Gray v. Goodrich — 7 Johns. 95

Majority

p. 95

Gray against Goodrich.

NEW-YORK,

Nov. 1810.

Headnote

Testimony as to the deelarations of a person deceased, un1es~ made on oath~ Or in extremis~ whea he came to a violent ends is inadmissihIe~

IN error, on certiorari, from a justice's court. Gra~j was sued by Goodrich, in the court below, for a ~deceit or fraud in the exchange of horses. The defendant pleaded the general issue; and claimed damages on his side. There was a trial by jury. There was some slight evidence tending to show a scienter.

Gray, on beipg asked if the horse xvas sound, answered, be xvas, for aught he knexv: and he boasted, afterwards, that he had made a great bargain. The justice also admitted, in evidence, the declarations of a person deceased, who xvas a xvitness to the bargain.

p. 96

This was objected to, J The jury found a verdict for the plaintiff, on which the justice gave judgment.

The cause was submitted to the court without argument.

The testimony to establish the scienter (even admitting the declaration of the deceased person) was rather loose. The hearsay evidence was, however, the strongest; and coming from a person called as a witness to the bargain, had, probably, the greatest influence with the jury. This evidence Was clearly inadmissible. The law requires the sanction of an oath to all parol testimony. It never gives credit to the bare assertion of any one, however high his rank, or pure his morals. The cases of pedigree, prescription, or custom, are exceptions to the general rule. The person from whom the declarations came being dead, cannot vary the case essentially ; it is still not a relation upon oath. What a deceased person has been heard to say, except upon oath, or in extremis, when he came to a violent end, never has been considered as competent evidence, The judgment must, therefore, be reversed,

Judgment reversed.