George Haynes versus Micah M. Rutter, 24 Pick. 242

Wilde J. delivered the opinion of the Court. The plaintiff, to prove his property in the goods replevied, produced a bill of sale to him from one J. Haynes, the former owner, and called the subscribing witnesses to prove its execution. The defendant objected to their admission, and they were rejected, it appearing to the court, that they had signed the replevin bond as the plaintiff’s sureties, and so were interested in the event of the suit. The plaintiff was then permitted to prove the execution of the bill of sale by other evidence.

To the admission of this evidence the defendant’s counsel object, on the ground, that by making the subscribing witnesses sureties the plaintiff disqualified them, and that he ought not to avail himself of an advantage arising from his own fault. We think, however, that the plaintiff was not in fault, for he had no wish to exclude those witnesses, and to avail himself of other evidence, for he offered to procure new sureties ; and taking the attesting witnesses as sureties was no doubt a mere inadvertence.

If there was any fault in excluding these witnesses, it was rather the fault of the defendant than that of the plaintiff A similar objection to this was made and overruled in Godfrey v. Norris, 1 Strange, 833. There the attesting witnesses to a bond had taken letters of administration on the estate of the obligee, and it was objected, that it was the plaintiff’s fault thus to disqualify himself as a witness ; and the principle on which this decision is founded, is approved in Swire v. Bell, 5 T. R. 371, and in Goss v. Tracy, 1 P. Wms. 289. It is further objected, that the plaintiff was bound to produce J.

Haynes as a witness ; but we are not aware of any rule of evidence which required this witness to be produced rather than any other witness. The remaining objection to the plaintiff’s evidence, as to the declaration of J. Haynes, we are of opinion, is well founded.

It is often a difficult question to decide what declarations may or may not be admitted in evidence as part of the res gestee ; but the test seems to be as laid down in 1 Stark, on Evid. 47. “ If the declaration has no tendency to illus- trate the question, except as a mere abstract statement, detached from any particular fact in dispute, and depending for its effect entirely on the credit of the person making the declaration, it is not admissible.

But if any importance can be attached to it, as a circumstance deriving a degree of credit from its connexion with the circumstances of the case, independently of any credit to be attached to the speaker or writer, then the declaration is admissible.” Thus, if the declaration is in itself a fact in the transaction, or is made by a party while doing

an act, and serves to explain it, it is to be received in evidence as part of the res gestee. But a recital of past transactions is not admissible, although it may have some relation to the act which the person may be doing at the time when he makes the declaration. Now the declarations proved in the present case, were not merely explanatory of

an act about to be done, but embraced a recital of past transactions, and thus far at least were not competent evidence. ' New trial granted.