
    B. Hendrickson, Administrator of H. Ryer, deceased, against F. Miller.
    the ^competency takcn auhe^rfai, mw“ria?"f°and where counsel Swhít dwo? diS the note oPrareiSulivf1 be ofadetedantare denctbe belgalnsí ten asserted by obe t!ie pidSdant! touching .the antfnotdeniecfby
    This was an action for money had and received by the defendant, to the use of the intestate, H. Ryer. Joseph Parsons, a witness, ’ called by ■«..•/v* . . •, . « plaintiff, swore, that he was an appraiser oi the intestate’s estate, and at the request of the plaintiff, called on the defendant to demand of him certain moneys and other articles, which he alleged had been deposited with the defendant. the intestate, about the time of his death. . . witness stated, that on this call the plamtiff told the defendant he had called for the . settlement, which the latter had promised to with him that day-. The defendant did not deny the promise, but said he would not settle. The plaintiff went into an enumeration of the money and other articles which he alleged had come into the defendant’s hands. He mentioned 200 dollars or 300 dollars in money conveyed in a handkerchief, and a considerable sum in gold and silver, to the amount of 2000 dollars. “ The defendant did not deny having received what he was charged with, but said be would be d — d if he would give it up, and that the plaintiff had got enough.” He did not expressly admit, that he had the money and articles demanded of him, though he never denied it, but continued in reply to reiterated demands to say, that the plaintiff had got enough.' The substance of the testimony of this witness is confirmed by Lewis Monar, though it is neither so strongly nor so explicitly stated by him. John Riffers swore, that he was present at a trial in the Court of Sessions, in which the defendant was accused of having feloniously taken the money in question; and that he heard Nathaniel Edy, deceased, declare, as a witness on that trial, that he lived with the defendant at the time of Ryer's death; that on one occasion, when Rysr lay ill, a servant of Ryer’s brought to defendant a parcel of. money in a handkerchief, which the witness saw counted, and which con-V sisted of 200 dollars in silver and 100 dollars in paper; that about two days after he saw the same servant bring a bag, like a shot bag, tied up in a handkerchief, and a trunk, and deliver them to the defendant, who, with the servant, went up stairs and deposited these articles. He could not say what either the bag or the trunk contained. This recital of Edy's testimony corresponded with the notes of the defendant’s counsel in the criminal prosecution which were read. Riffers further swore, that he, the witness, saw the servant carry from Ryer’s to defendant’s a small trunk with a bag upon it; that as she passed the witness’ house, he put his hand upon the bag, and that it appeared to him to contain coin, half dollars and quarter dollars; that Ryer, about one or two months before his death, had 8 or 900 dollars in gold and silver, which he showed to the witness. This witness also stated, that Edy had deposed on the trial before men* tioned, that he saw, the same servant carry from liyer's to the defendant’s house, about the same time, a spy-glass, a gold watch, and a silver watch.
    
      John Helfrid, a constable, also swore, that on the occasion of his executing a warrant to seize the servant before mentioned, who had taken refuge after the death of her master with the defendant, the subject of the money was mentioned; that the defendant did not deny he had the money, but said if he had it the plaintiff should not have it. This witness’ testimony had no reference in itself to a specific sum. Testimony was given by both parties in relation to the character of the witnesses, but the effect of this testimony was not such as to affect the credit of the witnesses.
    The defendant gave no testimony which bore directly on the issue. Verdict for the plaintiff for 1600 dollars.
    The case was tried before Mr. Justice Brevard, at Charleston, in May Term, 1813. A new trial is now moved for, on the following grounds :
    1. Because the presiding Judge improperly admitted a witness to give evidence in the case of what had been some time before testified by a person, since deceased, on an indictment. for larceny in the Court of Sessions against the present defendant.
    2. Because, as there was no proof of any money belonging to the plaintiff or the intestate having ever come into the defendant’s hands, nor any proof that the plaintiff or the intestate ever missed any money of the intestate, the verdict was contrary to law and evidence.
    The presiding Judge in his report says, he has no recollection of any objection being made to the admission of Edy’s declaration; and the counsel in the case have not been able to agree upon the point.
   Cheves, J.

delivered the opinion of the Court.

The Court is under the necessity of being governed by the report of the Judge, except where the counsel can agree upon a statement. They are aware that this may produce occasional hardship, but, as a general rule, it will cause the least embarrassment both to the bar and the bench.

It is the settled practice, of the Court to limit objections to the competency of testimony to the time of the trial below. The first ground must, therefore, be laid out of the question, and the second only will remain for consideration.

There is certainly testimony, and a great deal of satisfactory and uncontroverted testimony, of money received by the defendant belonging to the intestate; and the only doubt which can be raised in the case is, whether the testimony sup-_ J * ports so large a verdict as 1600 dollars.

Charleston,

May, 1817.

The admissions of a defendant have always considered the best evidence against him. These admissions need not always be auricular Conversations which have passed in the hearing of the party respecting the matters in difference, and which were not contradicted by him, are good evidence of his admission of the facts alleged. 2 Esp. N. P. 519. Gould's edit.

in this case, it was averred by the plaintiff repeatedly, in the hearing of the defendant, and In conversations addressed particularly to him, that he had received money belonging to the intestate, to the amount of 2000 dollars, and he did not contradict it. If there had been no other evidence in the cause, if the question had been fairly submitted to the Jury, and on that head there is no complaint, 1 should have been at a loss to say on what ground the verdict should have been set aside. If it had been for 2000 dollars, I could not say it ought to have been set aside. I readily admit, such testimony may be equivocal, and should sometimes be received on the trial with cautious and reluctant credence, but at other times it will be acknowledged to be perfectly satisfactory. This discrimination can seldom be made but on the trial. The testimony had passed this ordeal before it reached us, and vt'e can only see it in a shape that supports the verdict, unless from other testimony it should be made manifest that it was not entitled to that weight. Is there any such testimony in this case ? r 1 • 1 T . mi ini I think there is none. The deiendant gave no evidence at all bearing on the issue, a circumstance, which very much strengthens evidence of this nature. On the contrary, there is very strong evidence to confirm this implied admission. 300 dollars belonging to the intestate, at one time, came into the hands of the defendant; at another time, a bag full of coin, for there seems to be no doubt it was coin. There is reason to believe the trunk may also have contained money. The deceased had 8 or 900 dollars in gold and silver, a short time before his death, and the defendant declared he-had got the best part of the intestate’s estate. These latter circumstances, in themselves, might not prove a specific sum so large as 1600 dollars, but they greatly strengthen the implied admission of 2000 dollars. If the verdict had been for much less than 1600 dollars, 1 should have thought .it was further from doing justice than in its present state. It is, however, asked, if this implied admission be relied upon, why was not the verdict for 2000 dollars? If it has been shown that the evidence would have supported a yerdict for 2000 dollars, this objection will not lie with the defendant. But the Jury may have considered the gross value of the money and other articles to be 2000 dollars, and may have deducted therefrom the value of the articles which did not consist of money. If this was their view, it was very correct* for their value was not recoverable in this ac~ tion, which is tor money had and received; but these may be wrong, and are certainly unnecessary conjectures. I am of opinion a new trial ought not to be granted.

Prioleau, for the motion.

Richardson, contra.

Colcock and Johnson, J. concurred.

Bay and JYott, J. dissented.  