He

was examined, who said, "I was of opinion the boy could not survive many days. I said to him, "My good boy, you must know you are laboring now under a very severe injury, which in all probability you will not recover from, and the effects of it will most likely kill you.' My father asked him if he was perfectly conscious where he should go if he told a lie, and where he should expect to go if he told the truth on the subject. In answer to the first he said he should expect to go to hell, and to the latter that he should go to heaven. My father said nearly similar words to what I said myself. When he was told that he was not likely to recover, I could see a change in the expression of his countenance. The appearances of tears came into his eyes, and an appearance such as it is difficult to describe-an appearance of distress; but he said nothing, that I can remember, expressing either assent or dissent. My father said to him, 'You may recover, though in all probability you will not.'" The father, also a surgeon, said, “I said to the deceased, after feeling his pulse and examining the wound, My little man, you appear to me to be much more sensible than, from the nature of the accident you have received, I should have expected. It is impossible for me to say whether you may survive the injury or not. I think it more probable that you will not, and that you may be dead before morning.' I then asked him if he was aware of the nature of an oath. made no reply. I then said, 'If you don't tell the truth, and how this accident occurred, where do you expect to go?' He then said, To hell.' 'If you do speak the truth, I suppose you expect to go to heaven?' He made no reply. I then told him, I put these questions to you that, in case of your death, the truth of the accident may be ascertained,' or words to that effect. I don't think he made any reply. He expressed no opinion as to his state." On cross-examination he said, "I said you may recover; it is impossible for me to say, but I don't think it likely that you will be alive by the morning." The child appeared at the time in a very debilitated state from the injury, but he appeared to be a very quick, intelligent child. Upon a case reserved, it was contended that there was not sufficiently strong proof to show that there was a perfect belief in the mind of the deceased of approaching death, and that the apprehensions of death in a child were not [*272 enough to render his declarations admissible, unless he was shown to be aware of the nature of an oath; but the judges were unanimously of opinion that the statements were receivable if made under the apprehension and expectation of immediate death, and they all (except Bosanquet, J., Patteson, J., and Coleridge, J.) thought they were so made and receivable.(s)

With respect to the effect of dying declarations, it is to be observed that, though such declarations, when deliberately made, under a solemn and religious sense of impending dissolution, and concerning circumstances in respect of which the deceased was not likely to have been mistaken, are entitled to great weight() if clearly and distinctly proved, yet it is always to be recollected that the accused has not had the opportunity of a cross-examination-a power quite as essential to the eliciting of the whole truth, as the obligation of an oath can be, and without which no statement made on oath, however solemnly administered, is admissible under any other circumstances; and that where the deceased had not a deep and strong sense of accountability to his Maker, and an enlightened conscience, the passion of anger and feelings of revenge may, as they have not unfrequently been found to do, affect the truth and accuracy of his statements, especially as the salutary and restraining fear of punishment for perjury is, in such cases, withdrawn. And it is further to be considered that the particulars to which the deceased has spoken were in general likely to have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately observed, and leading both to mistakes as to the identity of the persons and to the omission of facts essentially important to the completeness and truth of the narrative.(u) When a party comes to the conviction that he is about to die, he is in the same practical state as if called on in a court of justice under the sanction of an oath, and his declarations as to the cause of his death are considered equal to an oath, yet they are nevertheless open to observation. For

(8) Reg. v. Perkins, 2 Moo. C. C. R. 135; 9 C. & P. 395 (38 E. C. L. R.), s. c.
(t) See Per Coleridge, J., Rex v. Spilsbury, ante, p. 254.

(u) Greenl. Ev. 192; 1 Phil. Ev. 292.

though the sanction is the same, the opportunity of investigating the truth is very different, and therefore the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of more full investigation by the means of cross-examination.(v) It may be added also that the deceased in many cases is laboring under injuries which may affect the brain, and prevent the possi bility of reason guiding the words that may be uttered, and yet the means of ascertaining the state of his mind may be such as to render it in the highest degree difficult to discover whether a statement has been made under a morbid delusion of the mind, or in the tranquil exercise of calm reason, operated upon alone by the awful consciousness that he must almost immediately render an account to an all-knowing Creator.

*273]

Hearsay evidence is also admissible for the purpose of proving public rights, and rights in the nature of public rights. (w) Thus in questions concerning the boundary of parishes or manors, traditionary reputation is evidence:(x) and the declarations of old persons deceased have been admitted in such cases, although they were parishioners and claimed rights of common on the wastes, which their evidence had a tendency to enlarge (y) But although general reputation is evidence on a question of boundary or custom, yet the tradition of a particular fact (as that turf was dug or a post put down in a particular spot) is not admissible.(z)

Declarations or statements made by deceased persons, where they appear to be against their own interests, have in many cases been admitted: as entries in their books, charging themselves with the receipt of money on account of a third person, (a) or acknowledging the payment of money due to themselves.(b) Thus a written memorandum by a deceased man-midwife, stating that he had delivered a woman of a child on a certain day, and referring to his ledger in which a charge for his attendance was marked as paid, was thought by the Court of King's Bench to have been properly received in evidence, upon an issue as to the child's age.(c) So where the point in issue was whether a certain waste was the soil of the defendant, entries by a steward, since deceased, of money received by him from different persons in satisfaction of trespasses committed on the waste were admitted in evidence, to show that the right to the soil was in his master, under whom the plaintiff claimed.(d) So the receipts for rent found in the possession of a tenant are evidence that the person who signed them was seised in fee.(e) On the same principle, entries in the books of a tradesman by his deceased shopman, who thereby supplies proof of a charge against himself, have been admitted in evidence, as proof of the delivery of the goods, or of other matter there stated within his own knowledge.(ƒ)

(v) Ashton's case, 2 Lew. 147, per Alderson, B. A striking instance of the danger of trusting to statements made after a mortal wound has been inflicted occurred in Reg. v. Macarthy, Gloucester Sum. 1842. The prisoner was indicted for murder, and the deceased had been stabbed by the prisoner whilst he was pursuing him in order to give him into custody for an assault, and the deceased expressly stated that the prisoner had knocked him down, but two companions of the deceased, who were present during the whole time, distinctly proved that the deceased was not knocked down at all. C. S. G. (w) 1 Phill Ev. 238. But to prove prescriptive rights strictly private, it is doubtful whether hearsay evidence is admissible. See 1 Phill. Ev. 241; 1 Stark. Ev. 49; Rosc. Ev. 28.

(x) Nicholls v. Parker, 14 East 331, in note to Outram v. Morewood. And it seems that a map made from the representations of a deceased person, who pointed out the boundaries, would be evidence of such boundaries: Reg. v. Milton, 1 C. & K. 58 (47 E. C. L. R.), Erskine, J.

(y) Nicholls v. Parker. But such declarations must not have been made post litem motam, that is, after the very same point or question has become the subject of controversy: Rex v. Cotton, 3 Campb 444; 1 Phill. Ev. 260.

(2) Weeks v Sparke, 1 M. & S. 680; Ireland v. Powell, Peake's Ev. 15, cor. Chambre, J; Chatfield v. Frier, 1 Price 256; 1 Phill. Ev. 245.

(a) 1 Phill. Ev. 293; Middleton v. Melton, 10 B. & C. 317 (21 E. C. L. R.) (b) Ibid.

(c) Higham v. Ridgway, 10 East 109. Entries in the land-tax collector's books, stating A. B. to be rated for a particular house, and his payment of the sum rated, were held by Abbott, C. J., admissible evidence to show that A. B. was in the occupation of the premises at the time mentioned: Doe v. Cartwright, Ry. & Mood. N. P. C. 62.

(d) Barry v. Bebbington, 4 T. R. 514.

(e) Doe dem Blayney . Savage, 1 C. & K. 487 (47 E. C. L. R.). (f) 1 Phill. Ev. 319; Price v. Lord Torrington, 1 Salk. 285.

But where the effect of the entry is not to charge the servant, it is not evidence. Thus, in an action for the hire of horses, an entry by the plaintiff's servant, since dead, stating the terms of the agreement with the defendant, is not *evi[*274 dence.(g) Such declarations are admissible only on the ground that they are against the proprietary or pecuniary interest of the party making them, and a declaration is not receivable in evidence, because it would subject the party to a prosecution if he were living. Thus, if A. were indicted for murder, and B., who was dead, had made a declaration that he was present when the murder was committed, though that declaration was against his interest, and would have subjected him to a prosecution if living, yet it would not be admissible after his death. (h) There seems, however, to be more reason for considering that a rule exists which allows of declarations of deceased persons being received in evidence, even though not made against their interest, provided that in addition to a peculiar knowledge of the facts, and the absence of all interest to pervert them, the declarations appear have been made in the ordinary course of official, professional, or other business or duty, and to have been immediately connected with the transacting or discharging of such business or duty, and to be contemporaneous, or nearly contemporaneous, with the transaction to which they relate.(i)~ And if a declaration be made in the discharge of a duty by a deceased person, it is admissible, whether oral or written.(j) In all these cases, the person who made the entry must be proved to be dead; if he be living, he ought to be produced as a witness, to explain the circumstances under which the entry was made.(k) Where it appeared that an entry was in the handwriting of a banker's clerk who was then in the East Indies, it was held inadmissible.()

In some cases also the declarations of a person deceased are admitted on the mere ground that he had a peculiar knowledge, and no interest to misrepresent. Thus, though the survey of a manor made by the owner is not evidence against a stranger in favor of a succeeding owner,(m) yet where A., seised of the manors of B. and C., causes a survey to be taken of the manor of B., which is afterwards conveyed to E., and after a long time there is a dispute between the lords of the manors of B. and C. about their boundaries, this old survey may be given in evidence. (n) So entries by a deceased rector or vicar as to the receipt of ecclesiastical dues are admissible for his successor, on the ground that he had no interest to misstate the fact.(o) *There are other exceptions to the general rule against the reception of [*275 hearsay evidence, such as the admission of declarations in cases of pedigree, and of old leases, rent-rolls, surveys, &c., which can occur so seldom in criminal proceedings, that it is not thought necessary to take further notice of them in this treatise.(p)1

(g) Calvert v. Archbishop of Canterbury, 2 Esp. 646; Rosc. Ev. 34; Webster v. Webster 1 F. & F. 401.

(A) The Sussex Peerage case, 11 Cl. & F. 85, per Lord Lyndhurst, C. In that case a declaration by a clergyman that he had solemnized a marriage, was held not to be admissible, on the ground that it might have subjected the clergyman to a prosecution for solemnizing the marriage. Standen v. Standen, Peake N. P. C. 45, was strongly questioned in this case.

() 1 Phill. Ev. 318. See the cases there collected, and Doe d. Patteshall v. Turford, 3 B. & Ad. 890 (23 E. C. L. R.); Poole v. Dicas, 1 Bing. N. C. 649 (27 E. C. L. R.); Chambers v. Bernasconi, 1 Tyrw. 335; 4 Tyrw. 531.

(j) Per Lord Campbell, C. J., Stapylton v. Clough, 2 E. & B. 933 (75 E. C. L. R.). The Sussex Peerage case, 11 Cl. & F. 113. By the Jewish law the custom is that children are circumcised on the eighth day from their birth, and it is the duty of the Chief Rabbi to perform this rite, and make an entry of it in a book; but it has been held that an entry made by a Chief Rabbi of a circumcision is not evidence after his death: Davis v. Lloyd, 1 C. & K. 275 (47 E. C. L. R.), Lord Denman, C. J., and Patteson, J. (k) Cooper v. Marsden, 1 Esp. 2, by Lord Kenyon, C. J. (2) Ibid. (m) Anon., 1 Stra. 95. (n) Bridgman v. Jennings, 1 Lord Ray. 734; Rosc. Ev. 33.

(0) Le Gros v. Lovemoor, 2 Gwill. 529; Armstrong v. Hewitt, 4 Price 218; Lord Arundel's case, 2.Gwill. 620; Pringal v. Nicholson, Wightw. 63; Walter v. Holland, 4 Price 171; Parsons v. Bellamy, 4 Price 190; 1 Phill. Ev. 307, et seq.

(p) See post, p. 300, as to evidence of character.

The existence of the corporation whose notes have been forged may be proved by

*276]

*CHAPTER THE SECOND.

THE PROOF OF NEGATIVE AVERMENTS THE RULE THAT THE EVIDENCE MUST BE CONFINED TO THE POINT IN ISSUE.-WHAT ALLEGATIONS MUST BE PROVED, AND WHAT MAY BE REJECTED; AND THEREWITH OF SURPLUSAGE AND OF VARIANCE.

Sec. I-Of the Proof of Negative Averments.

It is a general rule of the law of evidence, in criminal as well as in civil proceedings, that it lies on him who asserts the affirmative of a fact to prove it, and not on him who asserts the negative, unless under peculiar circumstances where the rule does not apply. (a) Thus, on an indictment for bigamy, where the first marriage was by license, and the prisoner appeared to be under age at the time, it was held that it lay on the prosecutor to prove the consent of parents, required by the 26 Geo. 2, c. 33, in order to show the marriage valid, and not on the prisoner to prove the negative in his defence.(b)

In criminal proceedings, however, where negative averments usually impute a breach of the law to the defendant, the operation of this rule is sometimes counteracted by the presumption of law in favor of innocence; which presumption, making, as it were, a prima facie case in the affirmative for the defendant, drives the prose cutor to prove the negative. (c) Thus, on an information against Lord Halifax, for refusing to deliver up the rolls of the auditor of the Exchequer, the Court of Exchequer put the plaintiff upon proving the negative that he did not deliver them; for a person shall be presumed duly to have executed his office till the contrary appear.(d) On an indictment for obtaining money, &c., under false pretences, the prosecutor must prove the averments negativing the pretences. In an action for the recovery of penalties under the Hawkers' and Pedlars' Act against a person charged with having sold goods by auction in a place in which he was not a house*277] holder, some proof of this negative, *namely, of the defendant not being a householder in the place, would be necessary on the part of the plaintiff.(e) On the trial of an indictment on the 42 Geo. 3, c. 107, s. 1, which made it felony to course deer on an inclosed ground, "without the consent of the owner of the

(a) Gilb. Ev. 131; Bull. N. P. 298.

(b) Rex v. Butler, R. & R. 61; Rex v. Morton, Ib. 19, in note to Rex v. James, ante, vol. 1, p. 303. But since the 4 Geo. 4, c. 76, a marriage by a minor without consent is valid; Rex v. Birmingham, ante, vol. 1, p. 305.

(c) The same rule applies in civil proceedings. The principal cases on the subject are Monke v. Butler, 1 Roll. Rep. 83; 3 East 199; Rex v. Hawkins, 10 East 211; Powell v. Milbank, 2 W. Bl. 851; s. c., 3 Wils. 355; Williams v. East India Company, 3 East 193; Rex v. Twining, 2 B. & A. 386; Doe v. Whitehead, 8 A. & E. 571 (35 E. C. L. R.).

(d) Bull. N. P. 298.

(e) 1 Phil. Ev. 494.

parol: Dennis v. People, 1 Packer C. R. 469; Cady v. Comm., 10 Gratt. 776; Read v. State, 15 Ohio 217; Smith v. State, 28 Ind. 321. As a general rule, common report of the neighborhood is not evidence in a case of legitimacy, but general reputation in the family is evidence: Wright v. Hick, 15 Geo. 160. Neither the fact of living in adultery nor its openness or notoriety, can be proved by the rumor and talk of the neighborhood: Belcher v. State, 8 Humph. 63. Evidence that one charged with larceny was reputed at the time to be a person of property is inadmissible in his defence: Comm. v. Stebbins, 8 Gray 492. The declaration of deceased members of a family may be proved to show the time of the birth of a child, although there may be a family register in existence; for the one kind of evidence is of no higher dignity than the other: Clements v. Hunt, 1 Jones (Law) 400. 1 When the subject matter of a negative averment relates to the defendant personally or lies peculiarly within his knowledge, the averment will be taken as true unless disproved by him: State v. M'Glynn, 34 N. H. 422. The testimony of a witness, having a full oppor tunity of knowing that a person did not strike a blow, is affirmative evidence and.entitled to weight as such: Coughlin v. The People, 18 Ill. 266. See also Delk v. State, 3 Nead 79; State v. Gates, 20 Mo. 400.

deer," it ought to have appeared from the evidence produced on the part of the prosecution that the owner had not given his consent. (ƒ)

But where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favor of innocence is not allowed to operate in the manner just mentioned; but the general rule, as above stated, applies, viz.: that he who asserts the affirmative is to prove it, and not he who avers the negative. Thus upon a conviction under the 5 Ann. c. 14, s. 2, against a carrier for having game in his possession, it was held sufficient that the qualifications mentioned in the 22 & 23 Car. 2, c. 25, were negatived in the information and adjudication, without negativing them in the evidence (g) "The question is," said Lord Ellenborough, in that case, "upon whom the onus probandi lies; whether it lies upon the person who affirms a qualification, to prove the affirmative, or upon the informer who denies any qualification, to prove the negative. There are, I think, about ten different heads of qualification enumerated in the statute, to which the proof may be applied; and according to the argument of to-day, every person who lays an information of this sort is bound to give satisfactory evidence before the magistrates to negative the defendant's qualification upon each of those several heads. The argument really comes to this, that there would be a moral impossibility of ever convicting upon such an information."(h)

In Rex v. Hanson, (i) the rule was again considered and laid down by the Court of King's Bench. In that case there had been a conviction by two justices for selling ale without an excise license. The information negatived the defendant's having a license; but there was no evidence to support this negative averment; the only evidence to support the conviction being that the defendant had in fact sold ale. The question was, whether the informer was bound to give evidence to negative the existence of a license. In support of the conviction it was contended, that such evidence was unnecessary, and that it lay upon the defendant to prove that he had a license; for it is a rule, both of the civil and the common law, that a man is not bound to prove a negative allegation; Rex v. Turner was cited as an express *authority on the point. Abbott, C. J.: "I am of opinion that the conviction is right. It seems to me that this case is not distinguishable from [*278 Rex v. Turner. It is a general rule that the proof of the affirmative lies upon the party who is to sustain it. The prosecutor, in general, is not called upon to prove negatively all that is stated in the information as matter of disqualification. In Rex v. Turner all the learned judges concur in that principle. I concur in all the observations upon which the judgment of the court in that case was founded: and I think every one of them is applicable in principle to this. The general principle, and the justice of the case, is here against the defendant. It is urged, that if we decide against the defendant, we shall open the door to a great deal of inconvenience: that by no means follows; this man might have produced his license without any possible inconvenience, which would at once have relieved him from all liability to penalties. Probably the whole inquiry before the magistrates was as to the fact of selling the ale, and that nothing was said about the license; but, however, I think, by the general rule, the informer was not bound to sustain in evidence the negative averment that the defendant had not a license. I do not mean to say that there may not be cases which may be fit to be considered as exceptions to that

(f) Rex v. Rogers, 2 Campb. 654. See also Rex v. Hazy, 2 C. & P. 458 (12 E. C. L. R.), and Rex v. Argent, R. & M. C. C. R. 154, ante, p. 227; the former of which cases was an indictment for lopping and topping an ash tree without the consent of the owner, and the latter an indictment for taking fish out of a pond without the consent of the owner. According to the report of the case of Rex v. Rogers, Lawrence, J, seems to have thought it necessary to call the owner of the deer for the purpose of disproving his consent, and the owner not being called, the jury were directed to find a verdict of acquittal. But this decision has been overruled; and it is now established that the non-consent may be inferred from the circumstances under which the act was done, or proved by the agents of the owner: ante, p. 226.

(g) Rex v. Turner, 5 M. & S. 206. See also Spieres v. Parker, 1 T. R. 140, and Jelfs v. Ballard, 1 B. & P. 468, by Heath, J. In Rex v. Stone, 1 East 639, the Court of King's Bench were equally divided on the point.