#### William Anderson *v.*John H. Hawkins.

From Franklin.

Acts and declarations are not evidence against one who was not a party or privy to them.

Therefore, where the question was, whether A had refused to guaranty a bank note to B, it was held, Henderson .fudge dissenting, that the refusal of A to guaranty the same note, on offering it to-C immediately before it’was passed to J3, but not in his presence, was *res inter alios acia*and inadmissible.

After the trial had in this case, (3 *Hawks 568,)*it came on to be'tried before his honor Judge Martin, on the last circuit, when the question was, whether the Defendant had not refused to guaranty, as genuine, a bank bill he bad passed to the agent of the Plaintiff, anti which had turned out to be forged.

The Defendant called a witness, who swore that he was present when the. note was passed to the agent, and that tiie Defendant then told him that if he took it, he must do so at his own risk. This statement was denied by the agent, who swore that no such conversation took place, and that the witness, who deposed to it, was not present when the note was passed to him.'

The Defendant then offered to prove, that immediately before the transaction deposed to by the Plaintiff’s agent,, he, the Defendant, had offered the note to one *Mitchell,*and had refused to guaranty it, unless *Mitchell*paid him a premium for the bill and bis guarantee. Neither the Plaintiff nor bis agent was present at the time of the conversation. The presiding Judge rejected the testimony.

A verdict being returned for the Plaintiff, the Defendant appealed.

*Badger,*for the Plaintiff.

*Seawell*& If. Hayxoood, for the Defendant.

*446Taydor, Chief-Justice

A person who receives a bank bill takes upon himself the. solvency of the Bank, but he who pays or exchanges it, guaranties the bill to be genuine. This is the general'Jaw of the land, subject to which the parlies must be presumed to have acted, if nothing passed between them at the time of contract.— But a witness was introduced in this case, who testified on behalf of the Defendant, that the latter told Plaintiffs agent at the. time of the contract, the agent who made it, that if he took the bill, he must do it .at his own risk. On the other hand, the Plaintiff’s agent, who made the contract, testifies that no such conversation passed, and that he did not even see the witness who deposed to it, present at the time.

Evidence was then offered on the part of the Defendant, of a conversation of the Defendant’s respecting this bill to wit, that of *Mitchell,*to whom he offered it $ if ho took it at par, it would be at his own risk ; if Defendant guarantied it he was to have a premium. This conversation is stated to have taken place in a store house, immediately before the conversation given in evidence by the Plaintiff’s agent, and in the absence of the Plaintiff and his agent. The record states this confusedly, and I have nearly transcribed it, but I understand it to have been, that the Defendant told Mitchell, he w’ould not guaranty it without a premium ; tliat if lie would not give a premium, he *(Mitchell)*must take the bill at his own risk.

This evidence was rejected by the Court, and the cptestion now presented is, was the evidence properly rejected or not. I am of opinion that it was properly rejected.

Without this evidence, and supposing the credibility of the two conflicting witnesses tobe equal, which I must take for granted, the case stands upon the legal implication, that the Defendant guarantied the bill and is liable to compensate the Plaintiff, since it turned out to be a counterfeit.

*447It is a rule of moral, as well as of legal construction, that a contract is to be carried into execution in that sense, in which the promiser apprehended, at the time the promisee received it. It is not the sense, says a writer of much observation, in which the promiser actually intended it, that always governs the interpretation of an equivocal *promise;*because at that rate a man might excite expectations which he never meant, nor would be obliged to satisfy. Much less is it the sense, in which the promisee actually received the promise : for according to that rule, the promher might be drawn into engagements, which he never meant to undertake. It must therefore be the sense, (for there is no other remaining) in which the prutniser believed' that the promisee accepted his promise. And this, says he, will not differ from the actual intention of the promisee, where the promise is given without collusion or reserve. *(Paley*96.

The application of this rule of natural justice appears to me to he decisive of this question. F- c which interpretation did *Hawkins*apprehend that *Anderson*put upon the contract? Clearly, as nothing passed between them in explanation, discharging *Hawkins*from his guarantee, and ¡¡lacing the risk on *Anderson, Hawkins*must have believed that *Anderson*expected to he indemnified, in the event of the note’s proving to be a counterfeit. But if this evidence is admissible, the rule is inverted, and *Anderson*is bound, not as *Hawkins*thought he conceived himself to be, but as a secret intention of *Hawkins,*which *Anderson*bad no means of exploring, designed lie should be.

It is argued in support of the admissibility of the evidence, that it is a fact connected witli the case — that the Jury may draw their own inference from it, and as the scales of evidence hang irt equilibrio, the introduction of this fact will make one of them preponderate.

But this argument is met by a stubborn, and most wise and salutary rule of law, that the acts and declarations *4480f others are not admissible in evidence against any one, as affording a presumption against him, in the way of admission or otherwise. A man’s privity to the acts and declarations of another may authorize the inference of his assent, and operate as an admission against himself. But where he is utterly a stranger to them, no inference or presumption can justly be made against him, founded upon his own admission or conduct. Were this evidence admissible, *Anderson*would certainly be bound by the declaration and act of *Hawkins, to*which he was no wise privy, and to which if he liad been privy, the presumption is, ho would not have made the contract in the manner lie did. The only inference the Jury could derive from the evidence is, that *Hawkins*did not intend to guaranty the bill ; but it is not contrary to the most obvious principles of justice, that *Anderson*should be bound by the secret intentions of *Hawkins,*which intentions were contradicted by bis conduct ? The irrelevancy of the evidence is not the only objection to it, for fhat might do no other mischief, than needlessly consume time, hut its tendency is to impair the rights of *Anderson,*by the *res acta*between *Mitchell*and *Hawkins.*

The argument, that according *to*the ordinary motives of human conduct it is incredible that *Hawkins*should have passed (he bill to *Anderson*with a guarantee, when he had a few minutes before, demanded a premium for one, is answered in a manner satisfactory to my mind ; 'that to establish such a principle of e\ ¡deuce, would enable men, knavishly disposed, to create evidence for themselves, by making an offer to one person, different from a contract they would immediately afterwards make with anoiher, and then adduce such evidence to destroy the contract actually made, in every view I have been able to take of the case, I am compelled to believe that there ought not to be a new trial.

IIalij, Judge, concurred with the Chief-Justice.

*449'HENDERSON, Judge,

*dissentiente.*— This evidence can be rejected only upon the ground of its irrelevancy. There .is no dispute as to the competency of the evidence, by which the fact was to be proved. That fact is relevant which tends to elucidate the point in issue, or from which a rational inference can be drawn, in relation to it.in this view of the case, it is entirely immaterial whether *Anderson*or his agent was present when *Hawkins*made the offer to *Mitchell.*Their presence does not affect the existence of the fact. If the evidence tended toH impose upon *Anderson*terms or conditions, which did not arise out of his contract, or what is the same, out of the transaction, then his presence would be all-important,- for it would be unjust to vary or change his contract without his consent, and if he knew not of tins previous conversation with *Mitchell,*to superadd it to his engagement would boto do so without his consent, & consequently would he an act of injustice. But the difficulty in tiie case is, what his contract w'as. *Hawkins*alleges, that upon the exchange of the Bank note, he *expressly refused to guaranty it without a premium.*Tin* agent of *Anderson*in this transaction, swears that he did not expressly refuse to make the guarantee, inasmuch ás no-tiling was said in relation to it. *Hawkins*proves by a witness, who says that he was present, when the exchange was made, that he (Hawkins1 did expressly refuse to make the guarantee. *Hawkins*asks to hat.e this fact thrown into the scale on his side, (contending that it *weighs something,')*to-w¡¡, that upon a treaty of exchange of the same note with *Mitchell,*which took place a few moments before, the exchange with *Anderson,*he expressly refused to make the guarantee without a premium, on terms precisely tlie same in all other respects with those, on which *Anderson*allows be afterwards' closed with him ; and therefore he asks the Jury to believe the. assertion of *his*witness ; as he (Hawkins) judging by the ordinary motives of mankind, would not demand a pre-*450m¡utn ¡n |¡ie 01)e case, and omit to do so in the other, in transactions so much alike, that they may well be termed identical. He contends that there was no motive or in-¿UCpmPnt Sü to ac^ an(] ¡j ¡s therefore probable that he did not so act. In this view of the case, the absence of *Anderson*or his agent, is unimportant,. Irrelevant facts are those which do not relate to the issue *•,*those from which a rational inference cannot be drawn in relation to it. They are rejected therefore upon two grounds, that an examination into them would be an unnecessary consumption of time, and secondly, that they tend to mislead the Jury by holding out to them false lights. The Court therefore rejects all testimony, which does not tend to throw light upon the subject — every one from which the Jury cannot draw a rational inference, in relation to the issue, or which would tend to mislead. But if they are of an opposite character, if they do throw light on the issue, if they do not tend to mislead the Jury, but are such that a rational inference can be drawn from them, they are to he thrown into the scale, and weighed by the Jury. It is the. province of the. Court to determine the question whether they may have *any*weight, and of the Jury to ascertain how much that, weight is. Nor is it required, that the act he of such a nature that the Jury *must*draw an inference from it, it is sufficient that they *may*do so. In this case, were it the law that on the exchange of a bank note, no implied guarantee arose that the note was genuine, but it required an express promise to create one, the influence would be much stronger in favor of *Hawkins •*it is much weakened to be sure, but not destroyed by the law- being otherwise. But although weakened, it yet may weigh something, and should therefore have been considered by the Jury.

I think that there ought to he a new trial.

Per Curiam. — Judgment affirmed.