97 § 71.] ADMISSIONS. formed between them to defraud the creditors, when the declarations of the assignor are admissible as a part of the res gesta. The rule by which such admissions are receivable against the assignee is not applicable to bind the holder of a promissory note which is taken without notice and before maturity. If the promissory note is transferred after it is due, the declarations of the indorser, made while the note was in his possession, are admissible against the indorsee to prove payment or any equitable defense which may have existed between him and the maker.3 $71. Wife's admission- When binding on husband.The declarations of a wife are not to be regarded as the admissions of the husband unless authority to make them has been conferred upon her by him. If they are binding it is 467; Heywood v. Reed, 4 Gray (Mass.), 574; Carlton v. Baldwin, 27 Tex. 572; Peck v. Crouse, 46 Barb. N. Y.) 151; Bates v. Ableman, 13 Wis. 644. Tibbals v. Jacobs, 31 Conn. 428; Ewing v. Gay, 12 Ind. 64; Souder v. Schechterly, 91 Pa. St. 83; Hutchings v. Castle, 48 Cal. 152; Hodge v. Thompson, 9 Ala. 131; Boyd v. Jones, 60 Mo. 454; De France v. Howard, 4 Iowa, 524; Cuyler v. McCartney, 33 Barb. (N. Y.) 165; Perkins v. Towle, 59 N. H. 583. 38 id. 534; Hutchins v. Hutchins, 98 N. Y. 56; Sanford v. Ellithorpe, 95 N. Y. 48; Headen v. Womack, 88 N. C. 468; Hirschfeld v. Williamson, 18 Nev. 66; McLaughlin v. McLaughlin, 91 Pa. St. 462; Downs v. Belden, 46 Vt. 674; Tierney v. Corbett, 2 Mackey, 264. 4 Edwards v. Tyler (Ill., 1892), 31 N. E. Rep. 312; Rochelle v. Harrison, 8 Port. (Ala.) 351; Perry v. Graham, 18 Ala. 822; White v. Portland (Conn,, 1893), 26 Atl. Rep. 342; Snohll v. Met. R. Co., 19 D. C. 399; Blanc Jour v. Tutt, 32 Mo. 576; Hunt v. Strew, 33 Mich. 85; Johnson Hackett v. Martin, 8 Greenl. (Me.) 77; v. Sherwin, 3 Gray (Mass.), 374; Paige v. Cagwin, 7 Hill (N. Y.), 361; Evans v. Evans, 155 Pa. St. 572; May Bristol v. Daun, 12 Wend. (N. Y.) 142; v. Little, 3 Ired. L. (N. C.) 27; Gaf Wilson Osborn 299. V. Bowden, 113 Mass. 422; V. Robbins, 37 Barb. (N. Y.) field v. Scott, 40 Ill. App. 380; Lay Grae v. Peterson, 2 Sandf. (N. Y.) 481; Washburn v. Ramsdell, 17 Vt. 338; Riley v. Suydam, 4 Barb. (N. Y.) 222; Park v. Hopkins, 2 Bailey 3 Sandifer v. Howard, 59 Ill. 246; (S. C.), 408; Berg v. Warner, 47 Minn. Glanton. Griggs, 5 Ga. 424; Dren non v. 250; Winkler v. Schlager, 19 N. Y. S. 100; Higham v. Vanosdol, 101 Ind. 160; Queener v. Morrow, 1 Coldw. (Tenn.) 123; Baker v. Witten (Okl., Smith, 3 Head (Tenn.), 389; Miller v. Bingham, 29 Vt. 82; Pilcher v. Kerr, 7 La. Ann. 244; Sylvester v. Crapo, 15 Pick. (Mass.) 92; Kane v. Tarbit, 23 Ill. App. 311; Robb v. Schmidt, 85 Mo. 290; McLanathan W. Rep. 958; Rose v. Chapman, 44 v. Patten, 39 Md. 142; Fisher v. True, Mich. 312; Coryell v. State, 62 Ind. 1892), 39 Pac. Rep. 491; Norfolk Nat. Bank v. Wood, 33 Neb. 113; 49 N. not because of the legal character of the marriage relation, but solely because the husband has constituted her his agent,' and given her authority to act for him. The considerations regulating this subject are analogous to those which determine the existence of the relation of principal and agent, modified somewhat by the peculiar position of the parties and the intimacy which usually exists between them. At common law, in consequence of the merger of legal identity of the wife in that of the husband, her admissions did not bind him where he sued as her representative during coverture to reduce her choses in action to possession. In consequence, however, of the modern statutes by which a married woman is enabled to carry on business and to act in general with the powers of a feme sole, this rule is of minor importance and of infrequent application. In any event, if the existence of the relationship of principal and agent is shown to exist by evidence aliunde,3 the statements of the wife relating to the business of the agency, made during its continuance and within the scope of her authority, are receivable against the husband." 307; Goodrich v. Tracy, 43 Vt. 314; Donaldson v. Everhart, 50 Kan. 718. The declarations of the husband are not, where no agency exists, admissible in an action against the separate estate of the wife. Clapp v. Engledow, 82 Tex. 290; Martin v. Rutt, 127 Pa. St. 380; McIntire v. Costello, 6 N. Y. S. 397; Woodruff v. White, 25 Neb. 745; Hunt v. Poole, 139 Mass. 224; Bunson v. Brooks, 68 Ala. 248; State v. Bank, 10 Mo. App. 482; Keller v Railway Co., 27 Minn. 178; Kingen v. State, 50 Ind. 537. But where husband and wife claim by adverse possession, his admissions are binding on her solely by reason of the joint interest. Hurley v. Lockett, 72 Tex. 262. Cf. Holton v. Carter (Ga., 1893), 15 S. E. Rep. 819. 1 See § 73a. 2 Turner v. State, 50 Miss. 351, 354; Meredith v. Footner, 11 M. & W. 202; Burnett v. Burkhead, 21 Ark. 77; Jordan v. Hubbard, 26 Ala. 433; Coe v. Turner, 57 Conn. 937. 3 Butler v. Price, 115 Mass. 578; Hunt v. Strew, 33 Mich. 85; Deck v. Johnson, 1 Abb. App. Dec. (N. Y.) 497. The mere existence of the relation of husband and wife will never, it is held, render the admission of one binding on the other. Deck v. Johnson, supra; Schmidt v. Keen, 10 N. Y. S. 267. 4 Chamberlain v. Davis, 33 N. H. 121; McLean v. Jagger, 13 How. Pr. (N. Y.) 494; Murphy v. Hubert, 16 Pa. St. 50; Colgan v. Phillips, 7 Rich. (S. C.) 359; Robertson v. Brost, 83 Ill. 116; Arndt v. Harshaw, 53 Wis. 269; Bradford v. Williams, 2 Md. Ch. 1, 3; Lunay v. Vantyne, 40 Vt. 501; Town v. Lamphire, 37 id. 52; Thomas v. Hargrove, Wright (Ohio), 595. § 72. Admissions of inhabitants of towns.- At common law the admission of a parishioner or inhabitant of an incorporated political division was receivable against the corporation. In this country this rule is repudiated. By analogy to private corporations, the declarations of the residents of municipal or quasi-municipal corporations as towns and counties are not receivable against the corporation, even under circumstances where the action is in form against the inhabitants, and their individual property is, as in New England, subject to execution on the judgment which may be rendered.2 § 73. Admissions of strangers to the record — Principal and surety Admissions of real parties. The admissions of the real parties in interest, though they may not be parties to the record, are usually receivable. Thus it has been held that the admissions of a debtor are receivable against the surety,3 of the guarantor against his principal, of the actual beneficiary in an insurance taken in the name of another," of a deputy-sheriff against the sheriff," of the deceased intestate against the administrator." So where an individual has a real interest in the litigation, although he may not be an actual party of record, yet, so long as the actual defendant may in turn recover over against him, he is bound by the judgment, which would then be evidence against him, and his admissions are receivable against himself and against the nominal defendant. But this admission by the real party in interest to be binding on the party to the suit must be made while he had an interest, that is, during the existence of joint interest or privity, and it must relate to the transaction in which both 1 Rex v. Hardwick, 11 East, 579; Reg. v. Adderbury, 5 Q. B. 187. 2 Landaff's Petition, 34 N. H. 164; Watertown v. Cowen, 4 Paige, 510; Burlington v. Calais, 1 Vt. 385; Low v. Perkins, 10 Vt. 532; Davis v. Rochester, 66 Hun, 629. See Tiedeman on Municipal Corporations, §103, 160. * Walker v. Forbes, 25 Ala. 139. Brown v. Munger, 16 Vt. 12. $ Bell v. Ansly, 16 East, 141. 7 Keifer v. Carnsi, 7 D. C. 156. 8 Bank v. Smith 12 Allen, 243; Weed v. Kellogg, 6 McLean, 44; Bond v. Ward, 1 Nott & McCord, 201; McShane v. Bank, 73 Md. 135; Savage v. Balch, 8 Greenl. 27; Union Bank v. Edwards, 1 Swan (Tenn.), 208; Atlas Bank v. Brownell, 9 R. I. 168; Bartlett v. Delprat, 4 Mass. 702, 708; MacCready v. Schenck, 41 La. Ann. 456; Bayly v. Bryant, 24 Pick. (Mass.) 198; Clark v. Carrington, 7 Cranch, 308, 322; Markland v. Kim Snowball v. Goodricke, 4 B. & Ad. mell, 87 Ind. 566. 541. are concerned. Thus, where it is sought to introduce the admission of the principal in a suit against a surety, it should be remembered that the latter is only obligated for the principal's acts and not for his language. If, therefore, the admission does not constitute a part of the res gesta, or, in other words, if it is not a verbal act, then the surety is not bound thereby. So where payment is guarantied for goods sold and delivered, an acknowledgment by the purchaser of the goods, made subsequent to the delivery, that he has received the goods, is not admissible in an action against the surety for the price.3 The admissions of a fiduciary official, made after an embezzlement or other breach of trust, are not competent or receivable as admissions against his surety where an action is brought on the bond to recover for the official misfeasance. The admissions of a nominal party, as of a trustee or guardian, made subsequent to the bringing of the suit, are not binding on the party he represents. So, too, the statements of a trustee, administrator or guardian, made before he was appointed or before the suit in which he sues in his representative capacity was commenced, are not receivable as admissions against him." 1 Chapel v. Washburn, 11 Ind. 393; Brown v. Munger, 16 Vt. 12. It has been held that the admission of a surety is competent against the principal. Chapel v. Washburn, 11 Ind. 393; Brown v. Munger, 16 Vt. 12; Brockway v. Petted (Mich., 1890), 45 N. W. Rep. 61; Hall v. Brackett, 62 N. H. 509. 2 Lee v. Brown, 21 Kan. 458; Dexter v. Clemans, 17 Pick. 175; Labaree . Klesterman (Neb., 1892), 49 N. W. Rep. 1102; 33 Neb. 150; Bank of Monroe v. Gifford, 70 Iowa, 580; Keegan v. Carpenter, 47 Ind. 597; Cheltenham Co. v. Cook, 44 Mo. 29; Chemsford Co. v. Demarest, 7 Gray (Mass.), 1; Hatch v. Elkins, 64 N. Y. 489; White v. German Bank, 9 Heisk. (Tenn.) 473; Ayer v. Getty, 46 Hun, 287; Bank v. Darragh, 1 Hun, 113; Bardwell v. Dewitt, 44 N. W. Rep. 983; 42 Minn. 468; Otis v. Van Storch, 15 R. I. 41. 3 Longenecker v. Hyde, 6 Binn. 1. 4 Dawes v. Shedd, 15 Mass. 69; Stetson v. City Bank, 2 Ohio St. 167, 177; Blair v. Insurance Co., 10 Mo. 559; Republica v. Davis, 3 Yeates, 128; Hotchkiss v. Lyon, 2 Blackf. 222; Miller v. Stewart, 9 Wheat. 703. 5 Sykes v. Lewis, 17 Ala. 261; Sargeant v. Sargeant, 18 Vt. 371; Dazey v. Mills, 10 Ill. 67; Hough v. Barton, 20 Vt. 455; Mayes v. Inman, 2 Swan (Tenn.), 80. 6 Prud. Ins. Co. v. Fredericks, 41 Ill. App. 419. 7 Mertz v. Detweiler, 8 W. & S. (Pa.) 376; Plant v. McEwen, 4 Conn. 544; Moore v. Butler, 48 N. H. 161; Fraser v. Marsh, 2 Stark. 41; Legge v. Edmonds, 25 L. J. Ch. 125. to 73a. The declarations of agents.- The legal unity of principal and agent in respect to matters growing out of the agency or to which it relates is the basis for the rule that the declarations or admissions of an agent, made during the existence of the agency and relating to its object, are binding on the principal. Thus, an agent to sell may by his admissions bind his principal upon the question of the value of the property; and where a principal directs some third person. pay money or ship goods to his agent, the acknowledgment or receipt of the agent is an admission of the principal.3 If made during the period of the continuance of the agency and by reason of some special or express authorization by the principal to make the given admission or declaration, then the words of the agent are admissible against his principal upon the same grounds that the latter's own admission would be evidence against him. But where no express authority is given to make the declaration, and where the agent is a special agent, and the only ground for claiming its admission as original evidence is an implied authority to make it, derived from the existence of the agency, then the declaration is admitted solely as a part of the res gesta, and accordingly must be contemporaneous with and explanatory of it. Unauthorized admissions made subsequent to the transaction to which they relate, and merely narrative of it, are not binding upon the principal, though the relation of principal and agent exists for other purposes. Thus, the declarations 1 Hawk v. Applegate, 37 Mo. App. 32; Davis v. Rochester, 66 Hun, 629; W. U. Tel. Co. v. Bennett, 1 Tex. Civ. App. 28; McElwee v. Trowbridge, 68 Hun, 28; Loomis v. N. Y. Cent. R. R. Co. (Mass., 1893), 34 N. E. Rep. 30; Mars v. Virginia Home Ins. Co., 17 S. C. 514; Josephi v. Mady Clo. Co. (Mont., 1893), 33 Pac. Rep. 1; Citizens' Gaslight Co. v. Granger, 19 Ill. App. 201; Rowell v. Klein, 44 Ind. 290; Donnel v. Clark, 12 Kan. 154; Hamilton v. Iowa Co. (Iowa, 1893), 53 N. W. Rep. 496; Coyle v. Baltimore, etc. R. Co., 11 W. Va. 94; Bohannan v. Chapman, 13 Ala. 641; Galceran v Noble, 66 Ga. 367; Adams v. Hum- 2 Bank v. Gidrot, 19 Ga. 421. 3 Click v. Hamilton, 7 Rich. (S. C.) 65: Webster v. Clark, 30 N. H. 245. 4 Phelps v. James (Iowa, 1893), 53 N. W. Rep. 74; Yordy v. Marshall Co. (Iowa, 1893), 53 N. W. Rep. 298; St. Louis, etc. Co. v. Sweet (Ark., 1893), 21 S. W. Rep. 787; Mobile, etc. |