Parker v. Marston

34 Me. 386

Opinion

Appleton, J.

It was claimed in the defence that one Betsey Parker in her last sickness, and in contemplation of death, gave the note, for the conversion of which this action was brought, to her sister, Mary Anne Parker, by whom the same was sold to one Thomas Parker, from whom the defendant derived title by purchase. There was evidence on the part of the defendant tending to prove that Mary Anne Parker took possession of the note at the time of the alleged gift, and that it was in her hands at various times before the sale and delivery of the same to Thomas Parker. Her declarations in disparagement of her title between those time^ were received. It is contended that such declarations are hearsay, and consequently were inadmissible. The real and efficient testimony, in cases of this class, is that of the individual whose declarations are offered. It is undoubtedly true that this kind of proof partakes of the characteristic infirmities of hearsay evidence. It is not uttered under the securities which the administration of an oath and the opportunities of cross-examination afford for trustworthiness. But the want of those securities affect only the degree of credit to which it may be entitled. Its admissibility has been too clearly settled by repeated decisions to be any longer questioned. Hatch v. Dennis, 1 Fairf. 244; Holt v. Walker, 26 Maine, 107. The note in this case was not indorsed by the payee, and the defendant may justly be deemed as taking it under circumstances of suspicion. 1 Greenl. Ev. § 190.

Noyes, for the defendant. Paine, for the plaintiff.

By the statute of 1852, c. 246, all motions for a new trial, and petitions for review are to be heard by one Judge at Nisi Prius, before whom the party aggrieved can present his evidence and have a hearing.

Shepley, C. J., Tenney, Howard, and Rice, J. J. concurred.

Exceptions overruled.