a foreign judgment. Smith v. Bird, 3 Dowl. 641.

It was held under the old rules that a variation in the description of the instrument, if not of a nature to mislead, would not release the party from the obligation to admit it; as where the date of a bill, annexed to the order, was misdescribed. Field v. Flemming, 5 Dowl. 450; Bittleston v. Cooper, 14 M. & W. 399. And where the order was to admit "the counterpart of a lease," and the instrument produced, and referred to in the order, was in fact an original lease stamped as a counterpart held, that the party was bound to admit the lease, and could not object to the stamp. Doe d. Wright v. Smith, 8 Ad. & E. 255. An order to admit an acceptance "by B., for the defendants," was held to operate as an admission that B. had power to accept for defendants. Wilkes v. Hopkins, 1 C. B. 737. So an admission of letters written by A., "the agent of the defendant," is an admission of the agency. Hunt v. Wise, 1 F. & F. 445. The admission by judge's order was held to waive any objection to interlineations in the document. Freeman v. Steggall, 14 Q. B. 202. An admission of an acceptance of a bill, without a saving of all just exceptions, dispenses with the necessity of producing the bill on the trial. Chaplin v. Levy, 9 Exch. 531; 23 L. J., Ex. 117. But see Sharples v. Rickard, 2 H. & N. 57; 26 L. J., Ex. 302. If that saving had not been omitted, the bill must have been produced, and the want of a stamp might have been objected to. Vane v. Whittington, 2 Dowl. N. S. 757. A saving of "just exceptions" does not allow exceptions to the authenticity of any part of letters admitted. Hawk v. Freund, 1 F. & F. 295, Byles, J.

The party must serve the proper notice, although the document may be alleged by the opposite party, in his pleadings or otherwise, to be a forgery, and although the opposite party may have notified his intention not to

admit it. Spencer v. Barough, 9 M. & W. 425. Admissions made under the above provision are, of course, conclusive at the trial; but facts incidentally stated in the description of the document as admitted, are not to be taken as also conclusively admitted, though the description may be prima facie evidence against the party admitting. Pilgrim v. Southampton & Dorchester Ry. Co., 18 L. J., C. P. 330. The description of a letter respecting a certain field," then in the plaintiff's possession," was admitted as evidence, but not conclusive, of such possession. S. C. This decision seems to qualify some of those cited above.

The party called upon to make admissions should be cautious not to admit more than the mere document mentioned in the notice, and to guard against being inadvertently drawn into admissions of the kind referred to in Wilkes v. Hopkins, Hunt v. Wise, and Pilgrim v. Southampton & Dorchester Ry. Co., supra.

An admission, under notice, of the accuracy of a copy, will not dispense with notice to produce the original, or with other pre-requisites for the reception of secondary evidence. See Sharpe v. Lamb, 11 Ad. & E. 805.

Admissions by payment of money into court.] The practice as to payment of money into court is now regulated by Rules, 1883, O. xxii. By rule 1, the defendant may, in any action brought to recover a debt or damages, "pay into court a sum of money by way of satisfaction, which shall be taken to admit the claim or cause of action in respect of which the payment is made; or he may with a defence denying liability (except in actions or counterclaims for libel or slander) pay money into court, which shall be subject to the provisions of rule 6, provided that in an action or bond under the statute, 8 & 9 Will. III. c. 11, payment into court shall be admissible to particular breaches only, and not to the whole action." By rule 2, "payment into court shall be signified in the defence, and the claim or cause of action in satisfaction of which such payment is made shall be specified therein." By rule 9, "a plaintiff may in answer to a counter-claim pay money into court in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into court by a defendant."

Before the J. Acts, the question was often raised as to how far payment into court operated as an admission of the plaintiff's claim; under the new practice, however, the cases decided on this point will hardly be relevant.

By Rules 1883, O. xix., r. 13, every allegation of fact in any pleading, "if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind, not so found by inquisition." By rule 14, "any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be); and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading." By rule 15, each party must raise "by his pleading all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality, either by statute or common law, or Statute of Frauds." By rule 17, "it shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff

By Recital. Estoj pel.

73

in his reply to deny generally the grounds alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages." O. xxi., r. 4, provides that "no denial or defence shall be necessary as to damages claimed or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted."

The effect of these rules would seem to be that where the payment into court is less than the amount of the plaintiff's claim, the facts which will be relied on as a defence to the residue of the claim, if divisible, or in mitigation of damages if indivisible, must distinctly appear in the defendant's statement of defence. Even before the J. Acts in an action for money had and received by a rightful against a wrongful executor to recover assets in his hands, defendant could not, on a plea of payment into court alone, deduct payments in due course of administration. Goldy v. Goldy, 26 L. J., Ex. 29.

As to the effect of paying money into court under 6 & 7 Vict. c. 96, s. 2, see Jones v. Mackie, L. R., 3 Ex. 1'; cited post, tit. Action for defamation.

Admissions by recital.-Estoppel.] A recital in a deed is evidence against him who executed the deed, or any person claiming under him. Com. Dig. Evid. (B. 5). And such recital operates as an estoppel in an action founded on the deed; Carpenter v. Buller, 8 M. & W. 212; unless the parties in their pleading voluntarily waive it, and instead of replying the estoppel, submit the fact recited to a jury. Young v. Raincock, 7 C. B. 310. Thus the recital of a lease in a release is evidence of the lease against the releasor, and those claiming under him. Ford v. Grey, 1 Salk. 286; Crease v. Barrett, 1 C. M. & R. 919. But in order to create an estoppel, the deed must contain a precise statement of the fact relied on; e. g., in a grant of land by A., that A. was seised of the legal estate: a covenant that the grantor had power to grant is insufficient. General Finance, &c., Co. v. Liberator, &c., Building Soc., 10 Ch. D. 15. Where the recital in a lease has ceased to be an estoppel in consequence of its dropping, it continues to be prima facie evidence against those who claim under the parties to it. Bayley v. Bradley, 5 C. B. 396. In trespass against a sheriff, a bill of sale executed by him, reciting the writ, the taking, and the sale of the goods, is evidence against him of those facts. Woodward v. Larking, 3 Esp. 286. So the recital of an ancient royal charter in a modern charter is evidence. Per Abbott, J., Gervis v. Gd. W. Canal Co., 5 M. & S. 78. The recitals in a deed may confine the effect of admissions in the same instrument. Lampon v. Corke, 5 B. & A. 607. But the recital in a bond, that the parties had agreed to execute a bond in the sum of 500l., will not confine the bond to that sum, if actually executed in the penal sum of 1000l. Ingleby v. Swift, 10 Bing. 84. A party claiming under a certain title does not necessarily admit statements in previous deeds which make up his title; thus, where a deed, reciting the bankruptcy of A., conveys an estate to B., and B. (being a party to, but not having executed that deed) conveys the estate to another by a deed making no such recital, the above deeds are no evidence of the bankruptcy as against B. in an action concerning other lands. Doe d. Shelton v. Shelton, 3 Ad. & E. 265. A recital is not necessarily an estoppel to both parties unless the mutuality appears; if it is the statement of one party only, it estops only that party. Stroughill v. Buck, 14 Q. B. 787. Where the recital in a deed is used as an admission, it must be proved strictly, although cancelled; Breton v. Cope, Peake, 44; and a recited instrument is only admitted for so much as is recited; if any other part of it is to be proved, it must be produced and proved in the usual way. Gillett

v. Abbott, 7 Ad. & E. 783. See further as to estoppels by deed, notes to Kingston's (Ds. of) case; 2 Smith's L. Cases, 8th ed. 872, et seq.

Admissions by Estoppel in pais.] There is a class of cases in which a party may be estopped or precluded by his wilful misstatement in pais from disputing a state of things upon the faith of which another party has been induced to act or to rely to his own prejudice. The case of Shaw v. Picton, 4 B. & C. 729, cited ante, p. 64, is an instance. So the cases of Pickard v. Sears, 6 Ad. & E. 469; Gregg v. Wells, 10 Ad. & E. 90; Freeman v. Cooke, 2 Exch. 654, established the doctrine that a voluntary misstatement of fact by A., such as a misrepresentation of the property in goods, whereby a party, B., is deceived,-precludes A. from denying such property in a suit between A. and B. See on the principle of these cases, Foster v. Mentor Life Insur. Co., 3 E. & B. 48; 23 L. J., Q. B. 145; Clarke v. Hart, 6 H. L. C. 633, 655; 27 L. J., Ch. 615, 618; and the cases further cited, post, tit. Action for conversion of goods; Denial of plaintiff's possession. And this doctrine has been extended to the case of a sale where the defendant has so conducted himself as unintentionally to induce a belief in the plaintiff that defendant had bought the goods. Cornish v. Abington, 4 H. & N. 549; 28 L. J., Ex. 262. So where a negotiable security is intrusted by the owner to an agent for a specific purpose, any innocent transference for value from the agent acquires a good title against the owner; Goodwin v. Robarts, 1 Ap. Ca. 476, D. P. ; Rumball v. Metropolitan Bank, 2 Q. B. D. 194. The propositions on estoppel in pais are summed up in the judgment in Carr v. L. & N. W. Ry. Co., L. R., 10 C. P. 307. There must be a representation of a fact, a statement of intention is not sufficient. Citizen's Bank of Louisiana v. First National Bank of New Orleans, L. R., 6 H. L. 352. The misstatement or negligence whereby the other person is injured must be the proximate cause of the injury; In re United Service Co., L. R., 6 Ch. 212; Baxendale v. Bennett, 3 Q. B. D. 525, C. A. ; Swan v. N. British Australasian Co., 7 H. & N. 603; 31 L. J., Ex. 425; 2 H. & C. 175; 32 L. J., Ex. 273, Ex. Ch. ; and the negligence must be of some duty owing to him. S. C.; Johnson v. Crédit Lyonnais Co., 3 C. P. D. 32, C. A. See also Arnold v. Cheque Bank, 1 C. P. D. 578, and Coventry v. Gt. E. Ry. Co., 11 Q. B. D. 776. As to an estoppel arising from silence, see McKenzie v. British Linen Co., 6 Ap. Ca. 82, D. P. Where a company issue share or debenture certificates, stating that a certain person is the holder of the shares or debentures, or where they register shares in his name, this may operate as an estoppel against the company; see post, Part III. Actions by and against companies. See further as to estoppels in pais, 2 Smith's L. Cases, 8th ed. 879, et seq.

Admissions of the title of a person to land by accepting a tenancy, or possession of land from him, are considered post, Action for recovery of land -Proof of legal title-Estoppel.

Admissions on the record.] The rule, O. xix., r. 13, ante, p. 72, follows in the main the old common law rule. See B. N. P. 298; Wimbish v. Tailbois, Plowd. 48; Tonkin v. Crocker, 2 Lutw. 1215. But rule 15, which requires the Stat. of Frauds to be pleaded, goes much further.

It has been considered that a fact admitted on the pleadings by implication is not in every respect on the same footing as if it had been proved to the jury. Thus, if the defendant pleads that a note originated in a gaming debt, and that plaintiff took it with knowledge and without consideration, and plaintiff denies any knowledge of the illegality, it has been held that he need not prove the consideration unless the defendant proves the illegality. Edmunds v. Groves, 2 M. & W. 642. But in Bingham v. Stanley, 2 Q. B. 117, where the plea to a cheque stated an original illegal