Fleming sued Compton in replevin for detaining two horses. Pleas, 1. Non detinet; 2. Property in the defendant; 3. Property in one Robert II. Brickell. Replications to the second and third pleas, property in the plaintiff. On the trial, the plaintiff proved that he was the assignee, under the bankrupt law, of one M‘Makin, who had been declared a bankrupt, and that, before the commencement of the suit, said M‘Makin was the owner of the property described in the declaration. The defendant then offered to prove that M‘Makin had stated, at different times, before his application for the benefit of the bankrupt law, that the property in dispute belonged to Brickell, the person named in the third plea. The plaintiff objected to this evidence of the defendant, and the objection was sustained. The plaintiff offered to prove that, before the commencement
The evidence offered by the defendant of the statements made by the bankrupt, before his application for the benefit of the bankrupt layv, ought to have been admitted. The plaintiff stands -in the place of the bankrupt, and the latter’s admissions tending to lessen the fund, made before the bankruptcy, were admissible against the plaintiff Bateman et al. v. Bailey, 5 T. R. 512, 513. — 1 Greenl. Ev. 220.
The evidence of the admissions of Brickell, which the plaintiff was permitted to introduce, was mere hearsay, and should have been rejected. Brickell himself might have been examined as a witness. Fuller v. Wilson et al. 6 Blackf. 403.
The judgment is reversed with costs. Cause remanded, &c.