Day v. McGinnis , 48 Tenn. 310 ( 1870 )

Tueney, J.,

delivered the opinion of the Court.

There is error in this record. The suit was commenced before a Justice of the Peace, from whose judgment an appeal was had to the Circuit Court of Hancock County. The subject matter of the suit is a riñe gun. The cause was tried in the Circuit Court on the 18th day of May, 1868. On the trial of the cause, the defendant in error offered to examine John McGinnis, a son of herself and of her intestate; the testimony was objected to, and the objection overruled. This was error. The Act of tbe General Assembly making competent as wit-r nesses persons in interest,, was passed March 13, 1868. There is no time provided in the Act for its going into operation, and there had been no adjournment, without day, of the Legislature passing the Act. ^† On the 17th day of December, 1868, the same Legislature passed an amendatory Act, fixing the time at which the Act of the 13th of March should go into operation. The trial of this cause was between these periods. By section 162 of the Code, it is provided, “no general law passed by the General Assembly shall go into operation, or have any binding effect until the expiration of forty days after the adjournment without day, unless otherwise provided for in the act itself.” It follows the witness was clearly incompetent.

The defendant in error was permitted to prove, over the objection of the plaintiff in error, that the intestate (in the absence of the plaintiff in error) said, on his return home, that he had delivered the gun to Perry Mills, to whom he had been directed by plaintiff in error, to deliver it. The declaration was no part of the res gestee; was wholly disconnected with tfye plaintiff in error, does not fall within the class of cases in which the declarations of a party are admissible as explanatory of his purpose and motive, and is obnoxious to the objection that the declarant- was making evidence for himself. In admitting this testimony, the Circuit Judge erred.

For these reasons the judgment is reversed, and the cause remanded for a new trial.