In the case of Campbell v. Twemlow (4), which lately came before the Court of Exchequer on a motion to set aside an award, one of the grounds of the application was, that the arbitrator had rejected the evidence of a woman called on the part of the plaintiff, who had cohabited with him for several years and passed as his wife, but who would have stated, that she had never been married to him. The point was much argued at the bar. The Court, considering it a doubtful question, (as the report states,) declined giving any opinion, as it was unnecessary for the determination of the case; and they refused the motion, on the ground, that the opinion of the arbitrator was final and conclusive, all matters both of law and fact having been left to his decision. Mr. Baron Richards cited a case, before Lord Kenyon, on the Chester circuit, in the year 1782, where, on a trial for *forgery, the prisoner called a woman as his witness, whom he had himself in Court represented to be his wife, but afterwards, on hearing an objection taken to her competency, denied that she was married to him, and Lord Kenyon refused to admit her evidence. Seventhly, it has been ruled at nisi prius, that a wife may be witness, in an action between third persons not immediately affecting the interest of the husband, though her evidence may possibly expose him to a legal demand; as, in an action between third persons for goods sold and delivered, to prove the goods sold not on the credit of the defendant, but on her husband's credit (1). This evidence, it may be said, was in some measure against the husband, though he was not a party in the suit. On the other hand, to reject her evidence in such a case would be a hardship on the defendant, who may have no other means of defending himself against an unjust demand: and though upon her testimony the defendant may have a verdict, and an action may afterwards, in consequence be brought 1 Price 81. C. J., 1 Str. 504, Bull. N. P. 287. Williams v. Johnson, by King, S. C. *71 against the husband, she would not then be admitted as a witness, nor could her evidence in the first suit be produced against him (a). SECT. IV. Of the Effect of Admissions by a Party to the Suit, or by his Agent, against the Party's Interest. As the parties to a suit are excluded from being witnesses on account of their interest, statements or representations made by them against their interest must be (a) B. lent certain goods to the wife of C., of which C. being in the possession, conveyed them by bill of sale to R., but they continued in the possession of C. until B. having understood that R. intended to take them away, took them into his own possession, whereupon R. brought an action of trover against B., in which C.'s wife was offered as a witness on the part of B. the defendant; and it was held that she was competent to prove the loan from B., and notice to R. of B.'s property; on the ground that the interest of her husband was equally balanced between the parties; and that in civil actions in which the husband is no party, the wife may be called on as a witness, even to facts, which if proved in another action to which her husband is a party, and by evidence other than her own may go to charge him. Baring v, Reeder, 1 Hen. and Mun. 154. Another exception to the general rule by which husband and wife are excluded from testifying for or against each other, was made in the following case ;-Articles of agreement were entered into between the husband, wife, and C., the trustee of the wife, by which the husband permitted the wife to live separate from him; and the trustee, C., covenanted, on the part of the wife, to pay the husband three thousand eight hundred dollars, on his delivering to the wife for her separate use, the coachee and horses which he had lately purchased: the husband brought an action of covenant against C. to recover the three thousand eight hundred dollars, and the declarations of the wife were offered in evidence by the plain evidence against them, and in many cases they will be the strongest evidence. Upon this principle the free admissions of one of the parties to a suit on the matter in issue, and the voluntary confession of a prisoner under a criminal charge, are always received in evidence against the party (b). *First, with respect to admissions : The admissions of a party to the suit against his interest are evidence in favour of the other side, whether made by the real party on record, or by a nominal party who sues as a trustee for the benefit of another (1), or whether by the party who is really interested in the suit though not named on the record (2). Thus, in an action (2) R. v. Hardwick, 11 East 578. 589. (1) Bauerman v. Radenius, 7. T. R. 664. tiff, to show the delivery of the coachee and horses, and were admitted by the judge on a bill of exceptions being brought, the court decided that the evidence was admissible. Both parties, the court say, by the covenant, concurred in her capacity to receive these articles, and she became, for that purpose, their mutual agent. Her declaration, or confession, that the act was done, became legal evidence of that fact, as a necessary consequence of her authority, under the articles to receive the coachee and horses; for no principle would seem to be more clear than that the person to whom performance of an act is agreed to be made, is competent to acknowledge such performance. If she was competent to receive, she was competent to give a receipt for them, and if her receipt would have been good evidence of the delivery, her parol admission must be equally so. And again; if her act or admission be good in one case, to charge the husband in favour of a third person, because she was his agent, the rule ought equally to apply in favour of the husband, when he and a third person by the contract between them, have mutually referred to an act in which she was to be a party. Fenner v. Lewis, 10 Johns. Rep. 38. (b) It has been held that an admission in an answer in Chancery was evidence against the defendant, in an action brought by another aintiff. Post 267. n. So, an admission in a case made for argument, is evidence against the party making it. Vandervoort & another v. Smith, 2 Caines' Rep. 155. *72 *73 of debt upon a bond conditioned to pay money to L. D., for whose benefit the action was brought, the defendant proved, that L. D. had said in a conversation about this bond, that the defendant owed nothing, upon which the jury found for the defendant: on a motion for a new trial, it was argued that the declarations of L. D., who was no party to the action, ought not to affect the plaintiff, and affidavits were offered to explain L. D.'s evidence; but the court said, that the affidavits were inadmissible, and that it was to be considered as if L. D. was the plaintiff, the action being for L. D.'s benefit (3). And in an appeal against the removal of a pauper, declarations by a rated inhabitant of either parish, concerning the facts in issue, are admissible in evidence, not only against himself, but also against the other rated inhabitants of his parish (4): for they are the parties really interested, although the appeal may be entered in the names of the parish officers; and they are not compellable as parties to give evidence of the fact (5). It may be inferred from a former part of this section, that in a civil suit against several persons, who are proved to have a joint interest in the decision, a declaration made by one of those persons, concerning a material fact within his knowledge, is evidence against him, and against all who are parties with him to the suit (6). In an action of covenant, therefore, against two defendants, the affidavit of one of *them may be given in evidence against both (1) (a). So, in an action by several partners against the defendant for the non-performance of an agreement, a declaration (3) Hanson v. Parker, 1 Wils. 257. Smith v. Lyon, 3 Campb. N. P. C. 465. (4) R. v. Hardwick, 11 East 578. (5) 11 East 589. R. v. Woburn, 10 East 395. (6) 11 East 589. (1) Vicary's case, Gilb. Ev. 51. (a) In an action on a joint note, executed by A. & B. as his security, brought against B. only, after the bankruptcy of A. under the laws of the United States, it was held that the admissions of A. after his discharge, were evidence against B. Howard v. Cobb, 3 Day 309. by one of the partners, that the goods, to which the agree ment related, were his separate property, is evidence against all the plaintiffs suing as upon a joint contract (2). The rule has even been extended in actions so far, as to admit the declarations of one partner to be evidence against another, concerning joint contracts and their joint interest, although the person, who makes such declarations, is not a party to the suit: as where, in an action by a creditor against some of the partnership firm, the answer of another partner to a bill filed by other creditors was received in evidence against the defendants, not indeed to prove the partnership, but that being established, as an admission against those (b), who are as one person with him in interest (3). And the admission of a partner, though not a party to the suit, is evidence as to joint contracts against any other partner, as well after the determination of the partnership as during its continuance (4) (c). This is the rule respecting admissions in the case of joint contracts, or where several persons have one and the same interest in the subject matter. But the same rule cannot be applied to actions of trespass or to criminal proceedings. In an action of trespass against several de (2) Lucas and others v. De la Cour, 1 Maule & Sel. 249. (3) Grant v. Jackson, Peake, N. P. C. 203. Wood and others v. Braddick, 1 Taunt. 104. And see Whitcomb v. Whiting, 2 Doug. 652. Jackson v. Fairbank, 2 H. Bl. 340. -- (4) Wood and others v. Braddick, 1 Taunt. 104. (b) Vide Kirby, 62. 174. 203. where it was held that the admissions of a party in interest, if not joined in the suit, could not be given in evidence. ners. (c) But in Hackley v. Patrick, 3 Johns. Rep. 536. it was decided, that an acknowledgment of an account by one partner after. a dissolution of the partnership, would not bind the other partSuch an acknowledgment, however, would be sufficient to prevent the operation of the statute of limitations. Smith v. Ludlow, 6 Johns. Rep. 267. The admission of one of the defendants is not evidence to charge another defendant with the fact of being a partner with him. Whitney v. Ferris, 10 Johns. Rep. 66. · |