INCIDENTAL ADMISSIONS BY ATTORNIES.

513

with proof of certain facts, but as it were incidentally, while they are referring to other matters connected with the cause. These, which are generally the result of carelessness, though not regarded as conclusive admissions, are still considered, not unfrequently, as raising an inference respecting the existence of facts, which the adversary would otherwise have been called upon to prove; and, consequently, it is very important that attornies should exercise great caution in the language they employ while corresponding with their opponents. Thus, where in an action against the acceptor of a bill, his attorney had served notice on the plaintiff to produce all papers relating to a bill, the description of which corresponded with that set forth in the declaration,-" which said. bill", the notice went on to state, "was accepted by the said defendant," the Court held that such notice was primâ facie evidence of the defendant's acceptance (z); and in an action against the owners of a ship, their joint ownership was inferred from an undertaking to appear for them, signed by their attorney, in which they were described as owners of the sloop in the question (a). Again, where the defendant's attorney, in an action of debt on a bond, had admitted the signature of the attesting witness; this was held, by implication, to amount to an admission of the due execution of the instrument (b).

§ 549. Admissions, however, contained in the mere conversation of an attorney, cannot be received against the client, though they relate to the facts in controversy. The reason of this distinction is found in the nature and extent of the authority given, the attorney being constituted for the management of the cause in court, and for nothing more (c). So, if a letter, sent by an attorney to the opposite party, be expressed to be written "without prejudice," it cannot be received as an admission; neither can the reply be admitted, though not guarded in a similar manner (d). If the admission were made

(*) Holt v. Squire, Ry. & M. 282, per Abbott, C. J.

(a) Marshall v. Cliff, 4 Camp. 133, per Lord Ellenborough.

(b) Milward v. Temple, 1 Camp. 375, per Lord Ellenborough.

(c) Young v. Wright, 1 Camp. 139, 141; Parkins v. Hawkshaw, 2 Stark. R. 239;

Doe v. Richards, 2 C. & Kir. 216. See Wilson v. Turner, 1 Taunt. 398. Tratton v King 33.13.608

(d) Paddock v. Forrester, 3 Scott, N. R. 734. See Jardine v. Sheridan, 2 C. &

Kir. 24.

L L

514

RULES OF COURT AS TO NOTICES TO ADMIT.

before suit, it will be equally binding, provided it be shown that the attorney was already retained to appear in the cause (e). But in the absence of any evidence of retainer at that time in the cause, there must be some other proof of authority to make the admission (ƒ). When the attorney is already constituted in the cause, admissions made by his managing clerk, or his agent, are received as his own (g).

§ 550. The practice of attornies making solemn admissions before a trial, for the purpose of dispensing with the mere formal proof of documents, has of late years greatly prevailed; and this salutary course has been adopted in consequence of several rules of court, the combined effect of which has been materially to diminish the expenses of law suits, and thus to confer no trifling benefit upon suitors. So early as the year 1832, it was ordered by the 6th & 7th general rules of Hilary Term (h), "that the expense of a witness called only to prove the copy of any judgment, writ, or other public document, shall not be allowed in costs, unless the party calling him shall, within a reasonable time before the trial, have required the adverse party, by notice in writing and production of such copy, to admit such copy, and unless such adverse party shall have refused or neglected to make such admission. And, further, that the expense of a witness called only to prove the handwriting to, or the execution of, any written instrument stated upon the pleadings, shall not be allowed, unless the adverse party shall, upon summons before a judge, a reasonable time before the trial, (such summons stating therein the name, description, and place of abode of the intended witness,) have neglected or refused to admit such handwriting or execution, or unless the judge, upon attendance before

(e) Marshall v. Cliff, 4 Camp. 133, per Lord Ellenborough ; Gainsford v. Grammar, 2 Camp. 9, per id.

(f) Wagstaff v. Wilson, 4 B. & Ad. 339; Burghart v. Angerstein, 6 C. & P. 695, per Alderson, B.; Pope v. Andrews, 9 C. & P. 564, per Coleridge, J.

(g) Taylor v. Willans, 2 B. & Ad. 845, 856; Standage v. Creighton, 5 C. & P. 406; Griffiths v. Williams, 1 T. R. 710; Truslove v. Burton, 9 Moore, 64; Taylor v. Forster, 2 C. & P. 195.

(h) Reg. Gen. 2 Will. 4, reported in 3 B. & Ad. 392, 393.

RULES OF COURT AS TO NOTICES TO ADMIT.

515

him, shall indorse upon such summons that he does not think it reasonable to require such admission."

§ 551. In 1834, the judges further ordered (i), "that either party, after plea pleaded, and a reasonable time before trial, may give notice to the other, either in town or country, in the form thereto annexed (k), or to the like effect, of his intention to adduce in evidence certain written or printed documents; and unless the adverse party shall consent, by indorsement on such notice, within

(2) Reg. Gen. H. T. 4 Will. 4, r. 20, reported in 5 B. & Ad. xvii., xviii. (k) Form of the notice referred to :

Take notice that the plaintiff [or, defendant] in the cause proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant [or, plaintiff] his attorney or agent, at

on

,

between the hours of

;

and that the defendant [or, plaintiff] will be required to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been; that such as are specified as copies, are true copies; and such documents as are stated to have been served, sent, or delivered, were served, sent, or delivered respectively; saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated, &c.

G. H., attorney for plaintiff [or, defendant].

To E. F., attorney or agent for defendant [or, plaintiff].

[Here describe the documents; the manner of doing which may be as follows:]

Deed of covenant between A. B. and C. D. first part, and E. F.

second part

Indenture of lease from A. B. to C. D.

1st Jan., 1828.

Indenture of release between A. B. & C. D. first part, &c.
Letter of defendant to plaintiff

1st Feb., 1828.

Policy of insurance on goods by ship Isabella, on voyage from
Oporto to London

Memorandum of agreement between C. D., captain of said ship, and E. F.

Bill of exchange for 1007., at three months, drawn by A. B. on, and accepted by, C. D., indorsed by E. F. and G. H.

1st March, 1828.

3rd Dec., 1827.

1st Jan., 1828.

1st May, 1829.

516

RULES OF COURT AS TO NOTICES TO ADMIT.

forty-eight hours, to make the admission specified, the party requiring such admission may call on the party required, by summons, to show cause before a judge why he should not consent to such admission; or, in case of refusal, be subject to pay the costs of proof. And unless the party required shall expressly consent to make such admission, the judge shall, if he think the application reasonable, make an order that the costs of proving any document specified in the notice, which shall be proved at the trial to the satisfaction of the judge or other presiding officer, certified by his indorsement thereon, shall be paid by the party so required, whatever may be the result of the cause. Provided that, if the judge shall think the application unreasonable, he shall indorse the summons accordingly. Provided also, that the judge may give such time for inquiry or examination of the documents intended to be offered in evidence, and give such directions for inspection and examination, and impose such terms upon the party requiring the admission, as he shall think fit. If the party required shall consent to the admission, the judge shall order the same to be made. No costs of proving any written or printed document shall be allowed to any party who shall have adduced the same in evidence on any trial, unless he shall have given such notice as aforesaid, and the adverse party shall have refused or

DECISIONS RESPECTING NOTICES TO ADMIT.

517

neglected to make such admission, or the judge shall have indorsed upon the summons, that he does not think it reasonable to require it. A judge may make such order as he may think fit respecting the costs of the application and the costs of the production and inspection; and, in the absence of a special order, the same shall be costs in the cause."

§ 552. It will now be convenient to refer to a few cases which have been decided on the construction of these rules; and, first, it has been held, that, though the notice 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 order be made "with a saving of all just exceptions to the admissibility of the documents," the admission so far recognises their general character and accuracy, that 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, was overruled (m); 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 (n). Thirdly, a variance in the description of the document, 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 (o). Fourthly, it seems that a judge will not certify, so as to entitle the party to the costs of proving any document specified in the notice, unless the witness who has been called to establish this proof, has, at

(1) Tinn v. Billingsley, 2 C. M. & R. 253; 3 Dowl. 810, S. C.
(m) Doe v. Smith, 8 A. & E. 255; 3 N. & P. 335; 2 M. & Rob. 7, S. C.

(n) Poole v. Palmer, C. & Marsh. 69, per Rolfe, B.

(0) Field v. Hemming, 7 C. & P. 619, per Lord Abinger; 5 Dowl. 450, S. C. nom. Field v. Flemming; Bittleston v. Cooper, 14 M. & W. 399.