§ 96. It may be proper, in this place, to consider the question, whether a verbal admission of the contents of a writing, by the party himself, will supersede the necessity of giving notice to produce it; or, in other words, whether such admission, being made against the party's own interest, can be used as primary evidence of the contents of the writing, against him and those claiming under him. Upon this question, there appears some discrepancy in the authorities at Nisi Prius.1 But it is to be observed, that there is a material difference between proving the execution of an attested instrument, when produced, and proving the party's admission, that by a written instrument, which is not produced, a certain act was done. In the former case, the law is well settled, as we shall hereafter show, that when an attested instrument is in court, and its execution is to be proved against a hostile party, an admission on his part, unless made with a view to the trial of that cause, is not sufficient. This rule is founded on reasons peculiar to the class of cases to which it is applied. A distinction is also to be observed between a confessio juris and a confessio facti. If the admission is of the former nature, it falls within the rule already considered, and is not received;2 for the party may not know the legal effect of the instrument, and his admission of its nature and effect may be exceedingly erroneous. But where the existence, and not the formal execution, of a writing is the subject of inquiry, or where the writing is collateral to the principal facts, and it is on these facts that the claim is founded, the better opinion seems to be, that the confession of the party, precisely identified, is admissible as primary evidence of the facts recited in the writing; though it is less satisfactory than the writing itself. Very great weight ought not to be attached to evidence of what a party has been supposed to have said; as it frequently happens, not only competency must be produced. See acc. Goodhay v. Hendry, 1 M. & M. 319, per Best, C. J., and Id. 321, n., per Tindall, C. J. But see Carlisle v. Eady, 1 C. & P. 234, per Parke, J.; Wandless v. Cawthorne, 1 M. & M. 321, n., per Parke, J., contra. See 1 Phil. Evid. 154, 155. 1 Phil. & Am. on Evid. 363, 364; 1 Phil. Evid. 346, 347. See the Monthly Law Magazine, vol. 5, p. 175-187, where this point is distinctly treated. [* See Taylor's Evidence, §§ 381-383.] Supra, § 86; More v. Hitchcock, 4 Wend. 262, 298, 299; Paine ». Tucker, 8 Shepl. 138. [In an action on a written contract, which is put in evidence, the plaintiff cannot introduce the oral declarations of the defendant as to his supposed liability; since if the declarations varied the terms of the written contract, they were not competent testimony; if they did not, they were immaterial. Goodell v. Smith, 9 Cush. 592.] 3 Howard v. Smith, 3 Scott, N. R. 574; Smith v. Palmer, 6 Cush. 515; [Slatterie v. Pooley, 6 Mees. & Wels. 664. See in fra, § 205.] that the witness has misunderstood what the party said, but that, by unintentionally altering a few of the expressions really used, he gives an effect to the statement, completely at variance with what the party actually did say. Upon this distinction the adjudged cases seem chiefly to turn. Thus, where in an action by the assignees of a bankrupt, for infringing a patent-right standing in his name, the defendant proposed to prove the oral declaration of the bankrupt, that by certain deeds an interest in the patentright had been conveyed by him to a stranger, the evidence was properly rejected; for it involved an opinion of the party upon the legal effect of the deeds.2 On the other hand, it has been held, that the fact of the tenancy of an estate, or that one person, at a certain time, occupied it as the tenant of a certain other person, may be proved by oral testimony. But if the terms of the contract are in controversy, and they are contained in a writing, the instrument itself must be produced. [*§ 96a. Notwithstanding the decision in Slatterie v. Pooley, that the admission of a party is always receivable against him, although it relate to the contents of a deed, or other written instrument, and even though its contents be directly in issue in the case, the proposition seems not to have met with universal acquiescence. The Irish courts dissent from it.5 And the New York courts adopt a different view. And there is no restriction to inquiries, upon cross-examination, in regard to writings, and facts evidenced by writings; and the rule extends to the party who is a witness in support of his own case; and he may be asked, with a view to discredit him, if he did not in a similar suit in an inferior court, give evidence before the jury in support of 1 Per Parke, J., in Earle v. Picken, 5 C. & P. 542, note. See also 1 Stark. Evid. 35, 36; 2 Stark. Evid. 17; infra, §§ 200, 203; Ph. & Am. on Evid. 391, 392; 1 Phil. Evid. 372. 2 Bloxam v. Elsee, 1 C. & P. 558; Ry. & M. 187, s. c. See, to the same point, Rex v. Hube, Peake's Cas. 132; Thomas v. Ansley, 6 Esp. 80; Scott v. Clare, 3 Campb. 236; Rex v. Careinion, 8 East, 77; Harrison v. More, Phil. & Am. on Evid. 365, n.; 1 Phil. Evid. 347, n.; Rex v. Inhabitants of Castle Morton, 3 B. & A. 588. 8 Brewer v. Palmer, 3 Esp. 213; Rex v. Inhabitants of Holy Trinity, 7 B. & C. 611; 1 Man. & Ry. 444, s. c.; Strother v. Barr, 5 Bing. 136; Ramsbottom v. Tunbridge, 2 M. & S. 434. 4 *6 M. & W. 664. 5 Lawless v. Queale, 8 Ir. Law, 382; Lord Gosford v. Robb, Id. 217; Parsons v. Purcell, 12 Id. 90. Jenner v. Joliffe, 6 Johns. 9; Hasbrouck v. Baker, 10 Id. 248; Welland Canal v. Hathaway, 8 Wendell, 480. But it was decided in a recent case in New York, Stephens v. Vroman, 16 N. Y. App. 381, reversing the judgment of the Supreme Court, that it is not competent to give in evidence the declarations of the opposite party, that he had heard statements inconsistent with the testimony of his own wit nesses. Such evidence is none the less hearsay because repeated by the party.] his defence, and whether a verdict was not rendered against him, without producing any record in the action. And the doctrine of Slatterie v. Pooley is approved in Massachusetts in recent cases.2] § 97. There is a class of cases, which seem to be exceptions to this rule, and to favor the doctrine, that oral declarations of a party to an instrument, as to its contents or effect, may be shown as a substitute for direct proof by the writing itself. But these cases stand on a different principle, namely, that where the admission involves the material fact in pais, as well as a matter of law, the latter shall not operate to exclude evidence of the fact from the jury. It is merely placed in the same predicament with mixed questions of law and fact, which are always left to the jury, under the advice and instructions of the court. Thus, where the plaintiff, in ejectment, had verbally declared that he had "sold the lease," under which he claimed title, to a stranger, evidence of this declaration was admitted against him. It involved the fact of the making of an instrument called an assignment of the lease, and of the delivery of it to the assignee, as well as the legal effect of the writing. So, also, similar proof has been received, that the party was "possessed of a leasehold,"5" held a note," 6" had dissolved a partnership,”—which was created by deed," — and, that the indorser of a dishonored bill of exchange admitted, that it had been " duly protested."8 What the party has stated in his answer in Chancery, is admissible on other grounds, namely, that it is a solemn declaration under oath in a judicial proceeding, and that the legal effect of the instrument is stated under the advice of counsel learned in the law. So, also, where both the existence and the legal effect of one deed are recited in another, the solemnity of the act, and the usual aid of counsel, take the case out of the reason of the general rule, and justify the admission of such recital, as satisfactory evidence of the legal effect of the instrument, as well as conclusive proof of its execution. There are other cases, 1 [* Henman v. Lester, 12 C. B. N. 8. 776; s. c. 9 Jur. N. s. 601. 2 Loomis v. Wadhams, 8 Gray, 557; Smith v. Palmer, 6 Cush. 520.] & United States v. Battiste, 2 Sumn. 240. And see Newton v. Belcher, 12 Ad. & El. 921, N. S. Doe d. Lowden v. Watson, 2 Stark. Digby v. Steele, 3 Campb. 115. 7 Doe d. Waithman v. Miles, 1 Stark. R. 181; 4 Campb. 375. 8 Gibbons v. Coggon, 2 Campb. 188. Whether an admission of the counterfeit character of a bank-note, which the party had passed, is sufficient evidence of the fact, without producing the note, quære; and See Commonwealth v. Bigelow, 8 Met. 235. Ashmore v. Hardy, 7 C. & P. 501; Digby v. Steele, 3 Campb. 115; Burleigh which may seem, at first view, to constitute exceptions to the present rule, but in which the declarations of the party were admissible, either as contemporaneous with the act done, and expounding its character, thus being part of the res gestœ; or, as establishing a collateral fact, independent of the written instrument. Of this sort was the declaration of a bankrupt, upon his return to his house, that he had been absent in order to avoid a writ issued against him;1 the oral acknowledgment of a debt, for which an unstamped note had been given;2 and the oral admission of the party, that he was in fact a member of a society created by deed, and had done certain acts in that capacity.3 v. Stibbs, 5 T. R. 465; West v. Davis, 7 East, 363; Paul v. Meek, 2 Y. & J. 116; Breton v. Cope, Peake's Cas. 30. [As to answers in Chancery, see infra, § 260, and 3 Greeul. Evid. §§ 280, 290; as to recitals in deeds, see supra, § 23, note.] 1 Newman v. Stretch, 1 M. & M. 338. 2 Singleton v. Barrett, 2 C. & J., 368. 8 Alderson v. Clay, 1 Stark. R. 405; Harvey v. Kay, 9 B. & C. 356. CHAPTER V. OF HEARSAY. [§ 98. Witnesses must testify from knowledge, and not from hearsay. 99. Hearsay evidence may embrace writings and all matters not within the knowl edge of the witness. 100. The statements of third persons may become the point of inquiry. They are then not hearsay. 101. This rule applies to proof of probable cause, sanity, general repute, &c. 101a. The subject further illustrated. 102. The statements of a party may be shown with reference to mental or bodily affections, whether made to physicians or others. 103. General reputation in the family will support pedigree. 104. And this is competent to prove the time of births, marriages, and deaths. 104a. Recent English decisions. 105. So inscriptions on tombstones and other monuments, and engravings on rings, and charts, pedigrees, &c., are admissible as original evidence. 106. The conduct of families is evidence of relationship. 107. The fact that persons are recognized as husband and wife is sufficient evidence of marriage, in ordinary cases. 108. The declarations of a party giving character to his acts may be proved as part of the transaction. 108a. So also his correspondence in connection with the transaction. 109. Declarations affecting claim of title to land made while the party is in posses sion, competent. 110. All declarations must be concurrent with the acts to be admissible. 111. The declarations of co-conspirators in furtherance of the common design admissible against each other. 112. In copartnerships, the acts and declarations of each partner in furtherance of the common design, bind the firm. n. to 112. Review of the cases, as to the admission of one partner, after the dissolution, removing the bar of the statute of limitations. 113. The declarations of an agent, made in the course of his agency, are admissi ble as part of the res gesta. 114. As to any other facts, within the knowledge of the agent, not connected with his agency, he must be called as a witness. 114a. The extent to which public corporate companies are bound by the declarations of their agents, by whom they alone can act. 115. Official and professional entries, by persons conusant of the facts, in the course of their duty, and where there is no known motive to falsify, and made at the date of the transaction, the person being dead, may be received. 116. Further illustrations of the point. Cases cited. 117. Private books of account admissible on the same ground. |