M'CLUNY . SILLIMAN. This court has not jurisdiction to issue a writ of mandamus to the register of a land-office of the United States, commanding him to enter the application of a party for certain tracts of land, according to the 7th section of the act of the 10th May 1800), "providing for the sale of the lands of the United States north-west of the Ohio, and above the mouth of Kentucky River:" which mandamus had been refused by the Supreme Court of the state of Ohio, upon a submission by the register to the jurisdiction of that court, being the highest court of law or equity in that state. 1.-Costs will be allowed upon the dismission of a writ of error, for want of jurisdiction, if the original defendant be also defendant in error. Winches-.] ter v. Jackson et al., 3 Cranch, 515. 2. In the case of Marbury v. Madison, 1 Cranch, 13., the court determined, that having, by the constitution, only an appellate jurisdiction, (except in cases of ambassadors, &c.;) and it being an essential criterion of appellate jurisdiction,that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. That, although a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper was, in effect, the same as to sustain an original action for that paper, and, therefore, seemed not to belong to appellate, but to original jurisdiction; and that consequently the authority given to this court by the 13th section of the judiciary act of 1789, to issue writs of mandamus to "persons holding office under the authority of the United States," was not warranted by the constitution. In M'Intire v. Wood, 7 Cranch, 504, it was decided that the power of the circuit courts to issue writs of mandamus, is confined by the judiciary act of 1789, exclusively, to those cases in which it may be necessary to the exercise of their jurisdiction. That case was brought up from the Circuit Court of Ohio, upon a certificate, that the judges of that court were divided in opinion upon the question whether that court had the power to issue a writ of mandamus to the register of a land-office in Ohio, commending him to issue a final certificate of purchase, 371] to the plaintiff, of certain lands in that state. In delivering the opinion of the court Johnson, J., stated that, "had the 11th section of the judiciary act covered the whole ground of the constitution, | HA ARPER moved for a mandamus in this Lcause, to the defendant, as register of the land office of the United States, at Zanesville, in the state of Ohio, commanding him to enter the application of the plaintiff, for certain tracts of land according to the provisions of the 9th section of the act of Congress of the 10th May, 1800, enof the United States, in the territory of the titled "An act providing for the sale of the lands United States, north-west of the Ohio, and above the mouth of Kentucky River." A rule to show cause had been obtained in the Supreme Court of the state of Ohio (being the highest court of law or equity of that state); whereupon the defendant appeared, and excepted to the jurisdiction of the court; but this plea was afterwards waived, and a case agreed between the parties, on which the court ordered the rule to be discharged. Harper now moved for a mandamus to issue from this *court, upon the [*370 ground that the case was within the appellate jurisdiction of the court under the equity of the judiciary act of 1789; that, although the court had determined that it had no original jurisdiction to issue writs of mandamus to persons holding office under the authority of the United States, yet it might have an appellate jurisdiction to issue a mandamus to such persons, where it had been refused by the highest court of law or equity of a state, in a case drawing in question the validity of a statute of, or an authority exercised under, the United States. The motion was denied by the court. Motion denied.? S. C. 6 Wheat. 598; 3 Pet. 270. there would be much reason for exercising this power in many cases, wherein some ministerial act is necessary to the completion of an individual right, arising under the laws of the United States, and the 14th section of the same act would sanction the issuing of the writ for such a purpose. But, although the judicial power of the United States extends to cases arising under the laws of the United States, the legislature has not thought proper to delegate the exercises of that power to its circuit courts, except in certain specified cases. When questions arise under those laws in the state courts, and the party who claims a right or privilege under them is unsuccessful, an appeal is given to the Supreme Court, and this provision the legislature has thought sufficient, at present, for all the political purposes intended to be answered by the clause of the constitution which relates to this subject." The power of the Supreme Court to issue writs of mandamus to the other courts of the United States has been frequently exercised. The United States v. Peters, 5 Cranch, 115; Livingston v. Dorgenois, 7 Cranch, 577. But in the case of Hunter v. Martin's lessee, ante, vol. 1, p. 304, the court, in pronouncing its opinion upon its appellate jurisdiction in causes brought from the highest court of law or equity of a state, deemed it unnecessary to give any opinion on the question, whether this court has authority to enforce its own judgments on appeal, by issuing a writ of mandamus to the state court, as the question was not thought necessarily involved in the decision of that cause. Ib. 362. award a mandamus to the Postmaster-General, to compel him to pass to the credit of certain contractors of the United States mail a sum found to be due to them by the solicitor of the treasury, under an act of Congress, which refers the matter to his decision, and there can be no review or ap NOTE.-The Supreme Court, by mandamus, act directly upon the officer, or guide or control his judgment or discretion in the matters committed to bis care in the ordinary discharge of his official duties. The interference of the court with the performance of the ordinary duties of the executive departments of the government would be produc-peal therefrom; it being a merely ministerial act, tive of nothing but mischief, and such a power was never intended to be given to them. Decatur v. Paulding, 14 Pet. 497. The Circuit Court of the District of Columbia can about which the Postmaster-General has no discretion. Kendall v. U. S., 12 Pet. 524; 5 Cranch, C. C. 163. A mandamus will not be issued to the secretary of the treasury to compel the payment of a debt [PRIZE.] THE LONDON PACKET. MERINO, Claimant. It is the practice of this court, in prize causes, to hear the cause, in the first instance, upon the evi372] dence transmitted from the Circuit Court, and to decide upon that evidence whether it is proper to allow further proof. Affidavits to be used as further proof in causes of admiralty and maritime jurisdiction in this court must be taken by a commission. N the argument of this cause, Winder, for on affidavit annexed to the record, which was taken under the order for further proof, in the court below, but which, not arriving until after the decree of condemnation was pronounced, was ordered by the Circuit Court to be transmitted, de bene esse, for the consideration of this court. He further stated that he had additional proof, taken since that time, to be used in this court; and he asked whether he should now be permitted to read these proofs, in order to show what was the nature of the evidence which existed, to clear away any former doubts in the cause. MARSHALL, Ch. J. The court is of opinion that the affidavit transmitted from the Circuit Court may be now read. But as to the new proof now offered by the claimant, it is the practice of this court to hear the cause in the first instance, upon the evidence transmitted from the Circuit Court, and to decide upon that evidence whether it is proper to allow further proof. The new proof cannot, therefore, be now read; but, as the opposite party wishes it, the counsel may state the nature of the proof, though not the contents thereof in detail. If 373*] the case shall ultimately appear entitled to further proof, an order will be made for that purpose. A mandamus will not lie to compel the secretary of the navy to pay an officer in the navy a sum which may be shown to be due. Brashear v. Mason, 6 How. 92. Where all the property of the late Bank of the United States had been assigned by a general assignment in trust to assignees, for the purpose of liquidating its affairs, Quere, Whether any action at law could be maintained by the assignees, on certain promissory notes indorsed to, and the property of the bank, which had not been specially assigned nor indorsed to the assignees. However this may be, it is clear that a suit in equity might be maintained by the assignees against the parties to the notes. A demand of payment of a promissory note must be made of the maker, on the last day of grace; and where the indorser resides in a different [374 place, notice of the default of the maker should be put into the post-office early enough to be sent by the mail of the succeeding day. The Supreme Court has no authority to issue a mandamus to compel a governor of a state to return to another state a fugitive from justice. Kentucky v. Dennison, 24 How. 66. The federal courts have jurisdiction to issue a mandamus to a municipal corporation to compel it to perform a duty, although such duty is created by state laws only. U. S. v. Mayor, &c., of Burlington, 2 Am. Law, Reg. N. S. 394; Lower v. U. S., 1 Otto, 536. Where the commissioners of a county have authority by statute to issue bonds, and are required to levy a tax to pay the interest coupons as they become due, and, having issued such bonds, they The circuit courts have no power to issue a man-neglect or refuse to assess the tax or pay the interdamus to the register of a land-office, commanding him to issue a final certificate of purchase to the purchaser of public lands. McIntire v. Wood, 7 Cranch, 504. A mandamus will not be granted to compel the issuing of a patent for land, in a case where numerous questions of law and fact arise, some of them depending on circumstances which rest in parol proof yet to be obtained, and where the exercise of judicial functions is required; nor where it is reasonable to presume that there are persons at the time in possession under another title, and who should have an opportunity to defend. U. S. v. The Commissioner, 5 Wall. 563. Mandamus cannot be issued to compel the commissioner of the general land-office, or the secretary of the interior, to issue a land patent. Secretary v. McGarraban, 9 Wall. 298. A circuit court of the United States has power to issue a mandamus to a collector, commanding him to grant a clearance. Gilchrist v. Collector of Charleston, 1 Am. Law J. 429. est, a writ of mandamus is the proper legal remedy. Knox v. Aspinwall, 24 How. 376; Lyell v. St. Clair County, 3 McLean, 580. Mandamus lies to compel a collector to allow an importer, sued for unpaid duties, to inspect papers and records in the custom-house, necessary to enable him to prepare his defense. U. S. v. Hatton, 25 Int. Rev. Rec. 57. Mandamus may be employed to compel an inferior court to decide a pending matter, but not to control its decision. Ex-parte Flippin, 4 Otto, 348; Ex-parte Loring. 4 Otto, 418. Mandamus cannot be used to perform the office of an appeal or writ of error, as to compel an inferior court to grant a motion to vacate an order setting aside a judgment of non-suit. Seldon v. Eq. T. Co., 4 Otto, 419; Ex-parte Schwab, 8 Otto, 240. Mandamus lies, from Circuit Court, to compel officers of a municipal corporation, against which the court has rendered judgment, to levy a tax to provide means to pay the judgment. U. S. v. Jefferson County, 6 Reporter, 486. Ex-parte Parsons, 1 Hugh. administrators and assigns, all and singular | contended that they were not obtained to be the mortgages, judgments, suits, bonds, bills, discounted in the Bank of the United States, notes, debts, securities, contracts, goods, chat- nor were discounted for the benefit of the detels, money, and effects, whatsoever, due or fendant, but for the use and benefit of Elisha belonging to the bank; together with all the Janney, who received the money from the bank. ways, means, and remedies, for the recovery And that it was well known to the president of the same, upon the special trust in the deed and directors of the bank that the said notes expressed. That Thomas Willing, John Perot were indorsed by the defendant for the accomand James S. Cox, afterwards assigned to the modation of the said Elisha Janney, without complainants, all and singular the debts includ- any value being received by the defendant. ed in the deed to them. The bill further stated The defendant's answer further alleged that that one Elisha Janney made and delivered to due and legal notice was not given him of the the defendant five promissory notes, dated and non-payment of the notes; that no demand of payable at Washington, and for the following payment of the notes was made of Elisha Jansums, to wit, one note for $1,000, payable in ney, by the bank; that the notes were all dated sixty days from the 22d February, 1809, &c.; at Alexandria; that Elisha Janney, on the amounting in the whole, to $4,020. That the *29th of May, conveyed all his property [*376 defendant discounted the said notes in the to Richard M. Scott, in trust for the payment branch bank of the United States, at Washing- of his debts, including the debt to the bank. ton, about the times they bear date, and indorsed the same at Washington. That Janney did not pay the notes when they became due, and that he was insolvent when the notes 375*] *became due. That the notes being made and dated in the county of Washington, were subject to the laws prevailing in Washington county, and the defendant bound to pay, on the failure of Janney to pay. The complainants claimed these debts as proprietors thereof; and called on the defendant specially to state whether Janney was not insolvent when the notes became due; whether the said notes were not duly protested for non-payment, and the defendant in due time notified thereof, and did not attempt to secure himself by some lien on Janney's property. The bill concluded by praying a decree against the defendant for the amount of said notes. The defendant, in his answer, did not admit that the complainants were duly authorized to recover and receive the debts due to the bank; but he admitted that the notes were by him indorsed in blank, and delivered to Janney, but There was some contrariety of evidence as to the time when payment of the notes was demanded of the maker, and the time when notice to the defendant as indorser, who resided in Alexandria, was put into the post-office at Washington. The bill was dismissed by the court below, on which the cause was brought by appeal to this court. The cause was argued by Swann for the appellants, and by Lee for the respondent. MARSHALL, Ch. J., delivered the opinion of the court: The court will not give any opinion whether any action can be maintained at law upon any of the promissory notes in the record, by an assignee who does not claim the same by an indorsement upon the notes. For, in this case, there is no specific assignment of these notes; the only assignment is a general assignment, in trust, of all the property of the late Bank of the United States, and, as the act of incorpora 282; U.S. v. Vernon County, 3 Dill. 281; U. S. v. Keokuk, 6 Wall. 514; Walkley v. Muscatine. 6 Wall. 481; Lausing v. County Treas., 1 Dill. 522. Also to compel the board of supervisors of a county, charged by law with the duty of levying a special tax to pay bonds and coupons for erection of county buildings, to discharge that duty, in order to pay judgment for such coupons. Jenkins v. Culpepper County, 1 Hugh. 568. Also to compel a county court to perform its duty of assessing a tax to pay for building levees. Boro v. Phillips County, 4 Dill. 216. But not to compel a county to levy taxes beyond the amount authorized by law. U. S. v. Macon County, 9 Otto, 582. Nor generally to compel a municipal corporation to levy a tax at any other tune than at the time for the annual tax levy. Wisdom v. Memphis, 8 Cent. L. J. 109; 7 Reporter, 298; U. S. v. Clark County, 5 Otto, 769. It lies to compel levying a tax by city authorities for payment of municipal bonds. Memphis v. U. S., Otto, 293; Memphis v. Brown, 7 Otto, 300; U. S. v. Fort Scott, 9 Otto, 152. To compel the Union Pacific Railroad Company to operate its road over the bridge in the same general manner as it was operating the other portions of the road. U. S. v. Un. Pac. R. Co., 4 Dill. 479. But not to compel a company to build and operate a railroad, although it has accepted a grant in aid of building the road. Farm. L. Co. v. Henning, 17 Am. L. Reg. 264 Mandamus will not issue to compel officers of a municipal corporation to levy a tax, unless the legislature has made it the duty of such officers to levy it. U. S. v. New Orleans, 2 Woods, 230. When a plain definite official duty, purely ministerial, requiring no exercise of discretion, is to be performed, and performance is refused, a mandamus will issue to compel its per formance. Board of Liquidation v. McComb. 2 Otto, 531; Gaines v. Thompson, 7 Wall. 347. A mandamus against a board of supervisors must be served on the individual members, not on the clerk. Downs v. Board of Sup., 4 Biss. 508. It furnishes no reason why the writ should not be granted, that the county commissioners had been enjoined by a state court, from levying the tax, when the mandamus is sought to compel the commissioners to levy the tax to pay a judgment rendered in a federal court against the . Clewes v. County of Lee, 2 Woods. 474; Smith v. Com'rs., 2 Woods. 596: U. S. v. Board of Supervisors, 2 Biss. 77. Where town officers resigned to avoid auditing and paying a judgment against a town, and their successors have not been elected, or appointed and qualified, they will be ordered to audit the judgment. U. S. v. Badger, 6 Biss. 308. The power of the Circuit Court to compel, by mandamus, officers of a city to levy a tax to satisfy a judgment in that court, is not restricted by a provision in the charter of the city authorizing it to levy, for ordinary purposes, a general tax not exceeding a certain rate. Britton v. Platte City, 2 Dill. 1. It is no reason why a mandamus should not issue to compel payment of bonds of a city, that the entire revenue of the city is employed in paying the current municipal expenses. U. S. v. City of Stering. 2 Biss. 408. Where certain powers are confided to an officer, involving the exercise of judgment and discretion, no power exists in the courts to act upon the officer, so as to interfere with the exercise of that judgment while the matter is properly before him for action. Gaines v. Thompson, 7 Wall. 347. tion had expired, no action could be maintained at law by the bank itself. Under these circumstances, the court is clearly of opinion that a suit may be maintained in equity against the other parties to the notes. Another question arises in the cause, whether the indorsers have had due notice of the non-payment by the 377*] makers. As there is some *contrariety of evidence in the record, the court will only lay down the rule. And it is the opinion of the court that a demand of payment should be made upon the last day of grace, and notice of the default of the maker be put into the postoffice early enough to be sent by the mail of the succeeding day. Decree reversed. this court, in the case of the town of Paulet v. Clark and others (9 Cranch, 292). The only difference between the two cases is, that in the case referred to, both parties claimed immediately under grants, the one from the state of Vermont, and the other from the state of New Hampshire, before the separation, which grants were the inception of [*379 title, and that, in this case, both parties claim under grants, the one issued by the state of Kentucky, and the other by the state of Virginia, but upon warrants issued by Virginia, and locations founded thereon, prior to the separation of Kentucky from Virginia. where the controversy arises upon claims founded upon grants from different states, as the present case is understood to be, the principle decided in the case which has been cited But Cited 9 Pet. 45: 10 Pet. 581; 15 How. 311; 18 How. precisely governs this. The decision in that case 486; 4 Cranch, C. C. 137, 138; 1 Mason, 180. [CONSTITUTIONAL LAW.] COLSON ET AL. v. LEWIS. The jurisdiction of the circuit courts of the United States extends to a case between citizens of Kentucky, claiming lands exceeding the value of five hundred dollars, under different grants, the one issued by the state of Kentucky, and the other by the state of Virginia, but upon warrants issued by Virginia, and locations founded thereon prior to the separation of Kentucky from Virginia. It is the grant which passes the legal title to the land; and if the controversy is founded upon the conflicting grants of different states, the judicial power of the courts of the United States extends to the case, whatever may have been the equitable title of the parties prior to the grant. THE HE opinion of the court in this cause was delivered by WASHINGTON, J.: This suit in equity was removed into the Circuit Court of Kentucky, upon the petition of the defendant, filed in the state court; and, upon a motion made in the Circuit Court to 378*] dismiss the suit from *that jurisdiction, the judges of that court were opposed in opinion, and caused the following facts to be stated, to enable this court to decide the question: Those facts are, that the value of the land in controversy exceeds $500; that the complainants are citizens of Virginia, and that the grant, is founded on the words of the constitution of HIS cause was argued by Swann for the appellants, and by Lee for the respondents. under which they claim title, is derived from THIS the state of Kentucky by virtue of warrants issued from the land-office of Virginia, and locations upon the warrants before the separation of Kentucky from Virginia; that the defendant's grant is from the state of Virginia, by virtue of a warrant issued from the landoffice, and a location made thereon, before the separation of Kentucky. The question referred to this court is, whether the Circuit Court for the District of Kentucky can take jurisdiction of the cause, because the grants for the land in controversy, lying in Kentucky, were issued, the one by the state of Virginia, and the other by the state of Kentucky, when both grants purport to be founded upon warrants and locations made under the authority of the laws of Virginia. It is the opinion of this court that the question which is referred to us by the Circuit Court of Kentucky is settled by the decision of NOTE.--The answer of one defendant is not evidence against his co-defendant. The cases are uniform to this general rule. Harrison v. Edwards, 3 Litt. 340; Clark v. Reimsdyk, 9 Cranch, 153; Dale v. Madison, 5 Leigh. 401; Gresley's Eq. Ev. 24, 25; Daniel v. Ballard, 2 Dana, 296; Field v. Holland, 6 Cranch, &; Mosely v.Armstrong,3 Mon. 287,289; Harrison v. Johnson, 3 Litt. 286; Haywood v. Carrol, 4 Harr. & J. 518; Fanning v. Pritchitt, 6 Mon. 78, 80; Blight v. Banks, 6 Mon. 192, 197; Hoomes v.Smock,1 Wash. (Va.) 389, 392; Timberlake v. Cobbs, 2 J. J. Marsh. 136; Rundlet v. Jordan, 3 Greenl. 47; Webb v. Pell, 3 Paige, 368, 370; DeForrest v. Parsons, 2 Hall. (N. Y.) 130; Winters v. January, Litt. Sel. Cas. 13; Turner v. Holman, 5 Monroe, 411; Thomasson v. Tucker, 2 Blackf. 172; Phoenix v.Ingraham, 5 John. 412, 426; Jones v. Bullock, 3 Bibb. 467; Hardin v. Baird, Litt. Sel. Cas. 340; Jones v.Tuberville, 2 Ves. 11; Morse v. Royal, 12 Ves, 355, 360; Van Reimsdyk v. Kane, 1 Gall. 630; Parker v. Morrell, 12 Jur. 253; Mills v. Gore, 2 Pick. 28; Wych v. Meal, 3 P. Wins. 311;1 Starkie Ev., 284, 285; Grant v. Bisset.1 Caines' Cas. 112; Dexter v. Arnold, 3 Sumn. 152; Lenox v. The opinion of the court was delivered by | Mr. Trouin, the other owner of the Hope, all WASHINGTON, J.: their interest in that vessel, and in the policy of insurance which had been effected upon her. He therefore denies the allegation in the bill that the judgment upon that policy was obtained for the use of Straas, or for that of any other person than himself. The answer refers to his agreement with the other own- [*382 ers, which are annexed to the answer as parts thereof. This is a bill filed on the equity side of the Circuit Court of the District of Columbia, for the county of Alexandria, by the Marine Insurance Company of Alexandria against Jedediah Leeds, praying for an injunction to a judgment obtained at law in that court against the said company by William Hodgson, for the use of George F. Straas and the said Jedediah Leeds. The judgment was obtained by Hodgson on a policy of insurance, dated the 30th of Septem-ant to this bill, states, in his answer, that he reber, 1799, effected by him with the said company on the brig Hope, in his own name, for George F. Straas and others, of Richmond. The bill states that in the year 1810 the above judgment was obtained for the use and 381*] benefit of *George F. Straas, and the respondent, Jedediah Leeds. That, previous to the said insurance, the said George F. Straas and Jedediah Leeds, being owners of a vessel called the Sophia, did, through the agency of the said William Hodgson, effect an insurance on the said vessel, the Sophia; for the premium on which, amounting to $2,754, Hodgson gave his own note. That Straas paid $929.00 in part of the premium note; and claiming a return of premium to the amount of the residue of the said note, he obtained an injunction in the Court of Chancery of Virginia, which was finally dissolved. The ground on which that injunction is prayed is, that the balance of the premium due upon the insurance of the Sophia ought to be offset, so far as it goes, against the judgment at law upon the policy of the Hope. The answer of Leeds denies that he had any interest in the Sophia at the time the insurance mentioned in the bill was effected, or that he was in any manner concerned in that insurance. He states that within a few months after the insurance on the Hope was effected, and long before the judgment in law was obtained, he had acquired by purchase from Straas and a Notrebe, Hempst. 251; Hoare v.Johnstone, 2 Keen. 553; 1 Barb. Ch. Pr. 496. Where there are several co-defendants, who have a common interest, the declaration of one of them is evidence against the others. Griffin v. Pleasant, 1 Ired. Eq. 152. The admissions of a grantee in his answer, that his grantor, the complainant, had conveyed his property to defraud creditors, not evidence against the grantor. Hardin v. Baird, 1 Litt. Sel. Cas. 340. Where defendant referred to another as his agent and as having a more perfect knowledge than himself of the matters, the agent was made a party and his answer was allowed to be read against his principal. Anon., 1P. Wms. 100. And one defendant may adopt the others answer, and so make it evidence against the former. Mosely v. Armstrong, 3 Mon. 289; Nantz y McPherson, 7 Mon. 597, 600. William Hodgson, who was made a defend ceived an order in November, 1799, to effect an insurance on the Sophia and her cargo, for account of Straas & Leeds; in conformity with which order he effected the said insurance with the complainants, and gave his own note for the premium. He adds that he always understood from Leeds that he was interested with Straas in the said insurance. A general replication was filed; but whether to both the answers, or to the answer of Hodgson alone, is not clear; and a dedimus was awarded to take depositions. No depositions, however, were taken, and the record states that the cause was set down for hearing on the bill, answer, and exhibits, and was heard on those proceedings. The exhibits relied upon by the defendant below to prove his purchases from the other owners of the Hope of their interest in that vessel, and in the insurance effected on her, were rejected by the Circuit Court. That court decreed a perpetual injunc tion as to the sum claimed by the complainants; from which decree an appeal was prayed, and allowed, to this court. The facts relied upon by the appellant, to induce a reversal of this decree, are: 1. That the interest of Straas in the insurance of the Hope was transferred to him, the appellant, for a full consideration, soon after the insurance was effected, and before the judgment at law was obtained. 2. That the appellant had no interest in the Sophia at the time when *the in- [*383 153, 156; Chapin v. Coleman, 11 Pick. 331; Williams v. Hodgson, 2 Har. & John. 474, 477; Osborne v. U.S. Bk. 9 Wheat. 738, 832; Christie v. Bishop,1 Barb. Ch. 105, 116; Field v. Holland, 6 Cranch, 8. But upon a bill by one against his co-partners for an account, the answer of one of the partners will not be evidence against another, unless it appears that the defendants as constituting a partnership inter se of the one part were in partnership with the plaintiff of the other part. Chapin v. Coleman, 11 Pick. 3331. The answer of one defendant to a bill in chancery is not evidence for a co-defendant. Lenox v. Notrebe, Hempst. 251. Admissions of an agent, made without authority, are not evidence against the principal. Robinson v. Morgan, Lit. Sel. Cas. 56. The declarations of an agent should form part of the res gestae in order to be competent evidence against either party. McClure v. Purcell, 3 A. K. Marsh. 63. The answer of the obligee is no evidence against his previous assignee, a party in same suit (Fanning v. Pritchett, 6 Mon. 79, 80; Turner v. Holman, 5 Mon. 411); nor the answer of the wife against the If they are part of the res gestæ, or took place husband (The City Bank v. Bangs. 3 Paige, 36); nor while the agent was making the agreement, or the answer of the debtor admitting his insolvency | otherwise proceeding within the scope and bounds against a co-defendant, his surety. Daniel v. Bal- of his authority, they are the declarations of the lard, 2 Dana. 296. The mere silence of one defend- principal himself, and admissible in evidence. ant is, of course, no evidence against his co-defend-Rawson v. Adams, 17 John. 130; Sherman v.Crosby, ant. Timberlake v. Cobbs. 2 J.J. Marsh. 136: Blight v. Banks, 6 Mon. 192; Harrison v. Johnson, 3 Litt. 286. The general rule above stated does not apply where all the defendants are partners in the same transactions; for, in respect to these, the answer of either is evidence against the others. Nor does it apply to cases where the other defendant claims through him whose answer is offered in evidence, as privy in estate. Clark v. Van Riemsdyk,9 Cranch, | 11 John. 70; Shelmaker v. Thomas 7 Serg. & R. 109; Hood v. Reeve, 3 Carr. & P. 532; Coleman v. Southwick, 9 John. 45, 55; Benjamin v. Smith, 4 Wend. 334; Thalihimer v. Brinkerhoff, 4 Wend. 396; Burlington v. Calais, 1 Verm. 385; Perkins v. Burnet, 2 Root. 30; Mather v. Phelps, 2 Root. 150; Irving v. Mortley, 7 Bing. 543; Webb v. Alexander, 7 Wend. 281; Bk. of U. 8.2 Hill. N. Y. 451, 461, 464; Story on Agency secs. 134, 135. |