The defendants, in the present case, claimed title to the demanded premises, by virtue of a deed from the plaintiff. There was no controversy, as to the execution of that deed, but the question, upon which the parties were at issue was, whether it had been duly delivered.
The plaintiff insisted, that he had merely placed it in the hands of the defendants’ agent, for inspection, without intending to deliver it, until the purchase price was paid, and *331that the agent had fraudulently kept the deed, never having paid for the land.
To rebut this claim, and to show that, in repeated instances, the plaintiff had subsequently recognized their title, the defendants introduced certain evidence, to the admission of which he objected.
1. He objected to certain votes of the district, passed subsequent to the delivery of the deed. These votes, unconnected with other evidence, clearly would have been inadmissible. And all such votes were excluded by the court below. It was not in the power of the defendants, by any acts or declarations of theirs alone, to make evidence for themselves, or impair the validity of the plaintiff’s title.
But, if the plaintiff was present, when any vote was passed relating to their title, and assented to the same, such vote, in connection with his assent, would be admissible, not simply as an act of the defendants, but, as showing the assent which he gave.
Thus, had the defendants passed a vote, laying a tax for the purpose of paying the debt, which they owed him for the land, and he, as a member of the district, had concurred in that vote, without objection, such vote, in connection with his acts, would be admissible, for the purpose of showing his implied admissions, and, without such evidence, his acts might be entirely unintelligible.
So, of a vote communicated to him, to which he gave his assent; the vote would be admissible, to show what assent was given.
Thus, where certain depositions taken before a magistrate, in a criminal proceeding against the plaintiff, in his presence, were offered in evidence against him, Denman, C. J., admitted them, but told the jury, that they were no evidence whatever, of the truth of any matter stated in them, except, in so much, as the plaintiff might have admitted them to be true, by anything he himself had said. Jones v. Morrell, 1 Car. & Kir., 266, (47 E. C. L.)
*332And even the declarations of the prisoner’s wife, made to him, in connection with his reply, have been received in evidence against him. Rex v. Bartlett, 32 E. C. L., 759.
2. The offer to pay for the land, and the tender of the money, stand upon similar ground. Alone, they prove nothing, and would be inadmissible. But they were offered and received, as explanatory of what was said and done by him on these occasions, and to show, that his language and conduct then, was inconsistent with the claim made by him, on the trial.
Then he would not receive the money, unless the whole was paid, and finally, he' would not receive it, because he had sold the land,—but, on the trial, his claim was, that no debt was due to him, because he had never given a conveyance of the land. We think the right distinction was made, in the court below.
3. The defendants offered Sherwood and others, to testify, that, for a period of nearly a year, they never heard the plaintiff complain, that the deed had been unfairly obtained, although they frequently saw him.
If, by the motion, we are to understand, that the witnesses proved the mere silence of the plaintiff, when he was under no obligation to speak, the evidence was improperly admitted. The tendency of such testimony would be, to mislead the jury. They might attach importance to it, from the mere fact, that it was admittedly the court, for them to weigh and consider, when it was entitled to no consideration whatever.
But, if it related to a silence, under circumstances making it his duty to speak, the case would be different. Thus, if the defendant, in an action upon a promissory note, were to call witnesses to prove, that they never' heard the plaintiff say, that he had such a note, the testimony would prove nothing; for the creditor was under no obligation to publish to the world the defendant’s indebtedness.
But, if a man stands by, and sees another selling his prop*333erty, knowing what he is doing, and making no objection, his silence would be evidence against him, to prove his acquiescence in the sale. For, if he did not intend to assent, it was his duty to give notice to the purchaser, and not suffer him to be defrauded.
The motion, in the present case, states, that the testimony was received, in connection with other evidence, conducing to show the acts and declarations of the (plaintiff, recognizing the defendants’ title. If, by this, we are to understand that, when the plaintiff was doing acts and making declarations, recognizing .the defendants’ title, he was silent, as to any claim of title on his part, we see no.objection to the testimony.
One of the witnesses, thus called, was Sherwood, to whom the deed was delivered. Now, if the plaintiff frequently saw him, and never, for nearly a year afterward, made any claim to have the deed returned, it would be pertinent, and even strong presumptive evidence, that the delivery of the deed was originally intended to be an absolute delivery.
So, if a school-meeting were called, for the purpose of raising money, to pay for the land purchased of the plaintiff, and the house erected thereon, and the plaintiff was present, saw a subscription paper circulated for that object, and subscribed it himself, without making any claim, that the house and land did not belong to the district, his silence, under such circumstances, would be evidence, that he had no claim upon the property. For, if he had, it was his duty so to have informed the defendants, and saved them from the trouble and expense of doing an unnecessary act.
To justify us in setting aside the verdict, upon this ground, the objection ought to have been more specific, that we might clearly see that illegal testimony was received.
4. The remaining exception is, that the evidence of the loss of the subscription paper was not sufficient, to justify the admission of the secondary evidence.
The rule, as established by the modern decisions, is, that *334the amount of evidence required to prove the loss of a written instrument, for the purpose of admitting secondary evidence of its contents, depends, in a great measure upon the nature of the instrument and the circumstances of the case. Witter v. Latham, 12 Conn. R., 392. Kelsey v. Hanmer, 18 id., 311. Brewster v. Sewall, 5 E. C. L., 291. Freeman v. Avhell, 9 id., 159.
Thus, it is obvious, that the same evidence ought not to be required, to prove the loss of a promissory note, after the debt had been paid, and the note takpn up by the maker, as would be requisite to establish the loss of a deed, under which a party claimed title. For, it is not usual to preserve instruments of the former character, after the debts which they represent have been paid; while title-deeds are generally kept with care.
The paper, in the present case, had become of no value, and no reason existed for its preservation. It was to be obligatory, only in case a certain amount should be subscribed, within a special time. That time had expired, and the requisite amount had not been obtained. It might then be treated as mere waste-paper. Inquiry was indeed made for it, of the clerk of the district, but that could hardly be deemed necessary, as there was no evidence, that it was ever in his possession, or that there was any obligation on him to keep it.
The defendants are chargeable with no neglect, and have done all in their power, to obtain the instrument. The only ground of complaint is, that the plaintiff’s son was not called to testify, as to the loss. His testimony would have rendered the evidence more satisfactory, and ought to have been required, had there been any reason to believe, there was any collusion between him and the defendants. But nothing of that kind appears.
Considering, therefore, the character of the paper, the absence of all unfairness, on the part of the defendants, and *335the efforts made by them to obtain the paper, we think there was reasonable evidence of its loss, and that the verdict ought not to be set aside, because parol evidence was admitted. "Indeed, that evidence related rather to the object and character of the instrument, than to any particular phraseology of the language used.
We do not therefore advise a new trial.
In this opinion the other judges concurred, except Church, C. J., who tried the cause in the court below.
No new trial advised.