Saxon v. Sheppard

McCay, Judge. 1. The whole effect of a return to the ordinary turns on the fact that that officer, whose duty and jurisdiction it is to examine and pass upon it, has done so. If he has so done, his record and entries will show. It is his judgment and not the return, which is the evidence. The sayings of any one, dead or alive, in his own interest, are never admissible. 289 Sometimes, indeed, bis declarations as a part of the res gestee are. But this is no such case; it is proposed to prove here, not only his sayings, but the res gestee itself, by his sayings. That can never be done. Sayings, as part of a res gestee, only come in to explain and qualify the res gestee, and it is unheard of to prove the res gestee by the sayings and then qualify it by the sayings. 2. We do not agree with the judge that the affidavit, under the act of 1866, is the only mode an administrator may use to show good faith in getting Confederate money he has invested. That is one way. But he may still show, if he can, the truth by other evidence. We do not, however, see how this hurt the defendant. The jury were, under the evidence, bound to find, at least, as much as they did, since no explanation was made as to how these funds got into Confederate money. Though the court was wrong on the point we have alluded to, it could not have affected the verdict. It would be folly for this court to send the case back for a mere theoretical error. Judgment affirmed.