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The same kind of evidence is admissible in civil cases, as well as in trials for murder (a). Thus, the declaration of a person, who, having set his name as subscribing witness to a bond, in his dying moments begged pardon of Heaven for having been concerned in forging the bond, was admitted to be evidence of the forgery by Mr. Justice Heath (4), on the authority of Wright on the demise of Clymer v. Littler (5), where similar evidence of a dying confession by a subscribing witness to a will had been received by Chief Justice Willes, and afterwards approved by the Court of King's Bench. Lord Mansfield on that occasion said, "The account was a confession of great iniquity, and as the dying person could be under no temptation to say it, but to do justice and ease his conscience, I am of opinion the evidence was proper to be left to the jury."

As the declarations of a dying man are admitted, on a supposition, that in his awful situation on the confines of a future world, he had no motives to misrepresent, but on the contrary the strongest motives to speak without disguise and without malice, it seems to follow, that the party, against whom they are produced in evidence, may enter into the particulars of his behaviour in his last moments, or may be allowed to show that the deceased was not of such a character as was likely to be impressed by a religious sense of his approaching dissolution (b).

gesta.

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Hearsay is often admitted in evidence, as part of the Hearsay res gesta; the meaning of which seems to be, that where part of res it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the person

(4) Cited by Ld. Ellenborough in (5) 3 Burr. 1244. 1255. Aveson v. Lord Kinnaird, 6 East 195.

(a) Vide ante, 181.

(b) Evidence of the declarations of a testator, on his death-bed, that the will had been obtained from him by duress, is inadmissible to defeat the will. Jackson d. Coe & others v. Kniffen, 2 Johns. Rep. 31.

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who did the act, proof of what the person said at the time of doing it is admissible evidence, for the purpose of showing its true character. Thus, for example, in an action by the assigness of a bankrupt, the bankrupt's declarations at the time of his absenting himself from home are properly received in evidence, to show the motive of his absence. In the case of Bateman v. Bailey (1), therefore, where the question was, whether the trader's departure from his dwelling-house amounted to an act of bankruptcy, the Court of King's Bench were of opinion, that the reasons, which he gave for his absence, after his return home, ought to have been admitted in explanation of his own act. The words of the stat. 1 J. 1. c. 15. s. 2. are, that every person using the trade of merchandise, &c., who shall begin to keep his house, or otherwise absent himself, or depart his dwelling-house, to the intent or whereby his creditors shall or may be defeated or delayed for the recovery of their past debts, &c., shall be accounted and adjudged a bankrupt.

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In the case of Thompson and wife against Trevanion (1), which was an action of trespass and assault, Lord C. J. Holt allowed what the wife said, immediately upon the hurt received, and before she had time to devise or contrive any thing for her own advantage, to be given in evidence. So, on an indictment for a rape, what the girl said recently after the fact, (so that it excluded a possibility of practising on her), has been held to be admissible in evidence, as a part of the transaction (2). So, in the case of Aveson v. Lord Kinnaird (3), where, (in order to ascertain whether the deceased was in a good state of health on the day of the insurance, it became material to consider what the state of health was both before and after that day), the account, which the deceased gave some

(1) 5 T. R. 512. And see Maylin v. Eyloe, 2 Str. 809. Ewens v. Gold, Bull. N. P. 40.

(1) Skin. 402., cited by the court, 6 East 193.

(2) Brazier's case, 1 East Pl. Cr. 444.

(3) 6 East 188. 198; ante, p. 181.

days after obtaining the certificate of good health, respecting her state on the former day, was admitted at the trial, and the Court of King's Bench were of opinion, that it had been properly admitted. And it is in every day's experience, said Mr. Justice Lawrence, in this case, that what a man has said of himself to his surgeon is evidence, in an action of assault, to show what he has suffered by reason of the assault. So, it should seem, in an action for criminal conversation, the declarations of a wife at the time of her elopement, stating the reason of her eloping, (as, that she fled from an immediate fear of personal violence), would be evidence against the husband (4); but a collateral declaration, respecting a matter which happened at another time, would not be admissible. And where, in an action for criminal conversation, the defence was, that the plaintiff had connived at his wife's elopement, evidence was received, on the part of the *plaintiff, of the wife's declarations as to her intention and purpose in going (1); for the question, in effect, was, whether the husband knew that she was about to elope, or whether he believed that her intention was as she represented.

(4) 6 East 193.

(1) Hoare v. Allen, 3 Esp. N. P. C. 276., before Lord Kenyon, on 2d trial, who said, that some of the Judg

es, on the motion for a new trial,
were of opinion, that this evidence
ought to be admitted.

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CHAP. VIII.

On the Examination of Witnesses.

AFTER Considering, in the last chapter, what kind of evidence ought to be produced for ascertaining the points in issue, the next subject of inquiry relates to the manner in which witnesses are to be examined.

The ordinary mode of proceeding in the courts of common law. preparatory to the examination of a witness, is

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to swear him in chief, unless an objection should be made to his competency; in which case, the practice formerly was to examine him on the voire dire, and this was so strictly observed, that if a witness were once examined in chief, he could not afterwards be objected to on the ground of interest. But, in later times, the rule has been to a certain extent relaxed, and now, if it should be discovered in any stage of the trial, that a witness is interested, his evidence will be rejected (a). This is as well for the convenience of the court, as for the purposes of justice. The examination of a witness, to discover whether he has any interest in the cause, is frequently to the same effect as his examination in chief; it therefore saves time and is more convenient, that the witness should be sworn in chief in the first instance; and if it should afterwards appear that he is interested, it will then be time to take the objection (1). This relaxation, however, of the ancient rule, does not extend so far as to allow the counsel on the cross-examination to ask the witness every sort of question, which might be proper on the voire dire. For example, after an examination in chief, a witness is not to be cross-examined as to the contents of a will not produced in court, under which it is suggested that he takes some interest, although such questions might be properly asked in an examination on the voire dire (2).

When the witness has been regularly sworn, he is first. examined by the party which produces him; after which the other party is at liberty to cross-examine. The examination is in open court, in the presence of the parties, their attorneys and counsel, and before the judge and jury, who have thus an opportunity of observing the understanding, demeanour, and inclination of the witnesses (b).

(1) Turner v. Pearte, 1 T. R. 717. Perigal v. Nicholson, 1 Wightw. 64.

(a) Vide ante, 96. n. (c).

(2) Howell v. Lock, 2 Campb. 14.

(b) Where the testimony of a Swede, wholly ignorant of the English language, to the grand jury was needed, the Court ordered

Leading questions, that is, such as instruct a witness. how to answer on material points, are not allowed on the examination in chief; for, to direct witnesses in their evidence would only serve to strengthen that bias, which they are generally too much disposed to feel, in favour of the party that calls them (c). But, if a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the court will in its discretion allow the examination in chief to assume the form of a cross-examination. And, in examining a witness for the purpose of directly contradicting another witness, on the opposite side, as to some particular parts of his evidence, which no general examination in chief would be able to touch, lead'ing questions may be properly asked. Thus, for example, after exhausting the witness's memory as to the contents of a written instrument, he may be asked whether it contained a particular *passage, which has been sworn to on the other side; otherwise it would be scarcely possible ever to come to a direct contradiction (1).

A witness cannot be compelled to answer any question which has a tendency to expose him to penalties, or to a criminal charge (2) (a). Thus, on an indictment for a

43.

(1) Courteen v. Touse, 1 Campb.

(2) R. v. Ld. G. Gordon, 2 Doug.

593. Title v. Grevet, 2 Ld. Raym.
1088. 16 Ves. jun. 242. Preamb.
St. 46 G. 3. c. 37.

an interpreter to be first sworn, truly to interpret between the court and jury and the witness. The oath was then administered to the witness in English, and interpreted to him by the sworn interpreter, as it was pronounced by the clerk. Norberg's case, 4 Mass. Rep.

81.

(c) Vide Snyder's Lessee v. Snyder, 6 Binney 483. But the question must be objected to at the time; therefore, if in taking the deposition of a witness a leading question be put and answered, it cannot afterwards be excepted to at the trial. Sheeler v. Speer, 3 Binney 130.

(a) A witness may object to answer a question which he thinks will tend to his crimination, though the answer would not lead to an immediate conclusion of guilt. Cates v. Hardacre, 3 Taunt. 424.

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