
    Edwards, Appellant, v. Williams.
    Whenever one party speaks of a matter which must necessarily he within the knowledge of the other, suffering the statement to remain uncontradicted will be construed an admission of the fact stated. But.the rule cannot be extended further. If the matter spoken of be not within the knowledge of the party addressed, his failure to contradict the statement cannot amount to an admission of its truth.
    APPEAL from the Wilkinson circuit court.
    This cause was tried before the Hon. James Walker at the April term of said court, 1837.
    It was an action of trespass brought to recover the sum of 1200 dollars for shooting a negro man slave.
    On the trial, the defendant introduced a witness to prove that the manner of the killing was related to the plaintiff by the defendant Williams, and that the plaintiff did not contradict the facts as stated to him by the defendant.
    This testimony was objected to by the counsel for the plaintiff. The objection was overruled, and the evidence admitted.
    There was also a motion for a new trial which was. overruled; and a bill of exceptions to the opinion of the court embracing the testimony in the case, and an appeal, taken to this court,
    Henderson, for appellant.
    The errors assigned by the plaintiff are two; though they are perhaps by the record merged into but a single error.
    1. That the court permitted illegal evidence in behalf of the defendant.
    2. The court below erred in refusing a new trial to the plaintiff on the case shown. The two errors are embraced in a single objection thus: that as the court permitted illegal evidence on behalf of the defendant, and which was objected to by the plaintiff; that therefore, they should have granted the plaintiff a new-trial whereby to correct such error.
    From the case made in the bill of exceptions, it will be assumed without argument or authority, that if the testimony excepted to was legally inadmissible, then a new trial should have been granted.
    The point ruled by the court, in the admission of evidence in behalf of defendant, was a clear misapprehension of the principle it was intended to maintain.
    It will be first noticed, that when the defendant proposed to offer as evidence in his own behalf, his own admissions and declarations, they were not those made at the time referred to in the plaintiff’s proof and as part of the same confession or conversation, (which would have been legally admissible,) but it was his own affirmative declaration made at another time and in his own defence, and of and concerning facts of which it is apparent, he alone could know the truth, and of which the plaintiff could know nothing, viz, the cause and manner of his killing the plaintiff’s slave, the act and inducement to which occurred to the knowledge, or in the presence of none other than the defendant and the slave slain. And the ground on which the court decided that such proof was admissible is, that these declarations were made'to and in the plaintiff’s presence and not objected to by him at the time. Now if such be the rule of law, it is supposed to rest upon some reason. We will test it thus. The case shows plaintiff knew nothing of the facts. If under such circumstances he had denied or objected to them, would it in reason have diminished in any degree the probability of their truth?
    On the other hand, did his silence in reference to facts thus detailed, and of which he could know nothing, imply their truth, or add any thing in favor of their probability? Certainly nothing, in either case.
    Now, the rule which has been misunderstood and misapplied in this case, is to this effect, viz; That where one asserts or declares a fact, the knowledge of which is, or by law is presumed to be, in the exclusive knowledge of the party to whom the declaration is addressed, or in the equal knowledge of both parties, the silence of the party spoken to, is construed into an assent, by him, of the truth of the words spoken. On the well known practical and experimental reason, that men conversing of matters in which both are interested, and of which both are cognisant, usually correct or controvert all mistakes or misapprehensions respecting such facts spoken of or'asserted on the part of each.
    If A says to B you owe me _ 1000 dollars, and B makes no reply or objection, it is testimony (though at best but weak and uncertain) to prove B’s indebtedness to A in that amount. But if A should say to B “ while hunting alone in the woods to day, I met your slave Jack, who assaulted me with an axe and threatened my life, and in self defence I had to shoot him, the silence of B to such declaration could, in no sense, and with no reason, imply its truth. 2 Starkie on Ev. 21.
    It is not pretended in case last above, if B should, in prosecuting A for the act, offer A’s admission, so made, that he had shot B’s slave Jack, but that A might give in evidence his whole confession, made at the time, to show the act done in self-defence. But if B should choose to close his proof by evidence of circumstances only, could A then offer his own confession as above in. defence? I conclude the negative is clear beyond a doubt. ■ And such is the case we would reverse.
    In no case can the declarations or confessions of a party be offered as affirmative evidence in his own behalf, except, perhaps, when such forms part of the res gestas, of which there is no pre-tence in this case. To decide otherwise is to permit a party to manufacture testimony for himself, as was done in the case under consideration.
    In the case before the court, the plaintiff relied on the defendant’s confession made at one time as the ground of his recovery. The defendant has been permitted to show his own account of the act as detailed by him at another time, as the ground of his acquittal. Directly on this point is 1 Peters’s C. C. Rep. 20 21; 6 Cow, 684.
    Deeming this error manifest, the court below should have corrected it by a new trial, which this court will now award.
   Mr. Chief Justice Shaukey

delivered the opinion of the court.

The ground, relied on for a new trial on the part of the plaintiff is, that improper testimony was permitted to go to the jury. The action was trespass for killing a negro. After the plaintiff had •closed his testimony, the defendant, under the plea*of not guilty, introduced Collin as a witness who proved the transaction as detailed by Williams to Edwards, and his statement was received under the rule of law, that statements made by one party to the other and not denied, are admissible as evidence, because the acquiescence in the statement made by one party and undenied by the other is construed into an admission of the truth of the statement. Although this is a general rule, it is certainly not without exceptions. Whenever one party speaks of a matter which must necessarily be within the knowledge of the other, the suffering of the statement to remain uncontradicted, may with propriety be •considered as an admission of the fact stated. ■ But the rule cannot be extended farther. If, therefore, the matter spoken of be not within the knowledge of the party addressed, his failure to contradict the statement cannot amount to an admission of its truth.

To contradict an assertion, implies a knowledge of the matter spoken of, but to suffer a remark to pass uncontradicted does not necessarily imply an admission of its truth. This would depend upon the knowledge of the party to whom the conversation was addressed. If an individual were to say to another, I owe you so much and no more, and that other were to permit the remark to pass uncontradicted, it would be admissible as evidence to show the extent of the debt, but it would be so because the remark was made in reference to a matter which must have been known, or which in all probability was known by the other party. On the other hand, if such a remark should be made in reference to a matter which must necessarily be unknown to the party addressed, his apparent acquiescence would amount to nothing. If the nature of the matter spoken should be such as would be likely to be known to the party to whom the conversation was addressed, such probable knowledge might be sufficient ground for admitting the evidence; but when the truth of the statement could not be known by the party addressed, the statemant made to him could not be evidence, without showing that the truth of the matter was within his knowledge. The matter here complained of, was a trespass, and it appears conclusive by that, the plaintiff was not present at the commission of the act. Without a knowledge on the subject, he could not have contradicted the statement of the defendant, and not knowing whether the statement was true or false, his failure to contradict it cannot amount to an admission of its truth. The statement as detailed by the witness was, therefore, inadmissible, and as it may have had great weight with the jury, a new trial should have been granted.

The judgment must be reversed, and cause remanded, and a venire de novo awarded.  