
    Robert B. Gilchrist, and Mitchell King, v. Robert Martin, and Charles L. West.
    The notion of mistake, such as intitles a party to relief from his contract, seems to involve the having been misled by false appearances, and does not include an erroneous impression spontaneously taken up, not from any deceptive evidence, but merely from the suggestion of the party’s own mind. Per Harper, J., obiter, but concurred in by the Court.
    A debtor, who has assigned his estate for the benefit of his creditors, is a competent witness in a suit between his assignee, and one of the creditors claiming a special lien on a part of the estate; his interest being equal either way.
    The declarations of the deceased clerk of a wharfinger are not admissible to explain an entry made by him in his principal’s wharf books, . for the purpose of defeating a vested title to property, not in the actual possession of the wharfinger at the time when the declarations were made; nor would such declarations be admissible in any case, as evidence of title in a third person, although they establish a liability on the part of the clerk, through his principal, if by establishing the title, the liability is discharged.
    To render an entry, or declaration, admissible in -evidence, it must appear, first, to have been made without any interest to falsify the fact; second, in cases other than those depending upon hearsay, such as pedigree, custom, boundary, and, perhaps, prescription,- that it was made against the interest of the party in the subject matter of the entry, or declaration; and third, that the entry, or declaration, itself, unless where it is made by a tenant in possession, is so ancient, as to preclude all suspicion, that it was manufactured for the occasion. And the cases, in which entries, or declarations, are generally admissible, are those, in which they are offered, first, to aid, or to repel, a legal presumption from lapse of time; second, to give character to an ancient possession, or to make out an ancient title; third, to corroborate, or repel, a conclusion, arising from other testimony, as to a long past event, or fact; and fourth, to give character to an actual, recent possession, and thereby shew a right of property in a third person.
    W., having 329 bales of cotton at the wharf of L., on the 7th June, as it was alleged, transferred them, verbally, to M., as a security for moneys advanced. Subsequent to that date, and prior to, or on, the20th June, W. was permitted by L. to remove 108 of the bales, and to send them abroad, leaving in the stores of L. 221. bales of the original parcel, and also 102 bales of a second parcel; and after the 20th June, an entry, dated 7th June, was made in L’s. wharf books, by his clerk, transferring the original 329 bales to M. W. subsequently assigned his whole estate for the benefit of his creditors; after which M. suednut a writ of foreign attachment against L., in an action of trover to recover the value of the 108 bales, delivered to W., after the alleged verbal transfer to M.: and the attachment was levied on the 102 bales of the second parcel remaining in the stores of L. The assignee of W. having interposed a claim to the 102 bales, a written agreement was entered into by him, and M., that the cotton should be sold, and the proceeds invested, “ to abide the decision of the cause, and any future order to be made thereon.” In the action of trover M. recovered against L., the value of the 108 bales delivered to W.; but no issue was made up directly to try the title to the 102 bales levied on under the attachment. On a bill of interpleader to determine the respective titles of M., and the assignee of W., to the proceeds of the 102 bales, held, that the judgment in trover ascertaining L’s. liability to M. for the value of the 108 bales, did not necessarily establish M’s. title to the 102 bales; and that as there was no evidence, that any transfer was, in fact, made to M., until after the 20th June, when the 108 bales had been delivered to W., so that the transfer could not operate on them, there was no ground for the presumption, that the 102 bales had been substituted for the 108 bales, and the assignee of W. was consequently intitled under the assignment: but leave granted toM'., to apply for an issue at law, to establish an earlier transfer, or a substitution prior to the assignment.
    This was a bill of interpleader, heard by Harper, Chancellor, at Charleston, April, 1830; and from his decree the facts in evidence, and the questions made, will be fully understood.
    Harper, Ch. On the 26th August, 1825, the defendant, Robert Martin, sued out a writ of foreign attachment in trover against Samuel H. Lothrop, a wharfinger, for 108 bales of cotton,’ charged to have been stored on Lothrop’s wharf, on his, Martin’s, account The writ was levied on 102 bales of cotton found in Lothrop’s stores, which, were afterwards claimed by the defendant, Charles L. West, .assignee of Joseph T. Weyman, as having been the property of Weyman, and assigned to him for the benefit of creditors. Weyman executed two assignments, one on the 19th, the other on the 20th August, 1825; in both of which mention is made of cotton stored on Lothrop’s wharf Pending the action of trover, to wit, on the 17th December, 1825, West, Martin, - and Lothrop, together with Jacob R. Valk, to whom the. assignee of Weyman had caused the 102 bales of cotton to be transferred on the books of Lothrop,-entered' into an agreement, that these 102 bales of cotton should be sold, and the proceeds invested in stocky to be “held in trust- -for the parties to whom the same should be decided to belong. The,agreement states, that “ it is expressly understood, and agreed, by’ and between all the parties to this paper,•'that they sanction, and authorize the sale of the said cotton, and agree that the proceeds arising from the said sale ^nvcs^ ™ bank stock, to be held by Mitchell King, and Robert B. Gilchrist, Esquires, in trust to abide the decision of this cause, and any future order to be made thereon.” The cotton was accordingly sold, and the proceeds invested. The cause was afterwards referred to arbitrators, under a rule of Court, who awarded as foll0Ws: “ That he, the said Samuel H. Lothrop, the defendant, is justly and truly answerable, and accountable to the said Robert Martin, the plaintiff for 108 bales of cotton, which were stored in the stores of the said defendant, on account, and subject to the orders, of the said plaintiff, and Which, on a demand made therefor by the said plaintiff, were not delivered by the said defendant to the said plaintiff; and we, the said referees, award that the said 108 bales of cotton were of the value of 17 1-2 cents per lb., or fifty-two dollars eighty-five cents par bale of 302 lbs.: and we have ordered, awarded, and determined, and do hereby order, award, and determine, that the said defendant do pay the said plaintiff the said sum of $52,85 per bale, making, in the whole, $5,707,80, with interest thereon from the 1st September, 1825, and the costs of this suit.” This award was confirmed, and made the judgment of the Court; hut the defendant, West, still insisting upon his right to the proceeds of the 102 bales levied on under the attachment, the present bill was filed by the trustees, after the termination of the suit at law.
    The first question made relates to the agreement mentioned; viz., whether the defendant, West, was not concluded by it. It was, on his behalf, alleged to have been entered into under a mistake. The testimony of his counsel, Mr. Gilchrist, is, that the agreement was entered into under the impression, that the 102 bales of cotton levied on by the attachment, were, identically, a part of the 108 bales demanded in the suit, and which appeared on Lothrop’s books to have been transferred to Martin; and he states that he had seen Martin’s letter demanding the cotton of Lothrop. This is confirmed by the fact, that no question was made in the cause, or before the arbitrators, relative to the identity of the cotton. The award only establishes the amount due by Lothrop. Yet I must have some doubt whether this be such a mistake as will intitle a party to relief in equity. The notion of a mistake, seems to me to involve the having been misled by some false appearances. If a man spontaneously take up an erroneous impression,' not from any deceptive evidence, but merely from the suggestion of his own mind, this can hardly be called a mistake. There is a difference between mistake and ignorance of a fact. So it seems to me in this case. The parties having no reason to know, or believe about it, took for granted that the 102 bales were part of the 108. The letter of. Martin, which is supposed to have misled them, seems to me rather calculated to have a contrary effect, and to make them aware that the identity of the cotton was disputed. An inspection of the books of Lothrop would have informed them, that the 102 bales constituted no part of the cotton which appeared on those books to have been transferred to Martin; and indeed the letter itself expresses this. I do not think it necessary, however, to give any opinion on this part of the case, as my opinion is with the defendant, Martin, on the merits.
    The testimony is very imperfect, but upon examination I have come to the conclusion, that the following is the state of facts. On the 7th June, 1825, 829 bales of cotton, the property of Joseph TWeyman, were landed on Lothrop’s wharf, from the brig Commerce. Soon after landing, and while the cotton was yet at the wharf, they were pledged, or transferred, verbally, by Weyman to the defendant, Martin, as a security for advances of money; but no entry of the transfer was then made on the books of the wharfinger, Lothrop. On the 14th June, 1825, 102 bales of cotton, belonging to Weyman, were landed from the sloop Herald. On the 18th and 20th June, Weyman, making a shipment of cotton, took from the stores 108 bales of the cargo of the Commerce, which had been pledged to Martin, leaving the 102 bales which had been brought by the Herald. After this an entry was made on the wharfinger’s books, of the transfer to Martin of the 329 bales, the cargo of, the Commerce, as of the 7th June, which was probably the true date. Weyman soon after went to New York, and,, as before mentioned, on the 19lh of August, made an assignment for the benefit of his creditors.
    If this be the true state of facts, and I were instructing a jury upon them, I should say, that they were at liberty, from the conduct of Weyman in talcing the 108 bales pledged to Martin, and leaving about an equal number of the cargo of the Herald, and making no disposition of these until his failing in business, to infer an intention, on the part of Weyman, to substitute the bales brought by the Herald for those taken away by him; and this, whether they were taken intentionally, or inadvertently. If designedly, they should so infer, in favor of the fairness, and justice of his conduct; or if inadvertently, they might properly conclude, that Weyman believed, and considered, all the cotton left by him to be pledged to Martin, and that they might so consider it likewise. This is corroborated by the testimony of William Ailccn, who states that near the time of this transaction, Weyman told him he had shipped, or was shipping, all the cotton ho had in Charleston. He did not intend then to leave any of his own cotton at Lothrop’s. Such inferences as I should instruct a jury to draw, I suppose I ought to make myself, when discharging the fimetion of a jury. I must therefore conclude, that the bales of cottonin question, the proceeds of which are now in dispute, were the property of defendant, Martin, substituted by Weyman in the place of the 108 hales, which he had taken away. . -
    But let us examine how far the testimony makes out the state of faC(;g j SUpp0ge(j, On the books of Lothrop appears an entry, of the 7th June, 1825, of the transfer of 329 bales of cotton, the cargo of the Commerce, to Martin. This evidence would be conclusive if it stood alone; but a witness, George Kerr, states that he saw the entry made, and that it was made after the 20th Juno, and after the delivery of 108 of those bales to Weyman. If this were all the testimony, we should be left to conjecture, why the entry came to be then made. One conjecture which presents itself is, that the clerk, who made the entry, accidentally set down a wrong date, and that the actual transfer to Martin was after the 20th of June, and after the removal of the 108 bales. If we suppose the transfer of 329 bales to have been made by the direction of Weyman, and perhaps that is the legal supposition, as tho clerk was his agent, it would infer a fraud in Weyman, to transfer the 329 hales, when he knew that 108 of them had been removed; or if he was ignorant that any part of the cargo of the Commerce had been removed, and intended to pledge the cotton remaining in the stores, I think I ought to regard the 102 bales as being pledged. But I do not gather from the testimony of this witness, that the misdating was accidental. He seems to have been aware, at the time, that the entry was not dated as of the day when it was made. Then if it was so made ’ by design, it may be conjectured, that Weyman after the 20th June, pledged- only what was left of the cargo of the Commerce, and that the clerk intended the entry, in collusion with Martin, for the purpose of giving him a claim to more cotton than was intended tp be transferred. This is a harsh supposi ■ tion, and altogether improbable. There is no reason to suppose, that Martin knew'that Weyman had any other cotton, in Lothrop’s stores, than what was pledged to him. The only other supposition that I can make is, that the actual transfer was of the 7th of June, but that it was accidentally omitted to be entered, until after the 20th; and that the entry was then made as of the same date with the transaction. This seems to me the most probable conjecture, and it casts no imputation on Weyman, if we suppose him to have removed the 108 bales inadvertently, or even designedly, intending to substitute an equal number.
    That this is the true conclusion is certain, if we are to take as evidence the explanation given by the clerk, who made the entry, Mr. Monefeldt, who was proved to be dead, to the witnesses, Starr, and Magralh. It is, in substance, that he was authorized, when the cot-ion was first landed, and on the wharf, to transfer it to Martin; that he was afterwards, as the witness understood him, directed, by Weyman, to turn out the' cargo of the Herald, or such cotton as he had in store; and that he, by mistake, turned out about the same number of the cargo of the Commerce. The witness, Kerr, states, however, that he himself selected the bales that were to be shipped, and that he took bales of the cargo of the Commerce, because they were square bales, and more convenient for packing, the whole then standing on the books in the name of Weyman. I sec nothing inconsistent, or improbable in this. The witness was acting under the direction of Monefeldt, who was the principal manager of the wharf. The witness also mentioned something of an explanation made by Monefeldt at the time of making the entry.
    The admissibility of the declarations of Mon'efeldt was objected to however, as being hearsay evidence. If this explanation had been made by Lothrop, who was dead, I should have held it clearty admissible, on the principle, that a deceased person’s admissions, against his own interest, and charging himself, are evidence between third persons. See the cases collected 1 Ph. Ev. 191, 192, et seq., and particularly Barry r. Bebbington, 4 T. B. 514. Now Lothrop’s admission, that he was instructed to transfer the cotton to Martin on the 7th June, but that he neglected to do so until after the 20th, when 108 bales had been removed, would have been clearly charging himself for the whole to Martin; while his declaration could be no evidence in his own favor against Weyman. Monefeldt’s admissions seem to me to charge himself in the same way to his employer, Lothrop. He admits,-that he was instructed to transfer this cotton on the 7th, but neglected to do s'o until the 20th, having in the mean time, by gross negligence, delivered 108 bales of it to one who was not the owner; and thereby rendering his employer chargeable for it. If Lothrop were pursuing him in a suit at law, it seems to me clear, that these declarations would be evidence to charge him. They are therefore evidence between third persons.
    Against the effect of this evidence, the testimony of Mr. Weyman himself was relied on. This was objected to as inadmissible, on the ground of interest; and I am satisfied the objection was well founded. If the decree should be for the defendant, West, the direct effect of it will be that the money goes to the satisfaction of Weyman’s creditors. This is as much a benefit, as if it wore to go into his own pocket. The Court cannot speculate on the supposition, that he is hopelessly insolvent, and, therefore, that it is indifferent to him, whether more, or less, of his debts, bo paid. If the testimony were admitted how* ever> ^ skould think it immaterial, as it is evident, that he had no diV tkict knowledge, or recollection, of the transactions, as to which he is questioned.
    
      j^ list of cottons, specified by three various marks, in the han¿writing of Mr. Walker, the principal clerk, and agent, of defendant, Martin, and which appears to be a list of cottons pledged by Weyman to Martin, was also mainly relied on. This list, while it specifies 221 bales of the cargo of the Commerce, which Martin received, makes no mention'of the 108 bales which were delivered to Weyman; and this is relied on to shew, that these 108 bales were not included in the transfer, or pledge, to Martin. When, or for what purpose, this list was made, there is no satisfactory evidence. If the testimony of Weyman were admitted, it is plain, that he only conjectures, from the probability of the thing, that it was made, and delivered to him, as an acknowledgment, or memorandum, on the occasion of the cotton being pledged: and he therefore believes that it contains a correct list of the cottons that were pledged. There is some improbability in this. It is a naked list of many bales of cotton, designated by their marks, and would not serve the purpose of an acknowledgment. Mr. Aiken-on the contrary conjectures, that it may have been made on another occasion. He states that shortly before Weyman sailed to New York, the latter called on him, being the attorney of Martin, who was there absent from the State, and informed him that he had called, at the request of Walker, stating that he had applied to Walker, to release the cottons which were in pledge to Martin, and to take instead certain-acceptances in New York. The witness refused to sanction the arrangement; and Weyman called the next day, and informed the witness, that he had been to Walker, and got his account. It is supposed, that on this occasion Walker made a list of the cottons which were actually found in- Lothrop’s stores entered in the name of Martin. Under this uncertainty I can decide nothing from this list.
    My conclusions from the evidence are I confess not so satisfactory as could be wished, nor unattended with difficulties; but I have taken the best view of it in my power. As to the fact that cotton was mentioned in the assignments of Weyman, I think it intitled to very little weight.
    The view which I have taken supersedes the consideration of another ground taken on behalf of the defendant, Martin. It was urged that Lothrop, as a wharfinger, had a lien on the cotton of Weyman in his hands, for any general balance that might be due him by Weyman, and that Martin, having acquired a right to the cotton by the levy of his attachment, as against Lothrop, or his creditors, ought to be subrogated to the right of Lothrop, and might insist on the same 3-ien: and it was supposed that a demand or balance was established in favor of Lothrop, as against Weyman, by shewing the delivery of the 108 bales of cotton to him, as it is supposed, by mistake. The ground is taken on the supposition, that the 102 bales cannot be-.considered as having been substituted in place of the 108 taken by Weyman. As to this ground I shall only observe, that it is founded on the assumption of the fact, that the whole cargo of the Commerce, in-eluding the 108 bales, was actually pledged to Martin. This, however, I consider to be the most disputable fact in the case; and if we regard it as established, I think there can be little doubt, but that Weyman must be considered as having substituted for them the 102 bales the cargo of the Herald. It may be remarked besides, that no balance is established in favor of Lothrop against Weyman. This could only be done by taking an account of their whole dealings. If necessary this might be the subject of a future reference, but from the view I have taken it seems unnecessary.
    I shall direct the costs to be paid by the defendant, West, as he seems to me to have been guilty of laches, in not making his claim in the suit at law, or before the arbitrators, thus rendering necessary the present suit.
    It is therefore ordered, and decreed, that the complainants pay over to the defendant, Robert Martin, the fund in their hands, arising from the sale of the one hundred and two bales of cotton mentioned in the proceedings. Costs to be paid by the defendant, Charles L. West. •
    From this decree, the defendant, Charles L. West, appealed, and now moved that the same be reversed, for the reasons following, to wit:
    1. That the declarations of Monefeldt, as testified to by the witnesses, Starr, and Magrath, were incompetent evidence, being hearsay testimony, and not falling within any of the rules, under which such testimony is admitted.
    2. That the depositions of Weyman were improperly excluded, on the ground of interest, his interest being equal on either side of the issue.
    8. That there was no evidence, at least no competent evidence, in-titling the defendant, Martin, to a decree for the fund in dispute. ■
    Gilchrist, and Petigru, for the motion.
    King, contra.
    
   O’Neall, J.,

delivered the opinion of the Court.

The questions which first present themselves in the consideration of this cause are, 1st, whether the testimony of Joseph T. Weyman was competent for the assignee, West; and 2nd, whether the declarations of Monefeldt, proved by the witnesses, Star, and Magrath, were competent evidence.

Upon the first question there is no division of opinion; the learned Chancellor, who pronounced the decree, agreeing- that he was mistaken in excluding Weyman’s deposition. Jt is only necessary, therefore, to state the rule, and the exception, under which, we think, his testimony ought to have been received.'

Thc 0p exciusi0I1 0[ a -witness on account of interest, instead of being extended, has been very much narrowed by modem decisions. The general inclination of Courts at present is to apply the objection of interest to the credit, rather than to the competency of .a witness. The interest to exeludo a witness must be -a certain, and direct, pecuniary interest, in the event of the cause, in favor of tlio party offering him as a witness; or a certain and direct interest in the record, as evidence, for, or against him. This is the general rule applicable to all cases. But if the interest of a witness is equal between the parties, so that he must be equally a gainer, or loser, let either party succeed, he is without pecuniary interest in the event of the suit. For he will he neither better, nor worse, in any event of the case. This appears to me to be exactly the case with Weyman. If his assignee succeeds, the recovery will diminish the amount of his debts to his creditors, who are intitled to be paid under the assignment, hut leave his debt to Martin undiminished; and if Martin succeeds, his recovery will be a satisfaction, to the same extent, of the debt to him, but leave the creditors debts under the assignment undiminished. So that let the recovery be as it may, Weyman, can have no pecuniary benefit from it; for the fund in dispute is applicable to the payment of his debts, and apply it to either of the parties claiming-, and it will leave Weyman in precisely the same situation, debtor to one, or the other, in the same sum, so far as this fund is concerned. He was therefore a competent witness.

The second question is not free from doubt, not so much arising out of the decision of the question itself, as from the difficulty of perceiving the reason, on which many of the English cases have proceeded, and of fixing upon any thing like a rule which they have established. The Chancellor supposes the rule to be, that the entries, or declarations, of a deceased person against his own interest, and charging himself, are evidence in all cases against third persons. To the rule thus broadly laid down, I cannot give my assent. There are classes of cases in which it would apply: ’ there are others in which it has no application. In the cases where it does apply, it is subject to qualification. In all cases where hearsay is admissible from the antiquity of the dispute, and therefore stands upon the footing of necessity, as in cases of-customs, pedigree, boundary, and possibly prescription, it would be admissible as furnishing the best evidence in the power of the party. It has however, it must he confessed, been received in •other cases, as in Price v. Lord Torrington, 1 Salk. 285, where it .appeared, that in the usual course of the plaintiff's dealings, his dray-men came every night to the clerk of the brow house, and gave him an account of the beer delivered out by them, which he set down in a book kept by him, and the draymen signed it. The drayman who .signed the entry was dead, but his handwriting was proved, and the entry was held to be proof of the delivery of the beer. Mr. Phillips, in his treatise on evidence, 1 vol. p. 196, (marginal page, 211,) ■has given some very sensible reasons, both to doubt the authority of this case, and to prevent its extension beyond the case itself. I will however add to his reasons, that that case was probably decided upon .the necessity of the case, in favor of trade, and as falling within the reason on which the books of merchants and shopkeepers .are considered as evidence of delivery. The drayman may be regarded as the clerk who delivers the goods, and makes the entry; and in such a case, proof of his death and handwriting would intitle the entry to credit.

In Barry v. Bebbington, 4 T. R. 514, the issue was, whether the waste, or common, was the soil and freehold of the defendant. The plaintiff proposed to give in evidence entries of sums of money received by one Ashley, who had been steward to Lord Barrymore, .under whom the plaintiff claimed title, for trespasses committed by .several persons on the waste. The case was tried in 1792, and one of the entries was in 1739, and the last in 1785. Ashley was dead, .and upon his handwriting being proved, the entries were held to be •competent evidence, on the authority of Warren v. Greenville, 2 Str. 1129. That case is noticed by Lord Mansfield in Brydges v. Duke of Chandos, 2 Bur. 1072. It appears that the question in Warren v. Greenville was, whether the surrender of a life estate, which was ■necessary to make out the title, ought to be presumed after great length of time. -The attorney who had been concerned in the surrender had been long dead, the entry in his bill book had been made at the time of the transaction, and a receipt had beeii given upon the bill for “drawing and engrossing the surrender;” and it was held to be evidence.

From these cases I deduce the following principle: that in ancient, and remote transactions, an entry, made by a party, having no interest in the issue before the Court, and against his interest in the matter of the entry, may, if he be dead, be given in evidence, as a circumstance in aid of the title of the party offering it. In the case of Barry v. Bebbington, it was to prove a recognition of title, or rather possession, in Lord Barrymore, of the common in question, as.far back as 1739, fifty-three years before the trial. It rna^ P£‘r^iaPs fai>lfC<l as a casedepending very much on a right of common, which arises often by prescription from use beyond the memory of man, and in which such evidence is admissible on the broad principle, that such a right may be proved by hearsay. But here the admissibility of the evidence will be more intelligibly defended, by putting it on the footing of the declaration of a person in possession, acknowledging the title to be in another: and such declaration is admitted as part of the res gesta, giving character to the possession. In Warren v. Greenville, it was allowed in aid of a legal presumption ; and any thing in such a case which goes either to fortify, or rebut it, may be given in evidence.

The next case which it is important to notice, is that of Higham v. Ridgway, 10 East, 109. The question in that case was as to the time of the birth of William Fowden, Jun. The case was tried in 1808, and he was bom in 1768. It was held, that the books of the man-midwife, who was dead, containing a charge for his attendance on the mother of William Fowden, Jun., at the time of his birth, and which was marked paid, on being proved to be in his handwriting, were admissible in evidence. It will be observed, on looking into that case, that the book was received only as a corroborating circumstance to the other testimony establishing his birth on the day set down in the entry. Lord Ellenborough said, “that the books would be evidence in themselves, as recording this event of the birth, and other similar events, in the course of his attendance on his patients, at the several times they took place, I am by no means prepared to say.” 10 East, 117. Le Blanc, J., in his opinion puts the question on I think the true ground, the necessity of receiving less evidence as to a remote transaction. He says, “ on inquiring into the truth of facts which happened a long timo ago, the Courts have varied from the strict rules of evidence applicable to facts of the same description happening in modern times, because of the difficulty or impossibility, by lapse of time, of proving those facts in the ordinary way, by living witnesses. On this ground, hearsay, and reputation, (which latter is no other than the hearsay of those who may be supposed to have been acquainted with the fact handed down horn one to another,) have been admitted as evidence in particular cases. On that principle stands the evidence, in cases of pedigree, of declarations of the family who are dead, or of monumental inscriptions, or of entries made by them in family bibles. The like evidence has been admitted in other cases, where the Court were satisfied that the person whose written entry, or hearsay, was offered in evidence, had no interest in falsifying the fact, but on the contrary had an interest against his declaration, or entry, as in the case of receiver’s books.” Ib. 120. This case establishes as a rale, that in the case of a birth having taken place at Some remote period, the entry of a deceased person having no interest to establish the fact, and against his interest in the subject matter of the entry, maybe given in evidence, to corroborate, or repel, a conclusion to be drawn from other testimony as to the fact.

The last case which it appears to me to be important to notice, is that of Haddow v. Parry, 3 Taunt. 303, in which it was held by Lawrence, J., that a bill of lading signed by the master of a vessel, since deceased, for goods to be delivered to a consignee, he paying freight, is admissible as evidence of the consignee’s right of property against third persons. In this principle I fully - concur, but not for the reason that the master would be liable under it to the consignee; but because it .shews that his possession was for the consignee, and is therefore prima facie evidence of property. It is the declaration, of one having actual possession, that he holds for another. This makes it admissible as giving' character to the possession; and of course fixes prima facie the right of property.

From this review of the cases, I come to the conclusion, that before an entry, or declaration, can be received in any case, it must appear, first to have been made without any interest to falsify the fact; second in cases, other than those depending on hearsay, such as pedigree, custom, boundary, and perhaps prescription, that it was made against the interest of the party in the subject matter of the entry, or declaration; and third that the entry, or declaration, itselfj unless where it is made by a tenant in possession, should be so ancient as to preclude all suspicion, that it was manufactured for the occasion. And the cases in which entries, or declarations, are generally admissible, are, first, in aid of, or to repel, alega! presumption from lapse of time; second, to give character to an ancient possession, or to make out an ancient title; third, to corroborate, or to repel, a conclusion arising from other testimony, as to a long past event, or fact; and fourth, to give character to an actual recent possession, and thereby shew a right of property in a third person.

IJVlonefeldt’s.declarations must be admitted, or rejected, under these rules. It is manifest, that he had a direct interest to sustain Martin in this recovery; for if, as the Chancellor truly supposes, he was liable to Lothrop, and Lothrop to Martin, for the loss of the 108 bales of cotton, his interest is clear to defeat West’s recovery, and to sustain Martin’s. If Martin recovers the cotton, he is satisfied, and Lothrop’s liability to him is ended, and, of course, Monefeldt’s to Lothrop. He had therefore an interest to falsify the fact; and although his declaration had the effect, first to charge him- to Martin, through his employer Lothrop, yet it had also the effect to discharge him, by estabbsbin'S‘ Martin’s right of property. To these conclusive reasons" against his declaration being evidence, must be added the fact, that it-was made, after it was discovered, that 108 bales of the cargo of the-Commerce were missing, and that his liability, whatever it was, had1 already attached/

jj ¿0 beiieve a case can be found where a.declaration, or entry, unaccompanied by actual possession at the time, was ever held to he, in itself, evidence of title in a third person. Still more difficult will it he to find any case, which will permit the declarations of a third person to defeat a vested right in another; In Phœnix v. Assignees of Ingraham, 5 Johns. 412, it was held, that they could not have this effect. /At the time when Monefeldt’s declarations were made, Weyman had assigned the cotton in dispute to West; and his right could not he therefore affected by any thing which Monefeldt could say, or do. If at the time Monefeldt made the declaration, he had been in the actual possession of the cotton, it might have been evidence, that' he then held possession for Martin; and this would have put the party claiming to shew a legal title to the property. But his declaration, that, some months before, he had been authorized to do- an aet, which? would have changed the property from Weyman- to Martin, cannot he any evidence./ I come therefore to the conclusion, that the testimony of Starr, and Mag-rath, as to Monefeldt’s declarations, was in-competent, and ought to have been rejected.

Excluding this testimony from the case, the transfer of 329 hales, the cargo of the Commerce, according to the testimony of George Kerr, was made on the 20th of June, after the 108 bales had been taken away by Weyman; so that it could only transfer 221 bales of that cargo then instore. The 102 bales of the cargo of the Herald not being transferred, and there being no ground to presume, that they were intended by Weyman to he substituted for that part of the cargo of the Commerce, which he had- taken away, we should not be authorized to sustain the decree in favor of Martin; more especially when Weyman’s testimony, which was excluded by the Chancellor, ought to he thrown into the scale against the claim. But as it may be, that other facts exist, which have not been presented to the Court,- and which may sustain Martin’s claim, he may, if he choose, submit the question of fact to a jury, on an issue to be ordered by the Chancellor.

It is necessary to notice the effect of the recovery in the action of trover by Martin against Lothrop. To that case it is said the defendant, West, made himself a party, by the agreement, to sell the cotton* and invest the proceeds in bank stock, and to abide the event of the cause, and any ftirther order thereon. But the recovery in that case merely fixed Martin’s right of property in the 108 bales, as against Lothrop; which question, it may be admitted, this defendant, West, could not now agitate. It is to he remembered, however, that the writ in trover was a writ of foreign attachment, and levied on the 102 bales of cotton, as the property of Samuel H. Lothrop; and I do not perceive, that any order, condemning them as the property of the absent debtor, has been made, or that the question, whether they belonged to him, or to West, or Martin, was in any shape tried. It might have been tried on a suggestion at the instance of West, laying claim to them; but the question could not legally arise in the action of trover between Martin, and Lothrop: and it follows that the recovery cannot now conclude the parties from making it.

It is therefore ordered, and decreed, that Chancellor Harper’s decree be reversed, and the cause remanded to the Circuit Court for trial; and that the defendant, Martin, have leave to move that Court, if he choose so to do, for an issue to try the right of property to the 102 bales of coltoii now in dispute.

Johnson, J., concurred.

Decree reversed.  