Brown v. Mooers

72 Mass. 451

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1856
• Status: Published

Opinion

Thomas, J.

1. The declaration of Shaw was rightly excluded. It was the declaration of one still living, and who was not only a competent witness, but actually present at the trial, and testifying upon the subject matter to which the declaration is alleged to relate. Made in the country, without the sanction of an oath, it is inadmissible, unless it falls within some of the exceptions to the rule excluding hearsay testimony. The plaintiff says, it was competent as a declaration accompanying and qualifying and giving character to an act. The answer is, that the act itself is immaterial, and that the incident falls with the principal. Lund v. Tyngsborough, 9 Cush. 36. Coit v. Howd, 1 Gray, 547 Bradley v Spofford, 3 Foster, 444

2. The evidence as to the general character of Shaw for truth was not competent. His general character had not been impeached. The case of Russell v. Coffin, 8 Pick. 143, cited by the plaintiff, is directly against him on the precise point it issue. See pp. 146, 154. The statement in 1 Greenl. Ev. § 469, is not sustained by the case the author cites of Rex v. Clark, 2 Stark. R. 241, and is not law. Exceptions overruled.