(dissenting). —Ho question was made but that the testimony of the plaintiff, that he read the entry on his book charging the horse to the defendant, at five hundred dollars, and that the latter promised to pay it, was competent. But did this render competent the addi*378tional testimony of the plaintiff, that he made the entry immediately after the alleged sale. The case shows that this latter testimony was used as independent evidence of a sale of the horse "by the plaintiff to the defendant. It appears from the charge that the jury were told "by the learned, justice, that if the plaintiff made a memorandum or entry of the sale immediately after he got down to the store, it would be a circumstance tending to show the alleged sale. The question is whether the evidence was ^competent for this purpose. If it was, the charge was correct. If not, the reception of the evidence, and the charge, were erroneous. The only point in issue was whether the defendant purchased the horse of the plaintiff. Upon this point the evidence was conflicting. The inquiry is whether reading the entry or charge to the defendant a long time afterward, and his promise to pay the amount, rendered testimony that the entry was made by plaintiff immediately after his arrival at the store, after the alleged sale, competent evidence of such sale. • The testimony of the defendant denying such promise, and that he emphatically repudiated the claim, can have no bearing upon the question. It was for the jury to determine as to the credibility of the witnesses, and the duty of the judge, in deciding upon the competency of evidence, .to regard the testimony of each as possibly true. It is an elementary principle that a party cannot give his own acts or declarations in evidence in his own favor, unless a part of the res gestee. Making the charge was no part of the transaction between the parties, and not, therefore, admissible upon that ground. How can the alleged promise of payment by the defendant make the time when the charge was made by plaintiff, or the fact that it was made by him, admissible evidence against the defendant? What the defendant had the right of proving was, what occurred between the parties at the time the entry was made, and this as an admission of the defendant.- This could not make any other evidence competent, unless necessary to explain the admission which that admission referred to, and which the circum*379stances showed was referred to in the conversation. This did not include the time of making the charge, or who made it. Evidence of these latter facts was, I think, incompetent, and its admission was error.
Evidence of another person was received, that he saw the entry on the book shortly after the delivery of the horse. This was also incompetent. In reference to this evidence the judge charged the jury, that making the charge by plaintiff, immediately upon his return to the store, was evidence of the sale of the horse. This, I think, was also error. This part of the charge was not qualified by stating that it would be evidence provided the jury believed that the defendant had promised to pay subsequently. It would not have been correct if so qualified. There was no pretense that the defendant made any admission of the time when the charge was made, or by whom. The case shows that the defendant might have been prejudiced by this evidence. When the issue was whether the horse was sold to the defendant, or whether ■ he was to deliver him to Baird, to take to New York, and sell, on plaintiff’s account, proof that the plaintiff made such a charge, directly after the transaction, and before any dispute arose,, might have a controling effect upon the jury. I think proof of the chattel mortgage given by Baird to defendant also inadmissible. These transactions between Baird and defendant had no tendency to show upon what terms the defendant received the horse in question. The only effect produced thereby would be, possibly, to create a prejudice in the minds of the jury against the defendant. I think the judgment should be reversed, and a new trial ordered.'
Pobtee, Weight, Scetjgham, Boches, and Pabkeb, JJ., and Davies, Ch. J., concurred in the opinion of Httht, J.
Judgment affirmed.