Hearsay admissible on questions of pedigree.] The written or verbal declarations of deceased members of a family, are admissible on questions of pedigree. (1) Declarations in a family, descriptions in a will, inscriptions upon monuments, in bibles, (2) and registry books, are all admitted upon the principle that they are the natural effusions of a party, who must know the truth; and who speaks upon an occasion when the mind stands in an even position, without any temptation to exceed, or fall short of the truth. Per Lord Eldon, Whitelocke v. Baker, 13 Ves. 514. But a pedigree collected from "registers, wills, monumental inscriptions, family records and history," is not evidence, although signed by members of the family; Davies v. Lowndes, 5 New Cases, 161;" except to show the relationship of persons described in it as living. 6 M. & Gr. ; 7 Scott's N. R. 141.

The declarations must be by persons connected by family or marriage with the person to whom they relate; and therefore what has been said by servants and intimate acquaintances; Johnson v. Lawson, 2 Bing. 86;° 9 B. Moore, 183, S. C.,(1) or by illegitimate relations; Doe v. Barton, 2 Moo. & R. 28; is not admissible. The declarations need not be contemporaneous with the matters declared. Thus a person's declaration that his grandmother's maiden name was A. B. is admissible. Per Brougham, C., Monkton v. Att. Gen., 2 Russ. & M. 158. If the declarations have been made after a controversy arisen with regard to the point in question, they are inadmissible. Berkeley Peerage case, 4 Camp. 415. The term controversy must not be understood as meaning merely an existing suit. 2 Russ. & M. 161. *Walker v. Beauchamp, 6 C. & P. 552. See further, [ *26 ] Rosc. Dig. Ev. N. P. 26.(2)

Hearsay admissible on questions of public or general right.] On questions of public or general right; as a manorial custom; Denn v. Spray, 1 T. R. 466; the

(1) Douglas v. Sanderson, 1 Dall. 118. Jackson v. Cooley, 8 Johns. 128. Gray v. Goodrich, 7 Johns. 95. Hearsay is good to prove the fact of death. Jackson v. Etz, 5 Cowen, 314. Pancoast v. Addison, 1 Har. & J. 356. See Jackson v. Boneham, 15 Johns. 226. Ewing v. Savary, 8 Bibb, 236: but not the place of birth; Wilmington v. Burlington, 4 Pick, 174, (see 1 Pick. 247.) Independence v. Pompton, 4 Halst. 209. Sheam v. Clay, 1 Litt. 266. Albertson v. Robeson, 1 Dall. 9. So in a case of pedigree, hearsay of marriage is admissible, but not where it is to be shown as a substantive independent fact. Westfield v. Warren, 3 Halst. 249. Hearsay is only admissible where the fact is ancient, and no better evidence can be obtained. Briney v. Hanse, 3 Marsh. 326. And must be confined to what deceased persons have said. Gervin v. Meredith, 2 Car. Law Rep. 635. As to ex parte affidavits made abroad or by deceased persons, see 2 Stark. on Ev. 611, n. 3.

The acts and declarations of the parties being given in evidence on both sides, on the question of marriage, an advertisement announcing their separation, and appearing in the principal commercial newspaper of the place of their residence, immediately after their separation, is part of the res gestæ, and admissible in evidence. Whether or not it was inserted by the party, and if it was, what were his motives, are questions of fact for the jury. Jewell's Lessee v. Jewell, 1 Howard's S. C. Rep. 219.

The age of one member of a family, may be proved by information of another member, derived from family reputation, and declarations of a deceased mother, unless it appears that better evidence is in the power of the party. Watson v. Brewster, 1 Barr, 381.

The declarations of a deceased member of a family, that the parents of it never were married, are admissible in evidence, whether his connection with that family was by blood or marriage. Jewell's Lessee v. Jewell, 1 Howard's S. C. Rep. 219.

(2) Douglas v. Sanderson, 1 Dall. 116. Curtis v. Patton, 6 Serg. & R. 135. Berry v. Waring, 2 Har. & Gill, 103.

(1) Chapman v. Chapman, 2 Conn. 347. Jackson v. Browner, 18 Johns. 37. Haskill, 4 Dessaus. 651. Banert et ux. v. Day, 3 Wash. C. C. Rep. 243.

Butler v.

(2) The rule, post litam motam, has not been recognised in the United States. Boudereau

v. Montgomery, 4 Wash. C. C. Rep. 186.

Eng. C. L. R. vol. xxxv. 65. a Id. xlvi. 471. • Id. ix. 329. P Id. xxv. 543

boundaries between parishes and manors; (3) Nicholls v. Parker, 14 East, 331; or a ferry; Pim v. Curell, 6 M. & W. 234; hearsay or public reputation is admissible. But reputation is not evidence of a particular fact. Weeks v. Sparke, 1 M. & S. 687. So though general reputation is evidence, tradition of a particular fact is not; as that a house once stood in a particular spot. Ireland v. Powell, Peake Ev. 15. Cooke v. Banks, 2 C. & P. 481.1 Declarations of old persons, concerning the boundaries of parishes, have been received in evidence, though they were parishioners and claimed rights of common on the waste, which the declarations had a tendency to enlarge. Nicholls v. Parker, 14 East, 331. Plaxton v. Dare, 10 B. & C. 19. But the declarations of a deceased lord of the manor, as to the extent of the waste are not evidence. Crease v. Barrett, 5 Tyrwh. 458; 1 Cr. M. & R. 919. Where the question is, whether certain lands are in the parish of A. or B., ancient leases, in which they are described as lying in parish B. are evidence of reputation that the lands are in that parish. Plaxton v. Dare, 10 B. & C. 17 ;* and see Brett v. Beales, M. & M. 416. The declaration of an old person who is still living, is not admissible as proof of reputation. Per Patterson, J., Woolway v. Roe, 1 A. & E. 117;t Phill. Ev. 284, 8th ed. In order to admit of evidence of reputation it is not necessary that user should be shown. Crease v. Barrett, supra. Declarations of this kind are not evidence post litam motam. Cotton's case, 3 Camp. 444.(1)

Hearsay admissible of persons having no interest to misrepresent.] It is on this ground that entries by a deceased vicar or rector, of the receipt of ecclesiastical dues, have been admitted for his successor. Armstrong v. Hewitt, 4 Price, 218. And even where the entries were by deceased impropriate rectors, they have been received in evidence for their successors, though objected to as being made by the owner of the inheritance. Anon. Bunb. 46. Illingworth v. Leigh, 4 Gwill. 1618. The reception of this kind of evidence has given rise to much observation, and has been thought an anomaly in the law of evidence. See Phill. Ev. 322, 8th ed., and the cases there cited.

ment.

Hearsay admissible of persons speaking against their own interest.] The declarations of deceased persons made against their own interest are admissible; as where a man charges himself with the receipt of money, it is evidence to prove the payGoss v. Watlington, 3 B. & B. 132. Whitnash v. George, 8 B. &. C. 556. So a statement by a deceased occupier of land, that he rented it under a certain person, is evidence of such person's seisin. Uncle v. Watson, 4 Taunt. 16. So a deed by a deceased party shown to be in the receipt of the rents and profits,

(3) As to boundaries, Howell v. Tilder, 1 Har. & M'Hen. 84. Bladen v. Maccubbin, id. 230. Long v. Pellett, id. 531. Hall v. Gitting's Lessee, 2 Har. & J. 121. Ralston v. Miller, 3 Rand. 44. Jackson v. Vidder, Caines, 210. Caufman v. The Congregation of Cedar Spring, 6 Binn. 59. Wolf v. Wyeth, 11 Serg. & R. 149. Van Deusen v. Turner, 12 Pick. 532. Harriman v. Brown, 8 Leigh, 697.

Reputation and hearsay is such evidence as is entitled to respect in a question of boundary, when the lapse of time is so great as to render it difficult to prove the existence of the original land marks. Nieman v. Ward, 1 Watts & Serg. 68.

(1) Historical facts, of general and public notoriety, may be proved by reputation, and that by historical works, but not of a living author. Morris v. Harmer's Lessee, 7 Peters, 554. See 3 Wheeler's Cr. C. 87, 88, &c. Gregory v. Baugh, 4 Rand. 611. Whether hearsay is admissible to show a right to freedom, See Dangler v. Phebe, Martin & Yerg. Walkup v. Pratt, 5 Har. & J. 51. Gregory v. Baug, 4 Rand. 611. S. C. 2 Leigh, 665. a Eng. C. L. Reps. xii. 225. r Id. xxi. 16.

▾ Id. vol. viii. 379.

Id. xxii. 344. w Id. xv. 295.

Id. xxviii. 52.

in which S. is stated to be the legal owner in fee, is evidence of such ownership for a party claiming under S. Doe v. Coulthred, 7 A. & E. 235. So a written attornment to L. by a tenant in possession, is evidence of L.'s seisin. Doe v. Edward, 5 A. & E. 95. The principle is, that occupation being presumptive *evidence of a seisin in fee, any declaration claiming a less estate is against [ *27 ] the party's interest. Crease v. Barrett, 5 Tyrwh. 473; 1 Crom., M. & R. 931. In all these cases it must appear that the effect of the declaration is to charge the party making it. Calvert v. Archbishop of Cant., 2 Esp. 646. If the party who made the entry be alive, although out of the jurisdiction of the Court so that he cannot be called, the proof of the entry is inadmissible. Stephen v. Gwennap, 1 Moo. & R. 121; Smith v. Whittingham, 6 C. & P. 78.*

The declarations of persons who, at the time of making them, stood in the same situation and interest as the party to the suit, are evidence against that party; thus the declaration of a former owner of the plaintiff's land, that he had not the right claimed by the plaintiff in respect of it, is admissible; Woolway v. Rowe, 1 A. & E. 114;a and even although he is alive, and not produced; S. C.

The declarations of tenants are not evidence against reversioners, although their acts are. Per Patteson, J., Tickle v. Brown, 4 A. & E. 378.

Hearsay admissible of persons making entries, &c. in the regular course of their duty or employment.] Where a person in the course of his employment makes a declaration, such declaration, after the death of the party, has in certain cases been admitted in evidence; as where an attorney's clerk indorsed a memorandum of delivery on his master's bill, this was held to be evidence of the delivery. Champneys v. Peck, 1 Stark. N. P. 404. See also Furness v. Cope, 5 Bing. 114. Chambers v. Bernasconi, 4 Tyrwh. 531; 1 Cr., M. & R. 347. So a notice indorsed as served by a deceased attorney's clerk, whose duty it was to serve notices, is evidence of service. Doe v. Turford, 3 B. & Ad. 890. So an entry of dishonour of a bill made by the clerk of a notary in the usual course of business, is evidence, after the clerk's decease, of the fact of dishonour. Poole v. Dicas, 1 New Cases, 649. So contemporaneous entries by a deceased shopman or servant in his master's books in the ordinary course of business, stating the delivery of goods, are evidence for his master of such delivery. Price v. Lord Torrington, 1 Salk. 285. See also 3 B. & Ad. 898.(1)

In order to make such entries evidence, it must appear that the shopman is dead; it is not sufficient that he is abroad and not likely to return. Cooper v. Marsden, 1 Esp. N. P. 1.

(1) Where a witness testified in respect to certain entries and memoranda made by him in the usual course of business, that it was his uniform practice to make such entries, &c., when the transaction occurred, and to make them truly, that he had no doubt the entries in question were so made, but that he had no recollection of the facts or transactions to which they related: held, that they might be given in evidence. Bank of Monroe v. Culver et al., 2 Hill, 531.

Entries and memoranda made by third persons in the usual course of business as notaries, clerks, &c., cannot be given in evidence on the ground merely that they are absent beyond the jurisdiction of the court; though otherwise when they are dead. Brewster v. Doane, 2 Hill, 537.

The declarations of the rayee of a negotiable note, made while he retains it in his possession, are admissible in evidence, although he may previously have written thereon his indorsement to a third person, in whose name the action is brought. Whittier v. Vose, 16 Maine, 403. Eng. C. L. Reps. xxxiv. 85. * Id. xxv. 291. b Id. xxxi. 91. e Id. vol. ii. 445.

y Id. xxxi. 287.

d Id. xv. 387.
Id. xxiii. 214.

e Id. xxiii. 212.

a Id. xxviii. 52.

Id. xxvii. 529.

Dying declarations—in general.] Analogous to the cases in which hearsay evidence is admissible, as being part of the res gestæ, are the cases of dying declarations. Evidence of this kind, which is peculiar to the case of homicide, has been considered by some to be admissible from necessity, since it often happens, that there is no third person present to be an eye witness to the fact, and the usual witness in other felonies, viz., the party injured himself, is got rid of. 1 East, P. C. 353. But it is said by Eyre, C. B., that the general principle upon which evidence of this kind is admitted, is, that it is of declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court. Woodcock's case, 1 Leach, 502.(2)

[*28] *Where the declarations offered in evidence as to the cause of death, are of a deceased who has been particeps criminis, (as a woman who has been killed by attempting to procure abortion,) they are, nevertheless, as it seems, admissible against the other party. In Tinkler's case, 1 East, 354, where such evidence was received, the judges, on an objection to it, answered, that if two persons be guilty of murder, and one be indicted and the other not, the party not indicted is a witness for the crown; and though the practice be not to convict on such proof uncorroborated, yet the evidence is admissible.

The dying declarations of a convicted felon have been rejected on the ground, that as, if alive, his evidence could not have been received, so after his death his dying declarations are inadmissible. Drummond's case, 1 Leach, 337; 1 East, P. C. 353. But see now 6 & 7 Vict. c. 85. It should be observed that the declarations in that case were also objectionable, as having no relation to a question of homicide, being merely a confession that the party had committed a robbery, for which another person was indicted. So on an indictment for the murder of a girl four years of age, Parke, J., refused to hear evidence of her declarations, observing, that however precocious her mind might be, it was impossible that she could have that idea of a future state which is necessary to make such a declaration admissible. In this decision Parke, B., concurred. Pike's case, 3 C. & P. 598. But when the child is of an intelligent mind, impressed with the nature of an oath and expecting to die, the declaration is receivable. See Perkins' case, 2 Moo. C. C. 135, where the child was eleven years old, stated post, p. 30.

So the statement of the deceased must be such as would be admissible if he were alive and could be examined as a witness; consequently a declaration upon matters of opinion, as distinguished from facts, will not be receivable. Sellers' case, Carr. Cr. L. 233.

Dying declaration in favour of the party charged with the death, are admissible in evidence equally as where they operate against him. Scaife's case, 1 Moo. & R. 551.

It is no objection to a dying declaration that it has been elicited by questions put to the deceased. Fagent's case, 7 C. & P. 238. See also Reason's case, 1 Str. 499. Woodcock's case, 1 Leach, 500. In the last case the deceased was examined upon oath by a magistrate, and the examination signed by both.(1)

(2) State v. Ferguson, 2 Hill, S. C. Rep. 619. Oliver v. The State, 17 Alabama, 587. McLean v. The State, 16; Ib. 672.

(1) Vass v. The Commonwealth, 3 Leigh, 786.

Eng. C. L. R. vol. xiv. 473.

i Id. xxxii. 501.

The question, whether a dying declaration is admissible in evidence, is exclusively for the consideration of the court. Per Lord Ellenborough, Huck's case, 1 Stark. N. P. 523. See also John's case, 1 East, P. C. 538; 1 Phill. Ev. 304, 8th ed., 291, 9th ed.

Dying declarations-admissible only in cases of homicide, where the circumcumstances of the death are the subject of the declaration.] It is a general rule that dying declarations, though made with a full consciousness of approaching death, are only admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. (2) Per Abbott, C. J., Mead's case, 2 B. & C. 600. Therefore, where a prisoner was indicted for administering savin to a woman pregnant, but not quick with child, with intent to procure abortion, and evidence of the woman's dying declarations was tendered, *Bayley, J., rejected it, observing, that although [ *29] the declarations might relate to the cause of the death, still such declarations were admissible in those cases only, where the death of the party was the subject of inquiry. Hutchinson's case, 2 B. & C. 608(n). A man having been convicted of perjury, a rule for a new trial was obtained, pending which, the defendant shot the prosecutor, who died. On showing cause against the rule, an affidavit was tendered of the dying declarations of the prosecutor, as to the transaction, out of which the prosecution for perjury arose; but the court were of opinion that this affidavit could not be read. Mead's case, 2 B. & C. 605;" 4 D. & R. 120, S. C. So evidence of the dying declarations of the party robbed has been frequently rejected on indictments for robbery. Lloyd's case, 4 C. & P. 233;° also by M. Justice Bailey, on the Northern Spring Circuit, 1822, and by Mr. Justice Best, on the Midland Spring Circuit, 1822; 1 Phill. Ev. 285, 8th ed. 282, 9th ed.

m

The following case seems rather an exception to this rule. The prisoner was indicted for poisoning John King. The poison was administered in a cake on which the deceased breakfasted, and was immediately taken ill, whereupon he told his son not to eat the remainder of the cake. His maid servant who was present, and who had made the cake, said she was not afraid of it, and she proceeded to partake of it, and was in consequence poisoned, and speedily died. Her dying declarations (made after she knew of her master's decease, and when she was conscious of her own approaching death,) as to the manner in which she had made the cake, and that she had put nothing bad in it, and that the prisoner was present eating his breakfast at one end of the table while she was making the cake at the other, were tendered in evidence on the part of the prosecution. An objection to their admissibility was taken for the prisoner, and Hutchinson's case (supra) was cited. Coltman, J., after consulting Parke, B., expressed himself of opinion, that as it was all one transaction, the declarations were admissible, and accordingly allowed them to go to the jury; but he said he would reserve the point for the opinion of the judges. The prisoner, however, was acquitted. Baker's case, 2 Moo. & R. 53.

In one or two civil cases, an exception has been made to the rule. Thus, Heath, J., admitted the confession of an attesting witness to a bond, who, in his dying moments, begged pardon of heaven for having been concerned in forging the instrument. Vide 6 East, 195. So in Wright v. Littler, 3 Burr, 1244, evidence of a

(2) Wilson v. Boerem, 15 Johns. 286. Jackson v. Vredenburg, 1 Johns. 159. Jackson v. Kaiffer, 2 Johns. 31. See Gray v. Goodrich, 7 Johns. 95. M'Farland v. Shaw, 2 Car. Law Rep. 102.

Eng. C. L. R. ii. 494.