direct evidence, yet it may be admitted in corroboration of a witness's testimony to show that he affirmed the same thing before on other occasions (h). And what a dead witness has sworn on a former trial, between the same parties, is evidence in the cause, and may be either read from the judge's notes, or proved upon oath by the notes or recollection of any person who heard it (i). But generally evidence of the declaration of a man since dead, as to a fact done by himself, is not admissible (k). When, however, a will is disputed on the ground of fraud, the declarations of the testator are admissible (7).

2. Declarations are admitted in many cases where they can be regarded as essentially connected with the res gestæ, or gist of the matter in issue. Thus, in false imprisonment, the defendant justified on the ground that he had given the plaintiff in custody for forging a bill of exchange, which had therefore been dishonoured on presentment to the drawee. A witness stated that he had accompanied the defendant to the drawee, who refused to pay. He was then asked what the drawee had said at the time of the refusal. The question was objected to, but the court held that the evidence ought not to be excluded. There were peculiar circumstances in the case, but Tindal, C. J., said:"Even if the inquiry before us had depended on the determination of the point, whether evidence by the defendant of the dishonour of the bill, and of the circumstances attending such

(h) Holliday v. Sweeting, Bull. N. P. 294.
(i) Doncaster (Mayor of) v. Day, 3 Taunt. 262.
(k) Garnous v. Barnard, 1 Anst. 298.

(1) Doe v. Hardy, 1 M. & Rob. 825.

dishonour, was relevant to the question then before the jury, it would have been difficult altogether to exclude such evidence on the score of its irrelevancy (m)."

On this principle, namely, that words are acts, of which evidence may be given as of all circumstances relevant to the issue, proof has been received of the language uttered by the holders of seditious meetings, in order to show the objects and character of such meetings. In the same way evidence may be given of the inscriptions on flags used at such meetings without producing the flags themselves; for such inscriptions used on such occasions are the public expression of the sentiments of those who bear them, and have rather the character of speeches than of writings (n). Thus, a foreign proclamation, contained in a printed placard, is treated as an inscription or act done, and may be proved by oral evidence or an examined copy. In such a case Pollock, C. B., said : -“ Hearsay evidence is admissible when it is part of a transaction; and in this way the exclamations of a crowd may be received as evidence. But there is, generally speaking, this distinction between what is said and what is done in order to admit the former it is necessary that the authority of the speaker should be shown, in order to affect the parties; but if it be something done that is to be proved, no authority is required, because there is no danger of being misled; and I regard a placard or proclamation on a wall rather as something done. In a case before me at

(m) Perkins v. Vaughan, 4 M. & G.988.
(n) R. v. Hunt, 3 B. & Ald. 574.

Guildford, where the plaintiff sought to recover the expenses of an election, I would not allow orders given by third parties by word of mouth to be admitted in evidence against the defendant, but I admitted inscriptions on coaches (o).

To prove an act of bankruptcy by the bankrupt beginning to keep his house, it is allowable to prove that the bankrupt was denied to his creditors by a servant at his house; but it is not enough to prove that the bankrupt directed that he should be denied unless the direction be followed up by an actual denial (p). And in trover, by the assignees of a bankrupt, for goods, the property of the bankrupt, letters written by him during his absence from home, stating that he was absent to avoid two writs that were out against him, are admissible evidence for the plaintiffs of an act of bankruptcy, without proof that there was in fact any writ issued, or any pressure of creditors. It was held in the same case, also, that in order to make a declaration of a bankrupt admissible evidence of an act of bankruptcy, it is not essential that the declaration and the act should be contemporaneous (g).

In the above case Lord Denman concurred in a previous decision of Parke, B., "that it is impossible to tie down to time the rule as to the declarations," that may be made part of the res gestæ in cases of bankruptcy; and his Lordship added, "that if there be connecting circumstances, a declaration may, even at a month's interval, form part of the whole res

(0) Bruce v. Nicolupolo, 11 Ex. 129.

(p) Per Lord Tenterden, Fisher v. Boucher, 10 B. & C. 710. (q) Rouch v. Great Western Railway, 1 Q. B. 51.

gesta." But a more stringent rule seems to be followed in criminal cases. Thus, in cases of rape, it has been the practice of modern judges to reject the evidence of the statements of a deceased or absent prosecutrix, although made at or immediately after the commission of the crime (r). But in a case of manslaughter, several of the judges concurred in admitting the evidence of a witness as to a statement made by the deceased, in the absence of the prisoner, shortly after the accident through which the death ensued. Gurney, B., said:-"What the deceased said at the instant, as to the cause of the accident is clearly admissible"(s). The distinction in all these cases lies in the consideration what is and what is not part of the original res gesta. If the words are the natural accompaniment and consequence of the act, they may be stated; but where the connection is remote they will be rejected. It will be observed, that the question of admissibility here is very different from the case of dying declarations, which will be considered subsequently.

Although it is a rule at common law, that a parent cannot bastardize his issue; yet in a late case, on an issue as to the legitimacy of the plaintiff, a witness was allowed to state the declaration and conduct of the deceased mother, when questioned about her child's parentage (t).

In an action for misrepresentation of solvency evidence may be adduced, that at the time the credit

(r) R. v. Megson and others, 9 C. & P. 420; R. v. Gutteridge,

ib. 471.

(s) R. v. Foster, 6 C. & P. 325.

(t) Hargrave v. Hargrave, 2 C. & K. 701.

was given the plaintiff said that it was so given in consequence of the representations made to him (u).

In Aveson v. Lord Kinnaird (x), the action was on a policy of insurance, secured on the life of the plaintiff's wife; and the defendants offered evidence. that, a few days after it was made, the deceased, who had previously represented herself to the defendants as being in good health, had given a totally different account of her health to a witness. It was held that the witness might relate her conversation with the deceased; and that the statements of the latter, as so related, are evidence in the same way as the answers of patients to the inquiries of their medical attendants. are evidence as to the state of health but letters to a medical man from his patient detailing the symptoms of his malady are not admissible (y).

In actions for adultery, what the husband and wife had said to each other, or letters written by either party to the other, when there was no ground to suspect collusion, were admissible evidence to show the terms on which they lived (z); and the same rule applies presumably to suits under the new law of divorce (a).

Evidence of general reputation, general character, and general notoriety is original evidence and not hearsay. General reputation is admissible to prove marriage (b). But when the witness is shown to

(u) Fellowes v. Williamson, M. & M. 306.

(r) 6 East, 188.

(y) Witt v. Klindworth, 3 S. & T. 143.

(z) Trelawney v. Coleman, 1 B. & Ald. 90; cf. Willis v. Bernard, 8 Bing. 376.

(a) 20 & 21 Vict. c. 85.

(b) Evans v. Morgan, 2 C. & J. 453; Doe v. Fleming, 4 Bing.