ACTS AND DECLARATIONS OF CONSPIRATors.

383 oral, which, although made during the continuance of the plot, are in fact a mere narrative of the measures that have already been taken. These last statements are, as before explained (a), inadmissible. The distinction here adverted to may be well illustrated by referring to the case of Hardy, who was prosecuted for high treason. There, a letter, written by a co-conspirator to a private friend unconnected with the plot, which gave an account of the proceedings of a society to which the writer and the defendant were proved to have belonged, and which inclosed several seditious songs stated to have been composed by the writer, and sung by him at a meeting of the society, was rejected, on the ground that it was not a transaction in support of the conspiracy, but merely a relation of the part which the writer had taken in the plot, and, as such, only admissible against himself (b). A second letter was then offered in evidence, which was written by another co-conspirator to a delegate in the country, describing the events that had occurred in London, and exciting and encouraging him thereby to proceed in the criminal business in which he was engaged; and as this was considered by the Court as an act done in furtherance of the plot, the letter was received against the defendant, though there was no evidence to show that it had ever reached the person for whose perusal it was intended (c). The same distinction was drawn by the Court in the case of R. v. Blake (d), where the accused was indicted for conspiring with one Tye and others to defraud Her Majesty of certain duties of customs. It appeared at the trial that Blake was a landing waiter, and Tye an agent for importers, at the Custom-house; and it was the duty of these persons respectively to make entries of the contents of cases imported, so as to be a check upon each other. It was shown that on thirteen occasions they had made false entries, in which they stated that certain cases contained smaller quantities than was really the fact. It was then proposed to put in evidence Tye's

(a) Ante, § 401.

(b) 24 How. St. Tr. 451-453, per Eyre, C. J., Macdonald, C. B., and Hotham, B.; Buller and Grose, Js., diss. In R. v. Watson, 32 How. St. Tr. 352, Lord Ellenborough observed that there was great weight in the arguments of Buller & Grose, Js.

(c) 24 How. St. Tr. 473-477, per Macdonald, C. B., Hotham, B., Buller and Grose, Js.; Eyre, C. J., dubit. (d) 6 Q. B. 126.

384

ACTS AND DECLARATIONS OF CONSPIRATORS.

day-book, which contained entries in his handwriting relative to the thirteen transactions, and showed the amount of duty actually paid by him. This book was found in Tye's counting-house, and the Court held that it was clearly admissible, as containing entries made in furtherance of the conspiracy. Tye's cheque-book was next produced, for the purpose of showing by the counterfoil that Blake had received from him part of the monies of which the Customs had been defrauded in these transactions; but the Court rejected this evidence, on the ground that it was no act done in pursuance of the plot, but was a mere statement as to the mode of distributing the plunder, after the fraud had been completed. Again, a conversation between two men, apparently returning from a meeting, which had been held within an hour before, and about half a mile distant from the spot where the men were, has been rejected, though offered as evidence, not only of the general nature of the meeting, but of the effect that was likely to be produced by the language there employed (d). In fine, the declarations of a conspirator or accomplice are receivable against his fellows, only when they are in themselves acts, or when they accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.

§ 406. On a somewhat similar principle, papers found, after the apprehension of a prisoner, on the person or at the lodgings of a co-conspirator, will be admissible or not against him, according as there is or is not evidence to show that they existed before he was taken into custody. If there be no such evidence the papers will be rejected, as the prisoner cannot be responsible for acts or writings, which possibly may not have existed until after the common enterprise was, so far as he was concerned, at an end (e); but if the previous existence of the papers be established, either by direct proof, or by strong presumptive evidence, the objection to their admissibility can no longer prevail (f). The question how far

(d) R. v. O'Connell, Armst. & Trev. 257-259. See also R. v. Murphy, 8 C. & P. 305; R. v. Watson, 2 Stark. R. 141; 32 How. St. Tr. 349, 351, S. C. (e) R. v. Hardy, 24 How. St. Tr. 718, 731.

(f) R. v. Watson, 32 id. 337-342, 347-350; 2 Stark. R. 140, 141, S. C.

PAPERS AND UNPUBLISHED WRITINGS OF CONSPIRATORS. 385

unpublished writings upon abstract subjects, which, though of a kindred nature with the crime charged, have no direct relation to it, are admissible in evidence, may admit of some doubt. In the case of Algernon Sidney, a treatise containing speculative republican doctrines, which not only was unpublished, and unconnected with the treasonable practices of which he was accused, but which appeared to have been composed several years before the trial, was, under the auspices of Judge Jefferies, admitted in evidence (g); but subsequent times have regarded this trial as a judicial murder, and such proof would assuredly be rejected at the present day. If, indeed, the papers were closely connected with the nature and object of the alleged crime, they would, probably, though unpublished, be considered in strict law as admissible, without any positive proof that they were intended to be used in furtherance of the design; and if such proof could be given, they would doubtless be received (h). Where conversations of co-conspirators or accomplices are proved, the effect of the evidence will of course depend upon the surrounding circumstances, such as the fact and degree of the prisoner's attention to what was said, and his approval or disapproval thereof (i).

§ 407. The declarations of co-trespassers in civil actions are governed by the same rules; that is, if several are jointly sued, the declarations of each, which constitute parts of the res gestæ, are admissible against all (j); while those which amount to mere admissions, or narratives of past events, can only be received against the party making them (k). In one case (7), which was an action for false imprisonment, Mr. Baron Garrow admitted the declarations of a co-defendant, showing personal malice, as evidence against the other defendants, though made in their absence, and

(g) 9 How. St. Tr. 854-859; observed upon by Abbott, J., in R. v. Watson, 2 Stark. R. 147; and by Foster, J., in his Treatise on Crown Law, 198. (h) R. v. Watson, 32 How. St. Tr. 354-361; 2 Stark. R. 141, S. C. (i) R. v. Hardy, 24 id. 703, per Eyre, C. J.

(j) See R. v. Hardwick, 11 East, 585, per Lord Ellenborough; Powell v. Hodgetts, 2 C. & P. 432, per Garrow, B.; North v. Miles, 1 Camp. 389, per Lord Ellenborough; Bowsher v. Calley, id. 391, n, per id. ; 1 Ph. Ev. 204.

(k) Daniels v. Potter, M. & M. 501, per Tindal, C. J.

(7) Wright v. Court, 2 C. & P. 232.

C C

386

DECLARATIONS OF CO-TRESPASSERS-OF PARTNERS.

several weeks after the act complained of; but the attention of his lordship does not appear to have been drawn to the time when the words were spoken, and probably this case would not now be sanctioned. Where no common object or motive is imputed, as in actions for negligence, the declaration of each defendant is admissible against himself alone (m).

§ 408. This doctrine extends to all cases of partnership. Whereever any number of persons are associated together in the joint prosecution of a common enterprise or design, as in commercial partnerships, and similar cases, the act or declaration of each member, in furtherance of the common object of the association, is the act or declaration of all. By the very act of association each partner is constituted the agent of the others, for all purposes within the scope of the partnership concern (n); unless, under the special circumstances of the case, an intention can be inferred by the jury, that a particular act should not be binding-without the direct concurrence of each individual partner (o). While the firm thus created exists, it speaks and acts only by the several members; but when that existence ceases by dissolution, the subsequent acts of the individual members are binding on themselves alone (p), except so far as may have been otherwise agreed upon by the articles of association or of dissolution (q), or as the acts relate to the previous business of the firm (r). This last exception may be illustrated by the case of Pritchard v. Draper (s), where Lord Brougham held, that the admission of one partner, as to the payment, subsequently to a dissolution, of a debt due to the firm, was admissible against the other partners, and also by the case of Goddard v. Ingram (t), where the Court of Queen's Bench decided,

(m) Daniels v. Potter, M. & M. 503, per Tindal, C. J.

(n) Sandilands v. Marsh, 2 B. & A. 673, 678, 679; R. v. Hardwick, 11 East, 589; Fox v. Clifton, 6 Bing. 792; Nicholls v. Dowding, 1 Stark. R. 81; Hodenpyl v. Vingerhoed, Chitty on Bills, 627, n.q.; Van Reimsdyk v. Kane, 1 Gall. 630, 635; Coit v. Tracy, 8 Conn. R. 268.

(0) Latch v. Wedlake, 11 A. & E. 959, 965, 966.

(p) Wood v. Braddick, 1 Taunt. 105, per Sir Jas. Mansfield; Petherick v. Turner, cited id.

(2) Burton v. Issitt, 5 B. & A. 267; Bell v. Morrison, 1 Peters, 371.

(r) Wood v. Braddick, 1 Taunt. 104.

(s) 1 Russ. & My. 191, 199, 200.

(t) 3 Q. B. 839. See Dowling v. Ford, 11 M. & W. 329.

ACKNOWLEDGMENT OF DEBT BY PARTNER.

387

that an actual part payment of a partnership debt by one of the members of a dissolved firm, though made in collusion with the creditor, in fraud of the other debtors, in expectation of immediate bankruptcy, and more than six years from the last preceding payment, was sufficient to bar the Statute of Limitations as against the remaining original partners.

§ 409. The mere promise to pay the debt, or the acknowledg. ment of the debt (u), or of part payment (v), by one member of a firm, whether made during the partnership, or after the dissolution, will not take the case out of the statute, and revive the remedy against the other members; but this is owing to the salutary operation of Lord Tenterden's Act (w), which provides, that "where there shall be two or more joint contractors, or executors or administrators of any contractor," such persons shall not lose the benefit of the statutes of limitation (x), "so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them " (y). It is true that this act speaks of joint contractors, and does not in terms mention partners; and consequently here, as in other cases, where the language of the legislature is in the remotest degree doubtful, a distinction has been attempted to be drawn between these two classes of persons, and it has been

(u) Jones v. Ryder, 4 M. & W. 32; Hopkins v. Logan, 5 id. 248, per Parke, B. (v) Clark v. Alexander, 8 Scott, N. R. 147, 164; Willis v. Newham, 3 Y. & J. 518; Tippets v. Heane, 1 C. M. & R. 252; 4 Tyr. 772, S.C.; Waters v. Tompkins, 2 C. M. & R. 723; Tyr. & Gr. 137, S.C.; Waugh v. Cope, 6 M. & W. 829 ; Maghee v. O'Neill, 7 id. 531; Eastwood v. Savile, 9 id. 615; Bayley v. Ashton, 12 A. & E. 493; 4 P. & D. 204, S.C.; Mills v. Fowkes, 5 Bing. N. C. 455; 7 Scott, 444, S.C. (w) 9 Geo. 4, c. 14, § 1.

(x) 21 Jac. 1, c. 16; 10 Car. 1, sess. 2, c. 6.

(y) The act further provides," that nothing therein contained shall alter or take away the effect of any payment of any principal or interest made by any person whatsoever;" and "that, in actions to be commenced against two or more such joint contractors, or executors, or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited acts or this act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff."