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468 MERCHANT'S ACCOUNT-BOOKS SEMIPLENA PROBATIO.

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 (semiplena probatio (c)) 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 (d). By the law of France, too, the books of merchants and tradesmen, regularly kept, and written from day to day

1 Fairf. 9; Green v. Pratt, 11 Conn. 205; or a delivery of goods under such agreement, Nickle v. Baldwin, 4 Watts & Serg. 290; an article omitted by mistake in a prior settlement, Punderson v. Shaw, Kirby, 150; the use and occupation of real estate; and the like. Beech v. Mills, 5 Conn. 493. See also Newton v. Higgins, 2 Verm. 366; Dunn v. Whitney, 1 Fairf. 9. But after the order to deliver goods to a third person is proved by competent evidence aliunde, the delivery itself may be proved by the books and suppletory oath of the plaintiff, in any case where such delivery to the defendant in person might be so proved, Mitchell v. Belknap, 10 Shepl. 475. The charges, moreover, must be specific and particular; a general charge for professional services, or for work and labour by a mechanic, without any specification but that of time, cannot be supported by this kind of evidence. Lynch v. Petrie, 1 Nott & McC. 130; Hughes v. Hampton, 2 Const. Rep. 476. And regularly the prices ought to be specified; in which case the entry is primâ facie evidence of the value. Hagaman v. Case, 1 South. 370; Ducoign v. Schreppel, 1 Yeates, 347. But whatever be the nature of the subject, the transaction, to be susceptible of this kind of proof, must have been directly between the original debtor and the creditor; the book not being admissible to establish a collateral fact. Mifflin v. Bingham, 1 Dall. 276, per McKean, C. J.; Kerr v. Love, 1 Wash. 172; Deas . Darby, 1 Nott & McC. 436; Poulteney v. Ross, 1 Dall. 238.

Though books, such as have been described, are admitted to be given in evidence, with the suppletory oath of the party; yet his testimony is still to be weighed by the jury, like that of any other witness in the cause; and his reputation for truth is equally open to be questioned. Kitchen v. Tyson, 2 Murph. 314; Elder v. Warfield, 7 Harr. & Johns. 391. 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 and fully treated in a note to the American Ed. of Smith's Lead. Cas. vol. 1, p. 142, in 43 Law Library, p. 223-245.

(c) 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.

(d)"Juramentum (suppletivum) defertur ubicunque actor habet pro

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TRADESMAN'S ACCOUNT BOOKS-LAW OF SCOTLAND. 469

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 (e). 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 aliunde, 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 (f). Especial reference is here made to these laws, because it is conceived that the adoption of a somewhat similar practice in England would prove highly beneficial.

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 suppletory oath of the party, is thus defended by Paul Voet, De Statutis, § 5, cap. 2, n. 9. "An ut credatur libris rationum, seu registris uti loquuntur, mercatorum et artificum, licet probationibus testium non juventur? Respondeo, 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. (e) 1 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.

(ƒ) 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 Glassford, Ev. 550; Bell's Dig. of Laws of Scot. 378, 898.

470

DYING DECLARATIONS-WHY ADMISSIBLE.

CHAPTER XIII.

OF DYING DECLARATIONS.

$499. 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” (a). At one time an opinion prevailed that this general principle warranted the admission of dying declarations in all cases, civil and criminal (b); 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 (c). A contrary

(a) 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 King 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.

(b) It was even held that the dying declarations of a pauper respecting his settlement were admissible, though that question involved both law and fact, R. v. Bury St. Edmunds, Cald. 486; Abbotun v. Dunswell, 2 Bott, 80. This doctrine is now properly exploded. See R. v. Abergwilly, 2 East, 63; Stobart v. Dryden, 1 M. & W. 626.

(c) 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 could be drawn

DYING DECLARATIONS-WHEN ADMISSIBLE.

471

doctrine however has since prevailed (d); and it appears now to be settled law, both in England and America, that evidence of this description is admissible, as such, in no civil case,—and, 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 " (e).

§ 500. Thus, on a trial for robbery, the dying declaration of the party robbed has been rejected (f); 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(g). 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 an affidavit of the dying declarations of the latter, as to the transaction out of which the prosecution for perjury arose (h). 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 (i); 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 (k). Upon one occasion the judges appear to have entrenched somewhat upon this rule; for a prisoner being indicted for poisoning his master, and it appearing that a maid servant had taken some of the same

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 v. Beaumont, 1 Camp. 210, and explained by Bayley, J., in Doe v. Ridgway, 4 B. & A. 55.

(d) See Stobart v. Dryden, 1 M. & W. 624-627, where the cases cited in the preceding note were virtually overruled. See ante, § 384.

(e) R. v. Mead, 2 B. & C. 608; 4 D. & R. 120, S. C.; 1 East, P. C. 353; Wilson v. Boerem, 15 Johns. 286.

(f) R. v. Lloyd, 4 C. & P. 233.

(g) R. v. Hutchinson, 2 B. & C. 608, n., per Bayley, J. In Mr. Phillipp's work on Evidence, 1 vol. p. 282, these declarations are stated to have been held admissible, but this is a mistake. (h) R. v. Mead, 2 B. & C. 605; 4 D. & R. 120, S.C. (i) Doe v. Ridgway, 4 B. & A. 53.

(4) R. v. Gray, Ir. Cir. Rep. 76, per Torrens, J.

472 DYING DECLARATIONS WHY LIMITED TO CASES OF HOMICIDE.

poison, and had died in consequence, her dying declarations were admitted on the part of the prosecution, apparently on the ground that it was all one transaction (1).

§ 501. 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 (m); 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 (n). These, or the like considerations, have been regarded as counterbalancing the force of the general principle above stated, leaving this exception to stand only upon the ground of the public necessity of preserving human life by bringing manslayers to justice. For it often happens, that there is no third person present to be an eye-witness to the fact; and the usual witness in other cases of felony, namely, the party injured, is himself destroyed (o). Still, this restriction applies only to declarations offered on the sole ground that they were made in extremis; for where they constitute part of the res gestæ, or come within the exception of declarations against interest, or the like, they are admissible as in other cases; irrespective of the fact, that the declarant was under apprehension of death.

§ 502. The persons whose declarations are thus admitted, are

(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. (m) 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,
Confound themselves."-Act 5, scene 7.

(n) Jackson v. Kniffen, 2 Johns. 31, 35, per Livingston, J.
(0) 1 East, P. C. 353; 2 Johns. 35.

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