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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 say to each other, or letters written by either party to the other, when there is no ground to suspect collusion, are admissible evidence to show the terms on which they lived.3
Hearsay evidence, or general reputation, is always 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 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." "94
1 Hargrave v. Hargrave, 2 C. & K. 701.
Trelawney v. Coleman, 1 B. & Ald. 90.
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. 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.2
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 transaction of that conspiracy.3 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 co-trespassers 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.4
The same rule holds in cases of partnership and 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.5
1 Bauerman v. Raderius, 7 T. R. 663; 2 Sm. L. C. 227.
2 North v. Miles, 1 Camp. 389.
3 Eyre, C. J., Hardy's Trial, 24 How. St. Tr. 451.
4 Lord Ellenborough, R. v. Hardwicke, 11 East, 578.
5 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
XXXV. In matters of public or general interest, popular reputation or opinion, or the declarations of deceased witnesses, 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 on oath has been repeatedly received and sanctioned by judicial determination, it shall be allowed; but beyond that, the rule that no evidence shall be admitted,
1 7 A. & E. 360.
but what is on oath, shall be observed. . . . Evidence of opinion is admitted in some cases without oath, as for instance where reputation is given in evidence to prove a public right. The principle on which I conceive the exception to rest is this, that the reputation can hardly exist without the concurrence of many parties interested to investigate the subject; and such concurrence is presumptive evidence of the existence of an ancient right, of which, in most cases, direct proof can no longer be given, and ought not to be expected; a restriction now generally admitted as uniting the exception is this, that the right claimed must be of a public nature affecting a considerable number of persons." And in the same case in the Exchequer Chamber,' Alderson, B., said :— "The general interest which belongs to the subject would lead to immediate contradiction from others, unless the statement proved were true; and the public nature of the right excludes the probability of individual bias, and makes the sanction of an oath less necessary."
In ejectment by the lessor of the plaintiff in tail against the devisee in fee of a previous remainder-man, the question was, whether the land in dispute was part of the estate which had been originally devised by a testator between fifty and sixty years previously. Evidence of reputation had been received that the land had been purchased by the original testator; but it was held clear by the court above, notwithstanding some special circumstances in the case, that the question was merely one of private ownership, and that the evidence should have been rejected.2
In Weeks v. Sparke, to trespass to the plaintiff's close, the defendant pleaded a prescriptive right of common for his cattle, and the plaintiff replied, traversing the plea, and prescribing for a right to use the locus in quo for growing corn until harvest time. It
1 4 Bing. N. C. 528.
2 Doe d. Didsbury v. Thomas, 14 East, 323. 31 M. & S. 679.
was held that witnesses might prove the statement of a deceased neighbour as to the nature of the enjoyment of the respective rights; but that a foundation for its reception must first be laid by proof of the actual enjoyment of the rights. Le Blanc, J., said :"How is the right to be proved? First, it is to be proved by acts of enjoyment within the period of living memory. And when the foundation is laid, then, inasmuch as there cannot be any witnesses to speak to acts of enjoyment beyond the time of living memory, evidence is to be admitted from old persons (not any old persons, but persons who have been conversant with the neighbourhood where the waste lies, over which the particular right of common is claimed) of what they have heard other persons, of the same neighbourhood, who are deceased, say respecting the right. Thus far it is evidence as applicable to this prescriptive right, it being a prescription in which others are concerned, as well as the person claiming it; because a right of common is, to a certain extent, a public right. And the only evidence of reputation which was received was that from persons connected with the district. In the same manner in questions of pedigree, although they are not of a public nature, the evidence of what persons connected with the family have been heard to say, is received as to the state of that family. In like manner also upon questions of boundary, though the evidence of perambulations may be considered to a certain degree as evidence of an exercise of the right, yet it has been usual to go further, and admit the evidence of what old persons who are deceased have been heard to say on those occasions. The rule generally adopted, upon questions either of prescription or custom, is this, that after a foundation is once laid of the right by proving acts of ownership, then the evidence of reputation becomes admissible, such evidence being confined to what old persons, who were in a situation to know what those rights were, have been heard to say concerning them."
There was formerly considerable conflict of opinion