U.S. Supreme Court
Fresh v. Gilson, 41 U.S. 16 Pet. 327 327 (1842)
Fresh v. Gilson
41 U.S. (16 Pet.) 327
Liability for the acts of others may be created either by a direct authority given for their performance or it may flow from their adoption, in some instances from acquiescence in those acts. But presumptions can stand only whilst they are compatible with the conduct of those to whom it may be sought to apply them, and must still more give place when in conflict with clear, distinct, and convincing proof.
The Circuit Court of the District of Columbia admitted as evidence a statement by one witness of what had been testified by another on the trial of a cause, to which the plaintiff in the cause and against whom the evidence was to operate was not a party. Held that this was error. Wherever the rights of a party, founded upon a deed, are dependent on the terms and conditions of that deed, the instrument thus creating and defining those rights must be resorted to and must regulate, moreover, the modes by which they are to be enforced at law. These identical rights cannot be claimed as being derived from a different and inferior source. If the deed be in force, all who claim by its provisions must resort to it.
When the contract contained in a deed has been varied or substituted by the subsequent acts or agreements of the parties, thereby giving rise to new relations between them, the remedies originally arising out of the deed may be varied in conformity with them. An action upon the deed would not be insisted upon or permitted, because the rights and obligations of the parties to the suit would depend on a state of things by which the deed had been put aside.