
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1811.
    John Everingham v. James Messroon.
    Hearsay is not evidence, except in relation to pedigree, custom, or prescription, &c. where the exceptions to the general rule are as ancient as the rule itself.
    Motion for a new trial. Action of assumpsit, tried before Waties, J., in Charleston district. The defendant was commander and owner of the brig Fame, an American vessel bound from Charleston to St. Domingo, then in possession of the brigands, and obtained a consignment of goods from the plaintiff, and sundry other merchants in Charleston, which were shipped on board his vessel; ' for the carriage of which he received freight, and for the sale of which he was to receive customary commissions. The plaintiff directed the defendant to invest his returns in coffee, if to be obtained, of a good quality ; otherwise, to do the best he could with the proceeds of .his consignment, for his interest. The defendant was captured by a French privateer on his return voyage, and carried into St. Jago de Cuba, where he was despoiled of his vessel and cargo, without any due course ef law. The defendant afterwards arrived in Charleston, where he furnished plaintiff with an account of sales, and stated that he had shipped thirty-five bags of coffee on his account on board the Fame, as part of the proceeds of his adventure, and the balance in specie ; and that the whole fell into the hands- of the captors. The defendant had not before sent advice of his having made purchases, &c.; nor invoices, account of sales, &c. He produced no evidence that these shipments were made by him for the plaintiff, except that which a bill of lading furnished, which was filled up and signed by himself; and might have been done after the capture. The defendant’s account of sales showed that he had invested the proceeds of other cargoes in coffee. It also appeared that coffee might have been obtained from the brigand government. It was a monopoly of the government." The defendant pretended he could not procure coffee of a good quality; but this did not appear to be the case. The plaintiff contended that there was no proof that either coffee or specie was shipped fop him; and if specie was shipped for him, it was in violation of his instructions. He contended that the defendant had been guilty of gross negligence, &c.
    
      The defendant was permitted to give in evidence certain acts of bis own’ anc* corta“1 declarations of the privateersmen who cap. tul'ec^ bis vessel, although this evidence was objected to. The declarations of the privateersmen related to specie found on board. The acts of the defendant were his expressions of anxiety for the loss of his papers, &c. The privateersmen told one of the witnesses examined, that they found specie on board, concealed under a false bottom, in the vessel. 1 This evidence was allowed to go to the jury in corroboration of other evidence tending to prove that specie was shipped on board as part of the cargo.
    It was also a ground insisted on for a new trial, that the judge had improperly charged the jury, that the legal construction of the plaintiff’s letter of instructions, authorized the defendant to ship specie, as coffee could not be got.
    The case was argued the 10th, 11th and 12th January, 1811. For the plaintiff, by Northrop, Drayton and Simons ; and for the defendant, by Kino, Parker, Pringle and Cross.
    Many points were insisted in argument which were not decided. It will be necessary to notice those points only on which the case was determined.
    For the plaintiff. The defendant violated his duty as an agent, in neglecting to give information, and bills of lading, &c. in time to have insurance effected. In not pursuing his instructions; coffee might have been procured, &c. This question was not fairly left to the jury. The jury were competent to expound the letter of in. structions. The observations of the judge in his charge on that point, and the evidence connected with it, was a misdirection. The observations of the privateersmen were hearsay, and was improperly admitted. It was the interest of those men to say there was specie on board, as the shipment of specie was prohibited, and exposed the vessel, &c. to confiscation, &e.
    For the defendant. Not proved that the defendant did not act to the best of his judgment for the interest of his principal. To be presumed he did. Shipping specie subjected him to imprisonment. Justice was done. Therefore, a new trial ought not to be granted, although hearsay evidence was admitted. But that hearsay evidence was admitted merely to rebut a suggestion of fraud. (That no specie was in fact shipped.) Fraud was not proved. No negligence can be fairly imputed to defendant in not giving information. It was impracticable to transmit intelligence of the investment of tbe proceeds after the same was effected, in time to get the property insured before capture.- The hearsay evidence proved nothing mate. rial. It went to prove money was on board, which was proved by other evidence.
    Books cited for the plaintiff. 1 Johns. 463. 'Lex Merc. Amer. 119, 393, 389. 3 Massach. Rep. 434. 2 East. 27, 52. 8 East, 542. 2 Morg. Ess. 272. 1 do. 36. Peake’s Evid. 8. Books cited for the defendant. 1 Dali. 17. - 2 Morg. Ess. 99, 100, 67, 95, 308, 349, 351. 6 East, 188. 3 T. R. 718, 715. 2 Burr. 1068. Cranch, 70.
   19th January, 1811.

Smith, J.,

delivered the unanimous opinion of the court, in favor of a new trial. First, because the verdict ap. pears to be against evidence; and, secondly, because hearsay evidence was improperly admitted. 1. The account of sales furnished by the defendant himself, when examined throughout, proves almost to a positive certainty, that coffee of a good quality could have been obtained ; and that he might have obeyed his instructions relative to the plaintiff’s adventure, as he had done in regard to other adventures; and as he had done for himself. It was very questionable whether any specie was shipped on board for the plaintiff. Therefore, 2. The hearsay evidence of what the privateersmen said on that subject, ought not to have been admitted. If the fact had been proved by legal evidence, it did not require the aid of illegal testimony. If it was not so proved, then the fact ought not to have been proved by illegal evidence. Hearsay evidence may, in certain cases, be properly admitted under some of the exceptions to the general rule ; but these exceptions are as old as the rule itself. As in cases of pedigree, custom, and prescription. The evidence admitted in this case does not come within any of these exceptions.

New trial granted.  