it being a matter usually transacted by women. Anon. 1 Stra. 527. In an action against defendant, as administrator of his wife, for money lent to her before marriage, admissions of the debt made by her during coverture are evidence. Per Lord Tenterden C. J., Humphreys v. Boyce, 1 M. & Rob. 140. But in an action by husband and wife for a loan by the wife dum sola, her admissions after coverture were refused as against the plaintiffs, by Lord Kenyon. Kelly v. Small, 2 Esp. 716. So where plaintiff sues with his wife as executrix, her declarations are inadmissible. Alban v. Pritchett, 6 T. R. 680. In an action against the husband, the admission of the wife is not evidence of a trespass. Per Curiam in Denn v. White, 7 T. R. 112. A joint answer in Chancery by husband and wife is evidence against the husband, but not the wife; Elston v. Wood, 2 Myl.& K. 678.; unless, perhaps, she survives her husband. Wrottesley v. Bendish, 3 P. Will. 238. Where the conduct of the wife is in question, her declarations have been held admissible for her husband in an action against him. Thus, in an action for necessaries supplied to the wife, the defence being that the husband had turned her out of doors for adultery, her declarations as to the adultery, made previously to her expulsion, were admitted by Abbott C. J. Walton v. Green, 1 C. & P. 621. And in an action for seduction, declarations of defendant's wife, tending to show that she aided and colluded with the defendant in seducing the plaintiff's daughter, are evidence in aggravation. Per Gurney B., Knowles v. Compigne, Winton Sum. Ass. 1835.

Admissions by counsel or attorney.] When the counsel in a cause so conducts it as to lead to an inference that a certain fact is admitted by him, the jury may take it as proved. Stracy v. Blake, 1 M. & W. 168. So, where a fact is assumed at Nisi Prius for the purpose of supporting one issue, it must be taken as admitted for the purpose of disproving another issue. Semble, Bolton v. Sherman, 2 M. & W. 403. And if counsel for the plaintiff opens a fact from which his client's possession of a document may be presumed (as payment of a check), though he offers no proof of it, yet defendant may give secondary evidence of it after notice to produce, without further proof of the plaintiff's possession. Duncombe v. Daniell, 8 C. & P. 222. Where, after a verdict subject to a special case a new trial has been directed, the special case, signed by counsel on both sides, is evidence of the facts there stated. Van Wart v. Wolley, R. & M. 4.

An admission made by an attorney of one of the parties to prevent the necessity of proving a fact on the trial, is sufficient evidence of that fact; Young v. Wright, 1 Camp. 141.; as, where he admits the handwriting of the attesting witness, it is sufficient proof of the execution of a deed; Milward v. Temple, 1 Camp. 375.; and see Truslove v. Burton, 9 B. Moore, 64. But statements made by the attorney in the course of conversation are not admissible against his client. Young_v. Wright, 1 Camp. 140.; Parkins v. Hawkshaw, 2 Stark. 239. Admissions made by the defendant's attorney when making proposals on behalf of his client respecting the plaintiff's demand (the attorney refusing to be examined), are evidence against the defendant; and proof that they were made by the attorney on the record will be sufficient to establish his agency. Gainsford v. Grammar, 2 Camp. 9. But an admission made in a letter written by an attorney (who is afterwards the

attorney in the cause), before the commencement of the action, is not evidence against the defendant without some proof of his having au thorized the communication. Wagstaff v. Wilson, 4 B. & Ad. 339. An undertaking to appear "for Messrs. T. and M., joint owners of the sloop A.," given by the attorney on the record, is evidence of the jointownership. Marshall v. Cliff, 4 Camp. 133. An agreement by the attorney "to admit on the trial of this cause the execution of," &c. may be used on a new trial; Elton v. Larkins, 1 M. & Rob. 196.; even though the defendant's attorney retracts it before the new trial. Doe r. Bird, 7 C. & P. 6.

By the rule of court, H. T. 4 W. 4., a judge at chambers has power, with consent, to order the admission of documents upon due notice in the form pointed out by the rule. The order is made with a "saving of all just exceptions to the admissibility of the documents as evidence." A variation in the description of the instrument, if not of a nature to mislead, will not release the party from the obligation to admit it; as where the date of a bill, annexed to the order, is misdescribed. Field v. Flemming, 5 Dowl. P. C. 450. And where the order was to admit "the counterpart of a lease," and the instrument produced, and referred to in the order, was, in fact, an original lease stamped as a counterpart ; held, that the party was bound to admit the lease, and could not object to the stamp. Doe v. Smith, 8 A. & E. 255.

If a party refuses, at the trial, to make the necessary admission agreeably to the order, and thereby obtains a verdict or nonsuits the plaintiff, the court will grant a new trial at the expense of the party who so refused; and will make his attorney pay the costs, unless he can clear himself from blame. Doe d. Tindal v. Roe, 5 Dowl. P. C. 420.

Admissions by payment of money into court.] The practice of paying money into court is now altered by the rule H. T., 4 W. 4. (17.), which directs that such payment shall in all cases be pleaded; and gives the form of plea. The object of this rule is that the admission of the plaintiff's right of action, and the extent of that admission, may appear on the record; in other respects it leaves the effect of the payment into court the same as before, and the former authorities are applicable. Payment of money into court admits everything which the plaintiff must have proved to recover it. Per Cur. in Dyer v. Ashton, 1 B. & C. 4. It is an admission that the plaintiff has a legal demand to the extent of the money brought in. Blackburn v. Scholes, 2 Camp. 341.; but not beyond that extent. Therefore payment of money into court in an action on a promissory note, payable by instalments, is only an admission that money to the amount paid in was due on it, and does not bar the Statute of Limitations as to a further sum claimed on the same note. Reid v. Dickons, 5 B. & Ad. 499. So payment into court upon a count on a valued policy, in which the loss is averred to be total, is no admission of a total loss. Rucker v. Palsgrave, 1 Camp, 557., S. C. 1 Taunt. 419. Where there is a special contract on the record, the payment into court admits it; but where, as in indebitatus assumpsit, the demand is made up of several distinct items, the payment admits no more than that the sum paid in is due. Meager v. Smith, 4 B. & Ad. 673. Seaton v. Benedict, 5 Bing. 32. It is a conclusive admission of the character in which the plaintiff sues;

Lipscombe v. Holmes, 2 Camp. 441.; and in which the defendant is sued. Lucy v. Walrond, 3 New Ca. 841.

The effect of payment into court on the general counts has been settled by recent cases which have overruled Walker v. Rawson, 1 M. & Rob. 250., and Ravenscroft v. Wise, 1 C. M. & R. 203. It is now held only to admit the liability of the defendant, to the extent of the money paid, upon some one or more of the contracts included in the declaration; and "the plaintiff cannot apply it to any particular contract he may please to select." Thus, on a plea of payment into court as to 12., parcel, &c. of a count for fixtures bargained and sold, upon which plaintiff replies damages ultra, and non assumpsit as to the residue, the defendant may insist at the trial that there was no sale of fixtures at all, and is entitled to a verdict though the value of the fixtures alleged to be sold exceeds the sum paid into court. Kingham v. Robins, 5 M. &W.94. The defendant, by his plea, says, in substance, "Can you, under this count, prove any contract against me? If you cannot, I have done an unnecessary act in paying this money into court, which is more than is sufficient to cover the nominal damages to which you are entitled." Per Alderson B. ibid. And see Drake v. Lewin, 4 Tyr, 730. Where two defendants paid money into court on such counts, it was held that plaintiff was bound to prove a joint liability on some contract beyond the amount paid. Stapleton v. Nowell, 6 M. & W. 9. Accord. Archer v. English, 1 M. & G. 873. So where plaintiff sued for work done as attorney, and defendant pleaded payment of 521. into court and no damages ultra, on which issue was taken; held, that defendant might dispute any retainer as to the residue. Steavenson v. Corporation of Berwick, 1 A. & E. N. S. 154.

Payment into court is an admission of the plaintiff's right to sue in the court in which the action is brought. Miller v. Williams, 5 Esp. 19. In an action for wrongfully discharging a servant, the defendant cannot, under a plea of payment into court, show misconduct in mitigation. Speck v. Phillips, 5 M. & W. 279. In an action on a bill of exchange, the plea admits the handwriting of the parties; Gutteridge v. Smith, 2 H. Bl.374.; and the sufficiency of the stamp. Israel v. Benjamin, 3 Camp. 40. In an action on a guarantee, the payment of money into court, on a plea of tender, admits an agreement signed according to the Statute of Frauds. Middleton v. Brewer, Peake, 15. In an action of covenant, it admits the execution of the deed; Randall v. Lynch, 2 Camp. 356, 357.; and where two breaches are assigned in one count, payment into court on one of the breaches is an admission of the whole contract as set out in that count, so as to enable the plaintiff to recover on the second breach without proof of the contract. Dyer v. Ashton, 1 B. & C. 3. And, if paid in generally, it admits some damage on all the breaches. Wright v. Goddard, 8 A. & E. 144. When the declaration avers performance of a condition precedent, payment into court admits it; and where the action lies only on a certain contingency, which has not happened, it waives the objection; Harrison v. Douglas, 3 A. & E. 396.; Leggett v. Cooper, 2 Stark. 103.: but quare of this, unless the special contract be declared upon? Where the declaration states a contract to pay a particular sum of money for certain articles, payment of part of the money into court, by admitting the contract.admits also the sum originally due; and the

only question is as to the remainder. Cor v. Brain, 3 Taunt. 95., Stoveld v. Brewin, 2 B. & A. 118. But where the declaration is for goods sold, to be paid for at the average price to be ascertained on a day specified, payment into court does not admit the average price to be as stated in the declaration, but only that the average has been struck. Stoveld v. Brewin, ibid. See also Everth v. Bell, 7 Taunt. 450. And where the defendant declared specially upon a promise in writing to pay "his proportion" (without specifying it) of a debt barred by the Statute of Limitations, and averred the amount of the proportion under a videlicet, it was held that payment into court on that count did not admit the amount of the proportion. Lechmere v. Fletcher, 1 C. & M. 623. In an action against a carrier for not carrying goods safely, if the defendant has restricted his liability by a notice that he will not be accountable for more than 57., unless entered and paid for accordingly, the payment of 51. into court does not admit a liability beyond that sum. Clarke v. Gray, 6 East, 570.; Yate v. Willan, 2 East, 128. Before the New Rules, where the defendant pleaded the general issue and the Statute of Limitations to indebitatus assumpsit on goods sold, and paid money into court generally, such payment was held not to take the case out of the statute. Long v. Greville, 3 B. & C. 10. Acc. Reid v. Dickons, 5 B. & Ad. 499. If the plaintiff declares on an illegal contract, the defendant cannot give it validity by his admission; and if in indebitatus assumpsit money is paid into court generally, and the plaintiff insists on several claims some legal and others illegal, the court will apply the payment to the legal claim. Ribbans v. Crickett, 1 B. & P. 264. This case, however, was before the late rules of pleading, which require illegality to be pleaded.

If the defendant pays money into court on an instrument bearing interest, and pays the interest only up to the commencement of the action, the plaintiff may proceed for the interest up to the time of payment into court. Kidd v. Walker, 2 B. & Ad. 705.

Where there are several counts, and the defendant pays money into court on one of them which is applicable to the plaintiff's cause of action, the plaintiff cannot get his costs by taking a verdict on one of the other counts, unless he can show a right to recover upon both in respect of distinct causes. Early v. Bowman, 1 B. & Ad. 889. Churchill v. Day, 3 M. & R. 71.

The rule of T. T. 1 W. 4., (2 B. § Ad. 788.), as to annexing the particulars of the plaintiff's demand to the declaration, has not altered the effect of the payment of money into court, so as to make it operate as an admission of them. Booth v. Howard, 5 Dowl. P. C. 438. Meager v. Smith, 4 B. & Ad, 673,

Admissions by recital.] A recital in a deed is evidence against him who executed the deed, or any person claiming under him. Com. Dig. Erid. (B. 5.), and see Rees v. Lloyd, Wightw. 123. And such recital operates as an estoppel if properly pleaded and relied upon; but not if the parties in their pleading voluntarily submit the fact recited to a jury. Bowman v. Taylor, 2 A. & E. 278. Bowman v. Rostron, Ibid. 295. See antè," Receipts," p. 39. Thus the recital of a lease in a release is evidence of the lease against the releasor, and those claiming under him. Ford v. Grey, 1 Salk. 286. Crease v. Barrett, 1 C. M. & R. 919. So in trespass against a sheriff, a bill of sale reciting the writ,

the taking, and the sale of the goods, is evidence against him of those facts. Woodward v. Larking, 3 Esp. 286. So the recital of an ancient charter in a modern charter, is evidence. Per Abbott J., Gervis v. The Grand Western Canal Company, 5 M. & S. 78. The recitals in a deed may confine the effect of admissions in the same instrument. Lampon v. Corke, 5 B. & A. 607. But the recital in a bond, that the parties had agreed to execute a bond in the sum of 5007., will not confine the bond to that sum, if actually executed in the penal sum of 1000/. Ingleby v. Swift, 10 Bing. 84. A party claiming under a certain title does not necessarily admit statements in previous deeds which make up his title; thus where a deed, reciting the bankruptcy of A., conveys an estate to B.; and B. (being no party to that deed) conveys the estate to another by a deed making no such recital; the above deeds are no evidence of the bankruptcy as against B. in an action concerning other lands. Doe v. Shelton, 3 A. & E. 265. Where the recital in a deed is used as an admission, it must be proved by the attesting witness; Breton v. Cope, Peake, 44.; and a recited instrument is only admitted for so much as is recited: if any other part of it is to be proved, it must be produced and proved in the usual way. Gillett v. Abbott, 7 A, & E. 783.

Admissions on the record.] Whatever is admitted on the record need not be proved, and cannot be disproved. B. N. P. 298. Evans v. Ogilvie, 2 Y. & J. 79. But an admission in one of several pleas or counts does not operate as an admission as to any other; Harington v. Macmorris, 5 Taunt. 228.; Knight v. M Douall, 12 A. & E. 438.; nor can a notice of set-off, or a particular of it, be used as evidence by the other side. S. C. and Miller v. Johnson, 2 Esp. 602. Stracy v. Blake, 1 M. & W. 168. But a notice by defendant to produce a certain bill, "accepted by defendant," is evidence of acceptance as against him. Holt v. Squire, R. & M. 282. The statements in a plea, held bad on demurrer, are not evidence for plaintiff on another issue, though the venire be tam quam. Ingram v. Lawson, 2 M. & Rob. 253, Montgomery v. Richardson, 5 C. & P. 247. Where a declaration contains two inconsistent special counts, and defendant pays money into court on the second, which plaintiff accepts; the defendant cannot read it, and the proceedings thereon, to the jury in order to negative an allegation in the first on which issue has been taken. Gould v. Oliver, 2 M. & G. 208. Whatever is pleaded and not denied, shall be taken to be admitted; Wimbish v. Tailbois, Plowd. 48.; so that the jury cannot find to the contrary. Tonkin v. Crocker, 2 Lutw. 1215. Thus if the defendant in replevin avow the taking of cattle damage feasant in the locus in quo as parcel of the manor of K. which is his freehold, and the plaintiff make title to the manor of K., and traverse that the manor is the freehold of the defendant, he cannot afterwards prove that K. is no manor, and therefore the locus in quo no parcel, for that is admitted by the traverse. B. N. P. 298. If the defendant in covenant do not plead non est factum, the execution of so much of the deed as is expanded on the record is admitted; but if the plaintiff wish to avail himself of any other part of the deed, he must prove it by the attesting witness in the usual way. Williams v. Sills, 2 Camp. 519. If the plaintiff traverses a customary right of common in respect of an ancient messuage pleaded by the defendant, he does not thereby admit the antiquity of