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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.1
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 gestæ.” 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. 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." 3 The distinction in all these cases lies in the consideration what is and what is not part of the original res gestæ. 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
1 Rouch v. Great Western Railway, 1 Q. B. 51.
2 R. v. Megson and others, 9 C. & P. 420. R. v. Gutteridge, ib.
3 R. v. Foster, 6 C. & P. 325.
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.1
In Aveson v. Lord Kinnaird,2 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 their state of health.
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: 3 and the same rule applies presumably to suits under the new law of divorce.4
Hearsay evidence, or general reputation, is alwavs received as evidence of character. And in trespass for destroying a picture, when the plea was not guilty, and the defence that the picture was a libel on the defendant's sister and brother-in-law, and that he had therefore destroyed it, Lord Ellenborough held, "that the declarations of the spectators while they looked at
1 Hargrave v. Hargrave, 2 C. & K. 701. Sup. p. 83. 2 6 East, 188.
Trelawney v. Coleman, 1 B. & Ald. 90.
4 20 & 21 Vict. c. 85.
the picture in the exhibition-room were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law." 1 So under a devise of lands in a certain parish evidence is admissible that a part not comprised in the parish was reported to be in it, and was intended to be included in the devise.2
Where either of the parties to the record appears to be merely a trustee for a third party, his declaration or admissions may yet be given in evidence to defeat the claim of such third party.3 So, in an action against a sheriff for a false return, the statements of his deputy to the plaintiff's attorney, as to the cause of the omission to make an arrest, have been held to be evidence against the defendant.4
Where several persons are proved to be engaged in one general conspiracy, all the transactions of that conspiracy by the different parties may and ought to be given in evidence; and it is enough if the party accused can be proved to be privy to the general conspiracy; for if that is proved, everything that is done by the different parties concerned in it must also be imputed to him as a part of the conspiracy. 5 Thus, in Hardy's trial for high treason, letters written by one conspirator to another, were held to be evidence against the prisoner after his complicity had been established. So, if several defendants in trespass be proved to be cotrespassers by other competent evidence, the declaration of one as to the motives and circumstances of the trespass will be evidence against all who are proved to have combined together for the common object.6
The same rule holds in cases of partnership and
1 Du Bost v. Beresford, 2 Camp. 511.
Anstee v. Nelms, 26 L. J. 5, Ex.
3 Bauerman v. Radenius, 7 T. R. 663; 2 Sm. L. C. 227.
Eyre, C. J., Hardy's Trial, 24 How. St. Tr. 451.
agency, that the acts or parol arrangements of a partner or agent, made in the ordinary course of business, bind a co-partner or principal respectively, and may therefore be given in evidence for or against them.1
1 Sandilands v. Marsh, 2 B. & Ald. 673; Doe d. Graham v. Hawkins, 2 Q. B. 212.
ON HEARSAY IN MATTERS OF PUBLIC AND GENERAL INTEREST.
WHEN an issue involves a question of public or general interest, the rule that hearsay evidence is inadmissible does not apply and generally
In matters of public or general interest, popular reputation or opinion, or the declarations of deceased witnesses of competent knowledge, if made ante litem motam (i. e. before the litigated point has become the subject of controversy), and without reasonable suspicion of undue partiality or collusion, will be received as competent and credible evidence.
The ground for its reception lies in the supposition that the universality and notoriety of the interests concerned remove the temptation and the ability to misrepresent, which would arise if such evidence were received in matters of merely private and personal concern. Accordingly, it is always rejected wherever the point at issue appears to partake more of the nature of a private than of a public interest.
In Wright v. Doe dem. Tatham,1 Coltman, J., said: "The true line (says Buller, J., in R. v. Eriswell), for courts to adhere to, is that wherever evidence not
17 A. & E. 360.