#### Joseph Guy v. Alexander Hall.

J V- From Iredell. J

In an action to recover the value of a negro slave, the Plaintiff gave hi evidence a bill of sale for the negro, made to him on the 15th December, 1817. The Defendant claimed title to the negro under the same person, and gave in evidence a bill of sale made to him on the 5th of that month. The Plaintiff alleged that he had purchased the negro before the 5th, and that it rvas agreed between him and the vendor that they should meet on or about the 15th, when he should give bond with security for the purchase money, and the vendor should make to him a bill of sale : and the declarations of the vendor made between the 5th and 15th were received in evidence to prove these facts.

The declarations or confessions of a person malting them are evidence against him, and all claiming under him by a subsequent title. He cannot better his title by transferring it to another, or thereby affect the rights of those who have an interest in his confessions.

A rule prevailed during Lord Mansfield’s time, that no man should be heard either directly by himself, as a witness, by giving Ins declarations in evidence to impeach an instrument to which he was a party, or to invalidate a title which he had passed away as a good one. This rule was exploded by Lord Kenyon, and the ancient rule restored, of excluding witnesses only upon two grounds, infamy and interest. It is still retained in some of our sister States, as to instruments which are negotiable.

In this case the vendor was alive, and amenable to the process of the Court; and it was urged that he himself should be sworn, and his declarations be not received. But he is privy in estate, and in law, his declarations are those of the party claiming under him. If it be asked, Why not swear him ? The answer is, The party likes his declarations better. It is true, if he be now disinterested, either party may, if he choose, call him as a witness.

This was an action of trover to recover the value of a negro slave named Peter, to whom both Plaintiff and Defendant set up title, under Joseph Hall. The Plaintiff gave in evidence a bill of sale made to him by Joseph Hall on the 15th December, 1817 ; and the Defendant gave in evidence a bill of sale made to him by Joseph Hall on the 5th of that month. It was alleged by the Plaintiff, that he had purchased the negro Peter from Joseph Hall before the 5th ‘ *151 mí December, and that it was agreed between them at the time of the sale and purchase, that they should meet on or about the loth of December, when Plaintiff should give bond with security for the purchase money, and Joseph Hall should execute to him a bill of sale : and to prove this fact, he offered in evidence, among other things, the declarations of Joseph Hall made between the 5th and 15th of December. Hall was alive and amenable to the process of the Court. The evidence was rejected, and the Plaintiff non-suited. A rule for a new trial was obtained, upon the ground that the evidence was improperly rejected. This .rule was sent to this Court, and

HENDERSON, Judge,

delivered the opinion of the Court:

The declarations or confessions of the person making them, are evidence against such person and all claiming under him by a subsequent title, and for the plainest reasons. Truth is the object of all trials, and a person interested to declare the contrary, is not supposed to make a statement less favorable to himself than the truth will warrant ; at least there is no danger of overleaping the bounds of truth as against the party making the declarations. It is therefore evidence against him, and his subsequent purchaser stands in his situation ; for he cannot better his title, by transferring it to another, or thereby affect the rights of those who have an interest in his confessions. During the time that Lord Mansfield presided in the English Courts, a different rule prevailed, that no man should be heard either directly himself as a witness, by giving Ms declarations in evidence to impeach an instrument to which he was a party's, or to invalidate a title which he had passed away as a good one : thereby forming a new rule of excluding witnesses. But the good sense of Ms successor restored, the ancient rule, declaring that he knew of but two rules of exclusion, infamy and interest: and the rule observed in Lord Mansfield’s time is now entirely exploded, except in some of our sister States, where it is retained as to instruments which are negotiable.

*152But it is said, that the person whose declarations are offered, is entirely disinterested and within the process of the Court, and therefore should himself be sworn. There would be some weight in this objection, if they were offered as the declarations of a disinterested individual in those cases where such declarations are admissible, to-wit, in cases of pedigree and boundary : for then the declarations would be inadmissible, if the higher evidence, the oath of the party, could be had. In all other cases, except those of pedigree and boundary, the declarations of disinterested individuals are inadmissible j for they are nothing but hearsay. In this case, they are offered as coming from a Privy in Estate, and therefore, in Law, from the party himself 5 for the privy completely represents him, so that the question whether the person be now disinterested to declare the truth, and is amenable to the process of the Court, does not affect the point now under consideration.

It is asked, Why not swear him ? The answer is, The party likes his declarations better. He may, from some motive, vary his statement; and the party offering tiffs evidence is alone to judge. It is true, if he be now disinterested, either party may, if he choose, call him as a witness. The evidence was improperly rejected, and the rule for anew trial must be made absolute.