Thurmond v. Trammell ( 1858 )

Wheeler, Ch. J.

We think the court erred, in admitting as evidence, the statements of the witness, Pennington, objected to by the plaintiff. It was not proved, or proposed to be proved, by any witness, that the title or possession of the negro was ever in Richard Thurmond, the grandfather of the defendant, Mrs. Trammell; nor does it appear that the plaintiff derived, or claims to have derived, title or possession from him. His declarations, deposed to by the witness, and what the witness understood, as to his having willed the slave to the defendant, were but hearsay; and they do not come within any exception to the rule, which forbids the introduction of the declarations of third persons, not produced as witnesses, as hearsay.

We cannot say what influence these statements of the witness may have had upon the minds of the jury; especially, in connection with the charge of the court, that if the jury believed the negro was given to Mrs. Trammell, by her grandfather, they should find for the defendant. There was no other evidence of such gift; and under the charge of the court, we cannot say, that the jury did not find their verdict upon this evidence.

The judgment must therefore be reversed, and the cause remanded for a new trial.

Reversed and remanded.