1 received in evidence against their landlords is not very distinctly ascertained; but, although in one case at Nisi Prius it has been held, that the receipts of a lessee of vicarial tithes were evidence, in proof of a modus, against the vicar, by a reason of privity between them; and though in an action for the recovery of land, the admission of the tenant in possession will, from the peculiar nature of the proceedings, be evidence against one who defends as landlord;" yet it seems that, in general, the naked declarations of a tenant will not be evidence against the reversioner; and it has been expressly held, that the declarations of a former occupier of the defendant's land were not admissible against him, on an issue whether the plaintiff had an easement in such land.' § 790. The same principle holds in regard to admissions made by 715 the assignor of a personal contract or chattel previous to the assignment, where the assignee must recover through the title of the assignor, and succeeds only to that title as it stood at the time of its transfer. In such case, he is bound by the previous admissions of the assignor in disparagement of his own apparent title. But this is true only where an identity of interest exists between the assignor and assignee; and such identity is deemed to exist, not only where the latter is either expressly or impliedly the mere agent and representative of the former," but also where the assignee has acquired a title with actual notice of the true state of that of the assignor as qualified by the admissions in question, or where he has purchased a demand already stale, or otherwise infected with circumstances of suspicion. 1 Jones v. Carrington, 1 C. & P. 329, 330, per Park, J. See, also, Illingworth v. Leigh, 3 Gwill. 1615; 3 Eag. & Y. 1385, S. C. 2 Doe v. Litherland, 4 A. & E. 784; 6 N. & M. 313, S. C. See Rules of Sup. Ct., 1883, Ord. XII., RR. 25, 26. 3 Tickle v. Brown, 4 A. & E. 378, per Patteson, J. Scholes v. Chadwick, 2 M. & Rob. 507, per Cresswell, J.; Papendick v. Bridgwater, 5 E. & B. 166. 5 Gr. Ev. 190, almost verbatim. 6 Welstead v. Levy, 1 M. & Rob. 138; Harrison v. Vallance, 1 Bing. 45: Gibblehouse . Strong, 3 Rawle, 437; Hatch v. Dennis, 1 Fairf. 244; Snelgrove v. Martin, 2 M'C. 241, 243. § 791.' Thus, in an action by the indorsee of a bill or note, % 716 which has been taken by the plaintiff after it was due, or without consideration, and with notice of fraud in its original concoction, the declarations of the indorser, made while the interest was in him, are admissible in evidence for the defendant. But, on the other hand, the declarations of a former holder of a note, showing that it was given without consideration, though made while he held the note, are not admissible against the indorsee, to whom the instrument has been transferred on good consideration, and before it was overdue; for such an indorsee derives his title from the nature of the instrument itself, and not through the previous holder; and, as Mr. Justice Parke properly observed, "the right of a person, holding by a good title, is not to be cut down by the acknowledgment of a former holder, that he had no title." In applying this rule, a note payable on demand, though not negotiated for some time after its date, will not on that account be treated as a note taken by an indorsee when overdue; for such notes are intended to be continuing securities, and may circulate for years without exciting suspicion.* Neither will the circumstance that the declarations of the prior holder would, if received, prove his fraud in connexion with the indorsee, render them admissible against the latter; because all preliminary facts, which are necessary to establish the admissibility of evidence, must be proved aliundé, before such evidence is received." § 792. The case of Ivat v. Finch® appears to have been decided partly on the same principle. This was an action of trespass for taking three mares, the property of the plaintiff. The defendant, 8717 1 Gr. Ev. 190, in part. 2 Beauchamp v. Parry, 1 B. & Ad. 89; Peckham v. Potter, 1 C. & P. 232, per Ld. Gifford; Benson v. Marshal, cited in Shaw v. Broom, 4 D. & R. 731; Shirley v. Todd, 9 Greenl. 83. 3 Woolway v. Rowe, 1 A. & E. 116, explaining Barough r. White, 4 B. & C. 325; 6 D. & R. 379, S. C.; Smith v. De Wruitz, Ry. & M. 212, per Abbott, C. J.; Beauchamp v. Parry, 1 B. & Ad. 89. Barough v. White, 4 B. & C. 325; Brooks v. Mitchell, 9 M. 5 Phillips v. Cole, 10 A. & E. 106, 112; 2 P. & D. 288, S. C. Clements, 1 Ir. Law Rep., N. S. 44. & W. 15. See Heenan v. 61 Taunt. 141. who was lord of the manor, justified under a heriot custom; and the sole question between the parties was, whether one Alice Watson, the tenant, was possessed of the mares at the time of her death. The plaintiff contended that she had given them to him some time before, and tendered in evidence her declarations to that effect. These were rejected at the trial, but the court above held that they were admissible, as they were against her interest, and the right of the lord depended upon her title. But where the fact of this dependence is not directly raised by the issue, such declarations will be inadmissible; and therefore, in Stotherd v. James,' where an issue was directed to try whether goods seized in A.'s house at the suit of the defendant were the property of the plaintiff, the declarations of A. respecting the property were rejected as evidence; because on that narrow issue the defendant would succeed, whether the goods belonged to A. or to any other person besides the plaintiff. Had the issue raised the question, whether the goods belonged to A. at the time of the execution, it would seem, on principle, that his declarations made before the seizure would have been evidence against the defendant; though, on an issue similar to that which was raised in Stotherd v. James, Mr. Justice Wightman is reported to have rejected the debtor's admissions, on the dubious ground that the execution creditor claimed adversely to him. In the case of Coole v. Braham,3 the Barons of the Exchequer, while they doubted the doctrine propounded by Mr. Justice Wightman, and intimated an opinion that, in an interpleader suit, the execution creditor should be considered as claiming under the debtor, held that the admissions of the debtor would only be evidence against the execution creditor, when they qualified or affected the debtor's title to the chattels in question; and, therefore, on an interpleader issue between the holder of a bill of sale and the execution creditor, where the question raised was the usual one of fraud in the concoction of the bill of sale, the court determined that the plaintiff could not support the genuineness of the instrument, by giving evidence of an admission by the debtor of a debt due from him to the 2 11 C. & Kir. 121, per Maule, J. 2 Prosser v. Gwillim, 1 C. & Kir. 95. plaintiff, though such admission was made prior to the assignment, it having also been made in the absence of the defendant. § 793.' These admissions by third persons, as they derive their ? 718 legal force from the relation of the party making them to the property in question, may be proved by any witness who heard them, without calling the party by whom they were made. The question is, whether he made the admission, and not merely whether the fact is as he admitted it to be. Its truth, where the admission is not conclusive,--and it seldcm is so, may be controverted by other testimony, and even by calling the party himself; but it is not necessary to produce him, for his declarations, when admissible at all, will be received as original evidence, and not as hearsay.' § 794. With respect to the time and circumstances of the admission it may first be observed, that whenever the declarations of a third person are offered in evidence, on the ground that the party against whom they are tendered derives his title from the declarant, it must be shown that they were made at a time, when he had an interest in the property in question; because it is manifestly unjust, that a person who has parted with his interest in property, should be empowered to divest the right of another claiming under him, by any statement which he may choose to make. Thus, the admission of a former party to a bill of exchange, made after he has negotiated it, cannot under any circumstances be received against the holder; and where a person had, by a voluntary postnuptial settlement, conveyed away his interest in an estate, and afterwards had executed a mortgage of the same property, it was held, that his admission that money had actually been 4 8 719 1 Gr. Ev. 191, almost verbatim. 2 Ante, 2 576, 602, 603, and cases there cited; Woolway v. Rowe, 1 A. & E. 114; 3 N. & M. 819, S. C.; Brickell v. Hulse, 7 A. & E. 454. 3 Doe v. Webber, 1 A. & E. 740, per Ld. Denman; Foster v. M'Mahon, 11 Ir. Eq. R. 301; Lalor v. Lalor, 4 L. R. Ir. 678. Pocock v. Billing, 2 Bing. 269; Shaw v. Broom, 4 D. & R. 730. See Roberts v. Justice, 1 C. & Kir. 93. 2 advanced upon the mortgage could not be received on behalf of the mortgagee, who was seeking to set aside the former settlement as voluntary and void.' So, also, the declaration of a bankrupt, though good evidence to charge his estate with a debt, if made before his bankruptcy, is not admissible at all, if it were made afterwards.3 This most just and equitable doctrine will be found to apply to the cases of vendor and vendee, grantor and grantee, and, generally, to all cases of rights acquired in good faith previous to the time of making the admission in question.* § 795. It will here be convenient to repeat,-what has before been 730 briefly noticed, that confidential overtures of pacification, and any other offers or propositions between litigating parties, expressly or impliedly made without predjudice, are excluded on grounds of public policy. For without this protective rule, it would often be difficult to take any steps toward an amicable compromise or adjustment, and as Lord Mansfield has observed, all men must be permitted to buy their peace, without prejudice to them should the offer not succeed; such offers being made to stop litigation, without regard to the question whether anything is due or not. If, therefore, the defendant, on being sued for 100, should offer the plaintiff 201., and at the same time state that such offer was made "without prejudice," this is not admissible in evidence, for it is irrelevant to the issue; it neither admits nor ascer 1 Doe v. Webber, 1 A. & E. 733; 3 N. & M. 586, S. C.; Gully . Bp. of Exeter, 5 Bing. 171, 2 Gr. Ev. 180, in part. 3 Bateman . Bailey, 5 T. R. 513; Smith v. Simmes, 1 Esp. 330; Deady v. Harrison, 1 Stark. R. 60. See, also, Harwood v. Keys, 1 M. & Rob. 204, and Kempland v. Macauley, Pea. R. 66, per Ld. Kenyon. Welstead r. Levy, 1 M. & Rob. 138; Bartlett v. Delprat, 4 Mass. 702, 708; 774. 6 Cory v. Bretton, 4 C. & P. 462, per Tindal, C. J.; Healey v. Thatcher, 8 C. & P. 388; Paddock v. Forrester, 3 Scott, N. R. 734; 3 M. & Gr. 903, S. C.; Jardine v. Sheridan, 2. & Kir. 24; Whiffen v. Hardwright, 11 Beav. 111; Hoghton v. Hoghton, 15 Beav. 821, Jones v. Foxall, id. 388. |