
    Blackwell v. O. Davis and L. Davis.
    In an action of trespass for an assault and battery against A, B, and D, the the writ was not served on D, whose death was afterwards suggested.
    By the court. D, not being a party to the record, his admissions are not evidence to prove the assault by A and B.
    ERROR to the circuit court of Simpson county.
    Buckner and Learned, for defendants.
   Mr. Chief Justice Shakicey

delivered the opinion of the court.

This was an action of trespass for an assault and battery, tried in Simpson county, and at the trial the plaintiff suffered a non-suit; and afterwards moved to set it aside, which being overruled, an appeal was taken. Besides the two defendants to the suit, the name of Thomas A. Davis was included in the writ, but it was not served on him in consequence of his death, which was suggested on the record, and the plaintiff proceeded against the other parties.

On the trial a witness was introduced to prove the commission of the battery, by the admissions and confessions of Thomas A. Davis, but the witness was not permitted to testify to this confession as against the other defendants, and the question is, whether this testimony was properly rejected.

It cannot be questioned, that under some circumstances the admissions of a defendant can be admitted in evidence against his co-defendants, but Thomas A. Davis was never in reality a party to the suit. Although his name was in the process, that process was not served on him, and he was consequently not in court. It was, therefore, nothing but hearsay testimony, and the court properly rejected it.

Judgment affirmed.  