Gordon v. Shurtliff

8 N.H. 260 | Superior Court of New Hampshire | 1836

Parker, J.

It is laid down as a general rule, that “ the ‘ mere recital of a fact, that is, the mere oral assertion, or ‘ written entry, by an individual, that a particular fact is true, ‘ cannot be received in evidence.” 1 Stark. Ev. 46. But “ whenever the declaration or entry is itself a fact, and is a ‘ part of the res gestae, the objection ceases.” “ The distinc-1 tion,” says Mr. Starlde, “ between a mere recital, which is ‘ not evidence, and a declaration or entry, which is to be “ considered as a fact in the transaction, and therefore is evi- ‘ dence, frequently occasions much discussion, although the ‘ test by which the admissibility is to be tried seems to be ‘ simple. If the declaration, or entry has no tendency to ! illustrate 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 who makes ‘ it, it is not admissible in evidence ; but if, on the contrary, “ any importance can be attached to it as a circumstance ‘ which is a part of the transaction itself, and deriving a ‘ degree of credit from its connexion with the circumstances, ‘ independently of any credit to be attached to the speaker ‘ or writer, then the declaration or entry is admissible in “evidence.” 1 Stark. Ev. 47.

In the present case, it would have been competent for Wetherell to have testified that he was owing the defendant, on a note, about $ 53, — and that at a certain time, by direction of the defendant, he went to Ross, and paid him $50, on the note, and afterwards paid the balance. Thus tar the evidence would be a matter of fact, to which no valid objection could be taken.

But the declaration of the defendant, that he had borrowed $50 of Ross, and pledged the note as collateral security, is of a different character. There is nothing to give verity to this declaration, aside from the credit that may be due to the party himself. The possession of Wetherell’s note by Ross is consistent with a supposition that it was pledged to him as collateral security for the note now sued ; but it is equally consistent with the supposition of an absolute transfer upon some other consideration. The assertion that the note was pledged gains no confirmation from the fact that it was after-wards found in Ross’s possession. The assertion was not one against the interest of the defendant. 6 N. H. Rep. 210. Hinkley vs. Davis. Nor does it give character to, or elucidate any act done by him at the time of making it. 1 Stark. Ev. 49; 8 Pick. 397, Merrill vs. Sawyer.

The information to Wetherell that his note was with Ross, and the request that he would pay the money to him, furnishes a reason why he should have sought his note there, but nothing which the defendant then said gives any character to the subsequent payment by Wetherell. That is equally a payment to Ross, whether he was entitled to hold the money as his own, or was bound to apply it on a demand he held against the defendant.

The defendant’s assertion had no tendency to illustrate any matter now in controversy, except as a mere abstract statement, detached from any particular fact; and he wasnot entitled to avail himself of it, to prove that the payment by Wetherell to Ross operated as a discharge of the note of the defendant. 17 Johns. 187, Roseboom vs. Billington; 5 D. & E. 123, Outram vs. Morewood.

New trial granted.