lowed by a civil or criminal consequence, but it is totally a different question, in the consideration of criminal justice, as distinguished from civil, how the noble person, now on trial, may be affected by the fact, when so established. The receipt by the paymaster would, in itself, involve him civilly, but could, by no possibility, convict him of a crime." It would seem that a surety cannot, in general, be affected Surety. by evidence of an admission made by his principal. Thus, inan action upon a guarantee to pay for goods sold and delivered to a third person, what such person has admitted respecting the delivery of the goods is not evidence to charge the person giving the guarantee. (1) In an action for contribution brought by one surety against a co-surety, where a defence was set up, that the party for whom they had become sureties had discharged the bond, for the due payment of which they were responsible, the declarations of the obligee, as to the account upon which he received the money, and proof of the way in which he applied it, were held to be inadmissible, it not appearing that such declarations were made at the time of payment. (2) Where a party had become surety, by a bond for the faithful conduct of a clerk, it was held, in an action upon such bond, that an admission by the clerk, made after he was (1) Evans v. Beattie, 5 Esp. 26. In Perchard v. Hamilton, 1 Esp. 394, an action by a sheriff upon a bond to indemnify him against defaults of his bailiff. A written admission by the bailiff of having received levy-money, was held by Lord Kenyon to be admissible against the defendant, on the ground that the bailiff was in fact the defendant in the action. It does not appear that there was any evidence to shew that the defendant was indemnified by the bailiff. But in a trial at Warwick, Bayley, B., held that a written admission of sums received by a clerk was not evidence against a surety in an action brought by the master upon a bond of indemnity. The case of Perchard v. Hamilton was cited, but was thought by Bayley, B., not to apply. It would seem, however, to be in point. In Goss v. Watling- (2) Dunn v. Slee, Holt, 401. Privity of in terest. Privies in blood. In law. In estate. discharged, of various sums which he had embezzled, was not receivable in evidence against the surety. (1) Admissions are not only receivable against the parties, who make or authorize them, but also against persons identified in interest with those parties. The rules for the admissibility of such evidence are analogous to those which are found in the doctrine of estoppels, and which govern the admissibility of verdicts, judgments, and depositions. The reader is therefore referred to the second part of this Work, which treats of written evidence, for considerable illustration of the present subject. It has, indeed, been necessary to anticipate some portion of what would properly belong to the second part of the Work, particularly as regards answers in Chancery, for the elucidation of the points which belong to the present Chapter. Thus, with regard to privies in blood and privies in law, the declarations of a deceased occupier of land, that he rented it under a certain person, are evidence of that person's seisin against a party claiming as the heir at law of such occupier, to explain the nature of the occupation, and to shew that it was not adverse. (2) The declarations of an intestate are evidence against his administrator. (3) With respect to admissions made by persons who have been privies in estate to the parties, against whom the admissions are used, the evidence, when the parties are deceased, is ge (1) Smith v. Whittingham, 6 C. & P. 78. See McGahey v. Alston, 2 M. & Wel. 213. Goss v. Watlington, 3 Br. & B. 132. Middleton v. Melton, 10 B. & C. 317. (2) Doe d. Human v. Pettett, 3 B. & A. 223. If this case is to be treated as a case of admissions, it would seem immaterial, that the declarant was deceased. But the evidence may be considered also as a declaration explanatory of possession, or as a declaration against interest. See Peaceable v. Wat son, 4 Taunt. 16. Doe v. Jones, 1 Campb. 367. These points are illustrated by the doctrine concerning the admissibility of verdicts against privies in law and in blood, infra, part 2. Locke v. Norbonne, 3 Mod. 141. See Outram v. Morewood, 3 East, 346. Co. Litt. 352, a. Pol. 61, 66. Com. Dig. Estoppel, B., 3 T. R. 365. (3) Smith v. Smith, 3 Bing. N. C. 32. The plaintiff was regarded as claiming under the intestate, though, in fact, he need not have done so. nerally admissible on a different principle, as a declaration against interest. (1) And when the parties are alive, the evidence may frequently seem admissible, as explanatory of acts done or forborne, or of the fact of possession. (2) But without reference to either of these principles, it would seem that an admission by a proprietor or occupier possessing any interest, would be evidence as to the nature and extent of that interest, against a party who was in privity of estate with him. (3) The receipts for a modus, given by a vicar's lessee, are evidence against the vicar, by reason of the privity of estate. (4) An answer in Chancery is admissible in evidence against, a privy in estate. (5) A statement in a lease by a landlord has been held admissible against a person who claims under a subsequent lease of the same land. (6) A letter written by a vicar, in respect of the property of the vicarage, is evidence against his successor. (7) It has been held, upon an issue between two persons, Assignment. whether a third person died possessed of certain property, that evidence might be given of a declaration, made by that third person, that he had assigned the property; the party, against whom the declarations were adduced, claiming under that person. (8) A case stated for the opinion of counsel, touching the right of Presentation. (1) Vide supra. (2) Vide supra. (3) Doe d. Manton v. Thrupp, 9 Bing. 41. Walker v. Bradstock, 1 Esp. 458. Davis v. Pierce, 2 T. R. 53. Baggaley v. Jones, 1 Campb. 367. Doe v. Pettet, 5 B. & A. 223. Doe v. Rickerby, 5 Esp. 4, supra. 12 Vin. Ab. A. b. 38, pl. 10. Tindal v. Whitrow, 1 C. & P. 22. With respect to the amount of interest requisite, in a person whose declaration can bind another by reason of privity of estate, see infra, as to the verdicts in this respect. As to the effect of declarations by tenants against the interest of their reversioners, per Patteson, J., Tickle v. Brown, 4 Ad. & E. 378. (4) Jones v. Carrington, 1 C. & P. 329. So although the party giving the receipts be entitled only under an agreement for a lease, ib. It would seem that the receipts were admissible on a more general sons. (5) Earl of Sussex v. Temple, Lord Raym. 310. In this case the Court went the length of determining, that the answer might be read against persons in occupation of property, on proof that it was the reputation of the county, that the lands had belonged to the person making the answer. (6) Crease v. Barret, 1 Cr. M. R. 932. (7) Doe d. Coyle v. Cole, 6 C. & P. 359. (8) Ivat v. Finch, 1 Taunt. 141. The judgment also proceeded on the ground of a declaration against interest; which seems to be a safer ground, as the third person had parted with the possession before the declaration was made. Vide infra. Modus. Surveys. presentation to a living by a bishop, was held to be evidence against a subsequent bishop of the same see, on a question touching the right of presentation to the same living. (1) An ancient statement, concerning the payment of tithes of a parish by a modus signed by the rector for the time being, is evidence against a succeeding rector. (2) An answer to a bill filed in the Court of Exchequer, in a suit instituted for tithehay by a vicar against the rector and others (owners of lands in the parish), in which answer the defendants disputed the vicar's claim, and declared that the tithes in question belonged to the rector, will be evidence, in an action for tithes by a succeeding rector against owners or occupiers of the same lands, for the tithes of which the former suit was instituted. (3) "This appears to me," said Lord Ellenborough, "not to be res inter alios acta, but, inter eosdem acta; and was not only evidence, but strong evidence, against the defendant, who stood in the same place, by derivation of title and by legal obligation, as the former occupier of the same land: and that former owner, upon his oath, in a suit against him by the vicar, has declared, that the tithe is due to the rector, and not to the vicar; and now that same person, in effect, (that is, the present owner, who purchased of the former owner the very lands, over which tithes were now claimed,) is deraigning the title of the rector in favour of the vicar." Although ancient books of survey and maps, when they are not in the nature of public documents, (4) have been in some cases considered as not being legitimate evidence of boundary, even where they might seem, upon principle, to be receivable on the ground that the boundary was a matter of public interest and concern, (1) yet this species of evidence is frequently available by way of admission, where there is a privity of estate between the person against whom the survey or map is used, and the person directing it to be made. Thus it was ruled by Lord Holt, that if A. be seised of the manors of B. and C. and, during his seisin of both, he causes a survey to be taken of the manor of B., and afterwards the manor of B. is conveyed to E., and afterwards there are disputes between the lords of the manors, B. and C., about their boundaries, this old survey may be given in evidence. (2) In like manner entries of receipt of rents by a deceased steward have been admitted, in a suit between two persons who both claimed under the employer of that steward. (3) With respect to admissions by persons in possession of chattels or negociable securities against subsequent proprietors, which may be thought analogous to admissions by privies in estate, it appears to be a rule, that where a person must recover through the title of another, he is bound by the declaration of the party through whom he claims. Thus, if a person bring an action upon a bill of exchange, the declaration of a person, who, at the time when such declaration was made, was holder of the bill, and who had not parted with it till after it was due, is evidence against the plaintiff, being made by one according to whose title his own must stand or fall. (4) (1) Vide supra, case of parish map. (2) Bridgman v. Jennings, 1 Lord Raym. 734. And see Davies v. Pierce, 2 T. R. 53. Allott v. Wilkinson, 4 Gwill. 1585; 2 E. & Y. 293; B. N. P. 283. That such a survey is not evidence, against a stranger, per Lord Holt, ib. Anon. 1 Str. 95; 1 Lord Raym. 734; 5 T. R. 123; 12 Vin. Ab. 90, pl. 12. It has been said, that an old map has been allowed in evidence, where it came along with the wri tings, and agreed with the boun- (3) Doe d. Strode v. Seaton, 2 (4) Benson v. Marshall, cited in Shaw v. Broom, 4 Dow. & R. 731. Prior holders Privity. |