principle is, that occupation being presumptive 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 Crom. M. and 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 Cant. 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. and R. 121; Smith v. Whittingham, 6 C. and P. 78 (a).

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. and E. 114 (b), and even although he is alive, and not produced, S. C.

Hearsay admissible of persons making entries, &c. 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 mas- [ 27 ] ter's bill, this was held to be evidence of the delivery. Champneys v. Peck, 1 Stark. 404 (c). See also Furness v. Cope, 5 Bing. 114 (d). Chambers v. Bernasconi, 4 Tyrwh. 531; 1 Cr. M. and 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. Turford, 3 B. and Ad. 890 (e). So an entry of dishonor of a bill made by the clerk of a notary in the usual course of business, is evidence of the fact of dishonor after the clerk's decease. Poole v. Dicas, 1 Bing. N. C. 649 (f). 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. See also 3 B. and Ad. 898 (g).

Dying declarations—in general.] Analogous to the cases in which hearsay evidence is admissible, as being part of the res gesta, are the cases of dying declarations. Evidence of this kind, which is peculiar to the case of homicide, has been considered by some to be admissible from necessity, since it often happens, that there is no third person present to be an eye witness to the fact, and the usual witness in other felonies, viz. the party injured himself, is got rid of. 1 East P. C. 353. But it is said by Eyre, C. B. that the general principle upon which evidence of this kind is admitted, is, that it is of declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court. Woodcock's case, 1 Leach, 502 (1).

(1) State v. Ferguson, 2 Hill, 619.

(a) Eng. Com. L. Rep. xxv. 291. (b) Id. xxviii. 52. (c) Id. ii. 445. (d) Id. xv. 387. (6) Id. xxiii. 212. (ƒ) Id. xxvii. 529. (g) 1d. xxiii. 214.

Where the deceased, whose declarations are offered in evidence as to the cause of death has been particeps criminis, (as a woman who has been killed by attempting to procure abortion), they are, nevertheless, as it seems, admissible against the other party. In Tinkler's case, 1 East, 354, where such evidence was received, the judges, on an objection to it, answered, that if two persons be guilty of murder, and one be indicted and the other not, the party not indicted is a witness for the crown; and though the practice be not to convict on such proof uncorroborated, yet the evidence is admissible.

The dying declarations of a convicted felon have been rejected, on the ground, that as, if alive, his evidence could not have been received, so after his death his dying declarations are inadmissible. Drummond's case, 1 Leach, 337; 1 East, P. C. 353. It should be observed, that the declarations in this case were also objectionable, as having no relation to a question of homicide, but being merely a confession that the party had committed a robbery, for which another person was indicted. So on an indictment for the murder of a girl four years of age, Park, J. refused to hear evidence of her declarations, observing, that however precocious her mind [*28] might be, it was impossible that she could have had that idea, of a future state that is necessary to make such a declaration admissible. In this decision Parke, B., concurred. Pike's case, 3 C. & P. 598 (a).

So the statement of the deceased must be such as would be admissible if he were alive and could be examined as a witness; consequently a declaration upon matters of opinion, as distinguished from facts, will not be receivable. Seller's case, Carr. Cr. L. 233.

Dying declarations in favor of the party charged with the death, are admissible in evidenee equally as where they operate against him. Scaife's

case, 1 Moo. and R. 551.

It is no objection to a dying declaration that it has been elicited by questions put to the deceased. Fagent's case, 7 C. & P. 238. (b) See also Reason's case, 1 Str. 499. Woodcock's case, 1 Leach, 500. In the last case the deceased was examined upon oath by a magistrate, and the examination signed by both (1).

The question, whether a dying declaration is admissible in evidence, is exclusively for the consideration of the court. Per Lord Ellenborough, Huck's case, 1 Stark. 523 (c). See also John's case, 1 East, P. C. 358. Phill. Ev. 304, 8th ed.

Dying declarations-admissible only in cases of homicide, where the circumstances of the death are the subject of the declaration.] It is a general rule that dying declarations, though made with a full consciousness of approaching death, are only admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declarations (2). Per Abbott, C. J. Mead's case, 2 B. and C. 600 (d). Therefore, where a prisoner was indicted for administering savin to a woman pregnant, but not quick with

(1) Vass v. The Commonwealth, 3 Leigh, 786.

(2) Wilson v. Boerem, 15 Johns. 286. Jackson v. Vredenburg, 1 Johns. 159. Jackson v. Kaiffer, 2 Johns. 31. See Gray v. Goodrich, 7 Johns. 95. M'Farland v. Shaw, 2 Car. Law Rep. 102.

(a) Eng. Com. L. Rep. xiv. 473. (b) Id. xxxii. 501. (c) Id. ii. 494. (d) Id. ix. 196.

child, with intent to procure abortion, and evidence of the woman's dying declarations was tendered, Bayley, J. rejected it, observing, that although the declarations might relate to the cause of the death, still such declarations were admissible in those cases only, where the death of the party was the subject of inquiry. Hutchinson's case, 2 B. and C. 608 (n.) (a). A man having been convicted of perjury, a rule for a new trial was obtained, pending which, the defendant shot the prosecutor, who died. On showing cause against the rule, an affidavit was tendered of the dying declarations of the prosecutor, as to the transaction, out of which the prosecution for perjury arose; but the court were of opinion that this affidavit could not be read. Mead's case, 2 B. and C. 605 (b). . 4 D. and R. 120, S. C. So evidence of the dying declarations of the party robbed has been frequently rejected on indictments for robbery. Lloyd's case, 4 C. and P. 233 (c), also by Mr. Justice Bayley, on the Northern Spring Circuit, 1822, and by Mr. Justice Best, on the Midland Spring Circuit, 1822. Phill. Ev. 285, 8th ed.

The following case seems rather an exception to this rule. The prisoner was indicted for poisoning John King. The poison was administered in a cake on which the deceased breakfasted, and was immediately taken ill, whereupon he told his son not to eat the remainder of the cake. His maid servant who was present, and who had made the cake, said [ *29 ] she was not afraid of it, and she proceeded to partake of it, and was in consequence poisoned, and speedily died. Her dying declarations (made after she knew of her master's decease, and when she was conscious of her own approaching death), as to the manner in which she had made the cake, and that she had put nothing bad in it, and that the prisoner was present eating his breakfast at one end of the table while she was making the cake at the other, were tendered in evidence on the part of the prosecution. An objection to their admissibility was taken for the prisoner, and Hutchinson's case (supra,) was cited. Coltman, J., after consulting Parke, B., expressed himself of opinion, that as it was all one transaction, the declarations were admissible, and accordingly allowed them to go to the jury; but he said he would reserve the point for the opinion of the judges. The prisoner, however, was acquitted. Baker's case, 2 Moo. and Rob. 53.

In one or two civil cases, an exception has been made to this rule. Thus, Heath, J. admitted the confession of an attesting witness to a bond, who, in his dying moments, begged pardon of Heaven for having been concerned in forging the instrument. Vide 6 East, 195. So in Wright v. Littler, 3 Burr. 1244, evidence of a dying confession of a witness to a bond was admitted. See Mead's case, 2 B. and C. 608 (d). But it has been held in an action of ejectment, that the dying declarations of a person on a question of pedigree (the deceased not being a relation, or in any manner connected with the parties) cannot be received in evidence. Doe v. Ridgeway, 4 B. and A. 53 (e). And from the judgment of the Court of Exchequer in a recent case, it may be assumed that dying declarations would not now be admitted in any civil case. Stobart v. Dryden, Tyrwh. and G. 399. 1 M. and W. 615, S. C. It was there decided that the declarations of an attesting witness to a deed, who was since dead,

(a) Eng. Com. L. Rep. ix. 198. (b) Id. ix. 196.

(c) Id. xix. 360. (d) Id. ix. 198. (e) Id. vi. 347.

tending to prove that he had either forged or fradulently altered the deed, could not be received in evidence.

[Dying declarations admissible-the party must be aware of his situation.] Dying declarations are only admissible where the party making them, knows or thinks that he is in a dying state (1). Positive evidence of this knowledge is not required; but it may be inferred from the general conduct and deportment of the party. Nor is it necessary to prove expressions of apprehension of immediate danger, if it be clear that the party does not expect to survive the injury. Per Patteson, J., Bonner's case, 6 C. and P. 386 (a). Where a woman who had been dreadfully wounded, and who afterwards died of the wounds, made a declaration, the question was, whether it was made under the impression that she was dying. The surgeon said that she did not appear to be at all sensible of the danger of her situation, dreadful as it seemed to all aroumd her, but lay quietly submitting to her fate, without explaining whether she thought herself likely to live or die. Eyre, C. B., was of opinion that inasmuch as she was mor[30] tally wounded, and was in a condition *which rendered immediate death almost inevitable, as she was thought by every person about her to be dying, though it was difficult to get from her particular explanations as to what she thought of herself and her situation, her declarations made under these circumstances were to be considered by the jury as being made under the impression of her approaching dissolution; for, resigned as she appeared to be, she must have felt the hand of death, and must have considered herself as a dying woman. Woodcock's case, I Leach, 503. Again, in another case it was held by all the judges, that if a dying person either declares that he knows his danger, or it is reasonably to be inferred from his wound or state of illness, that he is sensible of his danger, his declarations are good evidence. John's case, 1 East, P. C. 357, I Leach, 504 (n.) S. C. The prisoner was tried for the rape and murder of a young girl of sixteen. The deceased lived only a few days after the perpetration of the offence, the particulars of which she communicated to her aunt, but did not intimate that she considered herself in a dying condition, or that she had any apprehension of immediate death. It appeared, however, that previous to making this declaration, she had confessed, had been absolved, and had received extreme unction from a priest, and that these are considered the last rites administered in the Catholic Church, and are esteemed sacraments by its disciples. Lord Kilwarden, C. J., with the concurrence of Kelly, J., admitted these declarations in evidence. Minton's case, 40 Geo. 3. 1 M Nally, 386. A man named Welbourne was indicted for poisoning his fellow servant, Elizabeth Page. She declared to the surgeon who attended her that she was with child by Welbourne, and by his persuasion had been taking bitter apple and a white powder which was found to be arsenic, for the purpose of procuring abortion. She had recently been in great pain, and was extremely ill, apparently dying, and seeemd to be sensible of her situation and danger, though she did not say so, but at the time she made the declaration she was free from pain, mortification having, in the opinion of the apothecary, taken place, and from being so free from pain he believed that she thought she was getting well. The declaration was received, and the prisoner was

(1) State v. Moody, 2 Hayw. 31. State v. Poll, 1 Hawks, 442.
(a) Eng. Com. L. Rep. xxv. 451.

found guilty, but the case was referred to the judges on the question, that although in the first part of the apothecary's evidence, he swore that he made the deceased sensible of her danger before she made the declaration, yet, as he afterwards said that at the time she made the declaration she believed she was getting better, from the pain ceasing, the evidence ought to have been rejected; and a majority of the judges were of opinion, that it did not sufficiently appear that the deceased knew or thought, when she made the declaration, she was in a dying condition; on the contrary, she had reason to think that if she told what was the matter with her she might have relief and recover. Welbourne's case, 1 Leach, 503 (n), 1 East, P. C. 358, S. C. The deceased asked his surgeon if the wound was necessarily mortal, and on being told that a recovery *was just [*31 ] possible, and that there had been an instance where a person had recovered from such a wound, replied "I am satisfied," and after this made a statement; it was held by Abbott, C. J., and Park, J., to be inadmissible as a declaration in articulo mortis, since it did not appear that the deceased thought himself at the point of death; for being told that the wound was not necessarily mortal, he might still have had a hope of recovery. Christie's case, O. B. 1821, Carr. Supp. C. L. 202. In the following cases the declarations were also held inadmissible. The surgeon told the deceased that there was no chance of her recovery, yet, as she said that she hoped he would do what he could for her, for the sake of her family, Bosanquet, J., refused to admit her declarations, on the ground that her expressions to the surgeon showed a degree of hope in her mind. Crockett's case, 4 C. & P. 544 (a). It appeared that on the Saturday of the week preceding the death of the deceased, she expressed an opinion that she would not recover, and made a declaration, but afterwards on the same day she asked her nephew if he thought she would "rise again." It was held that the declaration was inadmissible, as the subsequent question showed that she did not believe her recovery hopeless. Fagent's case, 7 C. and P. 238 (b). Where the expression used by the deceased was, "I think myself in great danger," and Simpson's case, post, p. 32, was cited in favor of the admissibility of the declaration, Patteson, J., rejected it, observing, "I have always considered that in order to a statement being received as a dying declaration, it must be shown that at the time the deceased made it, not merely that he considered himself in danger, but that he was without hopes of recovery." Errington's case, 2 Lewin, C. C. 148. See also Spilsbury's case, 7 C. and P. 187 (c), where Coleridge, J., held, that for the purpose of determining whether the declarations ought to be received, the conduct of the deceased should be considered, to see if it was that of a person convinced that "death was at hand," and not merely the expressions he used respecting his condition.

Interval of time between the declaration and death.] With respect to the interval of time which may have elapsed between the uttering of dying declarations, and the moment of death, there appears to be no rule founded on this circumstance alone, nor is it consistent with the principle, upon which dying declarations are received (which, as we have seen, depends upon the state of declarant's mind), that such declarations should be excluded, if not made within-any precise limits of time. It seems, however,

(a) Eng. Com. L. Rep. xix. 518. (b) Id. xxxii. 501. (c) Id. xxxii. 487.