same ground as their acts. Aldis, J., in State deceased and the defendant had lived together. v. Thibeau, 30 Vt. 105. Held to be hearsay, and not admissible. Stevens v. Joyal, 48 Vt. 291

163.

154. Where evidence is given showing collusion, combination and co-operation between to identify an occasion. It is parties for the accomplishment of an unlawful admissible to prove what a party, or a third purpose, it is competent to give evidence of person, said in connection with a current transwhat either party says in connection with acts action, for the purpose of identifying the parin furtherance of that common purpose, and it ticular occasion, or date. Hill v. North, 34 Vt. will operate against either of the colluding 604. See Ross v. Bank of Burlington, 1 Aik. parties. Barrett, J., in Jenne v. Joslyn, 41 43. Vt. 484.

156. The statements of third persons out of in regard to such boundaries and the surveys court, who are still living, although made thereof, had peculiar means of knowledge, so against their interest, are not, except in special that it may be fairly inferred that they had cases, admissible in evidence,- much less their actual knowledge of the same, made at a time opinions. Davis v. Fuller, 12 Vt. 178. when they had no interest to misrepresent,

157. It is no reason for admitting in evi- although not wholly disinterested in the subject, dence the declarations of a third person, that and made when upon or in the immediate such person has become, or is, incapacitated as vicinity of the boundary, and pointing it out, a witness. Churchill v. Smith, 16 Vt. 560.

158. What a witness, who is not a party, states out of court, is not evidence of the fact stated. Law v. Fairfield, 46 Vt. 425.

159. In an action to recover for the support of a pauper, the declaration of the husband of the pauper as to his pecuniary ability is not admissible as evidence of the fact. St. Johnsbury v. Waterford, 15 Vt. 692.

may be received as to the location of such boundary, when, from lapse of time, there is no reasonable probability that evidence can be obtained from those who had actual knowledge on the subject. Wood v. Willard, 37 Vt. 377. Child v. Kingsbury, 46 Vt. 47.

166. Such declarations are admissible, though not made upon the land, nor in its immediate vicinity, nor in connection with showing or pointing out the boundary. Powers v. Silsby, 41 Vt. 288.

160. The question being whether a purchase on execution sale was collusive and fraudulent as between the purchaser, who was the execu- 167. One of the conditions upon which the tion creditor, and the debtor;-Held, that a declarations of deceased persons as to boundary declaration of the sheriff, who had taken and lines and monuments are admissible in evidence advertised the property, to his deputy who was about to sell it, that no one would be present at the sale but the execution creditor, was not admissible in evidence against the purchaser. Maxham v. Place, 46 Vt. 434.

161. A witness testifying that he told another a certain thing is not stating that the fact was so, and that he personally knew the fact. Danville v. Wheelock, 47 Vt. 57.

is, that it shall be shown that they had know]edge of the line, marks, &c., relied on, at the time of the saying to be proved. But such knowledge is not to be proved by what was said, but is to be proved by other means. Ib. Hadley v. Howe, 46 Vt. 142. Miller v. Wood, 44 Vt. 378.

168. Business entries, &c. On a trial in 1867, the issue was as to whether one Thomas, 162. The question was whether the defend- now deceased, resided in Troy in the year 1829. ant was the lawful widow of J, it being As tending to prove this, among other evidence, claimed that E, to whom she had been mar- an account book of one Hovey, who resided in ried, was living when she married J. To sup-Troy at that date, now deceased, was introport this claim, evidence was offered of the duced without objection, on which was an declarations of the deceased, made after such account with said Thomas, debt and credit, second marriage, that E was alive and he had running through the year 1829, and no question met him; also certain declarations of the was made but that the accounts were true and parents of the deceased as to what time the genuine, representing actual transactions, and

Oatman v. Andrew, 43 Vt.

4. Reputation.

made at the time of the transactions and dates. not shown to have deceased, though the deed The accounts were of such character as to indi- was 42 years old. cate, if true, that Thomas then resided in the 466. near vicinity of Hovey. The court refused the request to charge that the book had no tendency to prove the issue, and was not proper to be considered for that purpose; but charged, that 174. As to solvency. One's general repthe jury were at liberty to consider this with utation as to solvency or insolvency is admissithe other evidence, as bearing on the place of ble as evidence of the fact. Bank of Middlebury Thomas's residence in 1829. Held correct. v. Rutland, 33 Vt. 414. Hard v. Brown, 18 Cavendish v. Troy, 41 Vt. 99; and see Derby v. Vt. 87. 28 Vt. 762. Salem, 30 Vt. 722.

175. Marriage. In all civil actions, except 169. For the purpose of proving the resi- for crim con., a marriage may be proved by dence of a person now deceased, writs brought reputation and cohabitation. Northfield v. in his name and judgments thereon, in which Vershire, 33 Vt. 110. writs he was set up as of a particular town and 176. Pedigree. Held, that pedigree may be the suits were made returnable there and the proved by near relatives from reputation in the defendants therein were set up as of a different family-e. g., who was the witness's father and town, were held admissible in evidence. Car- grandfather, and the fact and date of the death endish v. Troy.

of the grandfather, as having occurred sixty-six years ago, and before the birth of the witness. Webb v. Richardson, 42 Vt. 465.

170. On a trial for murder, for the purpose of identifying a watch found with the prisoner as the watch of the murdered person, the entries 177. Death. A witness testified that her made on his book in regular course of business, husband died two years ago; that she was not by a jeweller, since deceased, with whom the with him when he died, nor was present at the watch had been on two occasions left by the funeral, and had no personal knowledge of his murdered person for repairs, giving a descrip-death; that she only knew this from his folks tion of the watch by its number, name of telling her and writing her. Held competent maker and name of owner, &c., were held evidence to prove such death. Mason v. Fuller, admissible in evidence. State v. Phair, 48 Vt. 45 Vt. 29. 366.

3. Recital in deed.

178. State of market. The knowledge of a party of the general course of business in a particular trade, which he derives from being engaged in that trade, although partly derived

171. Recent deed. Where a deed of from information from others in the course of recent date described the grantors as heirs of a certain person;-Held, that the fact of heirship was not proved by such recital; that this amounted at most to a mere claim of heirship. Potter v. Washburn, 13 Vt. 558.

such business, is of that general character that renders it competent evidence-as, of the state of the market. King v. Woodbridge, 34 Vt. 565. Laurent v. Vaughn, 30 Vt. 90;-the loss on sales, derived from statements of account of the commission merchant. Draper v. Austin, 46 Vt. 215.

VI. DYING DECLARATIONS.

172. Ancient deed. The plaintiff in trespass made title through one Smith, deceased, under an ancient deed of several lots of land from persons who described themselves therein as the widow and heirs of said Smith. The grantee in that deed had conveyed different lots 179. Dying declarations, to be admissible in of the same lands to different persons, who had evidence as such, must have been made under continued for thirty or forty years in quiet the full and firm belief of near and approaching possession. Held, that the recital in the ancient death. State v. Center, 35 Vt. 378. deed, in connection with the conveyances and 180. Whether dying declarations are made possessions under it, was evidence to prove that under such full and firm belief of near and the grantors in that deed were in truth the approaching death as to be admissible in eviwidow and heirs of Smith. Bell v. Barron, dence, is a question for the court to decide. It 14 Vt. 307. is not enough that the evidence tends that way,

173. Deed of third party. In trespass, and so admit them and leave it to the jury to say involving a question of boundary, the plaintiff whether they will, or will not, regard them; claimed the premises as part of "the Pierce but the court is to be satisfied in the first farm." Held, that a deed between other parties instance that they were so made as to be admisof adjoining lands, in which they were de-sible. Ib. State v. Howard, 32 Vt. 380. scribed as bounded "North on the Pierce 181. The court below having decided that farm," was not evidence; that such description the declarations were not so made as to be was but a declaration of the grantor, who was admissible as evidence, that decision is con

clusive. Redfield, C. J., in State v. Howard, 32|382. Downer v. Rowell, 24 Vt. 346. Whitcher Vt. 404. v. Morey, 39 Vt. 459. Earl v. Tupper, 45 Vt.

182. At the time of making declarations, 275. claimed to be dying declarations, the declarant 190. A witness was allowed to testify to the said "she knew she should die," but said testimony given on a former trial by a witness further that "if she lived to get well she would since deceased, although he could not recollect never go to C's again." At that time neither the testimony given on cross-examination, but her physician, nor others, thought her danger-added, that if the testimony on cross-examinaously sick. Held, that the declarations were tion had altered that in chief, he thought he not admissible. State v. Center, 35 Vt. 378. should recollect it. Held correct. Williams v. Willard, 23 Vt. 369.

183. All vague and indefinite expressions, all language that does not distinctly point to the 191. The testimony given by a witness on a cause of death, and its attending circumstances, former trial may be proved from the judge's but requires to be aided by inference or suppo- notes, or from notes taken by any other person sition in order to establish facts tending to who will swear to their accuracy, or may be criminate the respondent, should be held inad-proved by any person who will swear from his missible as dying declarations. Ib.

184. The interval of six days between the making of the declaration, and the death, is not a conclusive objection to their admission as dying declarations. Ib.

memory to its having been given. Glass v. Beach, 5 Vt. 172. Johnson v. Powers, 40 Vt. 611. Marsh v. Jones, 21 Vt. 383 Earl v. Tupper, 45 Vt. 275.

192. The testimony given by a witness on a 185. In order to make dying declarations former trial may be proved by reading the admissible, it is not necessary that the declarant minutes taken of such testimony, which are should state everything which constituted the proved to be "full, and taken with substantial res gesta of the subject of his statement, but it accuracy." Whitcher v. Morey, 39 Vt. 459-or is necessary that his statement of any given from a copy of the same, the original being fact should be a full expression of all he in- lost. Ib.

tended to say, as conveying his meaning as to such fact. State v. Patterson, 45 Vt. 308.

VII. TESTIMONY OF FORMER WITNESS.

186. Evidence of what a deceased witness testified to on a former trial of the same cause is admissible, although he was not sworn, where the party now objecting consented to his testifying without being sworn. Wheeler v. Walker, 12 Vt. 427.

193. In such case, the consideration that the witness cannot swear from memory, is not, at present, regarded as important. All that is required is, that the witness shall be able to state, that the memorandum is correct. He may then read it, as well as repeat it. The old rule that the witness must be able to swear from memory, is now pretty much exploded. Downer v. Rowell, 24 Vt. 343. 39 Vt. 472. Johnson v. Powers, 40 Vt. 611.

194. If a witness at one trial give testimony 187. The testimony given by a witness which includes irrelevant and incompetent matbefore the committing magistrate may be given ter, though no objection be then taken thereto, in evidence on the trial of an indictment in the it is error, on a subsequent trial and after the same case, when such witness has deceased. [death of such witness, to read the entire minState v. Hooker, 17 Vt. 658.

utes, including such irrelevant and incompetent matter, if the admission of such part be objected Willard v. Goodenough, 30 Vt. 393.

VIII. RES GESTE.

195. Where declarations are sought to be admitted as part of the res gesta, the res gesta cannot be proved by declarations. Barnum v.

188. The defendant suffered judgment by default, without appearance, after legal notice to. of the suit, and the clerk, under the rules, assessed the damages without other notice to the defendant, and in his absence. At a subsequent term the default was stricken off, and the case brought forward for trial. Held, that on trial of the merits, the plaintiff could reproduce the testimony given before the clerk on such Hackett, 35 Vt. 77. assessment, by a witness who had since 196. Declarations concurrent with the then deceased. Deming v. Chase, 48 Vt. 382. act. The declarations of the owner of a pack189. Whenever it becomes necessary to age of bank bills, which was taken by him to prove the testimony of a witness given on a be delivered and was delivered by him on board former trial, it is not necessary that the witness a steamer on Lake Champlain for transmission, called should be able to give the precise and which, with the boat, was destroyed by language of the former witness's testimony, but fire, which declarations accompanied and exit is sufficient if he is able to relate, and does plained his actions, were held admissible in his relate, the substance of that testimony. State favor as part of the res gesta, to prove the v. Hooker, 17 Vt. 658. Marsh v. Jones, 21 Vt. character of such bills and the amount,--as

34 Vt. 616.

66

that the package contained "$800 Burlington of the owner of the pasture. W had testified Bank bills." Ross v. Bank of Burlington, 1 that they were so marked to identify them Aik. 43. as belonging to that pasture, in case they should 197. Declarations of the owner of a farm stray. Held, that the declaration of W to P made in the presence of the occupant, and while and others, on the occasion of the marking, at work for the occupant in carrying it on, that these cattle were his and the others were and assented to by the occupant at the time, the plaintiff's, was admissible as characterizing and made in connection with some act of the the act done, and tending to rebut the inference owner in carrying on the farm," stating that to be drawn in favor of the plaintiff from the the occupant was carrying on the farm upon acts proved; as also to strengthen the testimony shares, or at the halves, were held admissible of W as to the purpose of the marking. Eddy for the occupant to prove that fact, in his action v. Davis, 34 Vt. 209. against an officer for attaching and selling the 203. The complainant in a bastardy prosefarm products as wholly the property of the cution admitted, on cross-examination, that owner; that they were admissible, either as since the birth of her child and the swearing to showing a mutual recognition by the owner her complaint, she had admitted that the child and occupant of the terms of the occupancy, or was not begotten by the defendant, but by one as declarations of the owner constituting part W, and that she made an affidavit to that effect. of the res gesta. White v. Morton, 22 Vt. 15. On re examination, she testified that she was

198. The declarations of a party paying induced so to do by certain solicitations of the money, made at the time of payment, showing defendant, which she detailed with the circumthe character and object of the payment, its stances. Held, that as part of the res gestæ, it application or appropriation, are part of the res was competent for her to state what she said gesta and admissible evidence for the party. when so first solicited-as that she then refused Bank of Woodstock v. Clark, 25 Vt. 308. to swear the child on W, and stated that the 199. A transaction cannot be considered as child was not his, but was the child of the ended, so long as, before the parties to it have defendant. Nash v. Doyle, 40 Vt. 96. separated, anything, according to the usual 204. In trover for a yoke of oxen, the plaincourse of business, remains to be done in regard to it-as, in this case, the giving of a receipt on the payment of money; and, until thus ended, the declarations of the parties are evidence, as being of the res gestæ. Fifield v. Richardson, 34 Vt. 410.

200. Where a party's purpose in doing a certain act is material and the act is equivocal, but is relied upon as evidence against him, he may show his own declarations, made while setting about to do the act, and as part of his conduct at the time of entering upon it, which give character to it as indicating his purpose, though made in the absence of the other party. Danforth v. Streeter, 28 Vt. 490.

tiff claimed title, as a conditional vendor to H. The defendant claimed them by purchase from H, and that the plaintiff's sale to H was absolute. The defendant introduced a composition deed, which was signed by the plaintiff and other creditors of H, and was made after his sale of the oxen to the defendant, but which never became operative, and claimed that this tended to show that the plaintiff had no lien on the oxen, otherwise he would not have signed the deed. Held, that to rebut such inference, the plaintiff might show that at the time of signing he said he had a claim on the oxen for the price he sold them at, and that he looked to the defendant for the oxen; and that the deed did not include this claim, but referred to another claim against H. Pollard v. Bates, 45 Vt. 506.

201. The declarations of a deceased person stating the purpose for which she left home and went to the respondent's [as, to have an abortion effected upon her], and made at the time of her so starting from home, are part of the res gesta and admissible in evidence. State only admitted when concurrent with an act or v. Howard, 32 Vt. 380.

205. Declarations after the act. The declarations of a party in his own favor are

transaction of his, and as a part of the act or 202. The plaintiff and respondent each transaction itself, and to characterize the act or claimed to be the owner of certain cattle ;-the transaction, which, alone and unexplained, plaintiff claiming that W bought them for him, might be equivocal in its character. If the act as his agent, and with his money;-the defend- and the declaration are not concurrent, and the ant claiming that W bought the cattle for him- act is finished and past before the declaration self, with his own money, and sold them to the is made, then it becomes a mere narrative of a defendant. The plaintiff gave evidence that past transaction, and is inadmissible, and the W and P, an agent of the plaintiff, had by length of time that intervenes is not important. plaintiff's direction driven these with other Poland, C. J., in Worden v. Powers, 37 Vt. cattle admitted to be the plaintiff's, to a pasture 619.

hired by the plaintiff and W, and had by his 206. As, where the defendant, "soon after" direction branded all the cattle with the mark parting with the plaintiff, told a witness that

he had met the plaintiff and what had trans-ions of witnesses, not having some peculiar pired between them ;-Held inadmissible. Ib. skill or professional knowledge, are not admis207. The declarations of a party injured sible as evidence, although derived from the when no one was present, are not evidence to witness's personal observation, and sought to show the manner in which the injury occurred, be given in evidence in connection with the however nearly contemporaneous with the facts upon which they are founded and as occurrence. Such declarations do not tend to derived from them. There are some exceptions characterize the transaction, and are, by consequence, no part of it, and cannot be admitted as such. State v. Davidson, 30 Vt. 377.

as questions of sanity, value, height, distance, size and appearance of objects, &c. Crane v. Northfield, 33 Vt. 124. Oakes v. Weston, 45 Vt. 430.

208. Mother and son were riding together upon a highway, the son driving, when an acci214. The general rule is, that a witness dent happened by which the mother was thrown must state facts, and not opinion; but this is to the ground and injured. Immediately, as not a universal rule, nor are the exceptions to soon as witnesses could go about six rods, and the rule confined to experts in matters of while the mother yet lay upon the ground and science, art or skill. Where the witness has the son stood holding the horse right near her, had the means of personal observation, and the the son told what caused the accident. Held, in facts and circumstances which lead the mind an action by the mother, that such declarations of the witness to a conclusion, are incapable of were mere hearsay, and not admissible against being described so as to enable any one, but her as part of the res gestæ. Downer v. Straf- the observer himself, to form an intelligent conford, 47 Vt. 579. clusion from them, the witness is often allowed to add his opinion, or the conclusion of his own mind. Peck, J. Cavendish v. Troy, 41 Vt. 108.

209. A statement made by the deceased, about two minutes after a shooting affray and some eleven rods distant from the scene of it, "He [the prisoner] shot me before I touched him," was held not admissible against the prisoner as a part of the res gesta. State v. Carlton, 48 Vt. 636. 210.

215. Where the facts are of such a character as to be incapable of being presented, with their proper force, to any one but the observer himself, so as to enable the triers to draw a correct or intelligent conclusion from them, without before the act. The question the aid of the judgment or opinion of the witbeing whether certain notes were in existence ness who had the benefit of personal observaprevious to the date of a certain mortgage, the tion, he is allowed, to a certain extent, to add declarations of a party, made the day previous his conclusion, judgment, or opinion. Thus, a to such date, that he had the notes in his pos- witness who had examined certain gullies in a session and must secure them, &c., were held highway was allowed to answer: "I should not admissible in his favor. Holbrook v. Murray, think that they had been there, from their 20 Vt. 525. appearance, for several days." Bates v. Sharon, 211. not connected with the act. 45 Vt. 474; and see Redfield, J., in Smith v. The declarations of a party expressing the Miles, 15 Vt. 249. terms on which he was carrying on a certain 216. After a witness has stated his means of farm, made while he was purchasing seed corn, personal observation and knowledge as to a disand two miles distant from the farm, and like puted fact, it is not necessarily error to allow declarations, while four miles distant from the him to state, that it could not have occurred, farm, made in connection with his saying that or that he thinks it could not have occurred, he had cut some good hay on the farm, &c., without his observing or knowing it. Cavenwere held not admissible in his favor. Elkins dish v. Troy, 41 Vt. 99. v. Hamilton, 20 Vt. 627.

217. A witness who had examined a high

212. The question being, whether the plain-way at the place of an accident, and made some tiff had paid the defendant certain bills included partial measurements of its width, after testifyin an account before that time rendered by the ing to its width and the width of different kinds plaintiff in the probate court, on settlement of of carriages used on highways, was allowed to his account, as guardian, with the estate of his testify that, in his opinion, the road was not ward;-Held, that the plaintiff's declarations wide enough at that place to allow two team and claims made to an agent assisting him in wagons to pass each other. Held, that this was drawing up such guardian's account, that he simply the opinion of the witness as to the had paid such bills, were no part of the res geste width of the highway, and not as to its sufand were not evidence for him to prove the ficiency, and was admissible;-like opinion as fact of payment. Burrows v. Stevens, 39 Vt. 378. to distance, size, height, value, velocity, &c. Fulsome v. Concord, 46 Vt. 135.

IX. OPINION; PURPOSE; INTENT.

218. A witness, not a professional man, may give his opinion touching the insanity of 213. Opinion. As a general rule, the opin- a party, in connection with the facts upon which