R. 6 provides, that "any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court or a judge for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court or a judge may upon such application make such order, or give such judgment, as the court or judge may think just." R. 7 provides, with respect to the mode of proof, that "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;" and by virtue of R. 9, the costs occasioned by any notice to admit unnecessary documents, "shall be borne by the party giving such notice." And, § 724B. In contrasting Rules 2 and 4 as cited above, it will be seen that while the latter specifies the respective times allowable for giving notice to admit, and for admitting, facts, the former, which relates to documents, is silent on both those points. For this reason, and indeed for many more, which will occur to an intelligent lawyer, a reference to a few cases, which were decided on the construction of the former rules, may still be of service. first, it has been held, that, though the notice to admit documents must be given a reasonable time before trial, yet, where it was given to the defendant's agent in town only four days before the commission day at Newcastle, and he two days afterwards refused to admit the documents without objecting to the sufficiency of the notice, or requiring further time, the plaintiff was entitled to the costs of proof. Secondly, though the admission be made "with a saving of all just exceptions," it so far recognises the general character and accuracy of the documents, that no objection can subsequently be taken to the authenticity of any part of them, or to their reception in evidence on the ground of any interlineation, however material, 8704 1 Tinn v. Billingsley, 2 C. M. & R. 253 ; 3 Dowl. 810, S. C. 1 appearing upon them. If this were not so, great inconveniences would follow; for as one main object of inducing a party to admit under notice, is to dispense with the necessity of formal proof of the instrument, it would obviously open a door to fraud, if the party admitting were at liberty afterwards to object to an interlineation, which the attesting witness might alone be enabled to explain." So, where a deed was admitted as "the counterpart of a lease," an objection taken at the trial, that it was in fact a lease, and as such inadmissible for want of a sufficient stamp,3 was overruled;* and where a party admitted an instrument, which was specified in the notice as bearing date the 10th August, he was not allowed to call on his opponent for an explanation, though on the production of the instrument it was evident that the date "August" had been written on an erasure." § 724c. Thirdly, a variance in the description of the document, 705 if not of a nature to mislead, will not release the admitting party from his obligation; as, for instance, where the date of a promissory note, which was otherwise correctly described in the notice to admit, was misstated. Fourthly, it seems that a party will not be entitled to the costs of proving any document specified in the notice, unless the witness called to establish this proof has, at least in his examination in chief, been questioned to no other fact.' Fifthly, when a notice is given to admit documents, all that can fairly be asked is, that the handwriting or due execution of the papers specified should be admitted; and, therefore, where a plaintiff included in his notice a demand to admit the authority by which the documents had been written, and afterwards, on the defendant refusing generally to make the admission as prayed, proved the documents at the trial, it was held that he could not recover from his opponent the costs of such proof.3 1 Freeman v. Steggall, 14 Q. B. 202. 2 Id. 203, per Coleridge, J. 3 See now 33 & 34 V., c. 97, 93, and Sch. Tit. "Duplicate." Doe v. Smith, 8 A. & E. 255; 3 N. & P. 335; 2 M. & Rob. 7, S. C. 5 Poole v. Palmer, C. & Marsh. 69, per Rolfe, B. Field v. Hemming, 7 C. & P. 619, per Ld. Abinger; 5 Dowl. 450, S. C., nom. Field v. Flemming; Bittleston v. Cooper, 14 M. & W. 399. 'Stracey v. Blake, 7 C. & P. 404, per Ld. Abinger. 8 Oxford, Worc., & Wolverh. Ry. Co. v. Scudamore, 1 H. & N. 666. 3 2 8.724D. Sixthly, it is needless to show that the admitting party 705 has actually examined the documents mentioned in the notice, if he has had an opportunity of doing so;1 and it seems to be unnecessary to identify the document produced at the trial with the one inspected, provided that it corresponds with the description contained in the notice. On two occasions, however, the necessity for such evidence was urged by counsel, if not acknowledged by the court; and prudence may generally dictate the propriety of being prepared with such proof, or, at least, of having the documents that are to be produced signed or marked by the party making the admission. Seventhly, though the notice to admit contain no saving of all just exceptions, the party admitting may still rely on any valid objection to the admissibility of a document specified in it; and, therefore, where a plaintiff admitted that a paper was a copy of a letter from himself to a defendant, who had suffered judgment by default, this did not entitle the other defendant to put in the copy, without first accounting for the non-production of the original, or tracing it to the plaintiff's possession, and proving the notice to produce. The judge's order in that case, which served the same purpose as the present notice to admit, merely secured the accuracy of the secondary evidence, but did not give it the effect of primary proof.* § 724E. Lastly, Rule 2 extends to every document which a party & 706 purposes to adduce in evidence, whether or not it be in his custody or control, and whether or not it be put in issue by the pleadings." Neither will the case be varied though the opposite party may have already, irrespective of the notice, refused in positive terms to make any admission on the subject. A party may even, as it 1 Doe v. Smith, 8 A. & E. 264, 265, per Patteson and Coleridge, Js. 2 Id. per Coleridge, J., who observed, that "to require such evidence would be multiplying proofs, so as to defeat the rule of court." 3 Clay v. Thackrah, 9 C. & P. 53, coram Ld. Denman; Doe d. Tindal v. Roe, 5 Dowl. 420, per Ld. Abinger. Sharpe v. Lamb, 11 A. & E. 805, 807; 3 P. & D. 454, S. C. See Goldie v. Shuttleworth, 1 Camp. 70; Rochfort v. Sedley, 12 Ir. Law R., N. S., App. iv. Rutter v. Chapman, 8 M. & W. 388. 7 Id. 6 Spencer v. Barough, 9 M. & W. 425. would seem, be served with notice to admit a foreign judgment, or other documents in a foreign court, provided that his opponent will give him time to inspect them abroad, and pay his expenses incurred in so doing.' Still, the rules do not apply where ancient records of a public nature require, not proof, but translation and explanation, or where affidavits which have been filed must be produced by an officer; and, consequently, a plaintiff was held entitled to the costs, both of a witness who was called to explain and translate the records, and of an officer of the Court of Chancery who produced the affidavits, though the defendant had not been called upon to admit any one of these documents.2 3 § 724F. In consenting to admit for the purposes of a trial, care 707 must be taken, lest, by the words used in the notice to admit, the party admitting should be entrapped into making a larger admission than he intended. The defendant fell into this error in the case of Chaplin v. Levy. There the holder of a bill of exchange sued the acceptor, and the defendant's solicitor wrote a letter admitting "that the acceptance to the bill on which the action is brought is in the defendant's handwriting." A plea denying the acceptance was afterwards pleaded, but the court held that, notwithstanding this plea, the admission contained in the letter established a primâ facie case on behalf of the plaintiff without the production of the bill itself at the trial. In the case of Wilkes v. Hopkins, a similar mistake was made.' That was an action against three persons on a bill of exchange alleged to have been accepted by them under the style of "The Newbridge Coal Company." The acceptance was traversed by two of the defendants, while the third one, Bishop, who had actually signed the acceptance for the company, suffered judgment by default. At the trial, the two defendants who had pleaded, denied that Bishop had any authority to accept for them; but as the notice to admit stated the bill to have been "accepted by Bishop for the defendants as the Newbridge 1 Smith v. Bird, 3 Dowl. 641. 2 Bastard v. Smith, 10 A. & E. 213. 39 Ex. R. 531. 1 1 Com B. 737. See, also, Hunt v. Wise, 1 Fost. & Fin. 445. Coal Company," the court held, that an admission under this notice, not only acknowledged the signature of Bishop, but precluded the defendants from denying that he had authority to bind them by his acceptance. This last decision is certainly one strictissimi juris; and probably it would not be upheld at the present day.' § 7246. In the County Courts the rule which governs notices to admit is as follows:-"Where a party desires to give in evidence any document, he may, not less than five clear days before the trial, give notice to any other party in the action who is competent to make admissions, requiring him to inspect and admit such document; and if such other party shall not within three days after receiving such notice make such admission, any expense of proving the same at the trial shall be paid by him, whatever be the result of the action, unless the court shall otherwise order; and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense. 993 § 725. Having now explained the practice relating to notices to ? 655 admit, it will be convenient to discuss the general law of admissions; and here, the first rule important to be borne in mind, is, that the whole statement containing the admission must be taken together; for though some part of it may be favourable to the party, and the object is only to ascertain what he has conceded against himself, and what may therefore be presumed to be true; yet, unless the whole is received, the true meaning of the party, which is evidence against him, cannot be ascertained.* But though the whole of what he said at the same time, and relating to the same subject, must be given in evidence, it does not follow that all the parts of the statement should be regarded as equally 1 See Pilgrim c. Southampton & Dorchester Ry. Co., 18 L. J., C. P. 330. 2 C. C. R., 1876, Form 288. This Form is the same as Form 11 of the Rules of the Supreme Court, cited ante, p. 636. 3 C. C. R., 1875, Ord. XIII., r. 9. Thomson v. Austen, 2 D. & R. 361, per Abbott, C. J.; Fletcher v. Froggatt, 2 C. & P. 566, per id.; Cobbett v. Grey, 4 Ex. R. 729. |