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specting bigamy, (vide post “ Bigamy,") at the expiration of seven years from the period when a person was last heard of, he will be presumed to [ *22] be dead (1), Doe v. Jesson, 6 East, 84. Doe v. Deakin, 4 B. *and A. 433 (a); and with the addition of other circumstances, the presumption may arise at an earlier period. Thus evidence that a person sailed in a ship bound for the West Indies, two or three years ago, and that the ship has not been since heard of, is presumptive evidence of the death of the party ; but the time of his death, if material, must depend upon the particular circumstances of the case. Watson v. King, I Stark. 121 (b). The fact of the party being dead or alive at any particular period within or at the end of the seven years, must be proved by the party asserting that fact (2). Doe v. Nepean, 5 B. and Ad. 86 (c). And see Rex v. Harborne, 2 A. and E. 540 (d); Nepean v. Doe d. Knight, 2 M. and W. 894.
General Nature of Hearsay Evidence
As part of the Res Gestæ
Of Persons having no interest to misrepresent
Making entries, &c., in the regular course of their duty
Admissible only in cases of Homicide :
22 23 23 25 25 26 26 26 27 28 29 31 32 33 34
The term hearsay evidence is used with reference both to that which is written, and to that which is spoken. But in its legal sense, it is confined to that kind of evidence which does not derive its effect solely from the credit to be attached to the witness himself, but rests also in part on the veracity and competency of some other person, from whom the witness may have received his information. Phill. Ev. 197, 8th ed.
General nature of hearsay evidence.] Evidence of facts with which the witness is not acquainted of his own knowledge, but which he merely
Wam(1), Miller and al. ~ Beates, 3 S. & R. 490. King o. Paddock, 18 Johns. 141. baugh o. Schank, 1 Pennington, 229. Innis and al. o. Campbell and al., 1 Rawle, 373. Crouch and ux. d. Eveleth, 15 Mass. 305. (2) Battin's Lessee o. Bigelow, Peters C. C. Rep. 452.
(a) Eng. Com. L. Rep. vi. 476. (6) Id. ii. 322. (C) Id xxvii. 42. (d) Id. xxiv. 161.
states from the relation of others, is inadmissible upon two grounds. Ist, that the party originally stating the facts does not *make the state- [*23 ment under the sanction of an oath ; and 2dly, that the party against whom the evidence is offered would lose the opportunity of examining into the means of knowledge of the party making the statement. Where, bowever, the peculiar circumstances of the case are such as to afford a presumption that the hearsay evidence is true, it is then admissible, as in the following instances.
Hearsay admissible as part of the res gesta. Where the inquiry is into the nature and character of a certain transaction, not only what was done, but also what was said, by both parties, during the continuance of the transaction is admissible, for to exclude this would be to exclude the most important and unexceptionable evidence (1). In this case, it is not the relation of third persons unconnected with the fact, which is received, but the declarations of the parties to the fact themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar character and circumstances. Thus it has been held on a prosecution for high treason, that the cry of the mob who accompanied the prisoner, may be received in evidence as part of the transaction. Lord G. Gordon's case, 21 How. St. Tr. 535. So in a prosecution for a rape, the fact of a woman having made a complaint soon after the assault took place, is evidence; but it was ruled by Holroyd, J., that the particulars of her complaint could not be given in evidence. Clarke's case, 2 Stark. N. P. C. 242 (a). By the laws of Scotland, the particulars of such declarations, when made de recenti, are allowed to be given in evidence. Thus in a case of rape, followed by cutting and stabbing, the account which the woman gave when she returned home, all bleeding, the following morning, of the way in which she had been used by the prisoner, was allowed to be fully laid before the jury, though she had just before been examined herself. M'Cartney's case, 1828, Alison, Prac. Crim. Law of Scotl. 514. And in another case of rape, the account which the woman gave to several witnesses the next day, was laid without reserve before the jury. M'Kenzie's case, Iu. But this privilege is extended to those accounts only which are connected more or less directly with the res gesta of the inquiry, or which were so recently given after it, as to form in some sort a sequel to the actual violence. Id. 515. On an indictment for an assault on a child with intent to ravish, the fact of her having complained of the injury recently after it was received, is confirmatory evidence. Brazier's case, 1 East, P. C. 444. Again, in actions of assault, what a man has said of himself to his surgeon, is admissible to show what he has suffered by the assault. Per Lawrence, J. Aveson
(1) There are some cases in which the declarations of a prisoner are admitted in his favor, mainly upon the principle of being part of the res geste; as to account for his silence, where that silence would operate against him. U.S. o. Craig, 4 Wash. C. C. Rep 729. So to explain and reconcile his conduct. State r. Ridgely, 2 Har. & M'Hen. Rep. 120. Robetaille's case, 5 Rogers, 171. See Tomkin's o. Saltmarsh, 14 S. & R. 275.
Where a prisoner indicted for murder has produced evidence of declarations by the deceased, with a view to raise the presumption that he committed suicide, it is competent for the State to give in evidence, the reasons assigned by him for his declarations. State o. Crank, 2 Bailey, 66.
See Little v. Lebby, 2 Greenl. 242. Kimball v. Morrell, 4 Greenl. 368. Gorham v. Canton, 5 ld. 266. State o. Powell, 2 Halst. 244. Bennet v. Hethington, 16 S. & R. 193.
(a) Eng. Com. L. Rep. iii. 344.
v. Kinnaird, 6 East, 198. So where a man was killed in consequence of having been run over by a cabriolet ; on an indictment against the driver for manslaughter, it was held that what the man said immediately after receiving the injury, was admissible in evidence. Foster's case, O. B., 6 C. and P. 325 (a). So inquiries from medical men, with the answers to them, are evidence of the state of health of the patients at the time, and the symptoms and conduct of the parties themselves at the time, [ *24 ] are always received *in evidence upon such injuries, and must be resorted to from the very nature of the thing. Per Lord Ellenborough, Aveson v. Kinnaird, 6 East, 195.
On an indictment, under 7 and 8 Geo. 4, c. 30, s. 4, for breaking a machine, Patteson, J., allowed a witness to be asked, whether the mob by whom the machine was broken, did not compel persons to go with them and give one blow to each machine ; and also whether; at the time when the prisoner and himself were forced to join the mob, they did not agree to run away from the mob at the first opportunity. Crutchley's case, 5 C. and P. 133 (b).
Where a constable entered a house, with a warrant in his hand and searched it; upon an indictment against him and others for a forcible entry, evidence was permitted to be given of what the constable said at the time as to the person for whom he was searching. Eliza Smith's case, 5 C. and P. 201 (c). Lord Tenterden, C. J. Upon an indictment for robbery, the prosecutor proved that he went early the next morning and complained to a constable, and mentioned the name of one of the persons who robbed him. Patteson, J. held the constable could not be asked what name the prosecutor mentioned, but he might be asked whether, in consequence of the prosecutor mentioning a name to him, he went in search of any person, and if he did, who that person was. Wink's case, 6 C. and P. 397 (d).
An indictment for perjury charged; that, in a suit in Chancery it became material to ascertain, whether an annuity granted by G. H. to the defendant, or by G. H. to B. as trustee for the defendant, has been paid, and that the defendant falsely swore that it had not been paid, whereas in truth the annuity had been paid by G. H. to B., and B. had paid it to the defendant. In order to show that B., who had been abroad since 1832, had paid the money to the defendant, it was proved that B. had sent money to bis bankers by his clerk, and it was proposed to ask the clerk what B. said about the money at the time the clerk received it from him to pay in at the bankers. On the question being objected to, Littledale, J. held it might be put, and that the evidence was receivable, on the ground of its being a declaration made by an agent acting at the time within the scope of his authority. The learned judge took a note of the objection, but the defendant was acquitted on the merits. Hall's case, 8 C. and P. 358 (e).
Where a bill is disputed on the ground of fraud, circumvention or forgery, the testator's declarations of his intentions are admissible. Doe v. Hardy, 1 Moo, and R. 525.
The following instances of hearsay, admissible as part of the res gesta are mentioned by Mr. Phillipps. If it be material to inquire whether a
(a) Eng. Com. L. Rep. xxv. 421. (b) Id. xxiv. 244. (c) Id. xxiv. 279. (d) Id. xxv. 456.
(e) Id. xxxiv. 427.
certain person gave a particular order on a certain subject, what he has said or written, may be evidence of the order; (see Jenkin's case, Lewin. C. C. 114); or where it is material to inquire whether a certain fact, be it true or false, has come to the knowledge of a third person, what he has said or written, may as clearly show bis knowledge, as what he has done. Where it is relevant and material to inquire into the conduct of rioters, what *has been said by any of the party in the act of rioting, must [*25 ) inanifestly be admissible in evidence, as showing their design and intention. On a charge of larceny, where the proof against the prisoner is that the stolen property was found in his possession, it would be competent to show on behalf of the prisoner, that a third person left the property in his care, saying that he would call for it again afterwards; for it is material in such a case, to inquire under what circumstances the prisoner first had possession of the property. 1 Phill. Ev. 233, 7th ed. With respect to the declarations of parties combined together for some illegal purpose, see post, and title, Conspiracy.
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. The declarations must be from persons connected by family or marriage with the person to whom they relate, and therefore what has been said by servants and intimate acquaintances, is not admissible. Johnson v. Lawson, 2 Bingh. 86 (d), 9 B. Moore, 183, S. C. (3). The declarations need not be contemporaneous with the matters declared. Thus a person's declaration that his grandiother's maiden name was A. B. is adipissible. Per Brougham C. Monkton v. Att. Gen. 2 Russ. and 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,
Berkeley Peerage case, 4 Campb. 415. The term controversy must not be understood as meaning merely an existing suit. 2 Russ. and M. 161. Walker v. Beauchamp, 6 C. and P. 552 (b). See further, Rosc. Dig. Ev. N. P. 26 (4).
(1) Douglas o. Sanderson, 1 Dall. 118. Jackson v. Cooley, 8 Johns. 128. Gray o. Goodrich, 7 Johns. 95. Hearsay is good to prove the fact of death. Jackson v. Etz, 5 Cowen, 314. Pancoast o. Addison, 1 Har. & J. 336. See Jackson r. Boneham, 15 Johns. 226. Ewing o: Savary, 3 Bibb. 236 : but not the place of birth. Wilmington v. Burlington, 4 Pick, 174. (See I Pick. 247.) Independence v. Pompton, 4 Halst. 209. Shearer r. Clay, 1 Litt. 266. Albertson o. 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. Heársay is only admissible where the fact is ancient, and no better evidence can be obtained. Briney v. Hann, 3 Marsh. 326, and must be confined to what de. ceased persons have said. Gervin o. Meredith, 2 Car. Law Rep. 6:35. As to ex parte affi. davits made abroad, or by deceased persons, see 2 Stark. on Ev. 611, n. 3.
(2) Douglas o. Sanderson, 1 Dall. 116. Curtis o. Patton, 6 S. & R. 135. Berry o. Waring, 2 Harr. & Gill, 103.
(3) Chapman v. Chapman, 2 Conn. 347. Jackson r Browner, 18 Johns. 37. Butler o. Haskell, 4 Dessaus. 651. Banert and ux. o. Day, 3 Wash. C. C. R. 243.
(4) The rule post litem motam has not been recognized in the United States. Boudereau o. Montgomery, 4 Wash. C. C. Rep. 186.
(a) Eng. Com. L. Rep. ix. 329. (b) Id. xxv. 543.
Hearsay admissible on questions of public or general right.] On questions of public or general right, as a manorial custom (Denn v. Spray, i T. R. 466.) the boundaries between parishes and manors, (Nichols v. Parker, 14 East, 331); hearsay or public reputation is admissible (1). But reputation is not evidence of a particular fact. Weeks v. Sparke, 1 M. and 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. and P. 481 (a). Declarations of this kind are not evidence, post litem motam. Cotton's case, 3 Campb. 444. 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. Nichols v. Parker, 14 East, 331. Plaxton v. Dare, 10 B. and C. 19 10). But the declarations of a deceased [ *26 ] lord *of the manor as to the extent of the waste are not evidence. Crease v. Barrett, 5 Tyrwh. 458; 1 Cr. M. and 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. and C. 17 (c); and see Brett v. Beales, M. and M. 416 (d). The declaration of an old person who is still living is not admissible as proof of reputation. Per Patteson, J., Woolway v. Roe, 1 A. and E. 117 (e); Phill. Ev. 284, 8th ed. (2)
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. lllingworth 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 cases there cited.
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 payment. Goss v. Watlington, 3 B. and B. 132 (f). Whitnash v. George, 8 B. and C. 556 (g). 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. The
(1) As to boundaries, Howell r. Tilder, 1 Har. & M'Ken. 84. Bladen o. Maccubbin, Id. 230.' Long o. Pellett, íd. 531. Hall o. Gitting's Lessee, 2 Har. & J. 121. Ralston o. Mil. ler, 3 Rand. 44. Jackson o. Vedder, 2 Caines, 210. Caufman o. Congregation of Cedar Spring, 6 Binn. 59. Wolf v. Wyeth, 11 S. & R. 149. Van Deusen o. Turner, 12 Pick. 532. Harriman o. Brown, 8 Leigh, 697.
(2) 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 o. Baugh, 4 Rand. 611. Whether hearsay is admissible to show a right to freedom? Bee Vaughn v. Phebe, Mart. & Yerg. 1. Walkup p. Pratt, 5 Har. & J. 51. Gregory o. Baugh, 4 Rand. 611. 8. C. 2 Leigh, 665. (a) Eng. Com. L. Rep. xii. 225. (b) Id. xxi. 16. (C) Id. xxi. 16. (d) Id. xxi. 344. (e) Id.
xxviii. 52. (f) Id. viii. 379. (5) Id. xv. 295.