Part of res gesta.

Principle of

rule.

Exceptions.

In an action for criminal conversation, where the defence was, that the plaintiff had connived at his wife's elopement, evidence was received, on the part of the plaintiff, of the wife's declarations as to her intention and purpose in going; (1) for the question in effect was, whether the husband knew that she was about to elope, or whether he believed that her intention was as she represented. (0)

What a third person has said or written is admissible, in many cases, as amounting to an act done by him, or as showing his knowledge, or as evidence of his conduct. If, for instance, it is material to inquire, whether a certain person gave a particular order on a certain subject, what he has said or written may be evidence of the order; (p) or where it is material to inquire, whether a certain fact, be it true or false, has come to the knowledge of a third person, what he has said or written may as clearly show his knowledge, as what he has done. Where it is relevant and material to inquire into the conduct of rioters, what has been said by any of the party in the act of rioting must manifestly be admissible in evidence, as showing their design and intention. (q) On a charge of larceny, where the proof against the prioner is, that the stolen property was found in his possession, it would be competent to show, on behalf of the prisoner, and a third person left the property in his care, saying that he would call for it again afterwards; for it is material, in such a case, to inquire, under what circumstances the prisoner first had possession of the property. And a va riety of other instances might be mentioned of a similar nature. (r)

There are certain exceptions to the general rule on the subject of hearsay, which are perhaps as ancient as the rule itself, and have been allowed, either because the inconvenience and danger, commonly attending such evidence, are not likely to occur in the excepted cases, or because greater inconvenience would result from its exclusion than from its admission.

The exceptions are here considered, in the following order. First, as to dying declarations. Secondly, as to hearsay in ques

(1) Hoare v. Allen, 3 Esp. N. P. C. 276, before Ld. Kenyon on second trial, who said, that some of the judges, or the

motion for a new trial, were of opinion, that this evidence ought to be admitted. And see 6 East, 193, by Ld Ellenborough.

(0) See Note 449, p. 587. (p) See Note 450, p. 588. (9) See Note 451, p. 598.

tions.

tions of pedigree. Thirdly, as to hearsay on questions of public Dying declararight, customs, boundaries, &c. Fourthly, as to the admissibility of old leases, rent-rolls, surveys, &c. bility of declarations against interest.

Fifthly, as to the admissi-
Sixthly, as to the admissi-

bility of rectors' and vicars' books. Seventhly, and lastly, as to the admissibility of the books of tradesmen.

First, as to the admissibility of dying declarations.

The dying declarations of a person, who has received a mortal Dying declarainjury, that is, declarations made under the apprehension of death, tions. are constantly admitted in criminal prosecutions, when the death of the deceased is the subject of the charge against the prison

er. (1) The principle of this exception to the general rule is founded partly on the awful situation of the dying person, which is Prosec. for considered to be as powerful over his conscience as the obligation murder. of an oath, and partly on a supposed absence of interest on the verge of the next world, which dispenses with the necessity of cross-examination.

Before such declarations can be admitted in evidence against a Sense of danprisoner, it must be satisfactorily proved, that the deceased, at the ger. time of making them, was conscious of his danger, and had given up all hope of recovery. This consciousness of approaching death is to be collected either from the circumstances of the case, (as, from the nature of the wound and the state of body,) or from expressions used by the deceased. (2) And it has been decided by all the Judges, that the question, whether the deceased made the declarations under the apprehension of death, is a question for the Judges, not for the jury to determine, previous to their admission. (3) (s)

(1) Lord Mohun's case, 12 Howell, St. Tr. 966. R. v. Reason and Tranter, 1 Str. 499. 6 St. Tr. 202-205, S. C 16 Howell, St. Tr. 26. Woodcock's case, 2 Leach, Cr. C 566 Bambridge's case, 9 St. Tr. 161, S. C. 14 Howell's St. Tr. 417. Tinkler's case, 1 East, P. C. 354. The same rule has been at all times adopted in Scotland; see Hume's Commentaries, vol. 2, 391.

(2) Woodcock's case, 2 Leach, Cr. C. 566. Dingler's case, ib 633. John's case, 1 East, Pl. Cr. 357.

(3) By the opinion of all the judges, in John's case, 1 East, Pl. Cr. 357, and in Welborne's case, 1 East, Pl. Cr. 359. In Woodcock's case, which was before the two last, this question had been left to the jury by Eyre, C. B., 1 East, Pl. Cr. 360.

(s) Sce Note 453, p. 606.

Dying declara

tions.

Witness to bond or will.

Question of pedigree

After attainder.

Not evidence

cutions.

The declaration of a subscribing witness to a bond, who in his dying moments begged pardon of Heaven for having been concerned in forging the bond, was admitted, by Mr. Justice Heath, (1) as evidence of the forgery, on the authority of Wright on the demise of Clymer v. Littler, (2) where similar evidence of a dying confession, by a subscribing witness to a will, had been received by Chief Justice Willes, and afterwards approved by the Court of King's Bench.

With the exception of this case, the general rule respecting the admissibility of dying declarations is, that they are admissible only in criminal prosecutions, where the death of the deceased is the subject of the charge against the prisoner. On a question of pedigree, in an action of ejectment, it has been lately determined, that the dying declarations of a person, as to the relationship between the lessor of the plaintiff and the person last seised of the premises in question, (the deceased not being himself a relation, nor in any manner connected with the parties,) cannot be received in evidence. (3)

The declarations of a criminal at the time of his execution, cannot be received on the trial of an accomplice; for, after attainder, he could not have been sworn as a witness; (4) (t) and, independently of this objection, this would not be admissible, on the general principle.

The dying declarations of a prosecutor, in an indictment for in other prose- perjury, cannot be used in showing cause against a motion for a new trial: (5) nor could they have been used as evidence at the trial. On a prosecution for administering drugs to a woman pregnant, but not quick with child, with intent to procure abortion, the dying declarations of the woman have been held

(1) Cited by Lord Ellenborough, in Aveson v. Lord Kinnaird, 6 East, 195.

(2) 3 Burr. 1244, 1255. Blac. Rep. 346, S. C. See 4 Barn. & Ald. 44.

(3) Doe dem. Sutton v. Ridgway, 4 Barn. & Ald. 53.

(4) Drummond's case, 1 Leach, Cr. C. 378; 1 East, Pl. Cr. 353, S. C. In the earlier state trials, the examination of convicts were not unfrequently used in evidence against persons charged with the same offence.

(5) R. v. Mead, 2 Barn. & Cress. 605.

not to be admissible. (1) So, also, in trials for robbery, the dying Dying declaradeclarations of the party robbed. (2) (u)

tions.

quent written

Dying declarations have been admitted in evidence, although it Where subseappeared that the deceased made a subsequent statement, which declarations. had been taken in writing before a magistrate, but the written examination was not ready to be produced at the trial. This point was much discussed on the trial of Reason and Tranter, under the following circumstance: (3)—The deceased stated the particulars of the injury, which occasioned his death, at three several times in the course of the same day, with an interval of about an hour between each: the first and last account had not been written; the second was reduced into writing, in the presence of a magistrate, by the same person to whom the former account had been given; this written statement was retained by the magistrate, and as he had removed to a distant part of the country, and it was not known to what place, the original was not produced, and an examined copy was rejected. An argument then ensued with respect to the admissibility of the first statement of the deceased. The Chief Justice (Sir John Pratt) was of opinion, that evidence of the first and third statement ought not to be received, considering all three as statements to the same effect, and forming one entire narrative, of which the written examination was the best proof. But the other Judges (4) were of a different opinion; they held, that the three accounts given by the deceased were distinct facts, and that there was no reason to exclude the evidence as to the first and third declaration, because the prosecutor was disabled from giving an account of the second. The witness was therefore directed to repeat his evidence, laying the examination before the justices out of the case; and the first, as well as the third statement was admitted. (v)

(1) By Bayley, J. in R. v. Hutchinson, 2 Barn. & Cress. 608, n. (a).

(2) By Mr. Justice Bayley on the northern Spring circuit, 1822. And by Best, C. J. on the midland Spring circuit, 1822.

(3) 6 St. Tr. 202-205, S. C. 16 Howell's St. Tr. 31. 1 Str. 499, S. C. (4) 1 Str. 500. The reporter was

:

one of the counsel for the prosecution.
From the report in the State Trials, it
would appear, that the Chief Justice and
Mr. Justice Powis were against receiving
the evidence; and Mr. Justice Eyre and
Mr. Justice Fortescue for receiving it.
The evidence, however, according to that
report, was at last received.

(u) See Note 455, p. 610. (v) See Note 459, p. 611.

In case of

pedigree.

As the declarations of a dying man are admitted, on a supposition that, in his awful situation on the confines of a future world, he had no motives to misrepresent, but, on the contrary, the strongest motives to speak without disguise and without malice, it necessarily follows, that the party, against whom they are produced in evidence, may enter into the particulars of his state of mind and Character of of his behaviour in his last moments: or may be allowed to show, that the deceased was not of such a character, as was likely to be impressed by a religious sense of his approaching dissolution. (w)

deceased.

On question of
Pedigree.

Marriage.
Birth.

Secondly, with regard to hearsay on questions of pedigree.

On inquiring into the truth of facts which happened a long time ago, the Courts have varied from the strict rules of evidence appli cable to modern facts of the same description, on account of the great difficulty of proving those remote facts in the ordinary manner by living witnesses. (1) On this principle, hearsay and reputation (which latter is the hearsay of those who may be supposed to have known the fact, handed down from one to another) have

Relationship. been admitted as evidence in cases of pedigree. (1) (x) Thus, declarations of deceased members of a family are admissible evidence to prove relationship: as, who was a person's grand-father, or whom he married, or how many children he had, or as to the time of a marriage or of the birth of a child, and the like, of which it cannot be reasonably presumed, that better evidence is to be procured. In ancient times, while the feudal system prevailed, great facilities of establishing descents were afforded by means of inquisition post mortem. The heads of families, upon these occasions, made solemn declarations, which were preserved as matter of record. (2) But, these having now grown into disuse, it is often extremely difficult to prove a pedigree; and recourse must be had, from necessity, to the best evidence that the nature of the subject will admit. In a late case, proof by one of the family, that a particular person had many years before gone abroad,

Death.

(1) By Le Blanc, J. in Hingham v. Ridgway, 10 East, 120. And see the Lord Chancellor's judgment in the case of Vowels v. Young, 13 Ves. 143; and

the opinions of the Judges in the Berkeley peerage case, 4 Campb. 401–421. Bull. N. P. 295.

(2) 13 Ves. 145. Bull. N. P. 294.