It must be proved as alleged.

thereof, he, the said Ridgway, did take the necessary legal steps
to enforce the payment thereof, by the said Wright, to wit, at
Mount Holly, in the county aforesaid, and so that he hath well
and truly performed, &c." The averment in the plaintiff's de-
claration is in the nature of a plea of performance, and must
have all the qualities of such a plea. If the condition prece-
dent be in the affirmative, as that the plaintiff shall do a certain
act or thing, which is a mere simple matter in in pais, of which
the jury are to judge, he may plead performance generally, in
the words of the condition; but if the act or thing to be done.
be such as necessarily involves in it a question of law, as to
what shall, or shall not be considered as a performance, of which
the court is to judge, then an averment of performance generally,
in the words of the condition, is not enough; but the party must
go farther, and allege, specially, what has been done, that the
court may judge whether it amounts to a performance or not.
And of this, our books afford many examples; as if a condition
be to levy a fine, to suffer a nonsuit, to make a bond or release,
or discharge, or acquitance, or to perform a will, &c. In these,
and cases like these, the party must aver specialy, and show to
the court, in particular, what was done, so that they may judge
whether the condition has been performed or not. The words
of the condition precedent, in this case, are of this nature.
What are, and what are not legal steps to enforce payment, is a
question of law, which must be determined by the court, and
can, by no form of pleading, be put upon the jury. It is mani-
fest, therefore, that the steps which have been taken to enforce
the payment must be laid before the court in pleading, otherwise
they have no grounds, upon which they can possibly form a judg
ment. I am of opinion that the declaration, in this respect, is
bad, and that there must be judgment for the defendant.
Ford and Rossell, Js. concurred.

2.

LYMAN V. LULL. Nov. T. 1828. 4 New Hamp. Rep. 498. Richardson, C. J. It is necessary that the breach of the condition should be proved substantially as alleged; 1 Chitty Pl.

556.

The declara tion must

3.

COURRIER, ET AL. V. GRAHAM. 1824. Ohio Cond. Rep. 154.
S. C. 1 Hammond's Rep. 330.

Fer Cur. Hitchcock, J. In declaring in covenant, the decla

the instru

ration must be varried according to the nature of the instrument conform to declared on. If the liability of the defendant depends upon ment. the performance of a prior covenant or condition on the part of the plaintiffs, performance or a tender of performance must be averred, or the declaration will be bad on demurrer. If the covenant contains mutual conditions to be performed at the same time, the plaintiff must aver that he was ready and offered to perform on his part, but it is not necessary that he should not aver performance, or an actual tender of performance; 1 East, 203; 3 Bos. & Pul!. 457; 5 Johns. Rep. 179.

4.

NICHOLAS v. FLETCHER. Oct. T. 1794. 1 Wash. Va. Oct.

427.430.

Appeal from the district court, which rendered a judgment in On a forth favour of the appellee, upon a forth coming bond. An excep- bond the coming tion was taken by the defendant below, that the plaintiff did not plaintiff prove a non-performance of the condition, by good and sufficient testimony.

need not

a

prove a breach of

the condi

Marshall, for the appellee, said it was not necessary for the tion. plaintiff below to prove forfeiture, or breach of the condition; but it was incumbent on the defendant to prove performance, of which opinion was the Court, and affirmed the judgment.

Confessions, Declarations and Atmissions. See tit, Admissions, vol. 1. p. 257.

I. IN CIVIL PROCEEDINGS.

(A) OF THE PARTIES TO THE SUIT, p. 224.

(B) OF THE PARTIES TO THE SUIT PENDING A COM
PROMISE, p. 236.

(C) OF HUSBAND AND WIFE, p. 238.

(D) OF AGENTS, EXECUTORS, ADMINISTRATORS, SURE-
TIES, AUCTIONEERS, &c. p. 241.

(E) OF CO-PARTNERS, p. 245.
(F) OF THIRD PERSONS, p. 250.

II. IN CRIMINAL PROCEEDINGS.
(A) OF THE PRISONER, p. 265.

(B) OF THE PERSON DECEASED OR INJURED, p. 286.

(A) OF THE PARTIES TO THE SUIT. See tit. Admission, (A)

vol. 1. 257, and 260.

1.

SWEETING, WHITE AND OTHERS V. TURNER. May T. 1813. 10 Johns. N. Y. Rep. 225. (216.) S. P. VANDERVOORT, ET AL. V. SMITH, 2 Caine's Rep. 154; APPLEGATE V. M'CLANG'S HEIRS. 3 Marshall's Ky. Rep. 395; CARTER V. GREGORY, 8 Pickg. Mass. Rep. 165; BANK OF BALTIMORE V. BATEMAN, 7 Har. & Johns. Md, 104, & 108; WARING V. WARREN, post, p. 261, and the cases there cited. But See THE ADMS. OF DARBY V. RICE. post, p. 229, and the four following cases. Error from the Common Pleas. Turner, the plaintiff below, sions or dec obtained a judgment, and the bill of exceptions to this court, a party are stated that the defendants offered to give in evidence their declagood evi rations, and also, the declarations of one M'Neil, a partner, that gainst him, they declared and acknowledged themselves as partners, and held themselves out to the whole world as such, and consequently ought to have been sued jointly with M'Neil.

The confes

larations of

derce a

but never

for him.

Per Cur. The evidence stated in the bill of exceptions was properly overruled. If the defendants and M'Neil were partners, they might have shown it by the production of the articles of partnership or by the witnesses to the agreement. But for the defendants to offer their own declarations in support of their plea, was against the rules of evidence. The declarations of a party are good evidence against him, but he never can testify for himself, or use his own declarations in his own favour; and the declarations of M'Neil, not being a party to the suit, were not evidence. He should have been produced and sworn.

The princi ple on

2.

BURTON, &c. v. SCOTT, &c. June T. 1825. 3 Randolph's Va.
Rep. 407.

Carr, J. The true meaning and sense of the rule, that the which a par declarations of parties may be given in evidence against them, is, the reasonable presumption, that no person will make any declaration against his interest, unless it be founded in truth.

ty's declara tions are

made evi dence a

gainst him.

3.

BURTON, &c. v. SCOTT. &c. June T. 1825. 3 Rand. Va. Rep.

p. 399.

interest

tions made

Per Cur. The declaration of one interested in a matter in Ifa party's controversy, and operating against his own interest, may be given arose after in evidence; but if his interest arose after the declarations, they declara cannot be received as evidence. All the cases in which the dec- they are in larations of a party, are said to be evidence against him, show that he had, at the time of making such declarations, an existing interest.

admissible

as evidence.

4.

WELLAND CANAL Co. v. HATHAWAY. Jan. T. 1832. 8 Wend.

N. Y. Rep. 486.

sions or ad

good evi

gainst him

evidence of

facts would

Per Cur. Nelson, J., in speaking of admissions and decla- The confes rations of parties to a suit, says: "I am not aware of any missions of principle in the law of evidence which will authorize us to sub- a party are stitute the declarations of a party, even as against himself, for dence a record or written evidence, and thereby dispense with its pro- self only duction. Such admissions rank only with oral testimony, and where parol are entitled to no consideration in deciding upon the competen- the same cy of evidence. It may be laid down, I think, as an undeniable be compe proposition, that the admissions of a party are competent evi- tent. dence against himself only in cases where parol evidence would be admissible to establish the same facts, or in other words, where there is not, in the judgment of the law, higher and better eivdence in existence to be produced. It would be a dangerous innovation upon the rules of evidence, to give any greater effect to confessions or admissions of a party, unless in open court; and the tendency would be to dispense with the production of the most solemn documentary testimony.

5.

JENNER V. JOLIFFE. May T. 1810. 6 Johns. N. Y. Rep. 9.

fessions of a

dence of

Trover brought to recover a quantity of timber converted by So the con the defendant. The defence was an admission or confession of party are the plaintiff's, that the timber was seized under the attachment not evi by a bailiff; but the Court held that this was not sufficient evi- matters of dence of the attachment, but that the record of the attachment record. ought to have been produced by the defendant.

Such as the execution of abond.

Or the re ceipt of sub

poena by a witness.

6.

Fox, ET AL. V. RIEL, ET AL. Nov. T. 1808. 3 Johns. N. Y.
Rep. 470. (477.) S. P. TERBY V. WILSON. Ohio Cond.
Rep. 462. S. C. 3 Hammond's Rep. 48.

This was an action of debt on a bond, and on the trial the plaintiff's offered to proved that the bond had been shown to the defendants and they confessed that they had duly executed it; but this evidence was objected to and overruled, and the plaintiff not accounting for the subscribing witnesses were nonsuited.

Per Cur. Kent, C. J., I have not met with any case, where the absence of the subscribing witness was not accounted for, in which the courts have allowed, in evidence, any species of confession by the party admitted; and I take i for granted that there is no such case. To admit the proof in the case before us, would be an innovation upon an established rule, and one which is not urged upon us by any strong considerations of public policy. Vide Hall v. Phelps, 2 Johns. 451. where a confession like the above was admitted in evidence, but that was a case of a promissory note.

7.

HASBROUCK V. BAKER. May, T. 1813. 10 Johns. N. Y. Rep. 257. (248.) S. P. JENNER V. JOLIFFE. 6 Johns. N. Y. Rep. 9.

Certiorari from a justice's court.

Baker brought an action on the case against Hasbrouck for damages he had sustained by reason of his non-attendance as a witness in a cause. Baker, the plaintiff below, had the subpoena but did not produce it in evidence, but produced a witness who testified that Hasbruock admitted, in conversation, that he had been served with a subpoena, and the court below, gave judgment for the plaintiff.

Per Cur. The defendant was not bound to attend, unless regularly subpoenaed as a witness, and as the plaintiff admitted that he had the subpana, in his possession, it ought to have been produced as the highest evidence of the fact. The confession of the party will not in such a case, supply the omission of such a document.

Judgment reversed.