
    *Taylor v. Peck.
    June Term, 1871,
    Wytheville.
    (Absent, Staples.)
    1. Continuances — Absence of Material Witnesses. — T sues P in unlawful detainer. P has T summoned as a witness; but agrees with T, that if she will produce in evidence on the trial, the deed of lease under which he claimed to hold, he would not require her to be present. When the case is called, T’s counsel, she being absent, is asked whether the lease will be introduced in evidence, and they say it will be produced, but its admissibility will then have to be determined. P is entitled to a continuance of the cause.
    2. Same — Same.—Even if T and P misunderstood each other as to whether the paper was to be introduced in evidence or produced on the trial, P is entitled to a continuance.
    3. Landlord and Tenant — Written Lease — Evidence of Tenancy — Receipts.—Though a tenant holds under a written lease, he may, in an ejectment by his landlord against him, without producing the lease or accounting for its non-production, introduce receipts of his landlord for rent, showing that at the time the action was instituted, he held as tenant and his year was not out.
    4. Evidence — Private Writings — Proving Contents^— Exception. — A parol admission of a party to a suit is always admissible in evidence against him, although it relate to the contents of a deed or other written instrument, and even though its contents be directly in issue in the cause.
    
      On the 5th of November 1869, Margaret B. Taylor sued out of the clerk’s office of the county of Montgomery, a writ of unlawful detainer against Charles T,. Peck, to recover possession of a tract of land which she alleged he illegally withheld from her. A number of questions were made in the cause in the County court, but it is only necessary to refer to two of them. One of these questions is presented by the second bill of exceptions taken by the defendant. Prom this, it appears that at the February term 1870, after the court had rejected *a plea which the defendant had tendered, he moved the court to continue the cause, because of the absence of the plaintiff, Miss Taylor, who the defendant proved would be a material witness on his behalf on the trial of the cause. He showed that she had been duly summoned; and it was proved by him that he had told her if she would cause a written agreement between them, then in her possession, under which he claims to be entitled to the possession of the lands in question, to be produced in evidence on the trial of said cause, then she need not attend this court; and the counsel for Miss Taylor refused, in open court, upon being applied to on the day of the motion, to consent that said writing should go before the jury, but said they would produce it in court on the trial of the case, as notified,,and that the question of admitting it before the jury was to be determined hereafter.
    And it was proved by a single witness, that C. U. Peck had told the witness that he (Peck) told the plaintiff that if she would produce the said writing before the court, she need not attend; that the said witness did not hear Mr. Peck say, that if she would produce it to be read in evidence. This witness did not hear the conversation between Miss Taylor and Mr. Peck; but Mr. Peck had told him about it, but he did not attempt to repeat the conversation verbatim.
    It further appeared that at the last term of the court said Margaret B. Taylor was not present, and that Peck then announced that he would have been ready for a trial but for the absence of a witness named Terry; and that Peck at that term had no reason to believe that any objection would be made to the introduction in evidence of the writing aforesaid; and it was proved that the plaintiff’s counsel were asked at the last term of the court whether the contract of lease aforesaid would be produced on the trial, and that they replied it would be produced; but it did not appear that the -plaintiff’s counsel were at any *time until the day of the motion, asked whether they would agree to admit the said lease to go before the jury.
    It further appeared that the plaintiff’s witnesses were in attendance upon the court, to the number of ten or twelve, since Monday, and that the defendant’s witnesses were also in attendance; and upon the calling of the cause on the day before, the plaintiff’s counsel asked that a jury might be called and sworn; whereupon the defendant’s counsel enquired of the said counsel whether the lease in question would be produced on the trial, and were answered that it would; but the defendant’s counsel said they could not announce the defendants as ready for trial, as they did not know whether all their witnesses were present; and the case was laid over until the next day. Upon this state of facts the court refused to continue the cause ; and the defendant excepted.
    In the progress of the trial the defendant introduced two receipts of the plaintiff to the defendant for the rent of the land for the years 1868 and 1869, and also evidence to prove his possession of the land from the 1st of January 1868, and thereupon announced that he was through with his evidence. And the plaintiff then moved to exclude from the jury all the evidence of the defendant; which motion the court sustained, and excluded the evidence; and the defendant excepted.
    After this exception had been signed, the plaintiff waived her objection to the evidence of the defendant proving his possession. To this the defendant objected, as excluding evidence properly explanatory of the evidence which the plaintiff proposed to admit. But the court overruled the objection ; and the defendant again excepted. The evidence is set out in the opinion of Moncure, P.
    There was a verdict and judgment for the plaintiff; which, upon appeal to the Circuit court of Montgomery, was reversed, and the cause was remanded to the County court for a new trial to be had therein. And, thereupon, *M. B. Taylor applied to this court for a supersedeas to the judgment of the Circuit court, which was awarded.
    Doddridge and Trigg, for the appellant.
    The Attorney-General and Phlegar, for the appellee.
    
      
       Judge Staples had been counsel in the cause.
    
    
      
       Continuances. — See generally, monographic note on “Continuances” appended to Harman v. Howe, 37 Gratt. 676.
    
    
      
       Evidence — Private Writings — Proving Contents— Exception. — As said in the principal case, as a general rule, parol evidence is inadmissible to prove the contents of a written contract, unless the non-production of such contract is first duly accounted for. An exception to this rule is that a parol admission by a party to a suit is always receivable in evidence against him, although it relates to the contents of a deed or other written instrument; and even though its contents be directly in issue in the cause. This exception is known as a doctrine of Slatterie v. Pooley (6 M. & W. 664). The principal case is cited as affirming the doctrine of Slatterie v. Pooley. 1 Greenl. (16th Ed.) 692.
      Evidence — Declarations.—In Powellv. Tarry, TiVa. 261, the court sa,id: “As to the second exception of the plaintiff in error, because the court allowed the letter of E. T. Hamilton to be received in evidence. It does not lie with Hamilton to obj ect to the reading of this letter in evidence. It was his own statement about the very questions at issue, and his admission that he had received the land brought by Powell, as mentioned above, and may'home been most material to the just determination of the questions at issue, the letter was clearly admissible as evidence against Hamilton; the weight to be attached to it was quite another question, and came within the province of the jury. See opinion of Moncure, P.. in the case of Taylor v. Peck, 21 Gratt. 11.
      “This general rule, admitting the declarations of a party to the record in evidence, applies to all cases where the party , has any interest in the suit. Greenleaf, 1st vol., § 172."
    
   MONCURE, P.,

delivered the opinion of the court.

This is a supersedeas to a .judgment of the Circuit court of Montgomery county, reversing a judgment of the County court of said county, in an action of unlawful detainer. It appears that the land sued for had been leased by the plaintiff to the defendant by a sealed lease for the term of five years, commencing the first day of January 1868, and ending on the 1st of January 1873, at an annual rent of three hundred dollars. The action was brought on the Sth day of November 1869, before the end of the second year of the' said term of five years. Several errors in the judgment of the County court (which was for the plaintiff) were assigned in the defendant’s petition for a supersedeas to the Circuit court, but one of them only was noticed in the judgment of the Circuit court, and on that the judgment of the County court was reversed. Before noticing that, we will notice one other of the errors assigned in the judgment of the County court, which error, we think, is well assigned, and upon it, also, that judgment might have _ been reversed. The error here referred to is the first in the defendant’s assignment of errors in his petition for a supersedeas to the said judgment of the County court; that is, that “the court erred in refusing to continue the case upon motion of petitioner, as appears from the second bill of exceptions filed in the case.”

The defendant, undoubtedly, would have had good ground for a continuance of the case on account of the absence of the plaintiff, but for the agreement made between them in regard to the production on the trial of *the cause of the agreement, then in her possession, under which he claimed to be entitled to the possession of the land in question. She had been duly summoned as a witness, and was absent at the trial; and her materiality as a witness for the defendant was proved to the court. This state of facts, standing by itself, would have presented a plain case for a continuance. But the defendant further proved that he had told the plaintiff, that if she would cause the said agreement to be produced in evidence on the trial of the cause, then she need not attend the court. And if the plaintiff had been willing, when the case was called for trial, to produce the said agreement as evidence in the cause, there would have been no ground for a continuance on account of her absence. But her counsel refused in open court, upon being applied to, to consent that the said writing should go before the jury, but said they would produce it in court on the trial of the case, as notified, and that the question of admitting it before the jury was to be determined hereafter. Now, if the understanding between the plaintiff and defendant was as proved by the defendant, that the said writing should be produced in evidence on the trial, then, clearly, the refusal of the plaintiff’s counsel to consent that said writing should go before the jury entitled the defendant to a continuance, notwithstanding the declaration of said counsel, as aforesaid, that they would produce said writing in court on the trial of the case, as notified, and that the question of admitting it before the jury was to be determined hereafter. The condition on which the defendant had consented to dispense with the necessity of the plaintiff’s personal attendance on the trial as a witness on his behalf, not having been performed, he of course had the same right to a continuance that he would have had if there never had been any such condition. The declaration of the plaintiff’s counsel, that they would produce said writing in court on the trial, and that the question *of admitting it before the jury was to be determined hereafter, makes no difference. The condition as proved by the defendant, in which view we are now considering it, was that the said writing should be produced in evidence on the trial; that is, should be read as evidence before the jury; not that the question of admissibility should first be referred to the decision of the court, and the writing be produced in evidence only in the event of its being determined to be legally admissible.

There was, on the motion for a continuance, evidence before the court tending to show that the defendant had said he told the plaintiff she need not attend as a witness, if she would produce the said writing before the court, saying nothing about its being produced to be read in evidence on the trial of the cause. But the weight of evidence decidedly sustained the defendant in his view of 'the condition on which he agreed to dispense with the necessity of the presence of the plaintiff as a witness on the trial.

But whether the plaintiff or the defendant were right in regard to their respective views of the said condition, there was, at least, a misunderstanding between them on the subject; and that of itself, entitled the defendant to a continuance of the cause to prevent the effect of a surprise upon him.

If, however, the plaintiff desired to avoid a continuance on that ground, she had it in her power to do so, by consenting that the said writing, which her counsel then had in court, should be read in evidence before the jury on the trial of the cause. There could have been no good reason for refusing so to consent, if the said writing were legally admissible, as the plaintiff by her counsel now contends that it was. It is contended further by her counsel that there-was no necessity for such consent; that the said writing was clearly admissible evidence though insufficiently stamped, and that the defendant would have been entitled to read it in evidence *before the jury when the time came to do so. But it was not then, if it be now, a settled question, that such evidence is admissible. The defendant’s counsel manifestly thought that it was not admissible, and the plaintiff’s counsel probably then entertained the same opinion; though he is now of a different opinion, and cited in his brief several recent authorities to sustain his present opinion. At all events, the plaintiff’s counsel, by refusing to consent that the said writing should be read in evidence, plainly indicated an intention to question its admissibility when it should be offered as evidence before the jury; and the defendant was not bound to run the risk of its being excluded, but had a right to have the case continued, when the plaintiff refused to give her consent as aforesaid.

We will now proceed to consider the ground of error on which the judgment of the County court was reversed by the Circuit court; that is, that the evidence of the defendant which was excluded by the County court, was admissible evidence and ought not to have been so excluded.

The question presented by this assignment of error arises on the 4th bill of exceptions ; from which it appears, that on the trial of the cause, the plaintiff proved herself to be the owner in fee of the lands in question, and that defendant was in possession on the 5th day of November 1869, the date of the writ, and was still in possession at the time of the trial, and the plaintiff lived two miles from the main dwelling which was occupied by the defendant on said premises; and closed her evidence. The defendant, to sustain the issue on his part, then introduced two receipts signed by the plaintiff in the words and figures following, to wit:

“Received of C. D. Peck, three hundred dollars, amount in full for the rent of my property for the year 1868.
M. B. Taylor.”
[U. S. revenue stamp, 2 cents; can-celled. ]
of C. L¡. Peck, January 1, 1870, three hundred dollars in full, for the rent of my property for the year 1869, according to contract. M. B. Taylor.”

[U. S. revenue stamp, 2 cents ; cancelled.]

And proved that the sum of money mentioned in the receipt which is not dated, was paid partly in 1868, and the balance in September 1869; that the payment in September 1869, was not made by the defendant in person, but by an agent, and that the receipt was given on the 1st day of January 1870. And he further proved that the sum of money mentioned in the receipt bearing date January 1st, 1870, was actually paid on the said 1st day of January 1870, and was for the use and occupation of said premises for the year 1869; and he further ' proved that he had been in possession of said land since the 1st of January 1868. And thereupon, the defendant announced that he was through with his evidence. The plaintiff then moved the court to exclude from the jury all the evidence introduced by the defendant, on the ground that there was a written article of lease between the parties relative to the land in dispute; which motion was resisted by the defendant. But the court sustained the plaintiff’s motion and excluded the said evidence; and the defendant excepted. Other matters are set out in the bill of exceptions, which need not be here repeated. Afterwards, on the plaintiff’s motion, the court admitted so much of the defendant’s evidence as proved that defendant had been in possession of the land in controversy since the 1st January 1868, but excluded all the balance of said evidence; to which ruling of the court the defendant again excepted; and this constitutes the ground of his 5th bill of exceptions.

The defendant’s evidence was excluded by the County court upon the ground that parol evidence is inadmissible to prove the contents of a written contract, unless *the non-production of such contract is first duly accounted for; and that to admit the said evidence of the defendant in this case, would be to violate that rule.

There is no doubt about the existence of the rule or its wisdom. The only question is, does this case fall within it? Or does not this case come within some exception to the rule?

First. We think this case does not fall within the rule. In other words, that the rule does not apply to it. The evidence was not offered, and does not .tend, to prove the contents of a written contract. It was offered, and tends only, to prove that at the time of the institution of the action, the defendant occupied the land in controversy as the plaintiff’s tenant. The terms of the tenancy, or of the lease under which the defendant then held the premises, was perfectly immaterial. If he held them at that time as tenant, no matter on what terms and conditions, he held them lawfully, and the plaintiff had no right to recover in the action. That he held them as tenant of the plaintiff, and not adversely, was a fact which could be proved by parol evidence, and need not of necessity be proved by the production of the lease, though there may have been no reason for its non-production. It is well settled in England that the existence of a tenancy between the parties may be shown by parol, though the demise be in writing. Rex v. Holy Trinity, Kingston upon Hull, 7 Barn. and Cres. 611, 14 Hng. C. L. R. 101. If the fact of the occupation of land is alone in issue, without respect to the terms of the tenancy, this fact may be proved by any competent oral testimony, such as payment of rent, or declarations of the tenant, notwithstanding it appears that the occupancy was under an agreement in writing ; for'here the writing is only collateral to the fact in question. Thus the law is laid down by Professor Greenleaf, 1 Greenl. on E)v. 87; and he cites the following cases to sustain him: Rex v. Holy Trinity, &c., supra; Doe v. Harvev, 8 Bing. R. 239, *241; Spiers v. Willison, 4 Cranch. U. S. R. 398; Dennett v. Crocker, 8 Greenl. R. 239, 244. The case of Rex v. The Holy Trinity, &c., which was decided by the whole court of King’s Bench in 1827, was questioned in the case of Strother, &c. v. Barr, &c., decided by the common ideas in 1828 ; 5 Bing. R. 136, 15 Eng. C. L. R. 391; and. the opinion of Best, C. J., in that case, was much reli ed upon in the argument of the counsel for the plaintiff in this case. But in that case there was an equal division of the court, and the decision was against the opinion of the Chief Justice. He was the only judge in the case who questioned the correctness of the decision of Rex v. The Holy Trinity, &c., while two of the three other judges strongly relied upon it as a binding authority.

Secondly. But even if the rule in question were applicable to such a case as this, it comes within the exception to the rule which was declared in the case of Slatterie v. Pooley, 6 Mess. & Welsh. R. 664, decided by the Court of Exchequer in 1840, and cited by the Attorney-General in this case. That exception is, that “a parol admission by a party to a suit is always receivable in evidence against him, although it relate to the contents of a deed or other written instrument; and even though its contents be directly in issue in the cause.” Parke, B., in his opinion in that case, after admitting that the case of Bloxam v. Elsee, decided by Eord Tentdrd'en at Nisi Prius, was no. doubt to the contrary, said, that “since that case, as well as before, there have been many reported decisions, that whatever a party says, or his acts amounting to admissions, are evidence against himself, though such admissions may involve what must necessarily be contained in some deed or writing.” “Many of these cases are collected in the 1st Vol. of Messrs. Phillips & Amos, p. 364; and any’ one experienced in the conduct of causes at Nisi Prius,. must know how constant the practice is. Indeed, if such' evidence were inadmissible, *the difficulties thrown in the way of almost every trial would be nearly insuperable. The reason why such parol statements are admissible, without no.tice to produce, or accounting. for the absence of the written instrument, is, that they are not open to the same objection which belongs to parol evidence from other sources, where the written evidence might have been produced; for such evidence is excluded from the presumption of its untruth, arising from the ‘very nature of the case, where better evidence is withheld; whereas, what a party himself admits to be true, may reasonably be presumed to be so. 'The weight and value of such testimony is quite another question. That will vary according to circumstances, and it may be in some cases quite unsatisfactory to a jury. But it is enough for the present purpose to say, that the evidence is admissible.” Lord Abinger, C. B., “concurred in what was said by Parke, B. ; and stated that he had alwkys considered it as clear law, that a party’s own statements -were in all cases admissible, whether they corroborate the contents of a written instrument or not.” The other Barons who sat in the case, also concurred. This case is entitled to very great respect, looking to the high character of the judges who decided it. Than Baron Parke and Eord Chief Baron Abinger, there have perhaps been no English judges of higher standing.

The case of Slatterie v. Pooley has since been confirmed by a unanimous decision of the court of Common Pleas in the case of Howard v. Smith, 3 Man. & Gran. 254, 42 Eng. C. L. R. 139, decided in 1841, and also cited by the Attorney-General.

According to these cases, which we think correctly expound the law, the receipts of the plaintiff for rent for- the years 1868 and 1869, which were excluded as aforesaid, were clearly admissible.

And we think that all the evidence of the defendant which was excluded by the County court was admissible evidence, and ought not to have been so excluded.

*We are, therefore, of opinion that there is no error in the judgment of the Circuit court, and that it be affirmed.

The judgment is as follows:

This day came, &c., and the court having maturely considered, &c., is of opinion, for reasons stated in writing and filed with the record, that there is no error in the said judgment of the said Circuit court. Therefore, it is considered that the said judgment be affirmed, and that the defendant recover of the plaintiff thirty dollars damages, and his costs by him about his defence in this behalf expended. Which is ordered to be certified to the said Circuit court of Montgomery county.

Judgment of the Circuit court affirmed.  