are too vague in themselves to afford any fair and reasonable presumption as to the truth of the fact to which they relate, and are not adequate means of communicating the fact, since the two great truths are wanting: Co. Lit. 352, a.; see 1 Stark. 316. Thus, an admission by a tenant cannot bind his landlord or the inheritance. Therefore, the laches or acquiescence of a tenant cannot prejudice his landlord, or the reversioner; as, if he suffer encroaching lights to be put up, or dedicate a way to the public, without the knowledge or consent of his landlord and reversioner: Daniel v. North, 11 East, 372; 2 Saund. 175, d. e.; Wood v. Veal, 5 B. & A. 454; 4 B. & C. 574. The admissions of a principal are not evidence against his surety, Harper v. Charlesworth, 4 B. & C. 574; when otherwise, Goss v. Watlington, 3 B. & B. 132, post, "Guarantee." The declaration of a party under whom deft. makes cognizance, is no evidence for the plt.: Hart v. Horn, 2 Camp. 92. Admissions by other parties to a bill of exchange or note are not, in general, evidence against the rest: Barnes, 436; Chit. B. 381, 388; and post, "Bills of Exchange." The declaration of an individual corporator is not evidence against the corporation who defend: Mayor of London v. Long, 1 Camp. 22; 2 Keb. 295; 2 Lev. 231; Rex v. Hardwick, 11 East, 584; 7 T. R. 365. If a son be estopped by his pleading upon record, and dies, his uncle and heir are bound; but, if he dies, and the land descends to the father, he is not bound by the estoppel of his son, for he cannot be heir to him: Co. Lit. 12, a. If the heir apparent to

a copyholder in fee surrender in the lifetime of his ancestor, and survive him, the heir of such surrenderor is not estopped by that surrender of his ancestor from claiming against the surrenderee: 3 T. R. 365. If the heir does not claim the land from him who made the estoppel, but by his own purchase, or by another ancestor, he is not bound by the estoppel, Jon. 460; and this though he derives his blood from the party to the estoppel, ib. A woman is not estopped after coverture, by an admission upon record by her husband and her during coverture, Com. D. Estoppel, C. A deft. in trespass for mesne profits is not estopped by a judgment in ejectment against the casual ejector, on which no writ of possession was issued, if he was not a deft. in the ejectment: Str. 960. A deed-poll does not estop a lessee or grantee, for it is the deed of the lessor or grantor only, Co. Lit. 373, b.; and, therefore, if a disseissee take under a deed-poll from the disseissor, he is not estopped from denying the title of the disseissor, and claiming the estate; but one claiming under a bond, or deed-poll, is as much estopped as the obligee: 2 Co. Rep. 4. In some cases, indeed, the admissions of third persons are evidence: thus, reputation and traditionary declarations by third persons, are evidence in support of character, custom, prescription, boundary, and pedigree. (See these titles.) So are entries and declarations accompanying acts; entries made by third persons, agents of the parties; and perhaps generally all such entries as have been made by persons who possessed peculiar means of knowledge, and who [*56] are under no temptation to make a false entry, as entries by deceased rectors and tenants, and title deeds: 1 Stark. Ev. 306-7, infra.

Admissions by third Persons peculiarly connected with Act itself.] In general, the entries and declarations of third persons are evidence, when they are so connected with the acts or conduct of others, as to afford presumptions, independently of any credit attached to them as mere recitals or statements of some other fact. Such a declaration is evidence, to show with what intention an act is done; for, unless there be some reason to suppose the contrary, a presumption arises, that a cotemporary declaration indicates the real nature of the act: 1 Stark. Ev. 307. To exclude evidence of this nature, might be to exclude the only evidence of which the nature of the case is capable. The declarations of an owner of property are sometimes evidence against one who claims under him: Ivat v. Finch, 1 Taunt. 141. To prove a bill of sale to be fraudulent, declarations by the vendor at the time of the sale are admissible: Phillips v. Hamer, 1 Esp. Rep. 357. A letter written by a stranger to a testator, acknowledging the receipt of a will, was admitted as evidence, to show that such a will had been sent by the testator; for here the sending of the acknowledgment was a cotemporary act, and part of the res gestæ, free from all suspicion of having been fabricated by the party sending the letter, for a particular purpose, and not the mere private entry or assertion of a stranger, as to the fact of the testator's having previously made a will: 1 Ld. Raym. 730. In an action on an insurance effected on the life of the plaintiff's wife, declarations by her, made a few days after the certificate of her health had been obtained, as to the state of her health at the time when the certificate was obtained, and down to the time of the conversation, were held to be admissible in evidence, on a question whether she was in a fit state for insurance, both to show her own opinion as to the state of her health, as well as with a view to contradict the evidence of the surgeon, who had been called as a witness for the plt.: Aveson v. Kinnaird, 6 East, 193; Esp. Rep. 129. What a bankrupt said at the time of his doing an act alleged as the act of bankruptcy, is receivable in evidence, as being part of the res gestæ, and as evincing the intent with which the act was done: Harwd. 267; Marsh v. Meagre, 1 Stark. 353; 5 T. R. 512; 1 Rose, 150. In an action for an assault on plt.'s wife, what the wife said immediately on receiving the injury, and before she had time to devise any thing for her own advantage, is also evidence: Skin. 402; Aveson v. Kinnaird, 6 East, 193; see also 1 East P. C. 444; Rex v. Clarke, 2 Stark. 243; Stark. Ev. 308. In an action for crim. con., the declarations of a wife at the time of her elopement, that she fled from immediate terror of personal violence from her husband, seem to be evidence against him, Aveson v. Kinnaird, 6 East, 193; and where the defence was, that the plt. had connived at his wife's elopement, evidence was received on behalf of the plt. of the wife's declarations as to her intention in going; Hoare v. Allen, 3 Esp. Rep. 276. Letters from the wife to the husband, written before suspicion of criminal intercourse, are admissible, to show their demeanor and conduct, and whether they were living on terms of mutual affection; but it ought to be strictly proved that the letters were written at a time when the wife was not suspected of misconduct, Trelawny v. Colman, 1 B. & A. 90; 2 Stark. 191, s. c.; Edwards v. Crock, 4 Esp. Rep. 39. In an action for breach of promise of marriage,

1

if the deft. relies on the general bad conduct of the plt., a witness may be examined as to representations made to him by third persons: Foulkes v. Sellway, 3 Esp. Rep. 236.

Admission against Interest of Party making Admission.] It is also a principle of evidence, that if a party who has knowledge of the fact make an entry of it, whereby he charges himself or discharges another upon whom he could have a claim, such entry is admis- [*57] sible evidence of the fact contained in it after the death of the party, if he could have been examined as to the fact in his lifetime: Higham v. Ridgway, 10 East, 109. Where the question was as to the property in a horse seized by the deft. under a heriot custom, a declaration by A. B., a third person, that he had given up his farm and all his stock to the plt., was held to be admissible, for the purpose of proving that the horses belonged to the plt. before the death of A. B.: Ivat v. Finch, 1 Taunt. 141; and see Doe d. Brune v. Rawlings, 7 East, 279. A receipt for interest endorsed upon a bond by the obligee himself, is evidence to go to a jury to rebut the presumption of payment arising from lapse of time: Str. 826; sed vide 1 Stark. Ev. 310. Admissions by which parties charge themselves with the receipt of money, are in general allowed in evidence, to prove the fact after they are dead. Old recitals, by which bailiffs have acknowledged the receipt of moneys, are evidence of the payment of such rents, and of the right to receive them, if the bailiff or receiver be dead: 1 Atk. 453; 1 Stark. Ev. 312. An entry by a steward, in his accounts of the receipt of rent, is admissible in evidence: Barry v. Bibbington, 4 T. R. 514. In case where a bill of lading had been signed by a master of a vessel, since dead, for goods to be delivered to a consignee, or his assigns, on his paying freight, the document was held to be evidence, to show that the consignee had an insurable interest in the goods: but if in such case the master should guard his acknowledgment by saying, "contents unknown," so that he does not charge himself with the receipt of any goods in particular, the bill of lading, it is said, would not be evidence either of the quantity of the goods, or of the property of the consignee: Haddow v. Parry, 3 Taunt. 303. Entries by a deceased foreman, shopman, or servant of a party, made in the usual course of business, charging such foreman, &c., are evidence for the master; as where the evidence was that, according to the usual course of plt.'s dealings, the drayman came every night to the clerk of the brewhouse, and gave him an account of the beer delivered out, which he set down in a book, to which the drayman set his hand, and that the drayman was dead, and that the entry was in his handwriting, it was held good evidence of a delivery: 1 Salk. 285; 1 Ld. Raym. 873; B. N. P. 282; Calvert v. Archb. Canterbury, 2 Esp. Rep. 645; 1 Stark. Ev. 73. Where the effect of the entry is not to charge the servant, it is not evidence: 2 Esp. Rep. 646. Proof must be given that the servant is dead or abroad, and not likely to return: Cooper v. Marsden, 1 Esp. Rep. 1. By 7 Jac. 1, c. 12, the shop-book of a tradesman shall not be evidence in any action for wares delivered, or for work done, above one year before the bringing of the action, except the tradesman or his executor shall have obtained a bill of debt, or VOL. I.

9

obligation of his debtor, for the said debt; or shall have brought an action against him within one year next after the delivery of the wares, or the work done. An attorney's bill, with an endorsement upon it, "March 4th, 1815, delivered a copy to C. D.," which endorsement is proved to be in the handwriting of a deceased clerk of the plt.'s (whose duty it was to deliver a copy of the bill), and which is proved to have existed at the time of the date, has been held to be evidence, to prove the delivery of the bill: Champneys v. Peck, 1 Stark. 404.

The entries of deceased churchwardens of the receipt of moneys for a particular purpose, are evidence of the payments for that purpose: Stead v. Heaton, 4 T. R. 669. Entries made by a deceased collector of rates, charging himself with the receipt of money, and made by him in public books of his office, are admissible against his surety to prove the receipt: 3 B. & B. 132. Entries in the land-tax collectors' books, stating A. B. to be rated for a particular house, and his payment of the sum rated, are evidence to show that A. B. was occupier of the premises at the time: Doe

d. Smith v. Cartwright, 1 R. & M. 62. The book of a bursar of a [*58] a college is *admissible in evidence as to money paid by him, or received, to the use of a stranger: 1 Ld. Raym. 745. An entry made by a deceased man mid-wife, that he had delivered a woman of a child on a particular day, and referring it to his ledger, in which the charge for his attendance was marked paid, was held evidence on the trial of an issue as to the age of the child: 10 East, 109. The declaration of a deceased tenant, that he held the land under a particular person, is admissible to prove the seisin of that person: Peaceable v. Watson, 4 Taunt. 16.

In all these cases of proof by entries, it must be shown that the entry was undoubtedly made by the party, 2 Atk. 140; evidence by comparisons will not suffice: Doe d. Webber v. Lord Thynne, 10 East, 206. But if, from the inspection of the books or entries, and the language of them, it appear probable that they were in fact the receiver's books or entries, it seems that will suffice: ib.

Admission by Party with peculiar knowledge of a Fact, having no interest to misstate it.] Admissions by a deceased party having the peculiar knowledge of a fact, and who had no peculiar interest in stating it, are admissible in evidence, to prove the fact: 7 East, 290. The memorandum of a father as to the time of the birth of his son, is evidence to prove the time of such birth, T. Raym. 84, Higham v. Ridgway, 10 East, 120, Roe d. Brune v. Rawlings, 7 East, 290; but not to prove the place of birth, R. v. Erith, 8 East, 542; post, "Hearsay Evidence," "Pedigree." Where A., seized of the manors of B. and C., causes a survey to be taken of the manor of B., which is afterwards conveyed to E., and, after a long time, there are disputes between the lords of the manor of B. and C. about their boundaries, this old survey may be given in evidence, Ld. Raym. 734; when not, see ante, 50. The books of a lessee of a rectory, stating the receipt of letters, have been admitted, after the determination of the lease, as evidence for the impropriator: 4 Gwill. 1618; Bunb. 46; sed vide 1 Stark. Ev. 321. Entries made by an impropriate rector, since deceased, are evidence for his successor: Roe d. Brune v. Rawlings, 7 East, 290; see 1 Stark. Ev. 71. So an entry of the receipt of ecclesiastical dues in the books

of a deceased rector, on the ground that he has no interest to misstate the fact: 7 East, 290; 2 Gwill. 529; 4 Price, 218.

AFFIDAVIT.

Effect of, in Evidence.] Affidavits, as we have seen, are evidence against the parties making them, by way of admission as to the facts therein stated, ante, 41: but cannot be used for the benefit of such parties: nor is the affidavit of a mere third person admissible in evidence, as the opposite party has no opportunity to cross-examine him, Gilb. Ev. 57: however, an affidavit of a party has been admitted, after his death, to prove his marriage, Sacheverel v. Same, 1 Str. 35; so, perhaps, it would of pedigree or custom, &c.; see post, "Custom," and "Pedigree."

How proved. When filed.] It is said that these affidavits are not entitled to the character of records, as they are made on various, and sometimes trivial occasions in the course of a cause, and are permitted to be moved from the files of the court: Rees d. Howel v. Bowen, M'CI. & Y. R. 390. However, it is usual to admit proof of affidavits, when filed, by the production and proof of an examined copy when used in the same court, in the same cause, from the custody of a person entrusted for that purpose, Cameron v. Lightfoot, 2 W. Bla. 1190, Tidd, 851; as, where affidavits are filed with the clerk of the rules in the K. B., or the secondaries in the C. P., and the office-copy of an affidavit, made in another cause, *in the same [*59] court has been admitted as good evidence: Forrest, 153. But it should be shown, that the copy is an examined one, and has been used in the cause, or some evidence of the swearer's identity: R. v. James, 1 Show, 399. Though the affidavit be produced from another court, it does not seem necessary to produce the original; but an examined officecopy seems sufficient, on proving that it was actually made by the defendant, or that it was used in the cause, without proving it to have been sworn: B. N. P. 238. Where an examined office-copy of an affidavit was produced in a suit at law, purporting to have been made in an equity suit by a person of the same name and description, it was held to be inadmissible as evidence, without proof of its having been used, or of defendant's identity, Rees d. Howel v. Bowen, M'Cl. & Yo. 383; but see Hennel v. Lyon, 1 B. & A. 182. Proof of the party's signature to the affidavit, makes it admissible as a note or letter, without further proof: B. N. P. 238.

er

How proved, when not filed.] Such affidavits are only evidenced as such by the production of the originals themselves, and they must be proved to have been sworn by deft.: 3 Mod. 36; B. N. P. 238. Under the 38th G. 3, c. 78, a certified copy from the Stamp Office, of the affidavit of the printer or publisher of a newspaper, is made evidence against the deft., in an action against him, as the proprietor of a newspaper, for a libel, &c. post, "Libel."