tion whether, as a general rule, the statements of a deceased person as to the circumstances of the injury which caused his death, made immediately after the injury, but not under circumstances which entitle them to be considered as dying declarations, are receivable in evidence.1 The above remarks were cited with approval in a letter written by Lord Chief Justice Cockburn to Mr. John Pitt Taylor, the author of the well-known work on evidence, in which the chief justice defended 1 In a criminal trial, the introduction by the State of a conversation between a witness and defendant, which contained no confessions by the latter, and was otherwise irrelevant, will not warrant the admission of paper produced and read at the interview by the defendant. The introduction of immaterial testimony on one side, does not justify the admission of illegal testimony on the other. Cook v. State, 4 Zab. 843. If one party offers incompetent testimony, which is admitted without objection, the other party may introduce evidence of a like character to rebut it. Herbush v. Goodwin, 5 Fost. 452. No subsequent act or declaration of one defendant is competent evidence against another, indicted jointly with him. Thompson v. Commonwealth, 1 Metc. (Ky.) 13. [Phillips v. State, 6 Tex. App. 364; People v. English, 52 Cal. 212; State v. Hickman, 75 Mo. 416; State v. Jackson, 29 La. An. 354.] Statements of the deceased before the murder, that he was going to the place of the murder and prisoner was to accompany him, not made in the presence of the prisoner, are not admissible against him. Kirby v. State, 9 Yerg. 383. [As to what declaration of the accused as to his purpose in visiting the place of the homicide may be received in evidence against him, see State v. Driscoll, 44 Ia. 65. Lamar v. State, 63 Miss. 265; Jackson v. State, 52 Ala. 305. But anything uttered by the deceased at the time the act was being done is admissible. State v. Wagner, 61 Me. 178; People v. Simpson, 48 Mich. 474. But not an accusation made by the deceased in the presence of the prisoner after his arrest. State v. Diskin, 34 La. An. 919. Nor declarations made by the deceased as to the cause of his death in the absence of the prisoner. Binns v. State, 57 Ind. 46.] Threats of other persons against the deceased, or admissions by them that they had committed the crime, are only hearsay, and cannot be received in evidence. State v. Duncan, 6 Iredell, 236; Rhea v. State, 10 Yerg. 258. [Crookham v. State, 5 W. Va. 510; State v. Davis, 77 N. C. 483; Bowen v. State, 3 Tex. App. 617; Boothe v. State, 4 Tex. App. 202; Walker v. State, 6 Tex. App. 576. But see Morgan v. Commonwealth, 14 Bush. (Ky.) 106; State v. Johnson, 30 La. An. II, 921; State v. Brown, 21 Kan. 38.] A statement made by the deceased at the time of the murder, but denied by the prisoner, though admissible as part of the res gesta, is no evidence of the truth of the facts stated. Haile v. State, 1 Swan, 248. Threats by the deceased against the accused, made to a third person, not shown to have been communicated, are not admissible for the defendant. State v. Jackson, 17 Miss. 544. [State r. Maloy, 44 Ia. 104; Holly v. State, 55 Miss. 424. But see Thomas v. State, 67 Ga. 460.] The admission against his interest, of a deceased person, of an act subjecting him to infamy and heavy penal consequences, is admissible as evidence of the fact, as between third persons. Coleman v. Frasier, 4 Rich. 146. Upon the trial of one for murder, it is not competent to prove the declarations of a third person, leading to the conclusion that he was guilty of the murder, and not the prisoner, as evidence in exculpation of the prisoner, if such third person examined as a witness, had implicated the prisoner by his testimony; it might have been received for the purpose of discrediting him, but is not competent testimony to establish the innocence of the prisoner, by fixing the crime upon the declarant. Smith v. State, 9 Ala. 990. [Otherwise where the declarations have been made within a short time of the transaction, and before a defence could have been arranged if the said third person has not implicated the prisoner. But it is not error to reject such testimony if such third person has in his examination sworn to the same effect. O'Shields v. State, 55 Ga. 696. On an indictment for larceny declarations of third persons that they committed the theft are inadmissible. Daniel v. State, 65 Ga. 199; Greenfield v. People, 85 N. Y. 75.] On the trial of an indictment for obtaining a signature to a deed by false pretences, previous conversations of the defendant with a third person as to procuring such a signature are admissible in evidence against him. Commonwealth v. Castles, 9 Gray, 121. S. Declarations of the defendant may be proved to show malice though the witness did not hear the entire conversation. Terrell v. Commonwealth, 13 Bush. (Ky.) 246. The reply made by the defendant to witness when he charged him with the crime is admissible on his behalf. Shackleford v. State, 43 Tex. 138.

his ruling in the case of Reg. v. Bedingfield, 14 Cox, C. C. 341, cited ante, p. 26.

Hearsay evidence-exceptions as to admissibility of. Though, as a general rule, hearsay, or, as it may more properly be called, second-hand evidence, is inadmissible, there are a considerable number of exceptions to the rule, which appear to be founded partly on the principle of necessity; hearsay being sometimes almost the only species of evidence which is available; and partly on the statement, of which evidence is given, having been made under circumstances which render its being false highly probable. They may be conveniently divided into the following heads:-1. Evidence which has already been given in judicial proceedings, and which cannot be obtained from the original source. 2. Statements contained in ancient documents on the subject of ancient possession. 3. Statements of deceased persons on questions of pedigree. 4. Evidence of reputation on questions of public or general right. 5. Statements of deceased persons speaking against their own interest. 6. Statements of deceased persons making entries, etc., in the regular course of their duty or employment. 7. Statements having reference to the health or sufferings of the person who makes them. 8. Dying declarations.

Evidence which has already been given in judicial proceedings. This subject will be found discussed in the chapter on Depositions.

Statements contained in ancient documents on the subject of ancient possession. This evidence rarely occurs in criminal cases. It will be found discussed in Best, Ev. Part 3, Book 2, Chap. 1; Tayl. Ev. Part 2, Chap. 10; Stark. Ev. Part 1, Chap. 3; Ph. & Arn. Év. Chap. 8, s. 1.

Statements of deceased persons 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, de

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 r. Etz, 5 Cow. 314; Pancoast v. Addison, 1 Har. & J. 356; see Jackson v Boneham, 15 Johns, 226; Ewing v. Savary, 3 Bibb, 236; [Thompson v. State, 11 Tex App. 51]; but not the place of birth: Wilmington v. Burlington, 4 Pick. 174 (see 1 Pick. 247); Independence, 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 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, on 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 gest, 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 r. Jewell, 1 How, S. C. 219. The age of one member of a family may be proved by information of another member, derived

scriptions in a will, inscriptions upon monuments, in Bibles 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, and that to exclude them would be to exclude nearly all available evidence. Per 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 Bing. N. C. 161; except to show the relationship of persons described in it as living, S. C. 6 M. & Gr. 474; 7 Scott, 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; John[*30 son v. Lawson, 2 Bing. 86; 9 B. Moore, 183; or by illegitimate relations; Doe v. Barton, 2 Moo. & R. 28; is not admissible. See Doe v. Davies, 10 Q. B. 314. 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 has 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, Crouch v. Hooper, 16 Beav. 182.3

Evidence of reputation on questions of public or general right. On questions of public or general right; as a manorial custom; Denn 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 Pa. St. 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 How. S. C 219. Hearsay is not evidence even in cases of pedigree, unless it appears that the person from whom the information is derived, is dead. Mooers v. Bunker, 9 Fost. 420; Emerson v. White, Id 482. The declarations of deceased members of a family may be proved to show the time of the birth of a child belonging to that family, although there may be a family register of births in existence; for the one kind of evidence is of no higher dignity than the other. Clements v. Hunt, 1 Jones' Law, 400. [For the same reason a person may testify as to his own age, even though his parents are alive. Hill v. Eldredge, 126 Mass. 234; and also other relatives, Weed v. State, 55 Ala. 13; Cherry v. State, 68 Ala. 29; State v. Cain, 9 W. Va 559. A child may also testify to the fact of his parentage. Comstock v. State, 14 Neb. 205.] It is not in cases of pedigree alone that hearsay evidence of the fact of death is admissible. Primm v. Stewart, 7 Tex. 178, S.

1 Douglass v. Sanderson, 1 Dall 116; Curtis v. Patton, 6 Serg. & R. 135; Berry Waring, 2 Har. & Gill, 103. S.

Chapman v. Chapman, 2 Conn. 347; Jackson v. Browner, 18 Johns. 37; Butler v. Haskill, 4 Dessaus, 651; Banert et ux. v. Day, 3 Wash. C. C. 243, S.

The rule, post litem motam, has not been recognized in the United States. Boudereau v. Montgomery, 4 Wash, C. C. 186. S.

1

v. Spray, 1 T. R. 466; the boundaries between parishes and manors; Nicholls v. Parker, 14 East, 331; or a ferry; Pim. v. Currell, 6 M. & W. 234; a feeding per cause de vicinage existing by immemorial custom; Prichard v. Powell, 10 Q. B. 589; explained in Earl of Dunraven v. Llewellyn, 15 Q. B. 811, 812; 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. 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 Patteson, J., Woolway v. Rowe, 1 A. & E. 117; 1 Phill. Ev. 401, 10th 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 litem motam. R. v. Cotton, 3 Camp. 444.2

Statements of deceased persons against their own interests. 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 payment. Goss 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, 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., *31] by a tenant in possession, is evidence of L.'s seisin. Doe v. Edward, 5 A. & E. 95. The principle is, that occupation being pre

'As to boundaries. Howell v. Tilder, 1 H. & McH. 84; Bladen v. Maccubbin, Id. 230; Long v. Pellett, Id. 531; Hall v. Gitting's Lessee, 2 Har. & Johns. 121; Ralston v. Miller, 3 Rand. 44; Jackson v. Vidder, 2 Cai. 210; Caufman v. The Congregation, 6 Binn. 59; Wolf v. Wyeth, 11 S. &. 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 on a question of boundary, when the lapse of time is so great as to render it difficult to prove the existence of the original landmarks. Hillman v. Ward, 1 W. & S. 68. S. See also, People v. Hunt, 59 Cal. 430.

Historical facts of general and public notoriety, may be proved by reputation, and that by historical works, but not of a living author. Morris r. Harmer's Lessee, 7 Pet. 554 see 3 Wheel. C. C. 87, 88, etc.; Gregory v. Baugh, 4 Rand. 611. S.

sumptive evidence of a seisin in fee, any declaration claiming a less estate is against the party's interest. Crease v. Barrett, 5 Tyrwh. 473; 1 Cr. 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 Canterbury, 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. And semble, that if the declaration be oral, it is in like manner admissible in evidence. Stapylton v. Clough, 2 E. & B. 933; Bradley v. James, 13 C. B. 822.

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; 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.

Statements of deceased persons 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 as 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. Durford, 3 B. & Ad. 890. So an entry of dishonor 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 dishonor. 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. But it would appear that the person who made the entry, must have done the business to which it refers. Brain v. Preece, 11 M. & W. 773; and see Doe v. Skinner, 3 Ex. R. 84.1

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, etc., 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, etc., 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 payee 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 Me. 403. Entries in the course of business upon the books of a railroad company