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And Lord Kenyon niled, in the case of Calvert v. Archbishop of Canterbury (1), that, in an action for the hire of a pair of horses, an entry by the plaintiff's servant, since dead, stating the terms of the agreement with the defendant, ought not to be admitted.
In an action by a tavern-keeper (2), it appeared, that the defendant belonged to a club, which was held at the plaintiff's house, and that in a room, where the club met, a book used regularly to be kept open, in which the plaintiff'6 servants entered the articles, as they were ordered by the members of the club, who had thereby an opportunity of inspecting and correcting the account. Lord Kenyon admitted the book as evidence of the delivery, though it was not proved that the servants, who made the entry, were dead, nor was their absence accounted for, and only their hand-writing was proved. The daily account in the book was in this case considered as tantamount to a bill delivered and admitted by the defendant.
The Hat. 7 J. 1. c. 12. enacts, that the shop-book of a tradesman shall not be evidence in any action for wares delivered or work done, above one year before the bringing of the action, except the tradesman or his executor shall have obtained a bill of debt or obligation of the debtor for the said debt, or shall have brought against him some action, within a year next after the delivery of the wares, or the work clone. And the 2d section provides, that nothing in the act shall extend to the mutual trading and merchandize between tradesman and tradesman. At the time of making this act of parliament, there was an opinion growing up, that, after a certain length of time, a man's shop-books should be evidence for him, after the year: to prevent which, the act was made (3). However the book is not evidence, even within the year, except under particular
circumstances. An entry made by a tradesman himself, stating the delivery of goods, is not evidence for him; but, whether made by him or not, it may often serve as a memorandum to refresh the memory of the shopman, and for that purpose is admissible.
It has been already stated, that admissions by one of the parties to a suit, against his interest, are evidence against him; and that statements made by a third person, on being referred to by a party respecting any litigated point (1), or representations by a party's agent (2), are in many cases admissible against the principal. To such cases the objection of hearsay does not apply. Nor does the objection apply to the account which has been given by a witness on a former trial, or to dying declarations.
If a witness, who has been examined in a former action Testimony between the same parties, and where the point in issue was oo "m" the same as in the second action, is since dead, what he swore at the trial, may be proved by one who heard him give evidence (3). For such evidence was not given in an extrajudicial manner, but upon oath. The parties to the suit were the same, the point in issue was the same, and an opportunity was given for cross-examination. These circumstances plainly distinguish the proposed evidence from hearsay. So, where a person, who had been sworn on a former trial between the same parties on the same issue* and subpeena'd to appear as witness at a second trial, did not appear in obedience to the writ, the Court of King's Bench, seeing reason to believe that he had been kept away by the contrivance of the adverse party, admitted other witnesses to prove what he had sworn on the former occasion (4). The person called to prove what a deceased wit
(1) See ante, p.77. 2 P. Wia 563. Pike v. Crouch, 1 Ld.
(2) See ante, p. 74. Ray. 73a Per Lord Kcnyon, 4 T. R.
(3) Per Cur. in R. v. Carpenter, 290. Mayor of Doncaster v. Day, 2 Show. 47. Buckworth's case, Sir T. 3 Taunt. 262.
Raym. 170. Yin. Ab. « Evidence," (4) Green v. Gaturck, Bull. N. P.
(T. b. 88.), H' 4. Coker v. Farewell, 243.
O 4 ness
ness said, must undertake to repeat precisely his very words, and not merely to swear to their effect (1). Thus, in a case before Lord Kenyon, a witness was not allowed to speak to the effect of what the deceased witness had sworn on the former trial. "He ought," said Lord Kenyon, "to recollect the very words; for the jury alone can judge of the effect of words (2)." And he cited the case of the King v. Deborah from one of his own notes, to the same point. For the purpose of introducing an account of what a deceased witness swore on the first trial, the nisi prius record and the postea indorsed are good evidence to shew, that a cause was brought on for trial, or that it was actually tried. (3)
Dying de- The dying declarations of a person, who has received a clariuons. mortal injury, are constantly admitted in criminal prosecutions, and are not liable to the common objection against hearsay evidence (4). The principle of this exception to the general rule is founded partly on the awful situation of the dying person, which is considered to be as powerful over his conscience as the obligation 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. But before such declarations can be admitted in evidence against a prisoner, it must be satisfactorily proved, that the deceased, at the time of making them, was conscious of his danger, and had given up all hope of recovery. This consciousness of approaching death may 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 (5). And it has been decided by all the judges, that the question, whether the deceased made the declarations under the apprehension of
(1) I.d. Palmerstonc's case, cited by (4) R. v. Reason and Tranter, 1 Str.
Lord Kenyon in R. v. Joliffe, 4 T.R. 499. Woodcoek's case, 2 Leach. Cr.
*9°. C..566. Bambridge's case, y St. Tr. 161.
(a) Ennis v. Donisthorn, Cornw. (51 Woodcock's case, a Leach, Cr.
Sum. Ass. 1789, MS. C..566. Dingier's case, ib. 638. John's
(3) Pitton v. Walter, i Str. i61. case, 1 East, PI. Cr. 357.
death, death, is a question for the judge to determine, not for the jury.(i)
On the same principle, the dying declarations of an accomplice are admissible; for the accomplice himself would have been a competent witness, if he had been living. This was determined by all the judges in Margaret Tinkler's case(2.). The greater part of the judges were of opinion in this case, that the declarations of the deceased were alone sufficient evidence to convict the prisoner; on the ground, that they were not to be considered as evidence coming from a particeps criminis, as she thought herself dying at the time, and had no view or interest to serve in excusing herself, or fixing the charge unjustly on others. But others of the judges held, that her declarations were to be so considered, and therefore required the aid of confirmatory evidence. 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 be sworn as a witness. (3)
The same kind of evidence is admissible in civil cases, as well as in trials for murder. Thus, the declaration of a person, who, having set his name as subscribing witness to a bond, in his dying moments begged pardon of Heaven for having been concerned in forging the bond, was admitted to be evidence of the forgery by Mr. Justice Heath (4), oh the authority of Wright on the demise of Clyiner v. Littler (5), 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. Lord Mansfield on that occasion said,
(0 By the opinion of all the Judges, (i) i East, PI. Ct. 3J4.6in John's c.ue, I East, PI. Cr. 357., and (3) Drummond's case, 1 Leach, Cr.
in Welborn's case, 1 East, Pl. Cr. 359- C. 378; I East, PI. Cr. 353, S. C. In Woodcock's case, which was before (4) Cited by Ld. EUenborough in
the two last, this question had been left Aveson v. Lord Kinnaird, 6 East, 195. to the jury by Eyre C.B., I East, Pl.Cr. (5 ) 3 Burr. 1244. 1255. 360.
« The Hearsay
"The account was a confession of great iniquity, and as the dying person could be under no temptation to eay it, but to do.justice and ease his conscience, I am of opinion the evidence was proper to be left to the jury."
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 seems to follow, that the party, against whom they are produced in evidence, may enter into the particulars of his behaviour in his last moments, or may be allowed to shew that the deceased was not of such a character, as was likely to be impressed by a religious sense of his approaching dissolution.
Hearsay is often admitted in evidence, as part of the res gesta; the meaning of which seems to be, that where it is necessary, in the course of a cause, to inquire into the nature of a particular act and the intention of the person who did the act, proof of what the person said at the time of doing it is admissible evidence, for the purpose of shewing its true character. Thus, for example, in an action by the assignees of a bankrupt, the bankrupt's declarations at the time of his absenting himself from home are properly received in evidence, to shew the motive of his absence. In the case of Bateman v. Bailey (i), therefore, where the question was, whether the trader's departure from his dwelling-house amounted to an act of bankruptcy, the Court of King's Bench were of opinion, that the reasons, which he gave for his absence, after his return home, ought to have been admitted in explanation of his own act. The words of the stat. i J. i. c 15. s. 2. are, that every person using the trade of merchandize, &c., who shall begin to keep his house, or otherwise absent himself, or depart his
(1) $ T. R. 5 ia. And see Maylin v. Eyloe, a Str. 809. Eweni v. Oold,