
    Stephens v. Vroman.
    The mere declaration of a party, that he had heard certain statements inconsistent with the testimony of his own witnesses, cannot be given in evidence against him, for the purpose of showing his bad faith in asserting the fact their testimony would establish or otherwise.
    The channel through which hearsay evidence comes does not change its nature; it continues hearsay evidence, and inadmissible, though repeated by a party to the suit as mere hearsay.
    
      Appeal by the plaintiff from a judgment of the Supreme Court in the fifth district. The action was for setting fire to and burning the -plaintiff’s barn, situated near the Oneida lake, in the town of Lenox, Madison county. The bam and contents, valued at over $2000, were consumed about nine o’clock in the evening of November 11, 1850. The plaintiff and defendant both lived at Durhamville, a little over five miles from the barn, in an easterly direction, but the plaintiff at the time of the fire was absent from home, at Utica, some thirty miles off. It appeared that just before the fire a person was seen riding a gray horse on the road from Durhamville in the direction of the barn, and that imme diately after it broke out he was seen returning upon the same road. The evidence was wholly circumstantial, but it tended to show that the fire was set by this person, whoever he was. It was proved that the defendant, a little before sunset'in the afternoon of the day of the fire, borrowed of F. B. Harvey a gray mare of about a common size, and took her to his stable in Durhamville, and that it was hot until the ensuing Wednesday that he returned her to the owner. The effort of the plaintiff was to prove that it was this mare which was ridden by the presumed incendiary, and thus infer the guilt of the defendant. The defendant was not arrested until the ensuing Saturday, and in the intermediate time the plaintiff had been engaged in endeavoring to ascertain the guilty party, and, particularly to find the horse which was ridden to and from the lake on the evening of the fire.
    Among other witnesses the plaintiff examined one Sutton, who swore that he had met a person riding a white horse towards the lake that evening. On his cross-examination by the defendant’s counsel, he testified that after the fire, and before the arrest of the defendant, the plaintiff made some inquiries of him about the horse he had seen; and the counsel then offered to prove, by his further cross-examination, that the plaintiff in that interview “ told the witness that the folks at the lake said it was a large gray horse.” The plaintiff’s counsel objected to the inquiry, on the ground that the evidence would be immaterial and hearsay. The judge overruled the objection, and the plaintiff’s counsel excepted. The witness testified that the plaintiff, in that conversation, told the witness that the folks at the lake said it was a large gray horse which was ridden by the person who was seen going and returning on the road leading to the barn that evening. After the plaintiff had rested, the defendant was permitted, against the plaintiff’s objection, to examine two witnesses, to show that the plaintiff had said to them the same thing, in substance, which he was proved to have told the witness Sutton, and that the plaintiff in consequence of the information he had so received, supposed at one time that it might be a horse called the Langdon horse, and at another time that it might be what was called the Hess horse which was ridden by the incendiary, and that these horses were both larger and in other respects different from the Harvey mare. The plaintiff excepted to the decision admitting this evidence. The verdict was for the defendant, and the judgment entered thereon was affirmed at the general term. On the appeal here, the case was argued by
    
      Timothy Jenkins, for the appellant.
    
      Francis Kernan, for the respondent.
   Denio, Ch. J.

It would be incompetent, upon the plainest rules of evidence, for the defendant to prove by witnesses what persons who were not themselves examined as witnesses had said as to the description of the horse which was ridden to and from the lake, or as to any other material fact. The law does not regard as sufficiently authentic to influence a jury, any statement which is not made under the sanction of an oath; and, in general, it further requires that the witness making the statement should be present at the trial, to the end that he may be examined by the adverse party, and that the jury may draw their own conclusions as to his sincerity and accuracy by his appearance and bearing upon the witnesses’ stand. This rule does not, however, embrace the admissions of a party to the action; for, upon equally plain principles, anything which a man- says against himself may be given in evidence by his adversary, as it is not to be supposed that one will make a statement adverse to his own interest unless it is true. But to render a confession of the adverse party admissible as evidence, it must be of some fact material to the issue; for if the circumstance admitted be of such a character that it would have no just bearing upon the case, if otherwise proved, it is not to be received because its existence is established out of the mouth of the party against whom it is offered. Assuming, as we must, that the out-of-door statements of these persons who lived about the lake, as to the size and appearance of this horse, were entirely immaterial and ought not to be repeated to the jury, however clearly proved to have been made, upon what principle is it that they become evidence in consequence of being established by the admission of the plaintiff? The admission only proves that such out-of-door statements were actually made; but the statements themselves being worthless and incompetent as instruments of evidence, the manner in which they are brought to the notice of the jury is immaterial. The jurors have no right to be informed of them in any manner.

But it is argued that the fact that the plaintiff had heard such statements from persons having the same opportunities of knowing the truth which his witnesses actually produced and examined had, is evidence that he was prosecuting his suit in bad faith, and that his admissions were properly received for that purpose. This reasoning involves an obvious fallacy The plaintiff had a perfect right to prose cute his action, if his case was a true one. If the charge which he made against the defendant was false, and he knew it. then undoubtedly he ought to be turned ignominiously out of court. If it was false he should be beaten, whether lie knew it or not. The issue was upon the troth or falsity of the charge. Yet the argument I am examining assumes that the jury should have credited the declarations, and, upon the evidence which they afforded, should have convicted the plaintiff of knowingly maintaining a false suit. This is only another method of avoiding the rule of law which pronounces hearsay to be incompetent to establish a fact in a court of justice.

The judgment of the Supreme Court should be reversed.

Selden, Sxiankland and Bowen, Js., dissented; all the other judges concurring,

Judgment reversed and new trial ordered*  