What the party has stated in his answer in Chancery is admissible on other grounds; namely, that it is a solemn declaration under oath in a judicial proceeding, and that the legal effect of the instrument is stated under the advice of counsel learned in the law. So, also, where both the existence and the legal effect of one deed are recited in another, the solemnity of the act, and the usual aid of counsel, take the case out of the reason of the general rule, and justify the admission of such recital, as satisfactory evidence of the legal effect of the instrument, as well as conclusive proof of its execution. There are other cases which may seem, at first view, to constitute exceptions to the present rule, but in which the declarations of the party were admissible, either as contemporaneous with the act done, and expounding its character, thus being part of the res gesta; or, as establishing a collateral fact, independent of the written instrument. Of this sort was the declaration of a bankrupt, upon his return to his house, that he had been absent in order to avoid a writ issued against him; the oral acknowledgment of a debt for which an unstamped note had been given; and the oral admission of the party, that he was in fact a member of a society created by deed, and had done certain acts in that capacity.* 1 Ashmore v. Hardy, 7 C. & P. 501; Digby v. Steele, 3 Campb. 115; Burleigh v. Stibbs, 5 T. R. 465; West v. Davis, 7 East, 363; Paul v. Meek, 2 Y. & J. 116; Breton v. Cope, Peake's Cas. 30. [As to answers in Chancery, see infra, § 260, and 3 Greenl. Evid. §§ 280, 290; as to recitals in deeds, see supra, § 23, n.] 2 Newman v. Stretch, 1 M. & M. 338. 3 Singleton v. Barrett, 2 C. & J. 368. 4 Alderson v. Clay, 1 Stark. 405; Harvey v. Kay, 9 B. & C. 356. [Whether the entries in a broker's books, or the bought and sold notes, are the primary evidence of a contract, seems to be a matter of difference of opinion. Sievewright v. Archibald, 17 Q. B. 115, 124, holds the former to be the primary evi dence; while Durell v. Evans, 1 H. & C. 174, s. c. 31 L. J. Ex. 337, holds that the latter are. See also Taylor, Ev. §§ 390393. A duplicate of a notarial instrument made out from the original in the notarial book is equivalent to the original. Geralopulo v. Wieler, 10 C. B. 712. Deeds executed in duplicate by all the parties are all originals. Colling v. Tremeck, 6 B. & C. 398; Brown v. Woodman, 6 C. & P. 206. Where, however, each part is executed by only one of the parties, each is the best evidence against the party executing it, and secondary evidence of the contents of the other part. Roe v. Davis, 7 East, 363; Houghton v. Koenig, 18 C. B. 235; Mann v. Godbold, 3 Bing. 292. See also ante, § 91.] CHAPTER V. OF HEARSAY. § 98. Direct and hearsay evidence. The first degree of mora evidence, and that which is most satisfactory to the mind, is afforded by our own senses; this being direct evidence of the highest nature. Where this cannot be had, as is generally the case in the proof of facts by oral testimony, the law requires the next best evidence; namely, the testimony of those who can speak from their own personal knowledge. It is not requisite that the witness should have personal knowledge of the main fact in controversy; for this may not be provable by direct testimony, but only by inference from other facts shown to exist. But it is requisite, that, whatever facts the witness may speak to, he should be confined to those lying in his own knowledge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be. For it is found indispensable, as a test of truth and to the proper administration of justice, that every living witness should, if possible, be subjected to the ordeal of a cross-examination, that it may appear what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony from the relation of third persons, even where the informant is known, cannot be subjected to this test; nor is it often possible to ascertain through whom, or how many persons, the narrative has been transmitted from the original witness of the fact. It is this which constitutes that sort of second-hand evidence termed "hearsay." § 99. Hearsay. The term hearsay is used with reference to that which is written, as well as to that which is spoken; and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person.1 Hearsay evidence, as thus described, is 11 Phil. Evid. 185 [Sussex Pecrage case, 11 Cl. & Fin. 85, 113; Stapylton v. Clough, 22 Eng. Law & Eq. 276]. uniformly held incompetent to establish any specific fact, which, in its nature, is susceptible of being proved by witnesses who can speak from their own knowledge. That this species of testimony supposes something better, which might be adduced in the particular case, is not the sole ground of its exclusion. Its extrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised under its cover, combine to support the rule that hearsay evidence is totally inadmissible.1 § 100. Original and hearsay evidence distinguished. Before we proceed any farther in the discussion of this branch of evidence, it will be proper to distinguish more clearly between hearsay evidence and that which is deemed original. For it does not follow, because the writing or words in question are those of a third person, not under oath, that therefore they are to be considered as hearsay. On the contrary, it happens, in many cases, that the very fact in controversy is, whether such things were written or spoken, and not whether they were true; and, in other cases, such language or statements, whether written or spoken, may be the natural or inseparable concomitants of the principal fact in controversy.2 In such cases, it is obvious that the writings or words are not within the meaning of hearsay, but are original and independent facts, admissible in proof of the issue. § 101. Reputation, statements as facts. Thus, where the question is, whether the party acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence. This is often illustrated in actions for malicious prosecution; and also in cases of agency and of trusts. So, also, letters and conversation addressed to a person, whose sanity is the fact in question, being connected in evidence with some act done by him, are original evidence to show whether he was insane or not. The replies given 1 Per Marshall, C. J., in Mima Queen v. Hepburn, 7 Cranch, 290, 295, 296; Davis v. Wood, 1 Wheat. 6, 8; Rex v. Eriswell, 3 T. R. 707. [Evidence upon preliminary questions with reference to the admissibility or exclusion of evidence, being addressed to the court, is not governed by the rules applicable to testimony addressed to the jury, and hearsay may be admitted. Briggs v. Hyatt, 2 Abb. Pr. (N. Y.) 449.] 2 Bartlett v. Delprat, 4 Mass. 708; Du Bost v. Beresford, 2 Campb. 511. Under this head, it has been held that where one claimed to have procured a pistol to defend himself against the attack of another, upon the ground of certain information received from others, such information becomes an original fact, proper to be proved or disproved in the case. People v. Shea, 8 Cal. 538. 8 Taylor v. Willans, 2 B. & Ad. 845. So, to reduce the damages, in an action for libel. Colman v. Southwick, 9 Johns. 45. Wheeler v. Alderson, 3 Hagg. Eccl. to inquiries made at the residence of an absent witness, or at the dwelling-house of a bankrupt, denying that he was at home, are also original evidence.1 In these and the like cases, it is not necessary to call the persons to whom the inquiries were addressed, since their testimony could add nothing to the credibility of the fact of the denial, which is the only fact that is material. This doctrine applies to all other communications, wherever the fact that such communication was made, and not its truth or falsity, is the point in controversy.2 Upon the same principle, it is considered that evidence of general reputation, reputed ownership, public rumor, general notoriety, and the like, though composed of the speech of third persons not under oath, is original evidence, and not hearsay; the subject of inquiry being the concurrence of many voices to the same fact.3 574, 608; Wright v. Tatham, 1 Ad. & El. 3, 8; s. c. 7 Ad. & El. 313; s. c. 4 Bing. N. C. 489. Whether letters addressed to the person whose sanity is in issue are admissible evidence to prove how he was treated by those who knew him, without showing any reply on his part, or any other act connected with the letters or their contents, was a question much discussed in Wright v. Tatham. Their admissibility was strongly urged as evidence of the manner in which the person was in fact treated by those who knew him; but it was replied, that the effect of the letters, alone considered, was only to show what were the opinions of the writers; and that mere opinions, upon a distinct fact, were in general inadmissible; but, whenever admissible, they must be proved, like other facts, by the witness himself under oath. The letters in this case were admitted by Gurney, B., who held the assizes; and upon error in the Exchequer Chamber, four of the learned judges deemed them rightly admitted, and three thought other wise; but the point was not decided, a venire de noro being awarded on another ground. See 2 Ad. & El. 3; and 7 Ad. & El. 329. Upon the new trial before the same judge, the letters were again received; and for this cause, on motion, a new trial was granted by Lord Denman, C. J., and Littledale and Coleridge, Judges. The cause was then again tried before Coleridge, J., who rejected the letter; and exceptions being taken, a writ of error was again brought in the Exchequer Chamber; where the six learned judges present, being divided equally upon the question, the judgment of the King's Bench was affirmed (see 7 Ad. & El. 313, 408), and this judgment was afterwards affirmed in the House of Lords (see 4 Bing. N. C. 489); a large majority of the learned judges concurring in opinion, that letters addressed to the party were not admissible in evidence, unless connected, by proof, with some act of his own in regard to the letters themselves, or their contents. 1 Crosby v. Percy, 1 Taunt. 364; Morgan v. Morgan, 9 Bing. 359; Sumner v. Williams, 5 Mass. 444; Pelletreau v. Jackson, 11 Wend. 110, 123, 124; Key v. Shaw, 8 Bing. 320; Phelps v. Foot, 1 Conn. 387. 2 Whitehead v. Scott, 1 M. & Rob. 2; Shott v. Streatfield, Id. 8; 1 Ph. Evid. 188. [A witness may state what was said by a third person for the purpose of identifying a date or occasion. Hill v. North, 34 Vt. 604. Or that the deceased was inquiring for the prisoner, on trial for murder, on the morning of the day of the murder, the object being to prove the fact of the inquiry. Com. v. Alley, Mass. 1873, Pamphlet, p. 38. And see post, § 108.] 8 Foulkes v. Sellway, 3 Esp. 236; Jones v. Perry, 2 Esp. 482; Rex v. Watson, 2 Stark. 116; Bull. N. P. 296, 297. And see Hard v. Brown, 3 Washb. 87. Evidence of reputed ownership is seldom admissible, except in cases of bankruptcy, by virtue of the statute of 21 Jac. 1, c. 19, § 11; Gurr v. Rutton, Holt's N. P. Cas. 327; Oliver v. Bartlett, 1 Brod. & Bing. 269. Upon the question, whether a libellous painting was made to represent a certain individual, Lord Ellenborough permitted the declarations of the spectators, while looking at the picture in the exhi bition-room, to be given in evidence. Du 124 LAW OF EVIDENCE. Wherever the bodily or mental § 102. Expressions of feeling. feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence.1 And whether they were real or feigned is for the jury to determine. Thus, in actions for criminal conversation, it being material to ascertain upon what terms the husband and wife lived together before the seduction, their language and deportment towards each other, their correspondence together, and their conversations and correspondence with third persons, are original evidence.2 But, to guard against the abuse of this rule, it has been held, that, before the letters of the wife can be received, it must be proved that they were written prior to any misconduct on her part, and when there existed no ground for imputing collusion. If written after an attempt of the defendant to accomplish the crime, the letters are inadmissible. Nor are the dates of the wife's letters to the Bost v. Beresford, 2 Campb. 512. [The 1 [Such evidence may be classed as It is not, however, to be extended beyond the necessity on which the rule is founded. Any thing in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations, and expressions or groans, as usually and naturally accompany and furnish evidence of a present existing pain or malady, Bacon v. Charlton, 7 Cush. 581, 586; though the physician may state what the patient said in describing his bodily condition, if said under such circumstances as free it from all suspicion of reference to future litigation, and give it the character of res geste, and it constitute the basis of his opinion of the cause of the malady, not including, however, the specific cause of his injury. Ill. Cen. R. R. Co. v. Sutton, 42 Ill. 438; State v. Davidson, 30 Vt. 377; Burber v. Merriam, 11 Allen (Mass.), 322; Denton v. State, 1 Swan (Tenn.), 297.] 2 Trelawney v. Coleman, 2 Stark. 191; s. c. 1 Barn. & Ald. 90; Willis v. Barnard, 8 Bing. 376; Elsam v. Faucett, 2 Esp. 562; Winter v. Wroot, 1 M. & Rob. 404; Gilchrist v. Bale, 8 Watts, 355; Thompson v. Freeman, Skin. 402. 3 Edwards v. Crock, 4 Esp. 39; Trelawney v. Coleman, 1 Barn. & Ald. 90; 1 Phil. Evid. 190. 4 Wilton v. Webster, 7 Car. & P. 198. |