viction; for where the declaration or statement is sworn to have been made when no third person was present, or by a person who is since dead, it is hardly possible to punish the witness, even if his testimony is an entire fabrication. To these reasons may be added considerations of public interest and convenience for rejecting hearsay evidence. The greatly increased expense, and the vexation which the adverse party must incur, in order to rebut or explain it, the vast consumption of public time thereby occasioned, the multiplication of collateral issues, for decision by the jury, and the danger of losing sight of the main question, and of the justice of the case, if this sort of proof were admitted, are considerations of too grave a character to be overlooked by the court or the legislature, in determining the question of changing the rule.2 § 125. The rule applies, though the declaration offered in evidence was made upon oath, and in the course of a judicial proceeding, if the litigating parties are not the same. Thus, the deposition of a pauper, as to the place of his settlement, taken ex parte before a magistrate, was rejected, though the pauper himself had since absconded, and was not to be found. The rule also applies, notwithstanding no better evidence is to be found, and though it is certain that, if the declaration offered is rejected, no other evidence can possibly be obtained; as, for example, if it purports to De the declaration of the only eye-witness of the transaction, and he is since dead.1 § 126. An exception to this rule has been contended for in the admission of the declarations of a deceased attesting witness to a deed or will, in disparagement of the evidence afforded by his 1 Phil. & Am. on Evid. 217; 1 Phil. Evid. 205, 206. See, as to the liability of words to misconstruction, the remarks of Mr. Justice Foster, in his Discourse on High Treason, ch. 1, § 7. The rule excluding hearsay is not of great antiquity. One of the earliest cases in which it was administered, was that of Sampson v. Yardley and Tothill, 2 Keb. 223, pl. 74, 19 Car. 2. 2 Mima Queen v. Hepburn, 7 Cranch, 290, 296, per Marshall, C. J. 3 Rex v. Nuneham Courtney, 1 East, 373; Rex v. Ferry Frystone, 2 East, 54; Rex v. Eriswell, 3 T. R. 707-725, per Lord Kenyon, C. J., and Grose, J., whose opinions are approved and adopted in Mima Queen v. Hepburn, 7 Cranch, 296. Phil. & Am. on Evid. 220, 221; 1 Phil. Evid. 209, 210. In Scotland the rule is otherwise; evidence on the relation of others being admitted, where the relator is since dead, and would, if living, have been a competent witness. And if the relation has been handed down to the witness at second-hand, and through several successive relators, each only stating what he received from an intermediate relator, it is still admissible, if the original and intermediate relators are all dead, and would have been competent witnesses if living. Tait on Evid. pp. 430, 431. But the reason for receiving hearsay evidence, in cases where, as is generally the case in Scotland, the judges determine upon the facts in dispute, as well as upon the law, is stated and vindicated by Sir James Mansfield, in the Berkley Peerage case, 4 Campb. 415. signature. This exception has been asserted, on two grounds; first, that as the party, offering the deed, used the declaration of the witness, evidenced by his signature, to prove the execution, the other party might well be permitted to use any other declaration of the same witness, to disprove it; — and secondly, that such declaration was in the nature of a substitute for the loss of the benefit of a cross-examination of the attesting witness; by which, either the fact confessed would have been proved, or the witness might have been contradicted, and his credit impeached. Both these grounds were fully considered in a case in the exchequer, and were overruled by the court; the first, because the evidence of the handwriting, in the attestation, is not used as a declaration by the witness, but is offered merely to show the fact that he put his name there, in the manner in which attestations are usually placed to genuine signatures; and the second, chiefly because of the mischiefs which would ensue, if the general rule excluding hearsay were thus broken in upon. For the security of solemn instruments would thereby become much impaired, and the rights of parties under them would be liable to be affected at remote periods, by loose declarations of the attesting witnesses, which could neither be explained nor contradicted by the testimony of the witnesses themselves. In admitting such declarations, too, there would be no reciprocity; for though the party impeaching the instrument would thereby have an equivalent for the loss of his power of cross-examination of the living witness, the other party would have none for the loss of his power of re-examina tion.1 1 Stobart v. Dryden, 1 Mees. & W. 615. CHAPTER VI. OF MATTERS OF PUBLIC AND GENERAL INTEREST. [*§ 127. Classification of the exceptional cases. 128. Distinction between public and general interest. 129. Competent knowledge seems indispensable in witness. 130. Reputation restricted to ancient matters, and as to persons deceased. 131. Not admitted after controversy arises. Lis mota defined. 132. The controversy must be upon the same point. 133. It will make no difference that the controversy is unknown. 134. This will not exclude solemn acts declaring legitimacy. 135. Witness need not state author. Declarations receivable, if person not then interested. 136. His being in similar relation no objection. 137. The rule does not extend to any but public interests. 138. Subject further illustrated. 139. Documentary evidence inter alios is also admissible under the limitations already stated. 140. Reputation is also admitted against claim of public right.] § 127. HAVING thus illustrated the nature of hearsay evidence, and shown the reasons on which it is generally excluded, we are now to consider the cases in which this rule has been relaxed, and hearsay admitted. The exceptions, thus allowed, will be found to embrace most of the points of inconvenience, resulting from a stern and universal application of the rule, and to remove the principal objections which have been urged against it. These exceptions may be conveniently divided into four classes:first, those relating to matters of public and general interest; secondly, those relating to ancient possessions;-thirdly, declarations against interest;-fourthly, dying declarations, and some others of a miscellaneous nature; and in this order it is proposed to consider them. It is, however, to be observed, that these exceptions are allowed only on the ground of the absence of better evidence, and from the nature and necessity of the case. § 128. And first, as to matters of public and general interest. The terms, public and general, are sometimes used as synonymous, meaning merely that which concerns a multitude of per In sons. But in regard to the admissibility of hearsay testimony, a distinction has been taken between them; the term, public, being strictly applied to that which concerns all the citizens, and every member of the State; and the term, general, being referred to a lesser, though still a large portion of the community.. matters of public interest, all persons must be presumed conversant, on the principle, that individuals are presumed to be conversant in their own affairs; and, as common rights are naturally talked of in the community, what is thus dropped in conversation may be presumed to be true.2 It is the prevailing current of assertion that is resorted to as evidence, for it is to this that every member of the community is supposed to be privy, and to contribute his share. Evidence of common reputation is, therefore, received in regard to public facts (a claim of highway, or a right of ferry, for example), on ground somewhat similar to that on which public documents, not judicial, are admitted, namely, the interest which all have in their truth, and the consequent probability that they are true. In these matters, in which all are concerned, reputation from any one appears to be receivable; but of course it is almost worthless, unless it comes from persons who are shown to have some means of knowledge, such as, in the case of a highway, by living in the neighborhood; but the want of such proof of their connection with the subject in question affects the value only, and not the admissibility of the evidence. On the contrary, where the fact in controversy is one in which all the members of the community have not an interest, but those only who live in a particular district, or adventure in a particular enterprise, or the like, hearsay from persons wholly unconnected with the place or business would not only be of no value, but altogether inadmissible. 5 1 Weeks v. Sparke, 1 M. & S. 690, per Bayley, J. 2 Morewood v. Wood, 14 East, 329, n., per Ld. Kenyon; Weeks v. Sparke, 1 M. & S. 686, per Ld. Ellenborough; The Berkley Peerage case, 4 Campb. 416, per Mansfield, C. J. 8 1 Stark. Evid. 195; Price v. Currell, 6 M. & W. 234. And see Noyes v. White, 19 Conn. 250. Crease v. Barrett, 1 Cromp. Mees. & 5 [Persons living out of such district are not presumed to know such fact, and can Rosc. 929, per Parke, B. By the Roman Law, reputation or common fame seems to have been admissible in evidence, in all cases; but it was not generally deemed sufficient proof, and, in some cases, not even semiplena probatio, unless corroborated; nisi aliis adminiculis adjuvetur. Mascardus, De Prob. vol. 1, Concl. 171, n. 1; Concl. 183, n. 2; Concl. 547, n. 149. It was held sufficient plena probatio, wher ever, from the nature of the case, better not therefore be affected by proof of it Dunbar v. Mulry, 8 Gray, 163.] § 129. Thus, in an action of trespass quare clausum fregit, where the defendant pleaded in bar a prescriptive right of common in the locus in quo, and the plaintiff replied, prescribing the right of his messuage to use the same ground for tillage with corn, until the harvest was ended, traversing the defendant's prescription; it appearing that many persons beside the defendant had a right of common there, evidence of reputation, as to the plaintiff's right, was held admissible, provided it were derived from persons conversant with the neighborhood.1 But where the question was, whether the city of Chester anciently formed part of the county Palatine, an ancient document, purporting to be a decree of certain law officers and dignitaries of the crown, not having authority as a court, was held inadmissible evidence on the ground of reputation, they having, from their situations, no peculiar knowledge of the fact.2 And, on the other hand, where the question was, whether Nottingham Castle was within the hundred of Broxtowe, certain ancient orders, made by the justices at the quarter sessions for the county, in which the castle was described as being within that hundred, were held admissible evidence of reputation; the justices, though not proved to be residents within the county or hundred, being presumed, from the nature and character of their offices alone, to have sufficient acquaintance with the subject to which their declarations related.3 Thus it appears that competent knowledge in the declarant is, in all cases, an essential prerequisite to the admission of his testimony; and that though all the citizens are presumed to have that knowledge, in some degree, where the matter is of public concernment, yet, in other matters, of interest to many persons, some particular evidence of such knowledge is required. § 130. It is to be observed, that the exception we are now con evidence was not attainable; ubi à communiter accidentibus, probatio difficilis est, fama plenam solet probationem facere; ut in probatione filiationis. But Mascardus deems it not sufficient, in cases of pedigree within the memory of man, which he limits to fifty-six years, unless aided by other evidence, tunc nempe non sufficeret publica vor et fama, sed una cum ipsa deberet tractatus et nominatio probari vel alia adminicula urgentia adhiberi. Mascard. De Prob. vol. 1, Čoncl. 411, n. 1, 2, 6, 7. í Weeks v. Sparke, 1 M. & S. 679, 688, per Le Blanc, J. The actual discussion of the subject in the neighborhood was a 2 Rogers v. Wood, 2 Barn. & Ad. 245. |