¶1delivered the opinion of this court.
¶2This suit was instituted against the defendant, to recover from him for goods alleged to have been sold and delivered on the following letter of guarantee.
¶3“Mr. Israel Griffith,
¶4Dear Sir: — The bearer, Mr. James H. Egerton, and his brother Philip, are about to embark in the mercantile business in Benedict. I beg to introduce them to your acquaintance, as being worthy of your confidence. Should they make a bill with you, I will be responsible for the amount.
¶5Very respectfully, <fcc.,
¶6Philip Turner.”
¶7*113The plaintiff proved the above title to have been signed by the defendant, and to have been delivered to the plaintiff; and tiren offered evidence, that the Messrs. Egertons admitted they did make a bill with the plaintiff, on the 30th of November 1840, for 0153.92, and that one of the Messrs. Egertons, in the presence of the defendant, admitted the amount of the said bill, and when said guarantee ivas in the hands of the counsel for the plaintiff, and admitted that the same ivas due; that the defendant, subsequent to said conversation, called, in company with said Egerton, and expressed a wish that the same might be paid and settled, and at the same time certain claims were assigned to the attorney of the plaintiff, as collateral security, to pay the same and other claims against the said Egerton.
¶8On the prayer of the defendant, the court rejected the above offered testimony, as not tending to show an indebtedness on the part of the defendant to the plaintiff.
¶9There is certainly a conflict in the decisions to which wc have been referred, as to the admissibility in evidence of the. admissions of the party on whose account the guarantee has been made, as against the guarantor. In 5 Binney, 195, such declarations were admitted, but the reasons assigned by the court for such admissions, are by no means satisfactory to us. in 5 Esp., 27, such admissions were rejected as evidence by Lord Ellenborough, and we think he has placed the rejection on legal grounds. The engagement on the part of the defendant was, to be responsible for such bill as the Messrs. Egertons should make, not such bill as they should acknowledge they had made. The defendant had a right to have the delivery proved in the accustomed mode, and not by hearsay evidence. The Egertons were witnesses, and could have been examined in the cause, to establish the delivery of the goods in question to them. If the Egertons were to be treated as agents, (as it is supposed they should by the case in 5 Bin., 195,) in the purchase of the goods, their declarations in the making of the contract would be evidence, but it would not follow that declarations and admissions made by them, in relation to the contract, at any time thereafter, would be admissible.
¶10*114On this branch of the enquiry, the court have been referred to 12 Wheat., 515, Drummondand Prestman, and to 2 G. & J., 235, Iglehart and McCubbin. In relation to the case of Drummond and Prestman, it is only necessary to say, that the peculiar form of the guarantee in that case, which made the guarantor answerable for the conduct and all the engagements of his son, would clearly make admissible the son’s engagement, entered into by the confession of a judgment, and we accordingly find the decision of the court placed upon grounds which do not apply to the case now before the court. In the case of Iglehart and McCubbin, 2 G. & J., 235, it was determined, that a judgment against an executor was primafacie evidence, in a suit on the testamentary bond against the surety: this judgment of the court may perhaps be placed on the peculiar character of the instrument by which the surety’s responsibility was incurred; and upon the ground assumed by the court, as to the obligations of a surety in a testamentary bond, arisiog from confessions of his principal, which, it occurs to us, ought not to govern the question of the admissibility of the evidence offered in the case now under consideration.
¶11For the reasons above expressed, we are of opinion that the declarations of the Messrs. Egertons were not admissible evidence in the cause.
¶12The admissions of one of the Messrs. Egertons, in the presence of the defendant, we, however, apprehend should be governed by different considerations. The defendant could not, it is true, be affected by his silence in regard to such admissions, if he had no knowledge of the facts admitted by Egerton. If, however, he possessed such knowledge, and heard the admissions, without observation, he might justly be considered by the jury as acquiescing by his silence in the verity of such admissions. Whether he had such knowledge, was a question for the jury from the evidence in the cause; and it may be remarked, that at a time subsequent to the admission adverted to, the defendant called, in company with the said Egerton, and expressed a wish that the same might be paid and settled, without any intimation that the admission adverted to was untrue or inaccurate.
¶13JUDGMENT REVERSED AND PROCEDENDO AWARDED.