The opinion of the court was delivered by
Gibson, C. J.The tenant may suspend the proceedings before the justices and freeholders, in order to have the judgment of the Common Pleas on a question whether the landlord has not parted with his reversionary right to the possession by deed, will, or descent, since the demise. Here the suspension wa.s on an allegation that the tenant himself had acquired the inheritance, and with it, the incidental right to the possession, by what is alleged to be equivalent to the' performance of a condition reserved in the demise j and however consonant to the spirit of the provision this may have been, it was certainly not warranted by the letter. Still I am not prepáred to say that the reference to the Common Pleas ought not to have been sustained. At all events, there was no motion to remit the proceedings to the inferior tribunal, and the cause was put to the jury with a direction in which we concur, that the lease was ppt such as to'giye the justices and freeholders jurisdiction. The *38truth of this will, I 'think, appear from the context of the act, ■which seems to indicate that the legislature had in view a proceeding that should involve nothing but the most simple and obvious matters of fact. The cardinal points of precedent possession, leasing at a certain rent, holding over, and notice to quit, are not, in the usual mode of their occurrence, above the capacity of men of ordinary acquirements; and being attended with no difficulty of principle or intricacy of circumstances, it was not thought necessary to bring to their solution the powers of a jury' directed by judges learned in the law. On the other hand, the question whether the landlord had not parted with the reversion, as it might involve the legal construction of the instrument or the laws of descent, was for its difficulty reserved to the ordinary tribunals; But it is obvious that the construction of a doubtful agreement, in respect of the nature and extent of the tenant’s interest, may present'points of equal difficulty; and we can account for the absence of a provision to reserve that also,'only by supposing that there was no design to extend the remedy to such a case. The same reason- that would require it to be restrained to the case of a demise at a certain rent, would equally require it to be restrained to a tenancy whose termination is independent of a contingency; and that it was intended for plain and ordinary cases, is indicated by peculiar expressions in the act itself, which requires that it appear to the justices that the landlord had been “quietly and peaceably possessed;’’ that he had demised “at a certain rent;” and for a term “fully ended;” from all which it should incontestibly appear that the relation of landlord and tenant existed at the time of the application to the justices. Here the relation of the parties was contingent, if not doubtful, from the beginning; and when application was made to the justices, it was not easy, as it appeared at the trial, to determine its nature or extent. If to'ascertain whether the landlord has not parted with the reversion by deed, will, or descent, be so difficult in the estimation of the legislature as to demand the judgment of the Common Pleas, it is certainly no less difficult to ascertain whether the tenant has not acquired it pursuant to a condition in the lease, the determination of which involves the adjustment of a complicated account^ and a consideratiori of the whole law of tender as equivalent to actual performance. The judge, therefore, was entirely accurate in saying that the contract had “more the aspect of one for the disposal of an interest in land on specified terms, than of a lease by the actual proprietor to his tenant at a stipulated rent.” Beside, not only was the plaintiff destitute, of that quiet and peaceable possession which the law requires, at the date of the lease, but he was without even the color or pretence of a. right, to it.; and that alone would be fatal to his right to recover by this summary proceeding. As, then, an objee*39tion to jurisdiction is always in time, the nature of. the contact was properly put to the jury as an impassable bar.
Such, then, being the state of the principal question, the remaining errors might be deemed immaterial, even had they been sustained by the argument. But the declaration of the plaintiff’s wife was properly admitted. Slight evidence had been given of his reluctance to part with the title, and of his having kept himself out of the way of an expected attempt by the defendant to tender the purchase-money. To show an attempt actually made, it was competent to the defendant to prove, as he did,' that he had called for the purpose at the plaintiff’s house, and was informed of his absence by his wife, who, by universal custom, is the representative of her husband, so far as to answer the calls of those who have transactions with him, and to convey to him the nature of their business, or inform them where he may be found. So far the competency of her declarations will not be disputed. But on every principle of analogy, he is to be affected by all acts done, or declarations made by her, within the scope of this customary, authority. In a matter pertaining to the domestic economy, as this certainly was, he is chargeable with her acts on a presumption from the very nature of her functions, that she has acted by his authority and with his assent. From the naked fact of cohabitation, arises a presumption not only of an authority to purchase necessaries for the family, but also of their having come to the.husband’s-use; and this rule.has no other foundation than the general current of family transactions. But these declarations were admissible in another point of view. The rule of policy, which protects the husband from the admissions of his wife, is inapplicable to suchas arc in the nature of facts; in respect to which, the presumptions to which they give rise, are not drawn from the credit of the.party, but the fact that such admissions were actually made. Starkie Ev. pt. iv. 712; and on this principle it seems that declarations by a wife of the state of her health at the time of effecting insurance on her life, may be given in evidence against her husband in an action on the policy. Now, to advert to the nature of the declarations here: The. defendant, in seeking for the plaintiff at the place of his residence, is told by' his wife that he has been absent, from home several days. He declares that the object of the visit is to pay certain moneys due to her husband as the price of this land; and in reply, she neither proposes to inform him of the matter, nor, as she would naturally have done, had her answer not been prepared, directs the defendant where to find him; but remarks, that it is not worth the defendant’s while to offer money, as it would not be accepted, because they intend to keep the land, having already had considerable trouble with it. On the principle indicated, then, this declaration was a substantive part of the trans*40action from which the jury might draw their own conclusion. Why should they not? The fact that a declaration which precluded further inquiry, was made by one whose office it would otherwise have been to furnish the means of access to her husband, is full of information in respect to the motive of his absence.
To obviate the objection that the money intended to be tendered, was in bank notes, it is sufficient that the defendant Was prepared to convert the notes into coin; and having done all that depended on himself to effect a performance of the condition, the judge was Warranted in the opinion he expressed, leaving the evidence to the jury, that the law and the fact were in his favor. Nor is there error in , the direction that the proceeding was in any event premature. The plaintiff was bound to exhibit an account of moneys advanced and expenses incurred, before he could call on the defendant, who would otherwise not Imow what to tender; and iii default of it, equity would not only restrain the plaintiff from recovering the land, but compel him to execute the contract on an offer to pay whatever should be due.-
Judgment affirmed.-