¶119th January, 1811.
¶2delivered the unanimous opinion of the court, in favor of a new trial. First, because the verdict ap. pears to be against evidence; and, secondly, because hearsay evidence was improperly admitted. 1. The account of sales furnished by the defendant himself, when examined throughout, proves almost to a positive certainty, that coffee of a good quality could have been obtained ; and that he might have obeyed his instructions relative to the plaintiff’s adventure, as he had done in regard to other adventures; and as he had done for himself. It was very questionable whether any specie was shipped on board for the plaintiff. Therefore, 2. The hearsay evidence of what the privateersmen said on that subject, ought not to have been admitted. If the fact had been proved by legal evidence, it did not require the aid of illegal testimony. If it was not so proved, then the fact ought not to have been proved by illegal evidence. Hearsay evidence may, in certain cases, be properly admitted under some of the exceptions to the general rule ; but these exceptions are as old as the rule itself. As in cases of pedigree, custom, and prescription. The evidence admitted in this case does not come within any of these exceptions.
¶3New trial granted.