order, or give such judgment, as the court or judge may think fit.” In accordance with this rule the Lords Justices have held, that where, in a partition action the defendants had by their statement of defence admitted the facts stated in the claim showing the plaintiff's title, the plaintiff had a right,-instead of having the action set down for hearing, to an order on motion, directing the usual inquiries as to the persons interested in the property.' So, a plaintiff may move for judgment upon admissions, although he has joined issue on the defence, and given notice of trial. So, in an action between partners, and in one between principal and agent,' an order for an account and for the delivery of securities has been made on motion before the hearing, the judge acting solely on the admissions contained in the pleadings." But in cases under this rule, as the judge has a discretion whether he will grant relief on motion or not, he will seldom be induced to take that step when any question of difficulty is raised; neither will the Court of Appeal, except in a clear case of error, interfere with the exercise of the judge's discretion." 3 § 828. Under the old rules of pleading, a demurrer used to be regarded by Courts of Equity as simply raising the question of law without any admission of the truth of the allegations contained in the bill; but in Courts of Law its operation was widely different; for there it was held to amount to an absolute admission of the facts stated in the paragraphs demurred to. The New Rules of 1883 have rendered this discrepancy of no further importance, for they have cut the Gordian knot by abolishing demurrers altogether. The modern proceedings in lieu of demurrers are, in Order XXV. R. 2, thus explained:-"Any party shall be entitled to raise by 1 Gilbert v. Smith, L. R., 2 Ch. D. 686; 45 L. J., Ch. 514, S. C.; Hetherington v. Longrigg, 48 L. J., Ch. 171, per Hall, V.-C. 4 2 Brown v. Pearson, L. R., 21 Ch. D. 716, per Fry, J. 3 Turquand v. Wilson, L. R., 1 Ch. D. 85; 45 L. J., Ch. 104, S. C. Rumsey v. Reade, L. R., 1 Ch. D. 463; 45 L. J., Ch. 489, S. C. 5 See, also, Jenkins v. Davies, L. R., 1 Ch. D. 696; In re Smith's estate, Bridson v. Smith, 24 W. R., Ch. D. 392, per Hall, V.-C.; In re Barker's Estate, L. Q., 10 Ch. D. 162, per Hall, V.-C. Mellor v. Sidebottom, 46 L. J., Ch. 398; L. R., 5 Ch. D. 342, S. C. See Metrop. Ry. Co. v. Defries, L. R., 2 Q. B. D. 387, and Rules of 1875, Ord. XXVIII. his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause, at or after the trial; provided that, by consent of parties, or by order of the court or a judge on the application of either party, the same may be set down for hearing, and disposed of at any time before the trial." 1 § 829. The Rules of the Supreme Court further provide, by Order XXVII., Rule 13, that "if the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue."? § 830. Irrespective of the new Rules of pleading, the Legislature has, in one somewhat remarkable case, provided, that the omission to plead a special defence shall operate as a conclusive presumption of liability. Allusion is here made to the Married Woman's Property Act, 1874,3 which,--after enacting with respect to marriages that have taken place since the 30th July in that year, that husbands and wives may be jointly sued for debts incurred or torts committed by the wife before marriage, but that the husband shall be liable to the extent only of the assets therein specified,'-goes on to provide, that, if no plea denying liability be pleaded, "the husband shall be deemed to have confessed his liability so far as assets are concerned." 5 Since the 1st January, 1883, the passage just cited is only operative with respect to parties married before that date." § 831. It remains here to notice, in connexion with this subject, the effect of paying money into court, and of tendering compensation. Burstall v. Beyfus, 53 L. J., Ch. See also RR. 3, 4, and 5 of same Order. 565, per Ct. of App.; L. R., 26 Ch. D. 35, S. C. This rule deserves special notice, as being practice which prevailed under the Rules of 1875. of those Rules. See, also, Ord. XIX., R. 13 of the 824. directly opposed to the 8 760 3 37 & 38 V., c. 50. 4 1, 2, and 5. 5 2. See Matthews v. Whittle, L. R., 13 Ch. D. 811, per Jessel, M. R.; 49 L. J., Ch. 359, S. C. 645 & 46 V., c. 75, 28 14, 15. 5 Payment of money into court,-which, (except in actions brought against magistrates,' and, perhaps, in one or two other suits,') must, unless made before delivering a defence,3 now be pleaded in all cases, but may be pleaded either to the whole or to part only of the plaintiff's claim, may be made, as of course, in any action which is brought to recover a debt or damages. Amends may also be paid into court in some special actions under the provisions of particular statutes. For instance, in an action for a libel contained in any newspaper or other periodical publication, whether in England or Ireland, the defendant may plead that the language complained of was inserted without actual malice, and without gross negligence, and that at the earliest opportunity he had published, or, in some cases, had offered to publish, an ample apology. This statutable plea must then terminate with an allegation of the payment of money into court by way of amends, for otherwise the plaintiff may treat it as a mere nullity. Many other statutes authorise the tender of amends and pleas of payment of money into court, when actions are brought against persons for acts done by them either in execution 3 Rules of Sup. Ct., 1883, Ord. XXII., R. 4, which points out the course of proceeding in that case. ✦ See Hawksley v. Bradshaw, 49 L. J., Q. B. 333, per Ct. of App.; L. R., 5 Q. B. D. 302, S. C. 5 Rules of Sup. Ct., 1883, Ord. XXII., R. 1, provides, that "Where any action is brought to recover a debt or damages, any defendant may, before or at the time of delivering his defence, or at any later time, by leave of the court or a judge, 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" subject to special provisions. R. 2 provides that "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." R. 4 regulates the practice where defendant pays money into court before delivering his defence; RR. 5 and 6 explain how the money is to be paid out of court, while R. 7-by imposing upon the plaintiff the duty of giving the defendant a special notice exposes him to the risk of losing his costs in the event of his neglecting to comply with that Rule. See Langridge v. Campbell, L. R., 2 Ex. D. 281; 46 L. J., Ex. 277, S. C., as explained by Buckton v. Higgs, L. R., 4 Ex. D. 174. See, also, Greaves v. Fleming, L. R., 4 Q. B. D. 226; 48 L. J., Q. B. 335, S. C. 6 See 6 & 7 V., c. 96, 2, as amended by 42 & 43 V., c. 59; and 8 & 9 V., c. 75, 2, as to Eng.; and 8 & 9 V., c. 75, ?? 1 and 2 as to Irel. 2 of their offices, or in pursuance or under the authority of Acts of Parliament;' and among these may be mentioned the Act passed in 1848 for the protection of justices, the Acts of 1861, which consolidate the law relating to larceny, malicious injuries, and coin,3 the Seamen's Clothing Act, 1869, the Contagious Diseases, Animals, Act, 1878," the Army Act, 1881, and the Militia Act, 1882. 7 § 832. The salutary effect of these regulations was at one time much impaired by regarding payment of money into court as an admission of the cause of action. This mischievous doctrine is at length happily exploded; and, although such payment, when unaccompanied by any defence denying liability, is still "taken to admit the claim or cause of action in respect of which the payment is made," defendants may now in any cause, except in actions or counterclaims for libel or slander, plead payment of money into court together with any other pleas, either denying the plaintiff's right of action, or setting up some special defence. The exception just cited would seem to have been aimed specially at the case of Hawkesley v. Bradshaw. There, to an action for libel published in a newspaper, the defendant was allowed to plead, first, a justification on the ground that the libel was true, and next, an apology, together with a payment into court of 40s. by way of amends. S § 838.10 When judicial admissions, by which are meant admis- 768 sions entered into in the due course of legal proceedings,-have been made through inadvertence or mistake, the court, in its discretion, will relieve the party from the consequences of his error, Rules of Sup. Ct., 1883, Ord. XXII., R. 1, cited, ante, 831, n. 5; Berdan v. Greenwood, L. R., 3 Ex. D. 251, per Ct. of App.; 47 L. J., Ex. 628, S. C. 9 L. R., 5 Q. B. D. 302; per Ct. of App.; 49 L. J., Q. B. 333, S. C. 10 Gr. Ev. 206, nearly verbatim. . by ordering a repleader, or by permitting an amendment, or by discharging the case stated, or the rule, or the agreement, if made iu court.1 Agreements, too, made out of court between solicitors, concerning the course of proceedings in court, are, in effect, equally under the court's control, by means of its coercive power over the solicitor in all matters relating to professional character and conduct. But, in all these cases, the party will be held to his admission, unless it clearly appear that he has acted through mistake.' § 839.3 Every admission, which has been made with the inten- 76 tion of being acted upon, and which has been acted upon by another person, is conclusive against the party making it, in all cases between him and the individual whose conduct he has thus influenced. It is of no importance, whether such admission be made in express language to the person who acts upon it, or be implied from the general conduct of the party making it; for, in the latter case, the implied declaration will be considered as having been addressed to every one in particular, who may have had occasion to act upon it: and the rule of law is clear, that, where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time. Indeed, the principle may be laid down still more broadly, as precluding any party, who negligently or culpably stands by, and allows another to 1 "Non fatetur, qui errat, nisi jus ignoravit." Dig. lib. 42, tit. 2, 1. 2. “Si vero per errorem fuerit facta ipsa confessio (scil. ab advocato), clienti concessum est, errore probato, usque ad sententiam revocare." 1 Masc. de Prob., quæst. 7, n. 63; id. n. 19, 20, 21, 22; id. concl. 348, per tot. 2 See Pearse v. Grove, 3 Atk. 523, per Ld. Hardwicke; Amb. 65, S. C. The Roman law was administered in the same spirit. “Si is, cum quo Lege Aquilia agitur, confessus est servum occidisse, licet non occiderit, si tamen occisus sit homo, ex confesso tenetur." Dig. lib. 42, tit. 2, 1. 4; id. 1. 6. See, also, Van Leeuw. Comm., B. V. ch. 21; Everh. Conc. 155, n. 3. "Confessus pro judicato Per Ld. Denman, in Pickard v. Sears, 6 A. & E. 474; recognised by Wood V.-C., in Att.-Gen. v. Stephens, 1 Kay & J. 748, 749. |