Isbell, J.
Tbe terms attachment and execution, appear to be used by tbe plaintiff in bis pleadings and bill of exceptions, indiscriminately; and we infer that, probably, there was an attachment originally levied on tbe property, to wbicb tbe execution, under wbicb tbe sheriff justifies, sue-» ceeded.
Tbe first question that presents itself for our consideration, is, did tbe court act witbin tbe limits of a sound discretion, in refusing to allow tbe entry in tbe book of W. H. Earner & Co., to be read to tbe jury ?
It is not claimed, that tbe requisite proof was adduced to bring tbis entry witbin any of the provisions of tbe Code, so as to entitle it to admission. Nor is it claimed that this entry, as an entry, comes witbin any of tbe exceptions to tbe gem eral rule, that hearsay evidence is not admissible. But appellant insists, that tbis entry should have been allowed to go to tbe jury as original evidence — as being part of tbe res gestee. That Taunton “made a particular- entry in bis books, or tbe book of tbe firm; or that Taunton said tbe particular words so entered; as between tbe parties to tbis suit, rests on tbe same principle for admission. That tbis species of evidence should be admitted with caution, none will deny. It is part of tbe res gestee, and should be admitted, or it is hearsay evidence, and should be excluded. If tbe latter, then, “ that tbis species of testimony supposes some better testimony wbicb might be adduced in tbe particular case, is not tbe sole ground of its exclusion. Its intrinsic weakness — ■ its incompetency to satisfy tbe mind of tbe existence of tbe fact — and tbe frauds wbicb mightbe practiced under its cover-combine to support tbe rule that hearsay evidence is totally inadmissible.” Per C. J. Marshall, in Mima Queen and child v. Hepburn, 7 Cranch, 290, reviewed and affirmed in Negro John Davis v. Wood, 1 Wheaton, 6, 8, wbicb are leading cases in America, on tbis subject. But that there is a numerous class of cases in- wbicb declarations and entries, by [60]*60clerks and third persons, wbicb form tbe connection of snob, declarations and entries, with the principalfact to he ascertained ; or, in other words, which from the fact of their being parts of the res gestoe, are not within the aboye rule, and are admissible, not as exceptions to it, but on account of that connection, is equally well established.
Before attempting to lay down any rule which should govern in the admission or rejection of such evidence, or attempting to trace the connection between the entry offered in this case, and the principal fact to be ascertained, it may not be amiss to premise, that with regard to the admission or rejection of evidence on this ground, a judge who tries a cause, is invested with a sound discretion (1 Greenleaf’s Ev. 20, § 108), which, if not clearly transcended, appellate courts will be slow in interfering with, and attempting to regulate by nice rules. The infinitude of shades of connection between declarations offered to be proved, and the principal fact, precludes the possibility of any exact general rule for the admission or rejection of testimony on this ground; and were appellate courts to attempt to deal too nicely with the exercise of such discretion, it would but manifest the difference in the constitution of mind, of those constituting the inferior and superior tribunals, and leave it in the power of an artful attorney, to shroud the determination of any cause in absolute uncertainty. But, although an exact general rule may not be had for the admission of testimony on this ground, we are not hence to infer, that the discretion of the court here given, is an arbitrary discretion, totally unregulated by known rules of law; but only, that there is inherent in the versatile nature of this particular character of testimony, an impossibility of establishing for its admission any rule of exact practical application in all' cases; and, therefore, much must be left to the discretion of the judge, notwithstanding the established rules on this subject.
Among the many rules attempted to be established, for the admission of testimony on this particular ground, perhaps there is none that has been more generally adopted, by the courts of this country, and cited more, approvingly [61]*61by text writers, than that by Hosmer, J. C., in Enos v. Tuttle, 3 Conn. 250, who says: “To be part of the res gestee, the declarations must be made at the time of the act done, which they are supposed to characterize, and well calculated to ■unfold the nature and quality of the facts which they were intended to explain, and so to harmonize with them, as obviously to constitute one transaction.” In speaking of entries admissible on this ground, says Greanleaf (1 Ev. § 120), “here the value of the entry, as evidence, lies in this, that it was contemporaneous with the principal fact done, forming a link in the chain of events, and being part of the res gestae. It is not merely the declaration of the party, but it is a verbal contemporaneous act, belonging, not necessarily, indeed, but ordinarily and naturally, to the principal thing. It is on this ground that this latter class of entries are admitted.” Again, in § 108, he says: “The principal points of attention are, whether the circumstances and declarations offered in proof, were contemporaneous with the main fact under consideration, and whether they were so connected with it, as to illustrate its character.”
Adopting the principle inculcated in the above rules, let us turn to the case at bar. Here, the fact intended to be explained, involved the question: in what character did the plaintiff own the buggy ? he, at the time of purchasing it, having been known and dealing in a double character, to wit: his individual character, and that of partner in the firm of W. H. Earner & Co. That he owned it in his individual right, would be sufficiently shown, prima facie, by showing that payment was made in plaintiff’s individual, and not partnership property. And, again, that it was his individual property that was given inpayment for it, would also be, prima facie, circumstantially shown, by showing that at the time he acquired this property, he acquired it as such individual property. If this property so given in exchange, had before been the property of the firm of which plaintiff was a member, and he had acquired it of the firm, “ ordinarily and naturally,” not indeed, necessarily, it would be charged to his private account, in the book of the firm. [62]*62Hence) we conclude, that ’this entry, if admissible on other grounds, was “ well calculated to unfold'the nature” of Earner’s title to the buggy, and illustrate its character. But what act done, is this entry supposed, originally and primarily, to characterize? And with which should it be ■contemporaneous? Not the acquisition of the buggy, as the exceptions seem to assure, or the payment for the buggy; but, primarily and clearly, the act of acquiring the property by Earner from the firm, which was given in exchange for it ‘These several acts might, indeed, all have been simultaneous. And with regard to the purchase of, and payment for the buggy, where the record is silent as to either, we might be justified in assuming that they were so; but we know of no rule that would justify the assumption that the means of paying for it, were acquired at the time of purchase. But supposing these acts were simultaneous, or that they were separate in point of time, is there anything in the bill of exceptions, which shows that the
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Isbell, J.
Tbe terms attachment and execution, appear to be used by tbe plaintiff in bis pleadings and bill of exceptions, indiscriminately; and we infer that, probably, there was an attachment originally levied on tbe property, to wbicb tbe execution, under wbicb tbe sheriff justifies, sue-» ceeded.
Tbe first question that presents itself for our consideration, is, did tbe court act witbin tbe limits of a sound discretion, in refusing to allow tbe entry in tbe book of W. H. Earner & Co., to be read to tbe jury ?
It is not claimed, that tbe requisite proof was adduced to bring tbis entry witbin any of the provisions of tbe Code, so as to entitle it to admission. Nor is it claimed that this entry, as an entry, comes witbin any of tbe exceptions to tbe gem eral rule, that hearsay evidence is not admissible. But appellant insists, that tbis entry should have been allowed to go to tbe jury as original evidence — as being part of tbe res gestee. That Taunton “made a particular- entry in bis books, or tbe book of tbe firm; or that Taunton said tbe particular words so entered; as between tbe parties to tbis suit, rests on tbe same principle for admission. That tbis species of evidence should be admitted with caution, none will deny. It is part of tbe res gestee, and should be admitted, or it is hearsay evidence, and should be excluded. If tbe latter, then, “ that tbis species of testimony supposes some better testimony wbicb might be adduced in tbe particular case, is not tbe sole ground of its exclusion. Its intrinsic weakness — ■ its incompetency to satisfy tbe mind of tbe existence of tbe fact — and tbe frauds wbicb mightbe practiced under its cover-combine to support tbe rule that hearsay evidence is totally inadmissible.” Per C. J. Marshall, in Mima Queen and child v. Hepburn, 7 Cranch, 290, reviewed and affirmed in Negro John Davis v. Wood, 1 Wheaton, 6, 8, wbicb are leading cases in America, on tbis subject. But that there is a numerous class of cases in- wbicb declarations and entries, by [60]*60clerks and third persons, wbicb form tbe connection of snob, declarations and entries, with the principalfact to he ascertained ; or, in other words, which from the fact of their being parts of the res gestoe, are not within the aboye rule, and are admissible, not as exceptions to it, but on account of that connection, is equally well established.
Before attempting to lay down any rule which should govern in the admission or rejection of such evidence, or attempting to trace the connection between the entry offered in this case, and the principal fact to be ascertained, it may not be amiss to premise, that with regard to the admission or rejection of evidence on this ground, a judge who tries a cause, is invested with a sound discretion (1 Greenleaf’s Ev. 20, § 108), which, if not clearly transcended, appellate courts will be slow in interfering with, and attempting to regulate by nice rules. The infinitude of shades of connection between declarations offered to be proved, and the principal fact, precludes the possibility of any exact general rule for the admission or rejection of testimony on this ground; and were appellate courts to attempt to deal too nicely with the exercise of such discretion, it would but manifest the difference in the constitution of mind, of those constituting the inferior and superior tribunals, and leave it in the power of an artful attorney, to shroud the determination of any cause in absolute uncertainty. But, although an exact general rule may not be had for the admission of testimony on this ground, we are not hence to infer, that the discretion of the court here given, is an arbitrary discretion, totally unregulated by known rules of law; but only, that there is inherent in the versatile nature of this particular character of testimony, an impossibility of establishing for its admission any rule of exact practical application in all' cases; and, therefore, much must be left to the discretion of the judge, notwithstanding the established rules on this subject.
Among the many rules attempted to be established, for the admission of testimony on this particular ground, perhaps there is none that has been more generally adopted, by the courts of this country, and cited more, approvingly [61]*61by text writers, than that by Hosmer, J. C., in Enos v. Tuttle, 3 Conn. 250, who says: “To be part of the res gestee, the declarations must be made at the time of the act done, which they are supposed to characterize, and well calculated to ■unfold the nature and quality of the facts which they were intended to explain, and so to harmonize with them, as obviously to constitute one transaction.” In speaking of entries admissible on this ground, says Greanleaf (1 Ev. § 120), “here the value of the entry, as evidence, lies in this, that it was contemporaneous with the principal fact done, forming a link in the chain of events, and being part of the res gestae. It is not merely the declaration of the party, but it is a verbal contemporaneous act, belonging, not necessarily, indeed, but ordinarily and naturally, to the principal thing. It is on this ground that this latter class of entries are admitted.” Again, in § 108, he says: “The principal points of attention are, whether the circumstances and declarations offered in proof, were contemporaneous with the main fact under consideration, and whether they were so connected with it, as to illustrate its character.”
Adopting the principle inculcated in the above rules, let us turn to the case at bar. Here, the fact intended to be explained, involved the question: in what character did the plaintiff own the buggy ? he, at the time of purchasing it, having been known and dealing in a double character, to wit: his individual character, and that of partner in the firm of W. H. Earner & Co. That he owned it in his individual right, would be sufficiently shown, prima facie, by showing that payment was made in plaintiff’s individual, and not partnership property. And, again, that it was his individual property that was given inpayment for it, would also be, prima facie, circumstantially shown, by showing that at the time he acquired this property, he acquired it as such individual property. If this property so given in exchange, had before been the property of the firm of which plaintiff was a member, and he had acquired it of the firm, “ ordinarily and naturally,” not indeed, necessarily, it would be charged to his private account, in the book of the firm. [62]*62Hence) we conclude, that ’this entry, if admissible on other grounds, was “ well calculated to unfold'the nature” of Earner’s title to the buggy, and illustrate its character. But what act done, is this entry supposed, originally and primarily, to characterize? And with which should it be ■contemporaneous? Not the acquisition of the buggy, as the exceptions seem to assure, or the payment for the buggy; but, primarily and clearly, the act of acquiring the property by Earner from the firm, which was given in exchange for it ‘These several acts might, indeed, all have been simultaneous. And with regard to the purchase of, and payment for the buggy, where the record is silent as to either, we might be justified in assuming that they were so; but we know of no rule that would justify the assumption that the means of paying for it, were acquired at the time of purchase. But supposing these acts were simultaneous, or that they were separate in point of time, is there anything in the bill of exceptions, which shows that the entry was made contemporaneously with ■them or either of them? We think not. True, it appears that the book was placed in the hands of Turner before the ■attachment was levied, and this might have been immediately after the sale of the buggy to Earner; and Taunton might not have had access to the book to' make an entry in it, after it passed into the hands of Turner; but neither of these facts •appears from the record. We are left entirely in the dark, as to when the attachment was levied, and so far as the record shows, this entry might, or might not, have been in the books at that time. Again ; it appears that Coats sold and delivered the buggy to Earner, some time between the first and twelfth of November, 1853, and that plaintiff ■offered the book to prove that the buggy was his private property, by an entry in it, in the handwriting of Taunton-, in which the note that was given in payment for the buggy, is charged to the private account of said Earner, of the date mentioned by said Coats, when he sold said buggy. It is apparent here, that Coats fixed no definite time within a period of twelve days, at which he sold the buggy, and that the only evidence that the entry was made at any time within [63]*63tbis indefinite period, is the testimony of the entry itself by its date, which probably was some time within those twelve days. But to allow the entry itself, to prove the time it wag made, to make it evidence as part of the res gestee, would be to sanction all the evils attendant on the general admission of hearsay testimony above enumerated. Without some other proof, it would have been improper for the court to conclude, that this entry was made contemporaneous with either of those acts. We are, therefore; of the opinion that the court properly refused to allow the entry to be read to the jury, and, a fortiori, acted within the scope of its sound discretion.
With regard to the modification of the first instruction, we conclude, that the insertion of the words “ the use of which he habitually earned,'’ did not render it less in conform-' ity with the provision of the Code, and that in this, there is no good ground for error.
In the modification of the second instruction by the court, there is error. By a fair and natural construction, the pro' viso appended to this instruction, taken in connection with the instruction as originally written and given to the jury, assumes that, in order to entitle the plaintiff to the benefit of the exemption law, so far as it related to the buggy, it must have been procured by him with the intention on his part, at the time of procuring it, to use it as a physician, &c. If, at the time of the seizure, the buggy was the vehicle by the use of which the plaintiff, as a physician, habitually earned his living, it was exempt from seizure, irrespective of the time when, or the motive with which, the plaintiff might have procured it. This instruction, as given, we think,' might naturally have misled the jury to conclude that if, at the time Coats- sold the buggy to plaintiff, he did not obtain it for the purpose, and with the intention of using it as a physician, it was not exempt from seizure.
We think that all that was asked for, in the third instruct tion, was-substantially given in the first.
Inasmuch as the court erred in so modifying the second instruction that it may fairly be presumed to have misled [64]*64tbe jury, to appellant’s prejudice, tbe judgment will be reversed, and cause remanded for further proceedings.
Judgment reversed.