1 and vouchers have been lost; and now, by virtue of the Chancery Practice Amendment Act, they are expressly empowered, "in cases where they shall think fit so to do, to direct that in taking accounts, the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as primâ facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised." 2 § 642. In the administration of the Roman law, the production of a merchant's or tradesman's book of accounts, regularly and fairly kept in the usual manner, was deemed presumptive evidence (semi-plena probatio) of the justice of his claim; and in such cases, the suppletory oath of the party (juramentum suppletivum) was admitted to make up the plena probatio necessary to a decree in his favour. By the law of France, too, the In some States, the books thus admitted are only those of shopkeepers, mechanics, and tradesmen, those of other persons, such as planters, scriveners, schoolmasters, &c. being rejected, Geter v. Martin, 2 Bay, 173; Pelzer v. Cranston, 2 McC. 328; Boyd v. Ladson, 4 McC. 76. The subject of the admission of the party's own entries, with his suppletory oath, in the several American States, is very elaborately treated in a note to the American Ed. of Smith's Lead. Cas., vol. 1, p. 142, in 43 Law Library, p. 223-245. 1 Lodge v. Prichard, 3 De Gex, M. & Gord. 908, per Turner, Ld. J. 2 15 & 16 Vict., c. 86, § 54. See Lodge v. Prichard, 3 De Gex, M. & Gord. 906; Newberry v. Benson, 23 L. J., Ch., 1003, coram Lds. Js. Ewart v. Williams, 3 Drew. 21; 7 De Gex, M. & Gord. 68, S. C., coram Lds. Js. 3 Gr. Ev., § 119, verbatim. This degree of proof is thus defined by Mascardus :"Non est ignorandum probationem semiplenam eam esse, per quam rei gestæ fides aliqua fit judici non tamen tanta ut jure debeat in pronuncianda sententia eam sequi." De Prob., Vol. 1, Quæst. 11, n. 1, 4. ; "Juramentum (suppletivum) defertur ubicunque actor habet pro se― aliquas conjecturas, per quas judex inducatur ad suspicionem vel ad opinandum pro parte actoris." Mascardus, De Prob., Vol. 3, Concl. 1230, n. 17. The civilians, however they may differ as to the degree of credit to be given to books of account, concur in opinion, that they are entitled to consideration, at the discretion of the judge. They furnish at least the conjecturæ mentioned by Mascardus; and their admission in evidence, with the supple. tory oath of the party, is thus defended by Paul Voet, De Statutis, § 5, cap. 2, n. 9. "An ut credatur libris rationem, seu registris uti loquuntur, mercatorum et artificum, licet probationibus testium non juventur? Re books of merchants and tradesmen, regularly kept, and written from day to day without any blank, when the tradesman has the reputation of probity, constitute a semi-proof, and with his suppletory oath, are received as full proof to establish his demand. The same doctrine is familiar in the law of Scotland, by which the books of merchants and others, if kept with such a reasonable degree of regularity as to be satisfactory to the Court, may be received in evidence, the party being allowed to give his own" oath in supplement" of such imperfect proof. It seems, however, that a course of dealing, or other "pregnant circumstances," must in general be first shown by evidence aliundè, before the proof can be regarded as amounting to that degree of semiplena probatio, which may be rendered complete by the oath of the party. § 643. Especial reference is here made to these laws, because it is conceived that the adoption of a somewhat similar practice in the English courts of common law would prove highly beneficial; especially in cases where actions are brought or defended by the representatives of persons deceased. spondeo, quamvis exemplo perniciosum esse videatur, quemque sibi privata testatione, sive adnotatione facere debitorem. Quia tamen hæc est mercatorum cura et opera, ut debiti et crediti rationes diligenter conficiant. Etiam in eorum foro et causis, ex æquo et bono est judicandum. Insuper non admisso aliquo litium accelerandarum remedio, commerciorum ordo et usus evertitur. Neque enim omnes præsenti pecunia merces sibi comparant, neque cujusque rei venditioni testes adhiberi, qui pretia mercium noverint, aut expedit, aut congruum est. Non iniquum videbitur illud statutum, quo domesticis talibus instrumentis additur fides, modo aliquibus adminiculis juventur." See also Hertius, De Collisione Legum, § 4, n. 68; Strykius, Tom. 7, De Semiplenâ Probat. Disp. 1, cap. 4, § 5; Menochius, De Presump. lib. 2, Presump. 57, n. 20, & lib. 3, Presump. 63, n. 12. Pothier on Obl., Part iv. ch. 1, art. 2, § 4. By the Code Napoleon, merchants' books are required to be kept in a particular manner therein prescribed, and none others are admitted in evidence. Code de Commerce, Liv. 1, tit. 2, art. 8-12. 2 Tait, Ev. 273-277. This degree of proof is there defined as "not merely a suspicion,-but such evidence as produces a reasonable belief, though not complete evidence." See also 2 Dickson, Ev., §1179, et seq.; Glassford, Ev. 550; Bell's Dig. of Laws of Scot. 378, 898. CHAPTER XIII. DYING DECLARATIONS. §644. A SIXTH 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." At one time an opinion prevailed that this general principle warranted the admission of dying declarations in all cases, civil and criminal;' and it was expressly held, by respectable authorities, that the dying declarations of a subscribing witness to a forged instrument were admissible to impeach it.' 2 1 Gr. Ev., § 156, in part. 2 R. v. Woodcock, 1 Lea. C. C. 502; R. v. Drummond, id. 338. Our great poet, in King John, has put the same sentiment into the mouth of the wounded Melun, who, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis, exclaims : "Have I not hideous death within my view, Retaining but a quantity of life; Which bleeds away, even as a form of wax Resolveth from his figure 'gainst the fire? What in the world should make me now deceive, Since I must lose the use of all deceit ? Why should I then be false; since it is true That I must die here, and live hence by truth ?"-Act. 5, sc. 4. question involved both law and fact, Abbotun ". Dunswell, 2 Bott, 80. 3 It was even held that the dying declarations of a pauper respecting his settlement were admissible, though that R. v. Bury St. Edmonds, Cald. 486; This doctrine is now properly exploded. See R. v. Abergwilly, 2 East, 63; Stobart v. Dryden, 1 M. & W. 626. Wright v. Littler, 3 Burr. 1255; 1 W. Bl. 349, S. C., per Lord Mansfield; stating, however, as reported in Blackstone, that no general rule A contrary doctrine however has since prevailed;' and it appears now to be settled law, both in England and America, that evidence of this description is admissible in no civil caseand, in criminal cases, only in the single instance 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 declaration."* § 645. Thus, on a trial for robbery, the dying declaration of the party robbed has been rejected;' and where a prisoner was indicted for administering drugs to a woman, with intent to procure abortion, her statements in extremis were held to be inadmissible.* So, where a party, convicted of perjury, had obtained a rule nisi for a new trial, and pending the proceedings, had shot the prosecutor, the Court of King's Bench, on cause being shown against the rule, rejected the affidavit of the dying declarations of the latter, as to the transaction out of which the prosecution for perjury arose." After stating these strong cases, it seems scarcely necessary to add, that, in an action of ejectment, the Court refused to receive the dying declarations of a servant of the party last seised, as to the relationship of such party with the lessor of the plaintiff; and that in Ireland, on an indictment for murder, the prisoner was not allowed to avail himself of the statement of a stranger, who on his death-bed confessed that he had committed the crime.' Upon one occasion the judges appear to have entrenched somewhat upon this rule; for a prisoner being could be drawn from the admission of the evidence in that particular case; Anon. per Heath, J., cited with apparent approbation by Lord Ellenborough, in Aveson v. Lord Kinnaird, 6 East, 195, 196, and in Bishop of Durham e. Beaumont, 1 Camp. 210, and explained by Bayley, J., in Doe v. Ridgway, 4 B. & A. 55. 1 See Stobart v. Dryden, 1 M. & W. 624-627, where the cases cited in the preceding note were virtually overruled. See ante, § 508. 2 R. v. Mead, 2 B. & C. 608 ; 4 D. & R. Wilson v. Boerem, 15 Johns. 286. 120, S. C.; 1 East, P. C. 353; 3 R. v. Lloyd, 4 C. & P. 233. R. v. Hutchinson, 2 B. & C. 608, n., per Bayley, J. In 1 Ph. Ev. 282, these declarations are stated to have been held admissible, but this is a mistake. R. v. Mead, 2 B. & C. 605; 4 D. & R. 120, S. C. Doe v. Ridgway, 4 B. & A. 53. 7 R. v. Gray, Ir. Cir. Rep. 76, per Torrens, J. indicted for poisoning his master, and it appearing that a maidservant had taken some of the same poison, and died in consequence, her dying declarations were admitted on the part of the prosecution, apparently on the ground that it was all one transaction,' § 646. The reasons for thus restricting the admission of this species of evidence may be,-first, the danger of perjury in fabricating declarations, the truth or falsehood of which it is impossible to ascertain, secondly, the danger of letting in incomplete statements, which, though true as far as they go, do not constitute "the whole truth,"-and, thirdly, the experienced fact, that implicit reliance cannot in all cases be placed on 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 of those around him, he may say or seem to say, whatever they choose to suggest. As these, or the like considerations, are thought in ordinary cases to counterbalance the force of the general principle above stated, the exception under review is restricted to cases of homicide, and is there recognised on the sole ground of public necessity. For as it often happens, that no third person was present as an eyewitness to a murder, and as the party injured, who is the usual witness in other cases of felony, cannot himself be called, it follows that if his dying declarations could not be received, the murderer might often escape justice. Still, this restriction applies only to such declarations as are tendered in evidence merely because they were made in extremis; for where they 1 R. v. Baker, 2 M. & Rob. 53, per Coltman, J., after consulting Parke, B. The point would have been reserved for the opinion of the judges, but the prisoner was acquitted. 2 Gr. Ev., § 156, in part. 3 Thus, in King John, Prince Henry is made to say :— "Death's siege is now Against the mind, the which he pricks and wounds With many legions of strange fantasies; Which, in their throng and press to that last hold, Jackson v. Kniffen, 2 Johns. 31, 35, per Livingston, J. 5 1 East, P. C. 353; 2 Johns. 35. |