#### Penner v. Cooper.

Argued Tuesday October Eitli, 1815.

1. Trespass — Evidence—Declaration of Third Person.— A declaration, not upon oath, by a person not a party to the cause, that he committed the tresspass for which the suit is brought, cannot be given in evidence to exculpate the defendant.

This was an action of trespass, for killing a mare, brought by the appellant against the appellee, in the County Court of Montgomery.

At the trial, on the plea of not guilty, the counsel for the defendant asked a witness if he had not heard one Perry confess *that he had killed the mare in the declaration mentioned. The counsel for the plaintiff objected to the question, and asked the opinion of the court. The counsel for the defendant insisted, as Perry could not be compelled to give testimony with regard to this matter, if present in court, because he might thereby charge himself with damages, that, therefore, his declaration not upon oath might be heard : the court was of opinion with the counsel for the defendant, and suffered the question to be asked of the witness ; instructing the jury to weigh the circumstances under which the confession was made : to which opinion of the court the plaintiff’s counsel filed a bill of exceptions.

Verdict and judgment for the defendant,, which being affirmed by the Superior Court-of law, the plaintiff again appealed to this court.

Wickham for the appellant.

This case depends on a single proposition. The question is, whether declarations not upon oath, by a person no party to the cause, that he was guilty of the trespass, could be given in evidence by the defendant ?

It is clear law that hearsay evidence is not admissible, except in cases of pedigree, ancient boundaries, and the like. That person might have been examined as a witness, so far as to have discharged the_ defendant without charging himself ; for this he could have done without being compelled to acknowledge that he killed the mare himself. In the famous trial of Hord Melville, a majority of the judges were of opinion that Mr. Trotter ought to be examined, notwithstanding the objection of interest. But suppose this witness could not be examined : does it follow that the court was authorized to dispense with the established rule of law, that testimony is not to be received but upon oath? Such person, if brought to his oath, or if sued by the plaintiff, might say that he spoke the words in jest, that he could prove he was an hundred miles off at the time the mare was killed. Thus, by a combination between him and the defendant, the plaintiff might be defeated altogether.

*Wirt contra.

The action is brought for killing the plaintiff’s mare. If the defendant could prove that another person killed her, there is no doubt that he ought to be exonerated.

Hearsay evidence is generally rejected, on two grounds : 1st, that there is better proof behind, which it is in the power of the plaintiff to produce ; and 2d, because the person giving testimony ought not to he believ d without his oath. But neither of these objections apply in the present case. We cannot compel the person who was the perpetrator of the offence, to answer any question tending to criminate himself, (a) If we had brought him before the court, and asked him whether he knew that any body other than the defendant had killed the mare, he could not have been compelled to answer. The doctrine concerning hearsay evidence does touch the case. A person making a confession may be credited, though not upon oath ; because it is against his own interest ;(b) for self-interest imposes an obligation equal to that of an oath. The confession offered here was the highest evidence it was in our power to produce.

Besides, the court did not instruct the jury that the evidence of Perry’s confession was to be received absolutely, but only sub modo. They received it as competent, leaving the jury to judge of the credibility of that confession, from the circumstances under which it was made ; viz. whether it was uttered in jest, or not, by a person solvent, or not, &c.

Wickham in reply.

Peake, 184, proves the very position I contend for ; that Perry was *224examinable as a witness so far as his testimony might go to exculpate the defendant, though not to inculpate himself. The confession of a party may be used against him, but not against a third person. Besides, by receiving this confession at second hand, the plaintiff loses the benefit of cross-examination. .

The point decided in' Hanson v. Parker, 1 Wils. 257, is undoubtedly clear law, but has no application to the case before us. In that case, proof was admitted, “in debt upon bond, with condition for payment of money to a third person, Bydia Dovey,” that she declared the defendant owed her ^nothing ; and such declaration was proper evidence, because Bydia Dovey was, in effect, the real plaintiff.

In Holliday v. Littlepage, (as far as my recollection serves me,) the declaration of the captain of the vessel, in which Bewis Bittlepage sailed to Europe, was considered as an act at the time of the voyage. The captain was a party to the transaction. The money for the passage of Bewis must have been paid to him by Bewis himself, or by John Carter Bittlepage, the plaintiff ; and his acknowledgment that the plaintiff paid it, only fixed the person of whom he received it. It was, therefore, with propriety, left to the jury. But that case is not like this.

With respect to the manner in which the court’s instruction to the jury, now in question, was given ; the court did indeed say, that the jury were to weigh the circumstances ; but this they are to do in every case. The testimony was admitted as competent, without any reservation.

Wirt. The plaintiff loses the benefit of cross-examination in all cases where parol proof of declarations, by third persons, is admitted.

Friday, October 27th, 1815,

(a)

 Peake, 184.

(b)

 Hanson v. Parker, 1 Wils. 257; Kempland v. M’Cauley, Peake’s Rep. 65; Holladay v. Littlepage 2 Munf. 316.

the president pronounced the ‘court’s opinion, that the hearsay testimony relied on by the appellee, and admitted by the County Court, as stated in the bill of exceptions, was not legal or admissible evidence.

Both judgments reversed ; and cause remanded to the Superior Court of law, and from thence to the County Court, for a new trial to be had between the parties, in which no such evidence is to be admitted.