A

248. Declaration must be taken entire.
party seeking to have the benefit of an admission
or declaration of another, must take the whole
admission or declaration together, and will not
be allowed to select what makes in his favor
and exclude that which makes against him.
Veiths v. Hagge, 8 Iowa, 163.

249. of confederate. The declarations
and acts of a confederate are admissible in evi-
dence only after the confederacy has been estab-
lished by proper proof. Wiggins v. Leonard, 9

Iowa, 194.
250. of conveyancer. The declarations
of the conveyancer who drafted a mortgage are
not admissible against against a mortgagee to
show fraud. Hurd v. Gallaher, 14 Iowa, 394.
251. - of persons who have parted with
title. The declarations or admissions of a person,
who has parted with the title to certain real
estate, are not admissible to impeach the title
acquired by another, when it is not shown that
the latter was present when such declarations
were made, nor that he was in any manner con-
nected therewith. O'Neil v. Vanderburg, 25
Iowa, 104.

252. of grantor. In proceedings under a
creditor's bill, to reach real estate alleged to
have been fraudulently conveyed, neither the
answer of the grantor, in a chancery suit,
nor his oral declarations made, nor letters
subsequent to the conveyance, are competent
evidence to affect the title of the grantee
in the absence of evidence showing that the
grantee colluded with the grantor, with a fraudu-
lent intent; and the declarations of the grantor,
made after such conveyance, are not receivable
in evidence to show such collusion. De France
v. Howard et al., 4 Iowa, 524.

not admissible for himself, to show his motives.
Shuck et al. v. Vanderventer, 4 G. Gr. 264.

254.

And such declarations are inad-
missible for the plaintiff in the action on the
bond, without evidence, showing that they
related directly to the act of suing out the writ.
Burton v. Knapp et al., 14 Iowa, 196.

255. Prior declarations of witness. The dec-
larations of a witness, made soon after the
occurrence of which he testifies, and agreeing
with his statements made on the trial, are not ad-
missible for the purpose of strengthening his tes-
timony. Such declarations, however, are admis-
sible, where it is claimed that his relation to the
parties, or the case, discredits him, or on account
of such relation he designedly makes false
statements, and it is shown that the declara-
tions agreeing with his evidence, were made
before such relation existed. Boyd v. First
National Bank of Oskaloosa, 25 Iowa, 255; The
State v. Vincent, 24 Ibid. 570.

b. Of party in interest.

256. Objections to work. A party cannot
avail himself of his own objections to work
done for him, and his refusal to accept, as a rea-
son for not paying for it; Lor can he give in
evidence his own acts and declarations, in order
to show that another party has failed in his
contract to him. Crookshank et al. v. Mallory,
2 G. Gr. 257.

257. Payment on account without objection.
In an action on an account, the court instructed
the jury that any act or declaration of the
defendant, as a payment made, or claimed to
have been made, without disputing at the time,
the correctness of the account, is a circumstance
which may be considered by the jury as proof
of, or tending to prove, the correctness of the
account." It was held, that the instruction was
too broad and unqualified. Churchill et al. v.
Fulliam, 8 Iowa, 45.

258. Answer of garnishee. An affidavit exe-
cuted by the plaintiff, as an answer in garnish-
ment in another action, is admissible in evi-
dence as an admission made by the party,
though not taken in accordance with the pro-
visions of the statute, the genuineness of the
signature being first proved or admitted. Daven-
port v. Cummings, 15 Iowa, 219.

tion, are not admissible for the purpose of showing the loss of the notes secured by the mortgage. Jones v. Jones et al., 20 Iowa, 388.

260. by one suffering from injury. In an action for damages for injuries received by plaintiff's intestate, her declarations as to the nature and character of her sufferings, made while in that condition, were held admissible. Gray v. McLaughlin, 26 Iowa, 279.

261. of directors in a corporation. Where, in an action on railroad bonds, the bonds purported to have been assigned to the plaintiff by the vice-president and secretary of the company by order of the board of directors, it was held, that parol evidence of a statement of directors of the company, while in session and transacting business in regard to the bonds, was not admissible for the purpose of showing that they were not assigned at the time they purported to have been. Whittaker v. The County of John

son, 10 Iowa, 161.

262. of administrator: statute construed. Section 2393 of the Revision, which provides that an administrator shall not admit claims until the claimants have sworn to their correctness, and that the same rule shall apply to payments and set-offs, was not intended to abrogate the general rule admitting in evidence the declarations and admissions of parties to the record. It is accordingly held, that the admissions of an administrator as to the amount of payments that had been made on a note held by the estate were admissible in an action wherein he was a party. McKenzie, adm'x, v. Kitler, 27 Iowa, 254

263. The admissions of an administrator are admissible in an action against him. Schmid, adm'r, v. Kreismer, adm'x, 31 Iowa, 479.

264. by party in his own favor. In an action against an administrator for boarding and nursing the decedent, it was held, that the declarations of the plaintiff, while having the care of the decedent, and rendering the services sued for, as to what he thought the same were worth, and what he intended to charge therefor, were admissible in evidence against the plaintiff. Shafer v. Dean, 29 Iowa, 144.

265. Admission of account. A party is not called upon to dispute an account on every occasion on which it may be presented; and when evidence of any act or declaration of a party is given, as tending to prove the account, care should be exercised in determining whether the

circumstances required the defendant to dispute the account, so as to cause his omission to do so to have weight against him. Churchill et al. v. Fulliam, 8 Iowa, 45.

266. Adultery: proof of marriage. In a prosecution for adultery the prior admissions of the defendant are admissible for the purpose of proving the mortgage. The State v. Sanders, 30 Iowa, 582.

See, also, sub-title Res Gesta in this title, ante, and CRIMINAL LAW, sub-title EVIDENCE.

c. Of person in possession.

267. The declarations of a party in possession of property, explanatory of such possession, are admissible in evidence against a party claiming under him. Taylor v. Lusk, 9 Iowa, 444; Ross v. Wayne, 3 G. Gr. 211.

268. Declarations of a third person while in possession of personal property, explanatory of such possession, as that he held in his own right, or as agent, etc., is competent evidence in an action concerning the same, between the owner and an attaching creditor, of the person in possession. Blake v. Graves et al., 18 Iowa, 312.

269.

of plaintiff in replevin. In an action of replevin by one claiming to have purchased the property from one, under execution against whom, the property was taken, the declarations of the plaintiff, made soon after the purchase, and while he was in possession of the property, as to the fact of his purchase, and the consideration upon which it is based, are not admissible in his favor as a part of the res gestæ. (Citing Taylor v. Lusk, 9 Iowa, 443; Ross V. Wayne, 3 G. Gr. 211; West v. Price's Heirs, 2 J. J. Marsh. 380; Blake v. Graves, 18 Iowa, 312; Miners v. Sturdevant, 23 Ala. 664; Thompson v. Marchinney, 17 Ibid. 362; 3 Phil. Ev. (3d ed.) 337; n. 213.) Murray v. Cone et al., 26 Iowa, 276. 270. This case does not fall within that class in which the declarations of the person in possession of personal property, simply explanatory of the possession, have been held admissi

ble. Ibid.

d. Of deceased persons.

271. Written entries. Written entries or statements of a deceased person, where he was in a position to know the facts, and where the entries were undeniably adverse to his interest, are receivable in evidence in an action between third parties. (Citing, Gross v. Watlington, 3 Brod. & Bing. 132; Middleton v. Miton, 10 Barn

& Cress. 317; Higham v. Ridgway, 10 East, 103; S. C., 2 Smith's Lead. Cas. 193, with Eng. & Am. notes; 1 Ibid. 333, and notes; Townsend v. Everett, 4 Ala. 607; 5 How. U. S. 29; 9 W. & S. 109: Doe v. Turford, 3 B. & Ad. 898; Dow v. Sawyer, 29 Me. 118; Augusta v. Windsor, 19 Ibid. 317; Nichols v. Webb, 8 Wheat. 337; 1 Greenl. Ev. 147, et seq.; 1 Phill. Ev. 293, et seq.: Roe v. Rawlings, 7 East, 279; Chase v. Smith, 5 Vt. 551; Burton v. Scott, 3 Rand. 399; Holliday v. Littlepage, 2 Munf. 316; Thompson v. Stevens, 2 Nott & McC. 493; Parker v. The State, 8 Black f. 26; The Governor v. Shelby, 2 Ibid. 26; Evans v. The State, 13 Ala. 787; Bondurant v. Bank, etc., | 7 Ibid. 830; 4 Ibid. 607; Townsend v. Kerns, 2 Watts, 180; Harriman v. Brown, 8 Leigh. 697; Churchill v. Smith, 16 Vt. 560.) The County of Mahaska v. Ingalis, ex'rs, 16 Iowa, 81.

272. Verbal declarations. So also verbal declarations are receivable in evidence, in an action between third parties, when accompanied by the following pre-requisites: 1. The declarant must be dead; 2. The declaration must have been against the pecuniary interest of the declarant at the time it was made; 3. The declaration must be of a fact in relation to a matter concerning which the declarant was immediately and personally cognizable; and, 4. The court should be satisfied that the declarant had no probable motive to falsify the fact declared. (Citing 1 Greenl. Ev., SS 147, 148; 1 Phill. Ev. 310 and note; Starkie Ev. 44, 355, 365, and Am. ed., note, p. 7; Best on Ev. 577, 483-485; 10 B. & C. 317; Ivat v. Finch, 1 Taunt. 141; Stode v. Winchester, 1 Dick. 397; Doe v. Williams, 1 Cowp. 621; Doe v. Pettett, 5 B. & A. 223; Davis v. Pearce, 2 D. & E. 53; Doe v. Jones, 1 Camp. 367; Barker v. Bay, 2 Russ. 63; Peaceable v. Watson, 4 Taunt. 16; Sussex Peerage Case, 11 Cl. & Fin. 85, 111, 113; White v. Choteau, 10 Barb. 202; S. C., 1 E. D. Smith, 493; People v. Blakely, 4 Park. Cr. 176; Holliday v. Littlepage, 2 Munf. 316; Prather v. Johnson. 3 Harr. & J. 487; Trego v. Hazzard, 19 Penn. St. 440; S. C., 35 Ibid. 9; 25 Ibid. 334; Resp. v. Davis, 3 Yeates, 128; Coleman v. Frazier, 4 Rich. 147; Hinckley v. Davis, 6 N. H. 210; Gilchrist v. Martin, 1 Bailey Eq. 492; Contra, see 3 Phill. Ev. C. & H. Notes, 260; Lawrence v. Kimball, 1 Metc. 524.)

Ibid.

be in the case of confirmed insanity. Mere absence from the jurisdiction will not answer. Ibid.

274. Declarations of deceased trustee. Evidence of the declarations of a deceased person, in whose name the title to certain real estate was taken in trust for his children, and pur chased with money belonging to them, made at the time of the investment, which were against his interest, in disparagement of his title, and explanatory of the character thereof, is admissible in a proceeding to establish the trust in favor of the children. Robinson v. Robinson, 22 Iowa, 427.

275. Dying declarations of ancestor: advancement. Dying declarations of the ancestor are not admissible against the heir for the purpose of showing an advancement. Such declarations are admissible only in cases of homicide where the death of the deceased is the

subject of the charge, and the circumstances of the death are the subject of the declaration. Middleton v. Middleton et al., 31 Iowa, 151.

276. of ancestor in favor of heirs. But, where it is claimed that an advancement was made to an heir by the sale of a farm to him by the ancestor, the declarations of the ancestor made at about the time of the sale, to the effect that the heir had fully paid him for the farm, are admissible on the part of the heir. Ibid.

278.

against interest. In an action against a county treasurer, for failing to account for certain moneys collected as taxes, the declarations, to a third person, of an assistant in the office, employed by the board of supervisors, and who had since deceased, to the effect that he had converted money received for taxes to his own use, and falsified the books to con ceal his defalcation, were held admissible on the part of the defendant. The case of The Scott County v. Fluke et al., 34 Iowa,317. County of Mahaska v. Ingalls, supra, followed.

e. Of partner.

be charged as a partner, are not admissible to prove that he was not a member of such copartnership. Danforth, Davis & Co. v. Carter and May, 4 Iowa, 230.

200.

as to who constitute firm. In an action against a co-partnership by a creditor, the declarations of the partners, made while the firm was in existence, and before any difficulty arose, are admissible in evidence to show that one of the persons sought to be charged was not a member of such partnership. Such declarations, to be admissible in evidence, must have been made before any difficulty arose, while the business was going on, and as imparting information to persons with whom the firm dealt, and the world. Danforth, Davis & Co. v. Carter and May, 4 Iowa, 230; Williams v. Soutter, 7 Ibid. 435.

281. Grounds of their admissibility. The admission of the declaratious of a partner, showing who are members of the firm, does not depend upon the fact that such partner has deceased, but are receivable upon the ground, that as the plaintiff must recover against all the defendants, or none, and as such partner, if called to testify in person, would be testifying in presenti, he would be interested to defeat the suit. Danforth, Davis & Co. v. Carter and May, 4 Iowa, 230.

282. In an action against a partnership, as guarantor of a bill of exchange, evidence that one of the partners admitted the liability of the firm is admissible, as tending to prove either the fact of notice of non-payment to it, or of its waiver thereof. First Nat. Bank of Dubuque v. Carpenter, Stibbs & Co., 34 Iowa, 433.

f. Of Agent.

283. When admissible. The acts and declarations of an agent, made and done in connection with the transaction of business for his principal, which is the subject-matter of controversy, are admissible in evidence to bind the principal. Wiggins v. Leonard, 9 Iowa, 194.

284. Continuing agency. The authority to buy a mortgage is not a continuing agency, and acts and declarations done and made by the agent after such a purchase for his principal, are not admissible in evidence to bind the principal. Ibid. 285. Declarations by an agent with limited powers, not made at the time, nor respecting the subject-matter in controversy, cannot bind the principal, especially where those declarations were of a vague, indefinite character, and

in conflict with testimony of a higher and more direct character. Lucas v. Barrett, 1 G. Gr. 510.

286. Subsequent declarations: general rules. To render the declarations of an agent admissible in evidence to bind his principal, they must have been within the scope of the agency, and made during the continuance of it, in respect to the transaction then depending. Subsequent declarations are not part of the res gesta and are not admissible. Sweatland v. Illinois & Mississippi Telegraph Co., 27 Iowa, 433; Farner v. Turner, 1 Ibid. 53; Wiggins v. Leonard, 9 Ibid. 194.

287. To render the declarations of an agent admissible in evidence, they must be shown to have been made in respect to a matter within the scope of his employment, and when engaged in the business of his principal. An authority to make an admission is not necessarily to be implied from an authority previously given in respect to the thing to which the admission relates. Osgood v. Bringolf, 32 Iowa, 265.

288. The declarations of an agent, made while executing the purpose of his agency, are admissible against his principal. Howe Machine Co. v. Snow et al., Ibid. 433.

g. Of husband and wife.

289. Where a woman holds the title to real estate in trust for her infant children and subsequently marries, in an action against the husband to obtain possession of the land, the declarations of the wife, at the time of paying the money and receiving the title, although made before her second marriage, are admissible in evidence against the husband, to prove that the inoney belonged to her first husband. Claussen, guardian, v. La Franz, 1 Iowa, 226.

290. As to authority of husband to act for wife. The authority of the husband to act as agent of the wife, in relation to her separate property, cannot be proved by the declarations of the husband alone. Whitescarver et ux. v. Bonney, 9 Iowa, 480.

291. In an action of replevin, instituted by a wife to obtain possession of property taken under execution against the husband, evidence of the declarations and acts of the husband tending to show that he had the possession and control of the property, is admissible. Presnall v. Herbert, sheriff, 34 Iowa, 539.

See HUSBAND AND WIFE, ante; and sub-title WITNESS, herein.