
    Alson Thomas, plaintiff in error, vs. John J. Whitehead, administrator, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Family Conversations. — When, in a pending suit between A and the administrator of A’s deceased father-in-law, in relation to certain money loaned by the son-in-law to the deceased, and two other of the deceased’s children testified of a settlement between the parties, giving the details of it, and, in answer to cross-interrogatories, said that they were not present, and that all they knew of it they got from family conversations, the witness not recollecting that A was present at any of said conversations, but giving his opinion that he was:
    ' Held, That it was error to permit the answers as to the asserted settlement to be read as evidence to the jury.
    Evidence. Settlement. Before Judge Harvey. Floyd Superior Court. January Term, 1872.
    Thomas brought assumpsit against Whitehead, as administrator of John C. Whitehead, deceased, alleging, in his declaration, that on November 1st, 1854, he loaned to said intestate $450 00, taking a bond therefor bearing interest from date; that on the 1st of July, 1858, there was paid on said obligation $100 00; that on the day and year last aforesaid, said intestate, in consideration of the surrender to him of said bond, undertook and faithfully promised to plaintiff that he would make good to plaintiff the amount due on said bond in the final division of his estate, plaintiff being his son-in-law; that, in consideration of said promise, plaintiff surrendered said bond; that said intestate, during his life, and his administrator, since his death, have failed to comply with said undertaking.
    *The defendant pleaded the general issue, payment, and the statute of limitations.
    The plaintiff sustained the allegations of his declaration by the evidence of his wife, the daughter of the intestate.
    The defendant introduced the depositions of Mrs. Martha A. Booze, a daughter of the intestate, and of her husband, Thomas Booze, who, in answer to direct interrogatories, testified as to the details of a settlement between plaintiff and the intestate, by which said bond was paid off in full when it was surrendered. But, on cross-examination, these witnesses testified that all their information on the subject of the settlement was derived from “family conversations,” and were unable to recollect whether the plaintiff was present at such conversations or not.
    This evidence was objected to by the plaintiff, and the objection overruled.
    As to this testimony, the Court charged the jury as follows: “I have admitted this testimony, but I charge you that unless you shall believe from the evidence that the plaintiff was present at such conversations, and assented to what was said, the testimony is not legal and you cannot consider it. But if you shall believe from the evidence that the plaintiff was present and assenting', then the evidence is legal, and }’ou can consider it with the balance of the evidence in the case.”
    The jury returned a verdict for the defendant. The plaintiff moved for a new trial, upon the ground that the Court erred in the aforesaid admission of testimony.
    The motion was overruled and the plaintiff excepted.
    
      Wrigi-it & FeaTherstone, for plaintiff in error.
    Alexander & Wright, for defendant.
   McCay, Judge.

Both these witnesses, though they go into detail as to the settlement, and speak very decidedly in their narration of facts, yet at last say they were, neither of them, present at the *settlement, and know nothing about it except as they learned it from “family conversations.” One of the witnesses states specifically that he does not know the plaintiff was present at these conversations, but he must have been. We do not think these “family” conversations, as testified to, are anything but hearsay. They were incompetent testimony. At best, testimony of this sort, to-wit: statements made in the hearing of one, which he does not contradict, are only evidence against him, in certain cireumstances. They must be of a character that calls for a reply. It does not here even appear that there was any reply, nor are any of the surroundings given so'as to enable us to judge whether a reply was called for. These conversations have no weight at all, as conversations, to give them any weight. They must be proven to have occurred under such circumstances as to give them the character of admissions by the plaintiff.

We think the facts stated by the witnesses utterly fail to show such circumstances. They do not show the plaintiff present, nor do they show the circumstances under which the conversations were had, and it is impossible to come to a conclusion that they are of the nature of admissions by the plaintiff. Above all, it does not appear that he did not deny them or make entirely different statements. Proof of his presence, and proof that the conversations were had, under such circumstances as make the inference a fair one, that the plaintiff, by failing to contradict or modify them, admitted them, is indispensable. Until this be done, such conversations are but hearsay, and the Court should not let them go to the jury.

Judgment reversed.  