538

ADMISSIONS IMPLIED FROM ACQUIESCENCE.

understood, by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated (t). Thus, where a landlord quietly suffers a tenant to expend money in making alterations and improvements on the premises, it is evidence of his consent to the alterations (u); though the mere lying by and passively witnessing a breach of covenant for several years, is not such an acquiescence as to amount to a waiver of the forfeiture (w). Again, if a tenant personally receives notice to quit at a particular day, without objection, it is generally an admission that his tenancy expires on that day (x); but if he cannot read, or even did not read the notice in the presence of the person serving it upon him, it will be treated as a service not personally served (y), and will go for nothing (z). Thus, also, a trader being inquired for, and hearing himself denied, may thereby commit an act of bankruptcy (a); and, in general, where one knowingly avails himself of another's acts done for his benefit, the jury will be justified in considering such conduct as an admission of his obligation to pay a reasonable compensation (b). So in settlement law, where two brothers, claiming derivative settlements from their father, were removed by successive orders, and the examination of the father proving his settlement was served upon the appellants together with the former order, against which there was no appeal, the fact of the appellants not objecting to the ground of removal when they received the first

(t) Melen v. Andrews, M. & M. 336; Boyd v. Bolton, 8 Ir. Eq. R. 113. (u) Doe v. Allen, 3 Taunt. 78, 80; Doe v. Pye, 1 Esp. 366, per Lord Kenyon; Neale v. Parkin, 1 Esp. 229, per id. See also Stanley v. White, 14 East, 332.

(w) Doe v. Allen, 3 Taunt. 78. But see ante, § 573.

(x) Doe v. Biggs, 2 Taunt. 109; Thomas v. Thomas, 2 Camp. 647; Doe v. Forster, 13 East, 405; Oakapple v. Copous, 4 T. R. 361; Doe v. Wombwell, 2 Camp. 559, per Lord Ellenborough.

(y) Doe v. Calvert, 2 Camp. 388, per Lord Ellenborough, explained in 2 Camp. 648.

(2) Thomas v. Thomas, 2 Camp. 649; Doe v. Forster, 13 East, 405. (a) Key v. Shaw, 8 Bing. 320.

(b) Morris v. Burdett, 1 Camp. 218, per Ellenborough, where a candidate, not bound by statute to pay for the hustings erected for an election, had made use of them; Abbot v. Hermon, 7 Greenl. 118, where a school-house was used by the school district; Hayden v. Madison, id. 76.

NOT OBJECTING TO ACCOUNTS SENT BY POST.

539

son, was held to be some slight evidence of an admission that the father was settled in their parish; and consequently, although on an appeal against the second order the first was inadmissible (c), the father's examination was received as part of the evidence of such admission (d).

§ 575. Again, the raising an objection to one item of an account, no remark being made as to the rest, will be evidence of an account stated as to those items, to which no objection has been made (e); and, among merchants, an account rendered will be regarded as allowed, if it be not objected to within a second or third post (f), or at least if it be kept for any length of time without making an objection (g). With respect to ordinary accounts, however, a distinction has been taken in Ireland between such as are sent by post, and those delivered by hand; and it has been held that the former, though kept by the party to whom they were sent without observation, are not admissible against him, as evidence that he had acquiesced in their contents (h). In the case where this point was determined, Chief Justice Bushe remarked, that what a party says upon an account furnished to him, or upon a statement made in his presence, may be given in evidence against him along with the account or statement, because what is thus offered is the act or declaration of the party to be affected by it, and the account or the statement is by reference made a part of such act or declaration; but the naked fact that an account remains in the possession of a party to whom it was sent, cannot amount to an acquiescence in its contents. His Lordship added, that the admission of such evidence would countenance the notion, that a man might, by furnishing an account claiming a balance against his creditor, establish an acquittance for himself (i).

(c) On the authority of R. v. Duchess of Kingston, 20 How. St. Tr. 538, n. (d) R. v. Sow, 4 Q. B. 93.

(c) Chisman v. Count, 2 M. & Gr. 307.

(ƒ) Sherman v. Sherman, 2 Vern. 276, per Hutchins, Ld. Com.

(9) Willis v. Jernegan, 2 Atk. 252, per Lord Hardwicke; Tickel v. Short, 2 Ves. Sen. 239, per id., where the account had been kept without objection for two years. See also, Freeland v. Heron, 7 Cranch, 147, 151; Murray v. Toland, 3 Johns. Cas. 575; Coe v. Hutton, 1 Serg. & R. 398; M'Bride v. Watts, 1 M'Cord, 384; Corps v. Robinson, 2 Wash. C. C. R. 388.

(h) Price v. Ramsay, 2 Jebb & Sym. 338.

(i) Id. 342, 343.

540

ACCESS TO LETTERS-ACQUIESCENCE IN CONTENTS.

§ 576. The same distinction has been recognised in England between letters and verbal statements. "What is said to a man before his face," observed Lord Tenterden in Fairlie v. Denton (k), "he is in some degree called on to contradict, if he does not acquiesce in it (); but the not answering a letter is quite different; and it is too much to say, that a man, by omitting to answer a letter at all events, admits the truth of the statements that letter contains." Lord Denman, also, in a later case declared, that "it was a great deal too broad a proposition to say that every paper which a man might hold, purporting to charge him with a debt or liability, was evidence against him if he produced it" (m).

§ 577. Letters, however, or other papers found in a party's possession, will occasionally in a civil suit be evidence against him, as raising an inference that he knows their contents and has acted upon them (n); and in criminal prosecutions, especially those for conspiracy and treason, letters and papers so found are frequently received, though their weight, as evidence against the prisoner, will in 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 (o). 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 a record of the proceedings of a society, contained in a book kept by the proper officer and accessible to the members (p),-charges against a club, entered by the servants of the house in a book kept for that purpose open in the club-room (q),-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.

(k) 3 C. & P. 103.

(7) This doctrine, by the bye, would justify much speaking at St. Stephen's. (m) Doe v. Frankis, 11 A. & E. 795. (n) Hewitt v. Piggott, 5 C. & P. 75.

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

(p) Raggett v. Musgrave, 2 C. & P. 556, per Abbott, C. J.; Alderson v. Clay, 1 Stark R. 405, per Lord Ellenborough.

(9) Wiltzie v. Adamson, 1 Ph. Ev. 357.

ACQUIESCENCE IN STATEMENTS MADE BY STRANGERS. 541

§ 578. But in regard to admissions inferred from acquiescence in the verbal statements of others, the maxim, Qui tacet, consentire videtur, is to be applied with careful discrimination. "Nothing," it is said, "can be more dangerous than this kind of 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 assertion made to the party with respect to his right, which by his silence he acquiesces in" (q). 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 not be so. It may be impertinent, and best rebuked by silence (r). Still less will statements made by strangers in the presence of a party be admissible 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 chain-bearers 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 (s).

§ 579. Moreover, to affect one person with the statements of 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 (t). 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 any subsequent trial, whether civil or criminal, be evidence against the party who heard them in silence; because in judicial

(9) Moore v. Smith, 14 Serg. & R. 393, per Duncan, C. J.
(r) Child v. Grace, 2 C. & P. 193, per Best, C. J.

(s) Moore v. Smith, 14 Serg. & R. 388.

(t) Boyd v. Bolton, 8 Ir. Eq. R. 113.

542

SILENCE OF ACCUSED IN JUDICIAL INQUIRIES.

inquiries a regularity of proceeding is adopted, which prevents a person from interfering when and how he pleases, as he naturally would do in a common conversation (t). 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 persons 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" (u).

§. 580. 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 replying; 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 (v).

§ 581. But the silence of the party, even where the declarations 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 (w); and if he has no means of knowing the truth or falsehood of the statement, the fact that he did not in terms deny it is almost valueless (). In all these cases, too, it must be distinctly remembered, that it is not the statement made in the

(t) Melen v. Andrews, M. & M. 336, per Parke, J.; Short v. Stoy, cited in Roscoe Ev. 38, 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. (u) Mascardus, de Prob. vol. i. concl. 348, n. 31.

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

(w) See 26th Chapter of St Matthew, v. 59-63; and 27th Chapter, v. 12-14. (x) Hayslep v. Gymer, 1 A. & E. 165, per Parke, J. See further, on the subject of tacit admissions, The State v. Rawls, 2 Nott & MCord, 301; Batturs v. Sellers, 5 Har. & J. 117, 119.