ment thus being a part of the res gestæ, i. e., the act of payment, it is admissible as original evidence for the creditor to show an acknowledgment of the debt by the debtor.' When, however, the statute has run upon the instrument, a subsequent indorsement by the creditor purporting to show a part payment by the debtor will be to so large a degree in the interest of the former that no presumption of payment will arise. Under these circumstances he will be compelled to prove actual payment by evidence extrinsic to this indorsement.2

1McCrillis v. Millard, 24 Atl. Rep. 576; 17 R L 724; Oughterson v. Clark, 65 Hun, 624.

21 Greenl on Evid., § 121; Rose

boom v. Billington, 17 Johns. 182; In re Clapsaddle, 24 N. Y. & 818; 4 Misc. Rep. 355.

§ 65. Definition and character.

66. Privity as affecting admissions. 67. Parties whose admission is received-Joint interest, when required.

CHAPTER V.

ADMISSIONS.

68. Admissions of partners-Their effect after dissolution.

69. Declarations of conspirators. 70. Assignor and assignee.

71. Wife's admission-When binding on husband.

72. Admissions of inhabitants of towns.

73. Admissions of strangers to the

record-Principal and
surety - Admissions of real
parties.

73a. The declarations of agents.
74. Admissions by attorneys of
record.

Mode of proof - Nature of the admissions.

81. Weight and sufficiency of ad

§ 65. Definition and character.- An admission is a concession or voluntary acknowledgment made by a party of the existence or truth of certain facts. The reception of admis. sions as evidence constitutes an exception to the rejection of hearsay evidence and depends upon well-recognized principles of justice and of public policy by which men are prevented from taking advantage of their acts or statements intended to promote their own interests without being compelled to assume full responsibility for them so far as they control or even influence the affairs of other men. The facts to which the admission made by a party refers are peculiarly within his own knowledge. This circumstance, with the indisposi tion of men to admit things which are against their interests, lends weight and credibility to this description of evidence. The word "admissions" is confined to statements made or

1 Bouvier's Law Dict.

conduct occurring in transactions not criminal, and, for convenience sake, they may be divided into direct, i. e., express admissions, incidental admissions, and implied admissions.

In implied admissions are included all those that may be inferred from the conduct or character of the party, from his act or omission, or from his acquiescence and silence under circumstances where it is his duty to speak or act.1

The form of the declaration is not material if its terms are clear and binding upon the party making them or upon those in privity with him. Thus, where defendant made statements over a telephone, the witness was permitted to give evidence of them upon his testifying that he knew and could distinguish defendant's voice."

§ 66. Privity as affecting admissions.- By privity is meant a mutual or successive relationship to the same rights of property, and this relationship presupposes such an identity of interest that the admission of one privy is by the law regarded as the admission of all the others. If a party has limited or qualified his own rights of enjoyment or ownership over property, it is only just that those who enjoy those rights concurrently with him, or who succeed to them, should in accepting the benefits be burdened with the disadvantages and responsibilities. Thus the declarations of the ancestor or of a testator or grantor in disparagement of the title by which he holds, made during the period he is owner of the property, are binding upon the heirs, executors or devisees or grantees respectively." But the declarations of a grantor of real property, made subsequent to the date on which he parted with his title, are never admissible against subsequent purchasers, even though the declarations refer to the condition and boundaries of the land as it was while he was the owner of it. So where a per

1 See SS 18, 83.

han, 94 Ill. 142: Miller v. Ternane, 50

2 Stepp v. State, 31 Tex. Crim. App. N. J. L. 32; Platner v. Platner, 78

349.

N. Y. 90; Wood v. Fisk, 62 N. H. 173;

3 Co. Lit. 271a; 1 Greenl. on Evid., Whitman v. Haywood, 14 S. W. Rep.

$189.

4 See post, §§ 68-73a.

166; 77 Tex. 157; Lewis v. Adams, 61 Ga. 549; Stockwell v. Blamey, 129

6 Hills v. Ludwig, 24 N. E. Rep. 596; 46 Ohio St. 513; Casto v. Fry, 10 S. E.

5 Leggat v. Leggat (Mont., 1893), 33 Mass. 312.
Pac. Rep. 5; Snow v. Starr, 12 S. W.
Rep. 673; 75 Tex. 411; Pierce v.
Robert, 57 Conn. 31; Hughes v.
Boone, 102 N. C. 137; Mueller v. Rel-

Rep. 799; 33 W. Va. 449; Bentley v.
O'Brien, 111 Ill. 53; Taylor v. Dev-

son admitted that he held the land as a tenant, his declaration will be binding upon his heir or devisee in an action against the latter to recover the land.

The adverse and continuous character of one's possession may in like manner be shown by the declaration of a grantor on whose alleged title the plaintiff in ejectment founds his. So where a question of boundary is concerned, the declara tions of a former owner, made while in possession of the land, are always admissible against a subsequent purchaser.3

§ 67. Parties whose admission is received Joint interest, when required.- The admissions of a party to the record or of one identified in interest with him are receivable against him, as a general rule. Though several persons may sue or be sued, the admission of one, though receivable against him, will not bind the others unless a joint interest or privity exists between them. A mere community of interest is not enough. But where the required joint interest exists, the admission of one of the parties, made in the prosecution of the common undertaking and within its scope, is receivable in evidence against any or all of his associates.

erell, 43 Kan. 469; Walker v. Cole (Tex., 1894), 24 S. W. Rep. 76. Contra, Hart v. Randolph (Ill., 1893), 32 N. E. Rep. 517.

1 Fellows v. Smith, 130 Mass. 78. 2 Alexander v. Caldwell, 55 Ala. 217; Stockton v. Staples (Cal., 1893), 32 Pac. Rep. 936; Hurley v. Lockett, 72 Tex. 262; Parrott v. Baker, 82 Ga. 364; Lawrence v. Wilson (Mass., 1894), 35 N. E. Rep. 858.

3 Wood v. Fiske, 62 N. H. 173; Whitman v. Haygood, 77 Tex. 557. "On a question of private boundary, declarations of a particular fact, as distinguished from reputation, made by a deceased person, are not admissible unless it is shown that such person had knowledge of that whereof he spoke, and was on the land or in possession of it when the declaration was made as part of the res gesto." Hunnicutt v. Peyton, 102 U. S. 363, 364.

So, because the neccs

4 Petrie v. Williams, 68 Hun, 589; 23 N. Y. S. 237; Thompson v. Richards, 14 Mich. 172; State v. Ah Tom, 8 Nev. 213; Grace v. Nesbitt, 109 Mo. 3; Burnham v. Sweatt, 16 N. H. 418; Bensley v. Brockway, 27 Ill App. 410; Dan v. Brown, 4 Cow. (N. Y.) 483; Lenhart v. Allen, 32 Pa. St. 312; McElroy v. Ludlum, 32 N. J. Eq. 828; Morris v. Nixon, 1 How. (U. S.) 118; Redding v. Wright, 49 Minn. 322; Leeds v. Marine Ins. Co., 2 Wheat. (U. S.) 380; Kiser v. Dannenburg, 88 Ga. 541; Roberts v. Kendall, 3 Ind. App. 339; Thurman v. Blankenship-Blake Co., 79 Tex. 171. 5 See post, S$ 68, 69, 71, 73a; Collett v. Smith, 143 Mass. 473; Vankleck v. McClabe, 87 Mich. 599; 9 N. W. Rep. 872. Cf. Rich v. Flanders, 39 N. H. 304; Carson v. Gillitt, 2 N. D. 255; 50 N. W. Rep. 710; Webster v. Stearns, 44 N. H. 498; McKee v. Hamilton, 33 Ohio St. 7; Peyson

sary joint interest is lacking, it has been held that the admission of a tenant in common is not receivable against his fellow-tenants, nor of an executor, trustee or administrator against those officially associated with him,2 nor of an heir or devisee to bind the other heirs or devisees.3 So no joint interest exists between successive indorsers, or between a promisor and an executor of a co-promisor; between an administrator and an heir of the intestate; between remainderman and life-tenant; among co-underwriters; between the person assured and the beneficiary, or among directors 10 or stockholders of a corporation" which will render the admission of one receivable as evidence against the others.12