acknowledgments of the mortgagor's title given by one of several mortgagees in possession, which is the same in principle as the enactments just cited from Lord Tenterden's Act. § 748. Where a member of a partnership has been adjudged 678A bankrupt, and an action has been brought, under the authority of the Court of Bankruptcy, in the joint names of the trustee and of the bankrupt's partner, such partner has no power to release the debt or demand to which the action relates, but any attempted profits of any land, or the receipt of any rent, comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee or the person claiming through him; and, in such case, no such action or suit shall be brought but within twelve years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under, him or them, or any person or persons entitled to any estate or estates, interest or interests, to take effect after, or in defeasance of, his or their estate or estates, interest or interests; and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage, as against the person or persons entitled to any other undivided or divided part of the money or land or rent; and where such of the mortgagees or persons aforesaid, as shall have given such acknowledgment, shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgaged money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent, on payment, with interest, of the part of the mortgage money which shall bear the same proportion to the whole of the mortgage money, as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage." 28 of 3 & 4, W. 4, c. 27, has been repealed by 9 of 37 & 38 V., c. 57. See Richardson v. Younge, 10 Law Rep., Eq. 275, per Malins, V.-C.; 39 L. J., Ch. 475, S. C.; 40 L. J., Ch. 338, S. C., by Lds. Js.; and 6 Law Rep.,. Ch. Ap. 478. release made by him, is, by the Bankruptcy Act of 1883,'-as was the law by the Act of 1869,2-rendered void.3 § 749. If an admission has been made by one of several parties 679 in fraud of the others jointly interested with him, and in collusion with the opponent, then, on proof of this fact by the innocent parties, such admission will, on principles of equity, be rejected by the court.* 5 § 750. In order to render the admission of one person receivable 680 in evidence against another, it must relate to some matter in which either both were jointly interested, or one was derivatively interested through the other; and a mere community of interest will not be sufficient. Thus, where two persons were in partnership, and an action was brought against them as part-owners of a vessel, an admission made by the one, as to a matter which was not a subject of co-partnership, but only of co-part-ownership, was held inadmissible against the other. So, where two executors were sued on a covenant by a testator for quiet enjoyment, and the question sowewhat singularly raised by the facts and the pleadings was, whether the defendants, who had themselves evicted the covenantee, had done so under a lawful title, it was held that the plaintiff, in order to establish this fact, could not put in evidence a declaration by one of the defendants, made after entry, to the effect that both of them had a lawful title, through the testator, under a deed prior to that on which the action was founded." The court considered that this admission was not made by the party in his character as executor, nor did it relate to any matter touching the testator's estate; but it simply referred to something of which the two defendants had 113. 105. 146 & 47 V., c. 52, 2 32 & 33 V., c. 71, 3 But in order to protect the interest of the partner, he must have "notice of the application for authority to commence the action," and if he claims no benefit therefrom, "he shall be indemnified against costs." 'See Rawstorne v. Gandell, 15 M. & W. 304; Phillips v. Clagett, 11 M. & W. 84; ante, 741. 5 Jaggers v. Binnings, 1 Stark. R. 64, per Ld. Ellenborough. See Brodier. Howard, 17 Com. B. 109. * Fox v. Waters, 12 A. & E. 43. See Stanton v. Percival, 5 H. of L. Cas. 257. taken advantage in their individual capacities. It may even be doubted whether an express promise made by one executor in his representative character will bind the remaining executors in their representative characters; and it has been held that the admission of the receipt of money by one of several trustees, who were joint defendants, but were not personally liable, could not be received to charge the others." 3 § 751. So, where a joint contract is severed by the death of one ? 681 of the contractors, nothing that is subsequently done or said by the survivor can bind the personal representative of the deceased,* nor can the acts or admissions of the executor bind the survivor." Neither will the admissions of one tenant in common be receivable against his co-tenant, though both are parties on the same side of the suit ; and in America, it has been decided, that no such privity exists among the members of a board of public officers,' or among several indorsers of a promissory note, or between executors and heirs of devisees," as to make the admission of one binding on all. These cases almost dispense with the necessity of adding, that in an action for negligence, or trespass, or in any other action for tort, the admission of one defendant will not be evidence against the others; and it is abundantly clear that the same rule prevails 10 1 Tullock v. Dunn, Ry. & M. 416, per Abbott, C. J.; cited with approbation by Parke, B., in Scholey v. Walton, 12 M. & W. 514, who there questioned the correctness of the contrary opinion, which the Q. B. appeared to have entertained in Atkins v. Tredgold, 2 B. & C. 23 ; 3 D. & R. 200, S. C.; and in M'Culloch v. Dawes, 9 D. & R. 40. 2 Davies v. Ridge, 3 Esp. 101, 102, per Ld. Eldon. 3 Gr. Ev. 176, in part. Atkins v. Tredgold, 2 B. & C. 23; 3 D. & R. 200, S. C.; Fordham v. Lockwood v. Smith, 5 Day, 309. 8 Slaymaker v. Gundacker's Ex., 10 Serg. & R. 75. Osgood v. Manhattan Co., 3 Cowen, 611. See, also, Fordham v. Wallis, 10 Hare, 217. 10 Daniels v. Potter, M. & M. 501, per Tindal, C. J.; Morse v. Royal, 12 Ves. 362, per Ld. Erskine. See R. v. Hardwick, 11 East, 585, where Ld. Ellenborough lays down the rule somewhat too loosely. in criminal proceedings, as the law cannot recognise any partnership or joint interest in crime.1 § 752. One apparent exception to this last proposition prevails, 682 where the inhabitants of townships, counties, or other territorial divisions of the country, sue or are prosecuted eo nomine; but in these cases they are regarded in the light of a corporation, of which each individual inhabitant forms a component part; and therefore it is entirely consistent with the rule stated above, to hold that the declarations and admissions of any one of such persons should be receivable in evidence against the collective body. It has, consequently, been decided on an indictment against a township for non-repair of a bridge, that the declarations of all rateable inhabitants, whether actually rated or not, may be given in evidence for the Crown, though the value of such evidence will of course vary according to the knowledge and position of the declarant, and will in many cases be exceedingly slight. So, also, in settlement cases, declarations by rated parishioners will be evidence against the parish. This rule of evidence is in no way affected by the statutes, which render parties to the record and other interested persons competent witnesses.* 3 2 § 753. An apparent joint interest is obviously insufficient to § 683 make the admissions of one party receivable against his companions, where the reality of that interest is the point in controversy. A foundation must first be laid, by showing, primâ facie, that a joint interest exists. Where, therefore, an action was brought against a party for money had and received, and the plaintiff, in order to prove the receipt of the money by the defendant, tendered in evidence certain statements, which had been made by a person whom the defendant had taken into partnership subsequently to the transaction in question, the court rejected the evidence of these 1 Grant v. Jackson, Pea. R. 204, per Ld. Kenyon. 2 R. v. Adderbury East, 5 Q. B. 187, 189, n. a.; R. v. Hardwick, 11 East, 586, per Ld. Ellenborough. 3 R. v. Hardwick, 11 East, 579; R. v. Whitley Lower, 1 M. & Sel. 636; R. . Woburn, 10 East, 395. See 6 & 7 V., c. 85; 14 & 15 V., c. 99; 16 & 17 V., c. 83. Gr. Ev. 177, in part. 2 statements, on the ground that a joint liability could not be presumed from the mere fact of a subsequent partnership.' Again, the existence of a joint interest which is disputed, cannot be established by the admission of one of the parties sought to be charged, but this fact must be established by independent proof. Therefore, in an action against three makers of a promissory note, the joint execution of which was the point in issue, the admission of his signature by one defendant was held insufficient to entitle the plaintiff to recover against him and the others, though theirs had been proved; the point to be established against all being a joint promise by all. And where it is sought to charge several as partners, an admission of the fact of partnership by one is not receivable in evidence against any of the others, to prove the partnership; but it is only after the partnership is shown to exist by independent proof satisfactory to the judge, that the admission of one of the parties are received in order to affect the others. As, however, the admissions are evidence against the party making them, he will be bound thereby, either in an action brought against him as surviving partner, or even, if he be sued on the joint promise with his co-partners, provided they have let judgment go by default.' 3 5 § 754. In general, the statement of defence made by one de- ¿ 684 fendant cannot be read in evidence either for or against his codefendant; neither can the answer to interrogatories of one defendant be read in evidence, excepting against himself; the reason being, that, as there is no issue between the defendants, no opportunity can have been afforded for cross-examination; and 1 Catt v. Howard, 3 Stark. R. 3, 5, per Abbott, C. J. 2 Gray v. Palmers, 1 Esp. 135. 3 Nicholls v. Dowding, 1 Stark. R. 81; Gibbons v. Wilcox, 2 Stark. R. 43; Grant v. Jackson, Pea. R. 204, per Ld. Kenyon; Van Reimsdyk v. Kane, 1 Gall. 635; Harris v. Wilson, 7 Wend. 57; Burgess v. Lane, 3 Greenl. 165; Dutton v. Woodman, 9 Cush. 255, 260. 4 Sangster v. Mazarredo, 1 Stark. R. 161, per Ld. Ellenborough; Ellis v. Watson, 2 Stark. R. 453, 478, per Abbott, C. J. See Meyer v. Montriou, 9 Beav. 521; Stephens v. Heathcote, 2 Drew. & Sm. 138; Parker v. Morrell, 2 Phill. 463, per Ld. Cottenham; Hoare v. Johnstone, 2 Keen, 553; Saltmarsh v. Hardy, 42 L. J., Ch. 422, per Ld. Selborne, C. • Jones v. Turberville, 2 Ves. 11; Morse v. Royal, 12 Ves. 355, 361, 362. |