Jonathan Hunt & another vs. Thomas H. Roylance & others; Thomas J. Badnall & another vs. The Same, 11 Cush. 117

Bigelow, J. The single question at issue between the parties in these actions was, whether one B. H. Strobridge, one of the defendants, was a copartner with the two other defendants, Briggs and Roylance, at the time the notes declared on were given and signed with the names of Roylance, Briggs and company. To maintain this issue on their part, the plaintiffs offered in evidence the declarations of said Strobridge, made un several different occasions to two clerks in the employment of the firm.

For the purpose of rebutting and controlling this evidence, the defendant Strobridge offered evidence to prove his own declarations on the subject of the partnership and his connection therewith, made on other occasions than those testified to in behalf of the plaintiffs, and when neither the plaintiffs nor their witnesses were present. These statements were objected to by the plaintiffs, but were admitted, and this forms one of the principal grounds of the exceptions in the present case.

It seems to us that this evidence was incompetent, on the familiar principle that a party cannot be allowed to prove his own declarations in support of his own case. The defendant had a right to prove any statements of his own, which made part of those offered in evidence by the plaintiffs. He could explain and contradict any conversation or declaration which had been first proved against him by the plaintiffs, because such evidence tended directly and legitimately to control the case made out against him by the plaintiffs. But beyond this, he could not go.

His own admissions, not offered in evidence against him, had no legal tendency to control the case proved on the other side. To show that a man denied being a member of a copartnership to A. to-day, does not prove or in any way tend to show, that he did not admit that he was a member of the firm to B. yesterday. It is simply an admission in his own favor, having no bearing on the admission proved against him.

Nor does it make such testimony any the more competent or relevant, because a party seeks to couple it with independent acts and circumstances, not proved on the other side, and which, of themselves, unaccompanied by the declarations of a party, would not tend to prove the matter in issue. This would be a mere evasion of the rule. The fact or circumstance being of itself immaterial, cannot be made important or relevant by adding to it the declaration of a party in his own favor. These familiar principles dispose of several of the exceptions taken at the trial to the admission of evidence.

The declarations of the defendant at the time a lease of the store was brought to him to be signed; the conversation relative to the parties to a writ made in the name of the firm and the conversation with the witness concerning the insolvency of the firm, were all incompetent, and should have been excluded. The testimony relative to the manner of keeping the accounts between Strobridge and the firm, in the books, and the fact that a credit of a certain sum, as a salary to said Strobridge, was entered on said books, were also incompetent, because they were attempted to be proved by secondary evidence.

The defendant should either have produced the books or accounted for their absence. The remaining objections taken to the admission of evidence, are not tenable. They had a legitimate tendency to disprove and control the facts and declarations relied on by the plaintiffs, and were rightly admitted. Exceptions sustained.