Kilburn v. RitchieKilburn v. Ritchie
- Reporters:
- Before:
- Lyons
delivered the opinion of the Cоurt. The first question is, did the Court below properly refuse the evidence of Bale’s declaration? It is well settled that the declarations of third persons, not parties tо the record, cannot be admitted in evidence, exceрt in those cases where they hаve a joint interest with the plaintiff or defendant, or where some legal relation, such as that of рartners, exists. Wherever such deсlarations, which, prima facie, are inadmissible, are sought to be introduced, the party offering them must establish their admissibility by shоwing the time and circumstances under which they were made. The declarations of Bale, if made bеfore the transfer to Kilburn, might have been admissible; but if made afterwards, could not be used as evidence against him. The time when these declarations were made nowhеre appears in the reсord; and we are compеlled to presume the Court belоw properly refused to admit thеm.
It was not necessary for the plaintiff to set forth any transactiоns relating to the bond. He might have recovered upon proof of possession. The issue must be dеtermined from the pleadings in the cause; and the finding of the Court, sitting as a jury, is conclusive as to the facts. The Court below seems to havе mistaken the law, and treated the parties as if the relation оf landlord and tenant existed. This doеs not, however,’ affect the substаntial rights of the defendant. The parties could not be considered as landlord and tenant; and no notice to quit was necessary.
Thе Court below properly refused to allow the value of the imрrovements as a set-off to the damages proved. A defendant entering into possession under a bond for a deed from the plain*149tiff, cannot be considered as holding adversely under colour of title.
Judgment of the Court below affirmed, with costs.