"Rule 8. Notice to produce documents shall be in the Form No. 14 in Appendix B., with such variations as circumstances may require. An affidavit of the solicitor, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served." The object of this rule is to enable secondary evidence of the documents to be given at the trial if they are not produced pursuant to the notice. Rule 4 is new; but Rule 2 is substantially the same as Ord. 32, r. 2 of the R. S. C., 1875, and is also similar to the practice existing prior to 1875 under the Common Law Procedure Act, 1852, and the Chancery Amendment Act, 1858. Under those Acts it was held that a party, by admitting a document, does not thereby in any way recognize its legal validity, but merely enables the opposite party to dispense with the usual evidence which would otherwise be necessary to bring it before the court. Thus, when a party admitted his signature to a bill of exchange, he was still allowed to object to the insufficiency of the stamp (); and an admission on notice of certain documents which were described as copies of, or extracts from, certain original documents, was held not to make such copies evidence, in the absence of sufficient reason for the non-production of the originals (7). An admission of a bill of exchange (k) Vane v. Whittington, 2 Dowl., N. S. 757. (1) Sharpe v. Lambe, 11 A. & E. 805. drawn by the plaintiff, directed to the defendants, "and accepted by one H. B. for the defendant," was held to estop the defendants from disputing H. B.'s authority to accept (m); and it has been held that, after admission of a deed, no objection can be taken to an erasure or interlineation which may afterwards appear. In such a case, where the defendant objected at trial to an unexplained interlineation which had been admitted without objection, Coleridge, J., said:— "Before a party admits a deed it is produced to him for the very purpose of enabling him to inspect it, and say whether he objects to its admission in the form in which it appears to be written. Here it must be considered, either that the defendant really admitted that the deed was correct, and the interlineation no objection, or that the admission was made with the dishonest intention of entrapping the plaintiff; and as it must be presumed that the defendant acted upon the inspection of the deed upon which he had a right to act, I think the objection has been waived under the notice to admit" (n). Where there is a variance in date between the document admitted and that which is produced, it will be immaterial, unless the opposite party have been misled by it (o); but it ought to be shown that the document admitted and that produced are the same (p). (m) Wilkes v. Hopkins, 1 C. B. 737. The courts will not sanction any agreement for an admission by which any of the known principles of law are evaded. No effect, therefore, will be given to an agreement to waive an objection arising from a deed not having been stamped (q). Ord. 18, r. 4 of the County Court Rules, 1889, contains the following provision:-"Where a party desires to give in evidence any document, he may, not less than five clear days before the trial, give notice to any other party in the action who is competent to make admissions, requiring him to inspect and admit such document; and if such other party shall not, within three days after receiving such notice, make such admission, any expense of proving the same at the trial shall be paid by him, whatever be the result of the action, unless the court shall otherwise order, and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense." (9) Owen v. Thomas, 3 M. & K. 357. CHAPTER XVII. CONFESSIONS. As in civil controversies the admissions of parties are received against their makers, so in criminal trials the confession of a prisoner is held to be evidence against him of a high nature; but since a person charged with a crime may be induced by his situation either to criminate himself untruly, under the influence of excitement and terror, or trusting to a promise of forgiveness by a prosecutor, or other person who may be presumed to have a power of pardoning, it has long been the policy of the criminal law to reject evidence of every confession or statement by a prisoner, which has been made under the pressure of any species of physical or moral duress. Whenever, therefore, at a criminal trial, there appears to be ground of reasonable suspicion that a confession of guilt has been elicited from a prisoner by a threat of punishment, in the event of a refusal to confess, or by a promise of forgiveness, on condition of confessing, the court will inquire strictly into the antecedent circumstances of the statement which is to be tendered, and will not receive it unless it appear to have been the free and voluntary declaration of the prisoner. The rule, as now recognized, is the following: The statement of a prisoner as to the cir cumstances of a crime with which he is charged is evidence against himself, unless it have been elicited from him by a person who had at the time, actually or presumably, power to forgive, and induced the prisoner to confess, by holding out to him an offer, or prospect of, forgiveness. Such is the existing rule as confirmed by a series of decisions. In R. v. Baldry (a), Lord Campbell, C. J., said: "The rule seems to be this:-If there be any worldly advantage held out to the accused to be obtained by confession, or any harm threatened to him if he refuses to confess, any statement made by him in consequence of any such inducement must be rejected. The reason for this rule I take to be, not that the law supposes that what is said after such inducement is false, but that the prisoner may have said something under a bias, and that it is not a purely voluntary confession." Pollock, C. B., in the same case, said:-"By the law of England every confession to be used against a prisoner must be a voluntary confession. Every inducement held out by a person in authority will render a confession inadmissible; and the cases have gone very far as to who are persons in authority." On these grounds a confession will be inadmissible when it has been obtained by any threat or promise (a) 2 Den. 430. |