
    Jonathan Greene & al. vs. James Harriman.
    Where the title to personal property is in question between third persons, mere declarations of the alleged vendor, unaccompanied by any acts, are not admissible in evidence.
    This was an action of replevin for a chaise and harness. The defendant pleaded the general issue and filed a brief statement, alleging property in himself. Both parties claimed under Benjamin Hasty; the defendant by a conveyance, Feb. 13, 1833, and the plaintiff by a sale in July following. The plaintiff contended, that the conveyance to the defendant was either without consideration originally, or a mortgage to secure the payment of a note which was subsequently paid, and the mortgage thus discharged. To rebut this, the defendant offered Almah Huntress as a witness, who testified, that he heard Hasty and the defendant talking together, about the chaise, after witness understood that the latter had a bill of sale of it; that Hasty told the defendant he might come and take the chaise any time he pleased ; that previous to this, witness heard Hasty ask defendant for money, defendant told Hasty he might have it, and witness afterwards heard Hasty say he had got it. This was all previous io the sale by Hasty to the plaintiff. Witness further testified, that in April, 1833, Hasty wanted to hire money of him, when witness proposed to take the chaise as security, to which Hasty replied, the chaise is not mino ; it is made over to Ilarriman to secure him. The defendant introduced in evidence a written conveyance of the chaise and harness from Hasty to himself, dated Neil. 13, .1833, also a note to him from Hasty for $100, dated March 27, 1832. It appeared, that Hasty absconded on the 29th of July, 1833, and left this part of the country, and that his place of residence is unknown. The plaintiff objected to the testimony of Huntress as inadmissible, but it was admitted by Parris J., who tried the action, subject to the opinion of the whole Court. If the testimony of Huntress was improperly admitted, the verdict, which was for the defendant, is to be set aside.
    
      Rogers, for the plaintiff
    said, there was but a single question, whether the declarations of Hasty, testified to by Huntress, were admissible. He was the person under whom both parties claimed, and could be a witness for either. If there is any pretence, that these declarations are admissible, it is on the ground of being part of the res gesta. But these declarations are mere recital, and no part of the transactions at the sale, and clearly inadmissible. 1 Stark, on Ev. 48 ; ib. 306 ; 1 Phillips on Ev. 219 ; 1 Esp. R. 357, Phillips v. Earner.
    
    
      Godfrey, for the defendant,
    argued, that the declarations related to the transactions of the parties in making the sale, and as such, were properly admitted. He cited Stark, on Ev. 48, cited on the other side; 1 Esp. R. 328 ; 4 Pick. 378.
   The opinion of the Court was delivered by

Weston C. J.

Whatever may be said of other portions of the testimony of Alvah Huntress, objected to by the counsel for the plaintiff we are of opinion, that what he testified as to the declaration of Hasty, that he had received money of the defendant, was inadmissible. It was matter merely of narration, unaccompanied by any act. The counsel for the defendant insists that he had testimony enough without it, if so, he will prevail on a further trial; but on the last, the jury must have been influenced by testimony, not legally admissible.

New trial granted.  