18 N.H. 528 | Superior Court of New Hampshire | 1847
The ruling in this case gives to the declaration of Gillis an efiect, or rather admissibility, as evidence, which is not ordinarily given to the mere declarations of third persons, respecting the rights or titles of the parties to the suit. The declaration went before the jury as evidence, to some extent, that Patten, under whom the plaintiff claims, had title. As the mere declaration of a third person, it is clearly inadmissible. But it is argued that the declaration is evidence, because Gillis was on the land at the time, making coal, and that the declaration i« therefore admissible as part of the res gestae. If the fact was material, and the declaration tended to illustrate it, this would be so; but the fact that Gillis was on the land making coal is of no importance in the case. It is not used to show a title in him by either party. Neither claims any thing under him. He was on the land without pretence of title. The fact of itself it entirely immaterial, and inadmissible for that reason. It does not serve to give significance to this fact, or to explain or illustrate it in any way, so as to render it important, that he said that he had the wood for the coal-pit from one person or another. If he cut the wood by the authority of a purchase from Patten, and it is supposed that this is material as showing an exercise of ownership by Patten, that fact may be proved by the testimony of Gillis, but not by his mere declaration without the sanction of an oath, and with no opportunity for a cross-examination.
The principles which govern this case are well stated in Downs v. Lyman, 3 N. H. Rep. 486, cited by the plaintiff, although the case is not an authority for him, because there the fact to which the declaration related was, of itself, when rightly understood, of some consequence.
New trial granted.