3

tions, especially those for conspiracy and treason, though their weight, as evidence against the prisoner, will in a great measure depend on the fact, whether answers to them can be traced, or whether anything can be shown to have been done upon them.' So, also, the opportunity of constant access to documents may sometimes, by raising a presumption that their contents are known, afford ground for affecting parties with an implied admission of the truth or correctness of such contents. Thus, the rules of a club, or the record of the proceedings of a society, contained in a book kept by the proper officer and accessible to the members,‘— charges against a club, entered by the servants of the house in a book kept for that purpose open in the club-room," and the like, are admissible against the members; their knowledge of the contents of the books, and their acquiescence therein, being presumable under the circumstances. On similar grounds, books of account which have been kept between master and servant, tradesman and shopman, banker and customer, or co-partners, will occasionally be admitted as evidence even in favour of the party by whom they have been written, provided that the opposite party has had ample opportunities for testing from time to time the accuracy of the entries."

§ 813.' But in regard to admissions inferred from acquiescence § 731 in the oral statements of others, the maxim Qui tacet consentire videtur,—however it may be recognised by the lover,-must by the lawyer be applied with careful discrimination. "Nothing," it has been observed, "can be more dangerous than this kind of

1 R. v. Horne Tooke, 25 How. St. Tr. 120, 121, per Eyre, C. J.; R. e. Watson, 2 Stark. 140; 32 How. St. Tr. 349, 351, S. C.

2 Gr. Ev. 198, in part.

3 See, however, Hallmark's Case, 47 L. J., Ch. 868, per Ct. of App.; L. R. 9 Ch. D. 329, S. C.; disapproving of Wheatcroft's Case, 42 L. J., Ch. 853; and Ex. p. Brown, 19 Beav. 97, 104.

4

Raggett v. Musgrave, 2 C. & P. 556, per Abbott, C. J.; Alderson v. Clay, 1 Stark. R. 405, per Ld. Ellenborough; Ashpitel v. Sercombe, 5 Ex. R. 147. 5 Wiltzie v. Adamson, 1 Ph. Ev. 357.

6 Symonds v. Gas Light and Coke Co., 11 Beav. 283, 287; Boardman v. Jackson, 2 Ball & B. 382; Kilbee & Sneyd, 2 Moll. 193; Lodge . Prichard, 3 De Gex, M. & G. 906, Rules of Sup. Ct. 1883, Ord. XXXIII. R. 3; and 30 & 31 V., c. 44, 159, Ir., cited ante,

7 Gr. Ev. 199, in great part.

711.

1

evidence. It should always be received with caution and never ought to be received at all, unless the evidence is of direct declarations of that kind, which naturally calls for contradiction; some assertions made to the party with respect to his right, which by his silence he acquiesces in." A distinction has accordingly been taken between declarations made by a party interested and those made by a stranger; and while what one party declares to the other without contradiction is admissible evidence, what is said to a party by a third person may well be inadmissible. It may be impertinent, and be best rebuked by silence.2 Still less will statements made by strangers in the presence of a party be receivable against him, if they be not directly addressed to him; because, in such case, he can scarcely under any circumstances be called upon to interfere. Therefore, where in a real action, upon a view of the premises by a jury, one of the chainbearers was the owner of a neighbouring close, respecting the bounds of which the litigating parties had much altercation, their declarations in his presence were held inadmissible against him, in a subsequent action respecting his own close.3

§ 814. Moreover, to affect one person with the statements of ? 738 others, on the ground of his implied admission of their truth by silent acquiescence, it is not enough that they were made in his presence, or even to himself, by parties interested, but they must also have been made on an occasion, when a reply from him might be properly expected. Depositions, therefore, taken in the presence of a party during a judicial investigation, observations made by a magistrate to the parties before him, and confessions of an accomplice criminating his co-prisoner before the justices, will not, in general, be evidence in any subsequent trial, whether

1 Moore v. Smith, 14 Serg. & R. 393, per Duncan, C. J.

2 Child v. Grace, 2 C. & P. 193, per Best, C. J.

3 Moore v. Smith, 14 Serg. & R. 388.

Boyd v. Bolton, 8 Ir. Eq. R. 113.

5 This cannot be laid-down as a strict rule of law applicable on all occasions; for as Ld. Denman observed, in Simpson v. Robinson, 12 Q. B. 512, "cases may certainly be conceived, in which a party, by not denying a charge made against him in a court of justice, may possibly afford strong proof that the imputation is just." See R. v. Coyle, 7 Cox, 74.

civil or criminal, against the party who heard them in silence; because in judicial inquiries a regularity of proceeding is adopted, which often prevents a person from interfering when and how he pleases, as he naturally would do in a common conversation.' The same inferences cannot, therefore, be drawn from his silence or his conduct on such occasions, as might reasonably result from similar behaviour, were he under no restraint; and as it is only for the sake of these inferences that the statements of other parties can ever be admitted, they are properly rejected whenever they do not warrant the inferences sought to be drawn from them. A similar distinction has been recognised in the civil law, by which "confessio facta seu præsumpta ex taciturnitate in aliquo judicio, non nocebit in alio."

2

§ 815. If, however, the statement of one person calls forth a reply from another, such statement may then be read in conjunction with the reply, and will become evidence against the party replying so far as the answer directly or indirectly admits its truth; and it will make no difference in the application of this rule, whether the words were spoken by an interested party or a stranger, whether they were addressed or not to the party reply. ing, or whether they fell from the parties, the witnesses, or the court, in a judicial proceeding, or were uttered during the course of an ordinary conversation."

8 739

§ 816. But the silence of the party, even where the declarations 740 are addressed to himself, at a time too when he is at full liberty to reply as he thinks fit, is, at best, worth very little as evidence of acquiescence; and if he has no means of knowing the truth or falsehood of the statement, the fact that he did not in terms deny

5

1 Melen v. Andrews, M. & M. 336, per Parke, J.; Short v. Stoy, cited in Roscoe Ev. 54, 55, as ruled by Alderson, B.; R. v. Appleby, 3 Stark. R. 33, per Holroyd, J.; R. v. Turner, 1 Moo. C. C. 347, 348, per Patteson, J.; Child v. Grace, 2 C. & P. 193.

21 Masc. de Prob., concl. 348, n. 31.

3 Child v. Grace, 2 C. & P. 193; Jones v. Morrell, 1 C. & Kir. 266, per Ld. Denman; R. v. Edmunds, 6 C. & P. 164, per Tindal, C. J.; Boyd v. Bolton, 8 Ir. Eq. R. 113.

Gr. Ev. 199, in part.

See Ch. 26 of St. Matthew, v. 59-63; and Ch. 27, v. 12—14.

it is almost valueless.' In all these cases it must be distinctly remembered, that the statement made in the party's presence or hearing is not evidence against him, but his own conduct in consequence of such statement is the sole evidence. Magistrates often make mistakes on this subject; but it is highly important that the distinction should be observed.3

§ 817. The effect of admissions, when proved, must next be ? 741 considered; and with regard to their conclusiveness, it is first to be observed, that the policy of the law favours the investigation of truth by all expedient methods; and that the doctrine of estoppels, by which further investigation is precluded, being an exception to the general rule, and being adopted only for the sake of general convenience, and for the prevention of fraud, is not to be extended beyond the reasons on which it is founded. It is also to be observed, that estoppels bind only parties and privies; and not strangers. Hence it follows that a sheriff, who, being armed with a writ of execution in favour of a creditor, seizes goods as the property of the debtor, is not bound by an estoppel which would have prevented the debtor himself from claiming the goods. Neither, as it seems, would the trustee of a bankrupt be bound by the bankrupt's written admissions, because the court would regard the trustee as claiming adversely to the bankrupt.' Again, though a stranger may often rely on an admission, which parties or privies might have specially pleaded by way of estoppel, yet, in his case it is only matter of evidence to be considered by the jury. This subject was very clearly illustrated by Mr. Justice Bayley, in the case of Heane v. Rogers, which was an

1

6

8

Hayslep v. Gymer, 1 A. & E. 165, per Parke, J. See, further, on the subject of tacit admissions, The State v. Rawls, 2 Nott & M'C. 301; Batturs r. Sellers, 5 Har. & J. 117, 119. 2 See Neile v. Jakle, 2 C. & Kir. 709.

* Per Alderson, B., at Maidstone Sp. Ass. 1842, MS.; Doe v. Frankis, 11 A. & E. 793, per Ld. Denman. Gr. Ev. 204, in part. 5 See ante, 89. Richards r. Johnson, 4 H. & N. 660; overruling the decision of Channell, B., in S. C., reported 1 Fost. & Fin. 447.

'Harris v. Rickett, 4 H. & N. 6, per Bramwell, B.

89 B. & C. 577, 586, 587. See Morgan v. Couchman, 14 Com. B. 100; Painter v. Abel, 3 Fost. & Fin. 518, per Erle, C. J.; Welland Canal Co. v. Hathaway, 8 Wend. 483; Jennings . Whittaker, 4 Monroe, 50. See, also, Ld. Londesborough's case, 4 De Gex, M. & G. 411; and Ld. Londesborough v. Foster, 3 B. & S. 805.

action of trover, brought by a person, who had been declared a bankrupt, against his assignees, to recover the value of goods, which, as assignees, they had sold. The defendants contended that the plaintiff was estopped from bringing this action, as, in addition to other evidence of his acquiescence in their title, it appeared that, after the issuing of the commission, he had given notice to the lessors of a farm which he held, that he had become bankrupt, and was willing to give up the lease, whereupon the lessors accepted the lease, and took possession of the premises. The question, therefore, was, whether he was precluded by this surrender from disputing the commission in the present suit.

1

§ 818. On this point the language of the learned judge was as § 742 follows:-"There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence, and strong evidence, against him; but we think that he is at liberty to prove that such admissions were mistaken or were untrue, and is not estopped or concluded by them, unless another person has been induced by them to alter his condition; in such a case the party is estopped from disputing their truth with respect to that person (and those claiming under him), and that transaction; but as to third persons he is not bound. It is a well established rule of law, that estoppels bind only parties and privies, not strangers. The offer of surrender made in this case was to a stranger to this suit; and though the bankrupt may have been bound by his representation that he was a bankrupt, and his acting as such, as between him and the stranger to whom that representation was made, and who acted upon it, he is not bound as between him and the defendants, who did not act on the faith of that representation at all. The bankrupt would probably not have been permitted, as against his landlords,-whom he had induced to accept the lease without a formal surrender in writing, and to take possession, upon the supposition that he was a bankrupt, and entitled under 6 G. 4, c. 16, § 75, to give it up,-to say afterwards that he was not a bankrupt, and bring an action of trover for the lease, or an ejectment for the estate. To that

1 Co. Lit. 352 a.; Com. Dig. Estop. C.