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cases and those relating to ancient matters; while in others it would shut out evidence either that could not be obtained at all, as in cases where evidence previously given is wanted again and the witness is dead, or that could not be obtained without great inconvenience; and so it comes about that the development of the law of evidence, so far as this general rule is concerned, during the past two centuries, has been in the direction of the establishment of exceptions to it.
Of these exceptions only the more important will be noted. In cases involving questions of pedigree, hearsay evidence is freely received upon such questions. A question of pedigree is one that involves the relationship of one person to another; it is a question of "who is related to whom."
Under this exception to the hearsay rule, as under most of the other exceptions to it, a number of subsidiary rules have come into being that determine the conditions, so to speak, that must exist before the hearsay evidence will be received. Thus a hearsay declaration in a pedigree case, to be admissible, must have been made before the commencement of the controversy, by a person deceased, who was related by blood to the person to whom they relate, or who was the husband or wife of such person. Such a declaration may be specific, or it may be general, embodying mere "family tradition." These subsidiary rules came, most if not all of them, into being from time to time during the nineteenth century. For instance, the rule that the declaration to be admissible must have been made ante litem motam is said to have come into existence since the Berkeley Peerage case in 1811.1
Another well-known exception to the hearsay rule is that relating to the admission of entries made in the regular course of business or duty in the books of third. parties, strangers to the suit in which the entries are offered in evidence. Under this exception a number of subsidiary rules prescribing the conditions of admissibility have sprung up, the more important of which are these:
1 Baron Park in Davies v. Lowndes, 6 Manning & Granger's Reports, 518.
(1) the entry must be one made in the regular course of business or duty; (2) it must have been made substantially at the time the fact recorded took place; (3) the party making the entry must be dead, or insane, or out of the jurisdiction, or in parts unknown.
In England the exception seems to be confined to cases of death; while in some, if not all of the United States, it has been extended to cases where for any good reason the testimony of the party making the entry cannot be had; and the trend of development is in this direction.
This exception grew out of the much older "shop-book rule," and is, with its subsidiary rules, of very modern origin. As we know it to-day it can hardly be said to have existed at all in this country before the third decade of the nineteenth century.1
Another exception to the hearsay rule exists in reference to declarations against interest. The principal subsidiary rules under this exception, prescribing some of the conditions of admissibility, are these: (1) the declaration may be oral or written in form, but it must be against the pecuniary or proprietary interest of the declarant; (2) that the declaration contains self-serving statements also does not make inadmissible the declaration against interest; (3) the declarant as a general rule must be dead; but in many of the States the exception extends to cases where the declarant is unavailable as a witness from other
This exception as to this point may be said to be still in process of development.
The beginnings of this exception may be traced back to the early part of the eighteenth century; 2 but the exception, as we now know it, practically came into existence at or after the decision in Higham v. Ridgway in 1808.3
1 Se cases of Welch v. Barrett, 15 Massachusetts Reports, 380 (1819), and Nicholls v. Webb, 8 Wheaton's Reports, 326 (1823).
2 Searle v. Lord Barrington, 2 Strange's Reports, 826 (1728).
3 10 East, 109.
The admissibility of "Dying declarations" forms forms another exception to the rule excluding hearsay.
A declaration of this kind is one made by a dying person, under a sense of impending death. Prior to the third decade of the nineteenth century this kind of evidence seems to have been admitted in both civil and criminal cases, and without much regard to the subsidiary rules that have since grown up under this exception.1
In The King v. Mead in 1824 2 it was said "that evidence of this description is only admissible where the death of the deceased is the subject of the charge and the circumstances of the death the subject of the dying declaration.'
Since that time the scope of this exception has been limited and clearly defined by certain subsidiary rules the principal of which are the following: (1) the statement must be made in contemplation of immediate death, without hope of recovery; (2) it must relate to the cause or manner of the mortal injury to the declarant; (3) it must be made by one who would be a competent witness if living; (4) the declarant may be impeached and of course corroborated as in the case of other witnesses; (5) the declaration is admissible only in criminal trials for the homicide of the declarant; (6) the declarant must be dead.
In the development of this exception the tendency has been in the direction of limiting and restricting its scope and operation. Of course, if a declaration of this kind forms a part of the res gesta, so called, or is a declaration against interest, it may be admissible on such grounds, though inadmissible as a dying declaration.
It should also be noted, that in a few of the States within recent years this sort of evidence has by statute been made
1 " Dying declarations were stated to be generally admissible in civil cases as well as criminal in the text-books on Evidence in the early part of this century; as McNally (1802), Swift, the first American treatise (1810), and Phillips (1814).” Thayer's Cases on Evidence (2d ed.), p. 360, note by the Editor.
2 2 Barnewall & Cresswell's Reports, 605.
admissible in criminal trials for death caused by attempts to produce a miscarriage or abortion.1
Another exception to the hearsay rule exists in the case of declarations of deceased persons relating to matters of public and general interest, such as the boundaries of Reputation. parishes or towns, or the existence and limits of highways and the like. In such cases statements and declarations of deceased persons as to the "reputation "that is the community opinion on such matters are admissible.
In England this exception has been confined pretty strictly to matters of public and general interest, while in this country it has been extended to cases concerning private boundary lines.
The tendency of the courts to-day is perhaps to restrict rather than to enlarge the scope and operation of this ancient exception to the hearsay rule.
Another exception to the hearsay rule is recognized in the reception of entries made in books and documents of a public nature, in which facts made for public informa- Public tion or reference are recorded; such as records of registers. births, marriages, and deaths, kept under statutory provisions, or by religious bodies according to custom, the records of the weather bureau as to the condition of the weather at a given time, and the like.
This is a somewhat ancient exception, but limited and conditioned as we know it to-day, it is substantially a modern one. To be admissible, such an entry or record must be made by one under a duty to make it; it must be of a fact known to such person or his subordinates; and it must be made in a public book or document; in short, it must be an entry by an official, in the line of his duty, of a fact known to him, in a book open to public inspection.
Another exception to the hearsay rule exists in the case of entries made in the "shop book " of a party to
Shop books. This exception is an ancient one and was well known at the beginning of the eighteenth century.
1 In New York in 1875; in Massachusetts in 1889.
It has a history of its own which it is not necessary to give in detail here.
From an early period entries, in such books, of matters relating to the business or trade of the shop-keeper, have been admitted under divers restrictions.
At a time when parties to a suit could not be witnesses in it, this kind of evidence was of great importance. During the last and the first half of the nineteenth century, the reception of such evidence was hedged about with limitations and restrictions which varied somewhat in each jurisdiction and need not here be noted. This exception to-day prevails nearly everywhere in some form or other, although the necessity out of which it grew the disability of parties to testify in their own behalf — has long since been removed; and most of the limitations that formerly conditioned the reception of such evidence no longer exist. The trend of development in this country as to this exception has been steadily in the direction of its enlargement, so as to embrace books of account kept by any one, and to permit the use of such books in evidence unhampered by technical rules that no longer serve a useful purpose.
It frequently happens that a witness having testified in a cause dies or disappears, or becomes unable to testify, and his testimony is wanted again in that same cause absent or dead. or in a new or subsequent trial of it.
To prevent the loss of such testimony another exception to the hearsay rule, more apparent than real, was made in admitting a report of such testimony to be given as evidence under certain conditions and limitations. This exception with its subsidiary rules, as they exist to-day, is of modern origin. The more important of these subsidiary rules are these:
In civil cases, (1) the cause in which the reported testimony is offered must be between the same parties, and upon the same questions, as that in which the testimony was given; (2) the party against whom the reported testimony is offered must have previously had the right and the opportunity to cross-examine the witness when he gave the reported testi