150 MoKIM v. THOMPSON.—1 BLAND.

The answer of the defendant John Bell, it has been urged, may
be resorted to, as belonging to the res gesta, to the same subject,
either as direct evidence,or for explanation, or illustration. It is,
in general, true, that the answer of one defendant cannot be used
as evidence for or against another defendant. Whatever may be
the extent of the exceptions to this rule, none of them embrace
this case; Osborn v. U. S, Bank, 9 Wheat. 832; .Field v. Holland, 6
Cran. 24, for it is very clear, that Thompson has made no reference
to, nor admitted any thing which John Bell has said in his answer;
nor has the truth of any one of John Bell's allegations been put
in issue, before the auditor, or otherwise, and conclusively estab-
lished against Thompson. The answer of John Bell, the co-defend-
ant, cannot, therefore, be allowed to furnish any of those facts
on which the decision of the Court must be founded on this
motion.

The plaintiffs have also directed the attention of the Court to
the exhibits and proofs taken, under the order of the 10th of May
last, in reference to this motion, and have contended, that, in cases
like this, proof's of collateral facts and circumstances may be in-
troduced. But the authorities relied on to sustain this position,
point to an important distinction in the classification of cases of
this nature.

* In cases between vendors and purchasers of real estate,
161 the purchaser, who is not in possession, cannot be called
upon to pay in the purchase money until the title is completed;
nor will the mere fact of his taking possession, entitle the vendor
to call upon him for the payment of the purchase money into Court.
But if the purchaser, being in possession, exercises acts of owner-
ship, he may be compelled to pay the purchase money into Court.
And the taking possession, and the acts of ownership, though not
mentioned in the bill or answer, are the collateral facts which may
be shewn by affidavits, or by proofs taken in a manner similar to
those offered upon the present occasion. But, in such cases, that
the purchase money is due, and the amount, are facts admitted
and established; and whether it should be immediately brought in,
or whether the purchaser should be indulged until final hearing,
or how much short of that, are questions which depend upon
equitable circumstances, not necessarily involved in the principal
controversy, that never would be brought into view, but by such
a motion. They are, therefore, truly and properly collateral cir-
cumstances.

But, in this case, the question is, whether, in the direct progress
of a case, it has been established or admitted, that a party hold-
ing money has no title to it; and is, therefore, liable to be called
on in this way. In this class of cases, it is a part of the principal
matter in controversy—one of the circumstances of it; as much so-
as in the other class, between vendor and purchaser, whether the