Jackson ex dem. Barton v. Crissey

3 Wend. 251

Opinion

The opinion of the court on this question as to the admissibility of this evidence was as follows:

By the Court,

Savage, Ch. J.

What a deceased witness has sworn at a former trial between the same parties, in relation to the same issue, is proper evidence. Under the term parties, are comprehended all persons standing in relation of privies in blood, privies in estate or privies in law ; (15 Johns. R. 544; but Barrett, in the suit against whom the testimony was given, was neither. He held indeed under the same title, that is, he derived title from Amos Miles though the deeds from his heirs to Zachariah Miles, and the conveyance from the latter to Zeno Carpenter, but his lot and the premises of the defendant are separate parcels of what was once the same farm. Barrett and the defendant do not hold different estates in the same premises: neither holds as remainder-man or reversioner to the other. There is, therefore, no privity of estate between them, and there is nothing in the case to shew either privity in blood or privity in law. In my opinion, therefore, the evidence of the testimony of the deceased witness, in the cause against Barrett, was not admissible, and ought not to have been received.