
    Fitch against Chapman.
    The declarations of a person not a party,[who is living and a competent wit. ness in the cause, though against his interest at the time they were made, are inadmissible.
    A person through whom a party claims title, is not identified with that parly, in such a sense, as to make the declarations of the former evidence against the latter.
    The declarations of a person claimed to be an agent, are not evidence to prove the agency.
    
      Where the question was, whether money paid by the hand of the defendant, was paid on his own account or for another, the defendant offered testimony to show, that when he made the payment, he stated, that he had borrowed the money of one C. for that purpose ; this testimony being objected to, the court excluded it, but instructed the jury, that in the absence of all testimo. ny on the point, (and there was no other,) the money paid must be presumed to be the defendant’s ; it was held, that whether such testimony was admissible or not, yet under the direction of the court, it was unnecessary to the defendant, and its rejection, therefore, was no ground for a new trial.
    This was an action of ejectment; tried at New-London, September term, 1832, before Bissell, J.
    The plaintiff claimed title, by virtue of the levy of an execution on the demanded premises, as the property of one John Chapman. James Smedley was the former owner ; and the plaintiff, to prove title in John Chapman, offered a deed, executed and delivered to him, by Ebenezer Learned, Esq., as the attorney of Smedley, dated the 10th of November, 1825. The defendant also exhibited a mortgage deed of the same land, bearing the same date, by Jason Chapman, the defendant, to Smedley, to secure a note for 225 dollars, payable December 10th, 1826, and also a deed of release of the premises, by Smedley1 s attorney, dated the 31st of October, 1826; to the defendant.
    To prove that the note for 225 dollars, was paid before the law day, the plaintiff introduced Mr. Learned, who testified, that it was paid by the defendant, on the 31st of October, 1826 ; and that the witness then delivered to him the note and the release deed above-mentioned. The witness then further stated, (not at the request of either party,) that before he sold said land, he had conversations with the defendant about it ; in one of which the defendant said, he should be glad to purchase it, if his sons would help him ; and that when the land was conveyed to John Chapman, he paid half the purchase money, and gave the note and mortgage aforesaid for the balance. On cross-examination, the witness added, that John Chapman failed in the spring of 1826 ; and when Jason came to pay the money, he, by the assistance of the witness, hired 150 dollars of one Ta te, to make the payment, and mortgaged said land, as security therefor.
    To prove that the defendant did not act as the agent of John Chapman, in making the payment, he offered to prove, by this witness, that when John received his deed, he declared to the witness, that he made the purchase for the defendant. To the admission of this testimony, the plaintiff objected, as John was not a party, but a competent witness ; and the court excluded it.
    
      
      New-London,
    
    July, 1833.
    
      The defendant also offered to prove, that after the failure of John Chapman, he, the defendant, had repeated conversations with Mr. Learned about paying the money, and taking up the mortgages. This testimony was objected to, by the plaintiff; and the court excluded it.
    The defendant further offered to prove, that when he paid said mortgage debt, he stated to Mr. Learned, that he had borrowed the balance of the money not obtained of Tate for that purpose, of one Crandall. No evidence was offered to shew, that the money so paid belonged to any other person than the defendant. This testimony, on the objection of the plaintiff, was also rejected ; and the jury were afterwards instructed, that in the absence of all evidence on the point, the money must be presumed to be the defendant’s.
    The plaintiff obtained a verdict; and the defendant moved for a new trial, on the ground of these interlocutory decisions, and for a mis-direction.
    
      Law and Strong, in support of the motion,
    contended, 1. That the declarations of John Chapman, made when he took the deed, that he acted in the purchase for the defendant, should have been received. In the first place, the defendant could not compel John Chapman to testify ; for the fact to be proved was against his interest. Besides, a party ought never to be obliged to make a person thus situated his witness. Secondly, as the plaintiff claims title through John Chapman, he is identified with him in relation to such title ; and the declarations of John Chapman regarding it, are, therefore, admissible against the plaintiff. Ivat v. Finch, 1 Taun. 141. Thirdly, the evidence in question was admissible, as the declarations of an agent in the execution of his agency. Fourthly, those declarations were admissible, because they constituted a part of the res gesta.
    
    
      2. That the declarations of the defendant, that he borrowed the money of Crandall, being accompanied by an act done, viz. the payment of the money, were admissible to shew whose 
      money was paid^^Fhey constituted a prominent feature of the transaction, affecting its entire character.
    
      Goddard and J. W. Huntington, contra,
    insisted, 1. That the declarations of John Chapman that he made the purchase for the defendant, were properly excluded. In the first place, they were irrelevant. They did not conduce to shew the intent with which the purchase was made. There is no con-nexion between the sale to John, and the taking of the mortgage by the defendant. Secondly, John was a competent witness, and alive. He should, therefore, have been called. Hedge v. Horton, 3 Carr. Sp Payne, 179. (14 Serg. Loiob. 261.) Nichols v. Hotchkiss, 2 Day, 121. Thirdly, these declarations were not evidence as the admission of an agent in the course of transacting the business of his agency. For this purpose, the agency must first be established, and the extent of the authority ascertained ; but here was no proof of agency aside from the declarations in question. 2 Stark. Ev. 43.
    2. That what the defendant himself said about the money, was properly excluded. It was no part of the res gesta — no qualification or explanation of the act done. But if otherwise, still it was unnecessary ; as there was no evidence that this was the money of any other person than the defendant; and the jury were expressly instructed, that they must presume it to have belonged to the defendant.
   Williams, J.

The plaintiff having levied his executions upon the land as the property of John Chapman, it is admitted, that the proceedings are regular, and he has a right to recover, if the title was in John Chapman. That this title was in him, and remained in him, unless defeated, by the mortgage to Smedley, and the subsequent release to the defendant, is also clearly shewn. But if the debt was paid before the law-day, the legal title was, by that payment, revested in John, and a release from Smedley could have no effect. The defendant claims, that this payment never was made by John, but by him, the defendant; and so the release would operate as an assignment of the mortgage debts, as well as convey the interest in the estate mortgaged; in proof of which, he first offers the declarations of John, when he purchased the property, that he made the purchase for the defendant. alive, and was a competent witness ; and it was claimed, that his admissions against his then existing interest, were proper evidence. These declarations are from a person not a party, or a witness, and who might have been called as a witness. The general ruléis, that if the party whose declarations are offered, is living, and can he a witness, his declarations are not evidence. So it is said in Barough v. White, 4 Barn. & Cres. 325. (10 Serg. & Lowb. 345.) Hedger v. Horton, 3 Carr. & Payne, 179. (14 Serg. & Lowb. 261.) In Walker v. Broadstock, 1 Esp. Rep. 459. the declarations of a tenant, living, were admitted, not as evidence of the fact, but of his opinion. And the cases where such evidence is admitted, seem to proceed, generally, upon the principle, that by the decease of the person, better evidence cannot be had. Davies v. Pierce & al. 2 Term Rep. 53. Peaceable d. Uncle v. Watson, 4 Taun. 16. Higham & ux. v. Ridgway, 10 East 109. Roe d. Brune v. Rawlings, 7 East 279. 290. Doe d. Human v. Pettelt, 5 Barn. & Ald. 223. (7 Serg. & Lowb. 75.) Goss v. Watlington, 3 Brod. & Bing. 132. (7 Serg. & Lowb. 379.) Ivat v. Finch & al. 1 Taun. 141.

In our own courts, the persons whose declarations were offered, though not dead, were so situated that they could not be witnesses, or could not be compelled to testify. In Beers v. Hawley & al. 2 Conn. Rep. 467. Hawley was a party, and had conveyed the land with covenants of warranty. In Norton v. Pettibone & al. 7 Conn. Rep. 319. 323. the same facts existed, except that Marks, instead of being defendant, had been cited in, by his grantee, to defend.

It is said, that the plaintiff is identified with John Chapman, because he claims through him. The indorsee of a promissory note, claims through the indorser ; but it does not therefore follow, that the declarations of that indorser can be given in evidence ; as was observed in Barough v. White, above cited. I should think the identity spoken of in the books, referred rather to those cases where the nominal plaintiff was suing, in fact, for the benefit of a third person ; and this identified their interests.

It is further claimed, that John veas the mere agent of Jason; and therefore, his declarations may be given in evidence. But the agency must be established before the declarations can be given in evidence, as well as a partnership. The declarations of a person not a party, cannot be received to prove either oí those facts, although when proved, the admissions of such agent or partner may be shewn.

Again, these declarations are offered to prove what title John proposed to acquire. But the deed shews what title he did actually obtain ; and as the question here is merely as to the legal title, that is settled, by the deed itself.

The admission of hearsay evidence ought not to be extended beyond the necessity of the case, as there is great danger of collusion ; and certainly, it ought not, unnecessarily, to be extended to defeat a record title to real estate. I think, therefore, this evidence was properly excluded.

Much less can the repeated conversations of the defendant himself with Mr. Learned, unattended by any act, prove any thing in his favour. If such declarations were admissible, an artful man, by a little previous preparation, would always have evidence ready to meet his case.

As to the declaration of this defendant, when he made the payment, that he borrowed this money of Crandall, it is claimed, that it stands upon different ground ; because it was accompanied by an act done, the payment of the money. This, if admissible, could be for no purpose but to shew that the defendant paid his own money. But as the court directed the jury, that in the absence of all evidence, (and it is not pretended that there was any,) the money paid by the defendant must be presumed to be his own, the defendant cannot have suffered, by the rejection of this testimony. I cannot, therefore, think it necessary to enquire, whether it was admissible, or not. And upon the whole, I think there should not be a new trial.

The other Judges were of the same opinion.

New trial not to be granted.  