It is very true, that by the general rules of law, hearsay evidence is inadmissible. The reason of the rule is so well founded and so generally known, that it is unnecessary to state it. But from this rule there are exceptions, warranted by reasons as sound as those which induced the rule itself. As in the case of proving pedigrees, and in other ancient transactions, in which it is the best evidence which the nature of such cases *admit of. But these cases which form exceptions from the general rule, are regulated by another, and that is, that it should appear there is no better evidence behind, and in the power of the party to produce; for otherwise, the omitting to produce such better proof, creates a presumption against the admission of inferior testimony. In this case, the objection made by the appellant is confined to the general rule, and the part}' who relied upon the evidence ought certainly to have stated such a case, as to shew, that tho’ the general rule was against him, yet, he was within some of the exceptions: as that the transaction was ancient, his witnesses dead, and that their attendance could not be procured, or the like. But this he has not done, and therefore the general rule is against him.
But I am of opinion that if Parrish had been present and sworn, his testimony ought not to have been credited on account of the turpitude of his own conduct, and which his evidence was to have established ; the court ought to have instructed the jury to disregard it. Most clearly then, it was improper to admit as evidence his declarations made when not on oath.
I am therefore of opinion that both judgments are erroneous.