the agent or incumbent.1 Where the entry, by an agent, charges himself in the first instance, that fact has been deemed sufficient proof of his agency; 2 but where it was made by one styling himself clerk to a steward, that alone was considered not sufficient to prove the receipt, by either of them, of the money therein mentioned. Yet, where ancient books contain strong internal evidence of their actually being receivers' or agents' books, they may, on that ground alone, be submitted to the jury. Upon the general question, how far mere antiquity in the entry will avail as preliminary proof of the character of the declarant or party making the entry, and how far the circumstances which are necessary to make a document evidence must be proved aliunde, and cannot be gathered from the document itself, the law does not seem perfectly settled. But where the transaction is ancient, and the document charging the party with the receipt of money is apparently genuine and fair, and comes from the proper repository, it seems admissible, upon the general principles already discussed in treating of this exception.

§ 155. Books of deceased rector. There is another class of entries admissible in evidence which sometimes has been regarded as anomalous, and at others has been deemed to fall within the principle of the present exception to the general rule; namely, the private books of a deceased rector or vicar, or of an ecclesiastical corporation aggregate, containing entries of the receipt of ecclesiastical dues, when admitted in favor of their successors, or

1 Short v. Lee, 2 Jac. & W. 464, 468. 2 Doe v. Stacy, 6 Car. & P. 139. 3 De Rutzen v. Farr, 4 Ad. & El. 53. And see Doe v. Wittcomb, 15 Jur. 778. Doe v. Lord Geo. Thynne, 10 East, 206, 210.

5 In one case, where the point in issue was the existence of a custom for the exclusion of foreign cordwainers from a certain town, an entry in the corporation books, signed by one acknowledging himself not a freeman, or free of the corporation, and promising to pay a fine assessed on him for breach of the custom; and another entry, signed by two others, stating that they had distrained and appraised nine pairs of shoes from another person, for a similar offence, were severally held inadmissible, without previously offering some evidence to show by whom the entries were subscribed, and in what situation the several parties actually stood; although the latest of

the entries was more than a hundred years old. Davies v. Morgan, 1 Cr. & Jer. 587, 590, 593, per Ld. Lyndhurst, C. B. In another case, which was a bill for tithes, against which a modus was alleged in defence, a receipt of more than fifty years old was offered, to prove a money payment therein mentioned to have been received for a prescription rent in lieu of tithes; but it was held inadmissible, without also showing who the parties were, and in what character they stood. Manby v. Curtis, 1 Price, 225, per Thompson, C. B., Graham, B., and Richards, B.; Wood, B., dissentiente.

6 See Phil. & Am. on Evid. 331, n. (2); 1 Phil. Evid. 316, n. (6), and cases there cited; Fenwick v. Read, 6 Madd. 8, per Sir J. Leach, Vice-Ch.; Bertie v. Beaumont, 2 Price, 307; Bishop of Meath v. Marquis of Winchester, 8 Bing. N. C. 183, 203 [Doe v. Michael, 24 Eng. Law & Eq. 180].

of parties claiming the same interest as the maker of the entries. Sir Thomas Plumer, in a case before him,1 said: "It is admitted, that the entries of a rector or vicar are evidence for or against • his successors. It is too late to argue upon that rule, or upon what gave rise to it; whether it was the cursus Scaccarii, the protection of the clergy, or the peculiar nature of property in tithes. It is now the settled law of the land. It is not to be presumed that a person, having a temporary interest only, will insert a falsehood in his book from which he can derive no advantage. Lord Kenyon has said, that the rule is an exception; and it is so: for no other proprietor can make evidence for those who claim under him, or for those who claim in the same right and stand in the same predicament. But it has been the settled law, as to tithes, as far back as our research can reach. We must, therefore, set out from this as a datum; and we must not make comparisons between this and other corporations. No corporation sole, except a rector or vicar, can make evidence for his successor." But the strong presumption that a person, having a temporary interest only, will not insert in his books a falsehood, from which he can derive no advantage, which evidently and justly had so much weight in the mind of that learned judge, would seem to bring these books within the principle on which entries, made either in the course of duty or against interest, are admitted. And it has been accordingly remarked, by a writer of the first authority in this branch of the law, that after it has been determined that evidence may be admitted of receipts of payment, entered in private books by persons who are neither obliged to keep such books nor to account to others for the money received, it does not seem any infringement of principle to admit these books of rectors and vicars. For the entries cannot be used by those who made them; and there is no legal privity between them and their successors. The strong leaning, on their part, in favor of the church, is nothing more, in legal consideration, than the leaning of every declarant in favor of his own interest, affecting the weight of the evidence, but not its admissibility. General observations have occasionally been made respecting these books, which may seem to authorize the admission of any kind of statement contained in them. But such books are not admissible, except where the entries contain receipts of money or ecclesias

1 Short v. Lee, 2 Jac. & W. 177, 178.

tical dues, or are otherwise apparently prejudicial to the interests of the makers, in the manner in which entries are so considered in analogous cases. And proof will be required, as in other cases, that the writer had authority to receive the money stated, and is actually dead; and that the document came out of the proper custody.2

1 Phil. & Am. on Evid. 322, 323, and cases in n. (2) and (3); 1 Phil. Evid. 308, n. (1), (2); Ward v. Pomfret, 5 Sim. 475.

2 Gresley on Evid. 223, 224; Carrington v. Jones, 2 Sim. & Stu. 135, 140; Perigal v. Nicholson, 1 Wightw. 63.

CHAPTER IX.

OF DYING DECLARATIONS.

§ 156. Dying declarations. A fourth exception to the rule, rejecting hearsay evidence, is allowed in the case of dying declarations. The general principle on which this species of evidence is admitted, was stated by Lord Chief Baron Eyre to be this, that they are 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 a positive oath in a court of justice.1 It was at one time held, by respectable authorities, that this general principle warranted the admission of dying declarations in all cases, civil and criminal; but it is now well settled that they are admissible, as such, only in cases of homicide, "where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations."2 The reasons for thus restricting it may

1 Rex v. Woodcock, 2 Leach's Cr. Cas. 256, 567; Drummond's case, 1 Leach's Cr. Cas. 378. The rule of the Roman civil law was the same. "Morti proximum, sive moribundum, non præsumendum est mentiri, nec esse immemorem salutis æternæ ; licet non præsumatur semper dicere verum. Mascard. De Probat. Concl. 1080. In the earliest reported case on this subject, the evidence was admitted without objection, and apparently on this general ground. Rex v. Reason et al., 6 State Tr. 195, 201. The rule of the common law, under which this evidence is admitted, is held not to be repealed by, nor inconsistent with, those express provisions of constitutional law, which secure to the person accused of a crime the right to be confronted with the witnesses against him. Anthony v. The State, 1 Meigs, 265; Woodsides v. The State, 2 How. (Miss.) 655 [Campbell v. State, 11 Geo. 353; Brown v. Com., 73 Pa. St. 321; Com. v. Carey, 12 Cush. (Mass.) 246; Robbins v. State, 8 Ohio St. N. s. 131].

2 Rex v. Mead, 2 B. & C. 605. In this case the prisoner had been convicted of perjury, and moved for a new trial, because convicted against the weight of evidence; after which he shot the prosecutor. Upon showing cause against the rule, the counsel for the prosecution offered the dying declarations of the prosecutor relative to the fact of perjury; but the evi dence was adjudged inadmissible. The same point was ruled by Bayley, J., in Rex v. Hutchinson, who was indicted for administering poison to a woman pregnant, but not quick with child, in order to procure abortion. 2 B. & C. 608, n. This doctrine was well considered and approved in Wilson v. Boerem, 15 Johns. 286. In Rex v. Lloyd et al., 4 C. & P. 233, such declarations were rejected on a trial for robbery. Upon an indictment for the murder of A, by poison, which was also taken by B, who died in consequence, it was held that the dying declarations of B were admissible, though the prisoner was not indicted for murdering

be, that the credit is not in all cases due to the declarations of a dying person for his body may have survived the powers of his mind; or his recollection, if his senses are not impaired, may not be perfect; or, for the sake of ease, and to be rid of the importunity and annoyance of those around him, he may say, or seem to say, whatever they may choose to suggest.1 These, or the like considerations, have been regarded as counterbalancing the force of the general principle above stated; leaving this exception to stand only upon the ground of the public necessity of preserving the lives of the community by bringing manslayers to justice. For it often happens, that there is no third person present to be an eye-witness to the fact; and the usual witness in other cases of felony, namely, the party injured, is himself destroyed.2 But, in thus restricting the evidence of dying declarations to cases of trial for homicide of the declarant, it should be observed that this applies only to declarations offered on the sole ground that they were made in extremis; for where they constitute part of the res gestæ, or come within the exception of declarations against interest, or the like, they are admissible as in other cases, irrespective of the fact that the declarant was under apprehension of death.8

her, Rex v. Baker, 2 M. & Rob. 53 [State v. Cameron, 2 Chand. 172; State v. Tirrell, 12 Rich. (S. C.) 321; nor will such declarations be admitted in civil cases, Daily v. N. Y. & N. H. R. R. Co., 32 Conn. 356; though it has been allowed in one or two instances, Malaun v. Ammon, 1 Grant's (Pa.) Cas. 123; McFarland v. Shaw, 2 Law Repos. (N. C.); but it was from a misapprehension, says Judge Redfield, "of the true grounds upon which the declarations are receivable as testimony. It is not received upon any other ground than that of necessity, in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he being virtually under the most solemn sanction to speak the truth, is far from presenting the true ground of the admission; for, if that were all that is requisite to render the declarations evidence, the apprehension of death should have the same effect, since it would place the declarant under the same restraint as if the apprehension were founded in fact. But both must concur, both the fact and the apprehension of being in extremis. And, although it is not indispensable that there should be no other evidence of the same facts, the rule is no doubt based

upon the presumption that in the majority of cases there will be no other equally satisfactory proof of the same facts. This presumption, and the consequent probability of the crime going unpunished, is unquestionably the chief ground of this exception in the law of evidence. And the great reason why it could not be received generally, as evidence in all cases where the facts involved should thereafter come in question, seems to be that it wants one of the most important and indispensable elements of testimony, that of an opportunity for cross-examination by the party against whom it is offered." But great latitude of rebuttal of such evidence will be allowed the prisoner, because of its anomalous character. Com. v. Cooper, 5 Allen (Mass.), 495; Ashton's case, 2 Lewin, C. C. 147. Exclamations by one who is put in mortal terror by an assault are equally reliable with declarations made in the dread of impending death. Wagner's case, 61 Maine, 178].

1 Jackson v. Kniffen, 2 Johns. 31, 35, per Livingston, J.

2 1 East, P. C. 353.

3 Supra, §§ 102, 108, 109, 110, 147, 148, 149. To some of these classes may be referred the cases of Wright v. Littler, 3