Evidence (Ist ed., 1842) sec. 16g: "Such evidence seems, therefore, more properly admissible as a substitute for the ordinary and legal proof, either in virtue of the direct consent and waiver of the party, as in the case of explicit and solemn admissions; or on grounds of public-policy and convenience, as in the case of those implied from assumed character, acquiescence or conduct" The learned author does not amplify his views, nor does he, in dealing with specific cases of admissions, explain in what way, if at all, the application of this theory would produce results differing from those produced by regarding admissions as exceptions to the hearsay rule. None of the editors of the later editions of the treatise make any comment upon this section, except Dean Wigmore, and he rejects its theory in favor of the theory explained infra, which regards extrajudicial admissions as merely impeaching evidence. Greenleaf, Evidence (16th ed. 1899) sec. i69. Mr. Pitt Taylor incorporated the quoted statement verbatim in the first paragraph of the fourteenth chapter of his work on Evidence, without comment or explanation. 'Wharton, Evidence (1877) sec. 1075; Hammersley, J. in State v. Willis (1894) 71 Conn. 293, 3o8, 41 AtL 820, 823. [355] 'If the former interpretation is accepted, the extrajudicial admission would seem to to be more potent than the judicial admission, for the latter, when improvidently made, may usually be amended or withdrawn. An extrajudicial verbal admission includes any statement made by a party inconsistent with the position taken by him in the action. It is perfectly clear upon the authorities that extrajudicial admissions are not conclusive upon the admitter, as was necessarily known to both the learned commentators above mentioned. It seems only reasonable, then, to conclude that when they spoke of admissions as a substitute for proof, they must have been using the term, "admission," to express the concept of waiver of proof, and not as designating merely the extrajudicial statement of the admitter. 'Hammersley J. in State v. Willis, supra note 2. It must be remembered that this statement by the learned justice was pure dictum. The question before the court was the admissibility of a confession, which had been objected to because involuntary. The term "admission" is applied throughout the opinion to the confession. 5 Heane v. Rogers (1829, K. B.) 9 B. & C. 577; see 2 Wharton, op. cit., sec. 7o77 and cases cited. ' Cases cited infra note 9. Greenleaf, Evidence (i6th ed., 1899) sec. i69. 'See (920) 34 HARv. L. REv. 205; I Wigmore, Evidence (19o4) sec. 267.
