Here was an omission, on the part of the defendant, to assert his claim to two large sums, embraced in the receipts in question, at the time when all Ms pecuniary demands against the plaintiff were to be adjusted by a common umpire. Such conduct is very properly construed in law as an admission against a party who may at any time subsequently claim the allowance of the same sums. Nevertheless, it is always .competent for the party interested to explain his conduct, as resulting from accident or mistake, and not by design, leaving the whole *473evidence to be weighed by the jury. 1 Greenl. Ev., sec. 209; Hart v. Newman, 3 Camp. 14. We see no reason why this case should form an exception to the general rule. The defendant, being under oath, undertook to present to the auditor the several items that made up his account against the plaintiff. At so .important a crisis, it is difficult to imagine how he could omit from his account these two large sums, amounting to nearly three hundred dollars, or to make a seasonable proferí thereof, except through great inadvertence. Such conduct, in withholding all knowledge of such large sums, would be set down as singular and unusual. Professor Greenleaf adds, that the mere fact that the admission was made under oath, does not seem alone to render it conclusive against the party, but it adds vastly to the weight of the testimony, throwing upon him the burden of showing that it was a case of clear and innocent mistake. 1 Greenl. Ev., sec. 210. We understand the defendant, in this case, has had full opportunity to convince a jury that his claims were due and just, and has failed in his effort. He, then, has had the full benefit of the legal principles applicable to his case. Lane was properly admitted to testify in the case, and to show the modus o^erandi of the parties before him, while acting as auditor in the case. Though his testimony might not be very material, yet it was properly admitted, to explain the conduct of the parties. We think, therefore, the defendant’s exceptions should be overruled, and that there should be

Judgment on the verdict.