¶1I still retain the opinion heretofore expressed by me, that in this state, the admissions of a former owner of personal property are not admissible in evidence, even in case of his death. I concede the rule is different in other states and in England, and so is the rule generally as to admissions made by owners of personal property.
¶2This action was tried in this court, and the late first judge, who presided at the trial, ordered a nonsuit. At that time the supreme court had jurisdiction of writs of error to this .tribunal, and such a writ was prosecuted in that court, upon the hearing of which the judgment here was reversed, and a new trial ordered; but in the mean time, by the recent.change in the -organization of our courts, the jurisdiction of the supreme court, 'and of this, were made co-ordinate, with a like appeal from each, to the court of appeals.
¶3Under such circumstances, this case came on for a second trial; and the question at -once arose, whether, on such second trial, I ought to be governed by the opinion of the supreme court, or to conform to the views of my predecessor and my brethren, who had the matter under .consideration before the writ of error was brought.
¶4Upon reflection it seemed to me that it .was not only due to the party who had prosecuted the writ of-error, but also due in courtesy to the other court, (which, at least, so far as this case ha.d been acted upon by them, were sitting as a superior tribunal,) to defer to the views which led .the supreme court to reverse the former judgment. I did not, therefore, regard the questions there raised and decided as open for farther discussion in this court.
¶5I entertain the same opinion now in regard to our duty on this appeal. Though no longer an inferior jurisdiction, it seems to me that the parties should be permitted to go to the court of last resort, without further conflict of opinion between the *501judges of this court and those of the supreme court; and, therefore, whatever opinions I might form regarding the questions of law raised on this appeal, I deem it my duty to regard them, for the purposes of the case, as settled in the supreme court.
¶6On one point, however, a suggestion is made, which would seem to present an objection to evidence received on the trial, which was not embraced in the opinion of the supreme court, viz., that an admission by a former owner of personal property is not admissible. I do not perceive how that question is involved in this case. The inquiry was, whether the plaintiffs had paid a sum of money to one Tally, now deceased, which money the latter was entitled to receive. If he was living he would be a competent witness to prove the fact; and being dead, a paper signed by him, which was, in substance, a receipt or acknowledgment, was offered in evidence.
¶7The supreme court thought his declarations either verbal or written, made at the time of the transaction, and being against his interest, were admissible, as an exception to the usual rule, that hearsay evidence shall not be received. Whether the paper, being in the plaintiffs’ hands, as a voucher, and signed by Tally at the time, is to be regarded as a part of the res gesta, and admissible on that ground, or whether the declarations of a deceased witness, made against his own interest in a matter within his personal knowledge, are competent evidence, I do not, for the reasons first above suggested, think it necessary nor courteous to discuss.
¶8So far as we are concerned in the disposition of the case, as it now comes before us, it seems to me to be our duty to affirm the judgment, and leave the appellant to his resort to the court of appeals, if he wishes to pursue the matter further.
¶9Judgment affirmed.