we draw the line? The law has been unsettled on that point till lately. It has now however been settled. Formerly there was no limitation. The reputation of the neighbourhood or of the county was sufficient. Declarations of servants, physicians, intimate friends, have been received; but the general rule was at last laid down that evidence of this description should be confined to relatives or members of the family. The leading case on this subject is Johnson v. Lawson.(e) The author of the statement must be a legitimate member of the family. An illegitimate relation, by Hindu law, would probably be within the rule.

§ 163. But now by Act II of 1855, Sec. XLVII, evidence of persons who though not related by blood or marriage to the family, were intimately acquainted with its members and state, shall be admissible in evidence after the death of the declarant, in the same manner and to the same extent as those of the deceased members of the family, and proof of the means of such acquaintance must of course be given. The intimate knowledge however in this country possessed by a man of his neighbour's affairs, will let in a great body of such evidence.

163a. The first qualification is that the declarant must be proved to be dead. Some proof must be given, although slight evidence will suffice, that the author of the declaration was either by blood or marriage connected de jure with the family of which the pedigree is in question. Where therefore the question at issue was the legitimacy of the defendant, and the evidence showed that there was a marriage. of the father with another woman previously to that with the defendant's mother, the alleged declaration of the father as to the first marriage were rejected, because the evidence not only did not prove, but rather rebutted a legal relationship between the declarant and the person whose legitimacy was in question. Plant. v. Taylor, VI. Huls and Nor. 211.

§ 164. The next qualification is that the declaration must have been made ante litem motam as to which observe what has been said in § 140, 141. The observations of Lord Brougham in Att. Genl. v. Monckton, (f) a pedigree case, should here be studied.

"One restriction, however, clearly must be imposed; the declarations must be ante litem motam. If there be lis mota, or any thing which has precisely the same effect upon a person's mind with litis contestatio, that person's declaration ceases to be admissible in evidence. It is no longer what Lord Eldon calls a natural effusion of the mind. It is subject to a strong suspicion that the party was in the act of making evidence for him

self. If he be in such circumstances, that what he says is said, not because it is true, not because he believes it, but because he feels it to be profitable, or that it may hereafter become evidence for him, or for those in whom he takes an interest after his death, it is excluded, both upon principle and upon the authority of the cases, and among others of Whitelocke v. Baker. There is a still more distinct authority in the Berkely Peerage case, where Mr. Justice Lawrence adopts almost the very language of Lord Eldon in Whitelocke v. Baker, and were, proceedings in equity having been instituted to perpetuate testimony, evidence of declaration was rejected upon the ground of litis contestatio."

To this it may be added that caution is always necessary in receiving hearsay evidence of pedigree. The remarks of Sir J. Romilly, M. R., in the late case of Crouch v. Hooper) are so instructive that they should be studied.

"It is a trite but just remark, that if one link in a pedigree be assumed, any two persons may be proved to be related; and it is the usual observation in these cases, that the difficulty consists in properly weighing and considering the evidence relating to some one link, which connects the line of the claimant with that of the intestate.

"It is a rule of evidence, in pedigree cases, that declarations post litem motam are not receivable in evidence. All this is evidence of declarations made before any question arose as to the succession to this property, but there is no trace that they were remembered or acted upon until after the contest had arisen. And though no complaint can justly be urged against persons for not giving the evidence before the occasion requires it, yet it must always be borne in mind, in judging of evidence of this description, how extremely prone persons are to believe what they wish. And where persons are once persuaded of the truth of such a fact, as that a particular person was the uncle of their father, it is every day's experience, that their imagination is apt to supply the evidence of that which they believe to be true. It is a matter of frequent observation, that persons dwelling for a long time on facts, which they believe must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrence of circumstances which, at first, they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection, and the judging of which and drawing just inferences from which is rendered much more difficult, by the circumstance, that, in many cases, persons do really by attentive and careful recollection, recall the memory of facts which had faded away, and were not, when first questioned, present to the mind of the witness. Thus it is, that a clue given or a note made at the time frequently

(g) 16 Beav. 181.

recalls facts which had passed from the memory of the witness. I look, therefore, with great care and considerable jealousy on the evidence of witnesses of this description, even when I believe them to be sincere, and to be unable to derive any advantage from their testimony. Once impress the witnesses with the belief that Charles Cruch the father of the intestate, was the brother of their grandfather, and the further steps follow rapidly enough. In the course of a few years, by constant talk and discussion of the matter, and by endeavouring to remember past conversations, without imputing anything like wilful and corrupt perjury to witnesses of this description, I believe, that in 1847 they may conscientiously bring themselves to believe, that they remembered conversations and declarations which they had wholly forgotten in 1830, and that they may in truth bona fide believe, that they have heard and remember conversations and observations which in truth never existed, but are the mere offspring of their imagination. It is also always necessary to remember, that in these cases, from the nature of the evidence given, it is not subject to any worldly sanction, it being obviously impossible, that any witness should be convicted of perjury for speaking of what he remembers to have been said in a conversation with a deceased person."

CHAPTER XIII.

IV. DYING DECLARATIONS.

§ 165. Where a man is in extremis: i. e., dying, the awful position in which he is placed is held by the law to be a sufficient guarantee for his veracity; and therefore the tests of a oath and crossexamination are dispensed with under such circumstances. The maxim of the law is nemo moriturus præsumitur mentiri(h): a man will not meet his Maker with a lie in his mouth.

§ 166. The dying declaration is receivable,() even though it was not made in the presence of the accused. Indeed, it must frequently happen that death ensues before any individual is apprehended or even suspected; and the rule is relaxed from the necessity of the case.

It is no objection that it was elicited by leading questions. (R. v. Smith, 1 L. & C. Crown Cases, 607.)

(h) See Howell's St. Trials, p. 18.

Also Morley's Digest, N. S. Tit. Criminal Law.

66

Case 124.--The dying declaration of a person, if duly attested, is admissible as evidence, although not taken in the presence of the prisoner. Case of Mittoo Wulud Bappoo. 13th April 1841, S. F. A. Bep 141.-Morriott, Bell, Giberne, and Greenhill.

"Case 128.-The deposition of a murdered man taken by a competent authority shortly before death, and proved by two or more witnesses, is admissible evidence even if taken in the absence of the accused.” Case of Ambra Bin Kan Matra. 22nd April 1844. S. F. A. Rep. 193.-Bell, Hutt and Brown.

(i) C. O. F. U, 26th Nov. 1832, contains the old law on this subject.

§ 167. Many nice distinctions have become obsolete by the passing of Act II of 1855, Sec. XXIX. Formerly it was necessary that the declarant should have the sense of death immediately impending over him, and that his mind should have excluded all hope or thought of recovery. This led to many decisions which we may pass over in silence for as the law now stands, it is provided that,

Where dying declarations are evidence, they shall be received, if it be proved that the deceased was at the time of making the declaration and then thought himself to be in danger of impending death though he entertained at the time of making it, hope of recovery.”(k)

§ 168. It is absolutely necessary for the protection of society, that dying declarations should be received,() for otherwise a premium would be held out for the commission of crime. It is the nature of crimes of violence that they should be committed with the greatest possible secrecy: and thus it must sometimes occur that the only testimony, often the only direct testimony against an accused, is to be found in the dying declaration of his victim. But at the same time we must receive this evidence with a certain degree of caution. It may be seldom that a dying declaration is made wilfully false, but there are many circumstances in the situation of the wounded man which may introduce elements of fallaciousness into his statement. Thus the effects of the wound itself may dim his memory, or weaken, or confuse his intellectual powers. The very suddenness of the attack may have rendered him mistaken in his identification of his assailant; the darkness, the disguise, may tend to the same result: although where the mental powers are not affected by the wound or its consequences, it may be very true that the circumstances of the attack, however sudden, have made an indelible impression on the sufferer : and a just Providence has perhaps determined that this should be so, as one of the most mysterious instruments for the discovery of crime. Thus in the late shocking case of Marly the ticket-of-leave man, his victim Reddy recognized him the moment he was confronted, and with a shudder exclaimed, "That is the man." The human mind is so constituted as to be inclined to attach a very high degree

(k) Act II of 1855, Sec. XXIX. This conforms to the Law of Scotland.-See Alison's Pr. Cr. L. 510-512, 604-7.

(1) See Best, § 487.

of importance to dying declaration; (m) and it is necessary that the Judge who has to decide, should have present to his mind the arguments against their weight as well as in their favor. (a) The weight to be attached must vary with the circumstances of each particular case.

§ 169. The following remarks are here necessary:

1st. Dying declarations are only receivable in criminal cases.() 2nd. The charge must be one of homicide. The death must be the subject of the charge, and the circumstances of the death the subject of the declaration. R. v. Mead, 2. B. and C., 608. R. v. Hind, 27 L. J. M. C., 147.()

(m) So Shakespeare: Ric. II, Act II, Sc. I.

'Oh, but they say the tongues of dying men

Enforce attention like deep harmony.'

And see King John, Act V, Sc. 4, and also Act V, Sc. 7.

(n) See Roscoe's Criminal Evidence, p. 35, where it is thus laid down:

"With respect to the effect of dying declarations, it is to be observed, that although there may have been an utter abandoment of all hope of recovery, it will often happen that the particulars of the violence, to which the deceased has spoken, were likely to have occurred under circumstances of confusion and surprise calculated to prevent their being accurately observed. The consequences, also, of the violence may occasion an injury to the mind, and an indistinctness of memory as to the particular transaction. The deceased may have stated his inferences from facts, concerning which he may have drawn a wrong conclusion, or he may have omitted important particulars, from not having his attention called to them. Such evidence therefore is liable to be very incomplete. He may naturally, also, be disposed to give a partial account of the occurrence, although possibly not influenced by animosity or ill-will. But it cannot be concealed, animosity »nd resentment are not unlikely to be felt in such a situation. The passion of anger once excited may not have been entirely extinguished, even when all hope of life is lost. See Crocket's case 5 C. & P. 544, ante, p. 32, where the declaration was, That damned man has poisoned me.' Such considerations show the necessity of caution in receiving impressions from accounts given by persons in a dying state; especially when it is considered that they cannot be subjected to the power of cross-examination; a power quite as necessary for securing the truth as the religious obligation of an oath can be. The security also. which Courts of Justice have in ordinary cases, for enforcing truth, by the terror of punishment and the penalties of perjury cannot exist in this case. The remark before made, on verbal statements which have been heard and reported by witnesses, applies equally to dying declarations, namely, that they are liable to be misunderstood and misreported, from inattention, from misunderstanding, or from infirmity of memory. In one of the latest cases upon the subject, this species of proof is spoken of as an anomaly, and contrary to all the general rules of evidence, yet as having, where it is received, the greatest weight with juries. Per Coleridge J. Spilsbury's case, 7 C. & P, 196; 1 Phill. Et. 305, 8th Ed, 293, 9th Ed. 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, but they are, nevertheless, open to observation. For 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. Per Alderson, B., Ashton's case, 2 Lewin, C. C., 147."

(0) In Stobart Dryden 1 Mess. and Wells G15, the dying statement of an attesting witness to an instrument was rejected; and in Rex. v. Mead 2 B. & C. 607, it was held that dying declarations are admissible only when the death is the subject of the charge, and the circumstances of the death the subject of the declarations."

(p) It has since, I understand, (Mayne, Ag. A. G, narrate) that the H. C. of Calcutta has decided that the reason of the rule requires the admission of the dying declaration even where matter other than the death is the subject of the enquiry. There can be no doubt that this is a correct logical deduction from the principle of the rule. The only argument which