accompanying declarations are often absolutely necessary to show the animus of the actor. Thus, if a debtor leaves home, the intent to avoid his creditors may be shown by his declarations at the time. Bateman v. Bailey, 5 T. R. 512. So a payment by a debtor may be explained by an accompanying request to apply it to a certain debt. In a suit for a false representation of the solvency of A. B., whereby the plaintiffs trusted him with goods, their declarations at the time that they trusted him in consequence of the representation are admissible in evidence for them. Fellowes v. Williamson, M. & M. 306. So in an action against the drawer of a bill of exchange, what was said by the drawee, on the bill being presented, is evidence for the plaintiff as to want of assets; but not what passed between the drawee and the holder afterwards. Prideaux v. Collier, 2 Stark. 57. A letter sent by plaintiff to his indorser with the note on which the maker is sued, may be read for the plaintiff to show why it was sent. Bruce v. Hurly, 1 Stark. 24; and see Kent v. Lowen, 1 Camp. 177. To prove that there was a good consideration for a conveyance, the verbal instructions of the alienor to his solicitor to prepare it are good evidence. Tull v. Parlett, M. & M. 472. In an action to recover money paid by a bankrupt in contemplation of a bankruptcy, his declarations as to the state of his affairs, made about the time of the transaction, are admissible for the plaintiffs. Vacher v. Cocks, M. & M. 353; Herbert v. Wilcocks, Id. 355, n. So in an action to recover fraudulent payments, answers to letters written by a bankrupt, requesting assistance, may be read to prove the refusal to give assistance, and his consequent knowledge of the state of his affairs. Vacher v. Cocks, supra. And see generally, as to declarations by bankrupts, post, Part III., tit. Actions by trustees of bankrupts. A trader being in embarrassed circumstances, executed an assignment of all his "effects, stock, books, and book-debts," for the benefit of his creditors: in an action after his death against the assignee, as executor de son tort, it was held that a list of creditors, made out by the direction of the assignor about the time of the execution of the assignment, was evidence for defendant for the purpose of rebutting fraud. Lewis v. Rogers, 1 C. M. & R. 48. Where felling timber is offered as an assertion of ownership, the declarations of the party so employed, showing ownership in another, are evidence to rebut it. Per Parke, B., Doe d. Stansbury v. Arkwright, 5 C. & P. 575.

Declarations are admissible as evidence of feelings, or of suffering: thus, in an action of assault on plaintiff's wife, evidence of what she said immediately on receiving the hurt is admissible for him. Thompson v. Trevanion, Skin. 402. The declarations of a wife at the time of her elopement that che fled from terror of personal violence from her husband, seem to be evidence against him. See Aveson v. Kinnaird, Ld., 6 East, 193. And there are other cases on the like principle decided in actions for adultery. See Willis v. Bernard, 8 Bing. 376.

In the Gardiner Peerage case, medical men were examined as to their experience of cases of protracted gestation. The commencement of the period of gestation was known to them only through the answers by women to questions relating to their sexual intercourse, menstruation, quickening, and other similar facts. Those answers were held inadmissible. Le Marchant's Rep., 174-6. In R. v. Johnson, 2 Car. & K. 354, to ascertain the state of a woman's health a few days before her death, a witness (not medical) was allowed to state the answers of the deceased woman to inquiries made by him.

Statements by a deceased vendor, made at the time of the sale to indicate the land sold, are admissible to identify it. Parrott v. Watts, 47 L. J., C. P. 79.

The declarations of a plaintiff made in a conversation with the defendant, if part of the res gesta, are admissible for the plaintiff as part of his evidence.

Part of Transaction-Acts of Ownership.

51 Hayslep v. Gymer, 1 Ad. & E. 162. See post, p. 64. But an act done cannot, in general, be qualified by isolated declarations made afterwards, alio intuitu. Thus the schedule of an insolvent, delivered four months after execution of a deed, was not admissible on behalf of the assignees to show that it was executed with intent to petition. Peacock v. Harris, 5 Ad. & E. 449. And a declaration by the obligee, as to the application of past payments made to him by the obligor, is not evidence as between the sureties. Dunn v. Slee, Holt, N. P. 401. Where general character is in issue, evidence of reputation is admitted. Foulkes v. Sellway, 3 Esp. 236. See Evidence of Character, post, p. 83, and Examination of witnesses; Evidence of character, post.

It is not every declaration that is receivable in evidence, merely because it accompanies an act done by the speaker. Thus, we have seen, p. 48, ante, that where the object is to establish a public way, it is not legitimate evidence to prove that the tenant of land near it planted a tree, and whilst doing so, stated that he did it "to show the boundary of the road." R. v. Bliss, 7 Ad. & E. 550. The admissibility of the declaration depends. not merely on its accompanying an act, but on the light which it throws upon an act which is, in itself, relevant and admissible evidence. See, generally, the opinions of the judges in Wright v. Doe d. Tatham, 7 Ad. & E. 313, 361, &c.; S. C., 4 N. C. 489, 498, 530, 544, 554, Ex. Ch. A declaration is sometimes receivable per se, as a claim. Thus, where the plaintiff asserts a right to goods under a sale to him by C., and the defence is that the alleged sale was collusive, defendant's witness may be asked, "whether he had not heard C. claim the goods after the sale?" Under such circumstances, a claim is as much an act done as if C. had taken the goods saying they were his. Ford v. Elliott, 4 Exch. 78. Where the object is merely to show that inquiries had been made for A. B. without success, the oral state-· ment of his absence by a person at his residence is admissible evidence. Crossby v. Percy, 1 Taunt. 364; see further, R. v. Kenilworth, 7 Q. B. 642; and post, Part III.; Actions by trustees of bankrupts; Acts of bankruptcy; Beginning to keep house. But if it be necessary to show that A. B. is actually out of the realin, such oral statement is not evidence of it. Robinson v. Markis, 2 M. & Rob. 375.

It has been justly remarked that many of the above cases are not strictly instances of hearsay (i.e. second-hand) evidence, though commonly so classed. The res gesta in each case is original evidence; and the accompanying declaration, being part of it, is also original.

Acts or assertions of ownership.] Under the head of hearsay are usually classed those cases in which expired leases, grants, or other documents of a similar kind actively asserting a right on the part of the maker, have been admitted as evidence of that right in favour of persons claiming under him ; they are, in fact, acts of ownership, and, as such, evidence of property. Thus, old leases of fishing places by the lord of an adjacent manor are evidence of a right to the bed of the river in favour of those who claim under him. Hale, De Jure Maris, p. 35; Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P. Where the question was, whether certain lands within a manor were subject to a right of common, counterparts of old leases, produced from among the muniments of the lord of the manor, from which it might be inferred that the land was demised by the lord free from such charge, were allowed to be evidence for the plaintiff claiming under him, though possession under the lease was not shown. Clarkson v. Woodhouse, 3 Doug. 189; 5 T. R. 412, n.; Bristow v. Cormican, 3 Ap. Ca. 641, D. P. And such counterparts are evidence of seisin, though only executed by the lessees. Doe d. El. of Egremont v. Pulman, 3 Q. B. 622; Magdalen Hospital v. Knotts, 8 Ch. D. 709, C. A. So old entries of licences on the court rolls of

a manor, stating that the lords of the manor had the several fishery in a navigable river, and for certain rents had granted liberty of fishing, were held admissible to prove a prescriptive right in the lords of the manor without proof of payment under the licences; but such evidence is not entitled to much weight unless it be shown that in later times payments have been made under similar licences, or that the lords of the manor have exercised other more recent acts of ownership. Rogers v. Allen, 1 Camp. 309; see Musgrave v. Inclosure Commissioners, L. R., 9 Q. B. 162, 178. So an old table of tolls, kept by the town clerk of a corporation, by which the lessees of the tolls had always been guided in their collection, is admissible in favour of the claim of toll by the corporation. Brett v. Beales, M. & M. 419; R. v. Carpenter, 2 Show. 48. An ancient corporation book containing entries, showing what rents were due to the corporation, was held admissible as showing the exercise of acts of ownership. Malcolmson v. O'Dea, 10 H. L. C. 593. But mere entries in the corporation books of orders to grant leases, appointments of commissioners to manage them, &c., have been rejected as evidence. Brett v. Beales, M. & M. 429, and S. C., 5 M. & Ry. 433, 436. So an old entry of a resolution in the books of an eleemosynary corporation, being lay impropriators of tithes, that the tithe should, on default of payment of the accustomed payment in lieu of tithe, be taken in kind, is not evidence for them against a claim of modus, without proof that tithe in kind had in fact been taken in pursuance of such order. Att.-Gen. v. Cleeve, Somerset, Sum. Ass. 1841, per Rolfe, B. And generally, what any one writes or says in his own favour cannot be evidence for himself or his representative. Glyn v. Bank of England, 2 Ves. Sen. 43; R. v. Debenham, 2 B. & A. 185. Therefore, entries made by a deceased person, under whom the defendant claims, acknowledging the receipt of his rent for the premises in question, are not admissible for the defendant in proof of his title to them. Outram v. Morewood, 5 T. R. 121. So on a question whether the appointment of a curate belongs to the vicar or to a corporation, entries in old books belonging to the corporation are not evidence for them. Att.-Gen. v. Warwick, 4 Russ. 222. So, a survey of a manor, made by the owner, is not evidence against a stranger in favour of a succeeding owner. Anon., 1 Stra. 95. But where A., seised of the manors of B. and C., causes a survey to be taken of the manor of B., which is afterwards conveyed away, and, after a time, there are disputes between the lords of the manors of B. and C. about their boundaries, this old survey may be given in evidence between them. Bridgman v. Jennings, 1 Ld. Raym. 734. So, property may be identified by the books of the deceased steward of a person from whom both plaintiff and defendant derive title. Doe d. Strode v. Seaton, Ad. & E. 171.

Hence it appears that mere declarations of right, coupled with no other act, or actual exercise of it proved or presumable, are inadmissible as evidence in favour of the right asserted, except as against those who claim under the declarant. As to acts of ownership, see further, post, Actions for trespass to land.

Declarations of persons having no interest to misrepresent.] On this ground entries by a deceased rector, or vicar, as to the receipt of ecclesiastical dues are admissible for his successor. Legross v. Levemoor, 2 Gwill. 529; Armstrong v. Hewitt, 4 Price, 218; Young v. Clare Hall, 17 Q. B. 529. And even where the entries have been made by deceased impropriate rectors, they have been admitted as evidence for their successors, though objected to as coming from the owners of the inheritance. Anon., Bunb. 46; Illingworth v. Leigh, 4 Gwill. 1618. So they are admissible though the impropriator be a corporation aggregate; therefore, old receipts of tithe by the college of vicars-choral, Exeter, were admitted as evidence for them against a claim of modus. Short v. Lee, 2 J. & W. 478. Declarations of

Declarations against Interest.

53

a deceased rector are admissible as evidence of the custom of appointing churchwardens in his parish. Bremner v. Hull, L. R., 1 C. P. 748. The reception of this evidence has given rise to much observation, and is to be regarded as an exceptional case. And it is certain that, as a general rule, the mere absence of interest will not make the declarations of a deceased party evidence; Sussex Peerage, 11 Cl. & Fin. 85, 103, 112, 113; Berkeley Peerage case, Id. 109 n., in which cases, the declarations made by deceased clergymen were rejected as evidence of marriage, and the ruling of Lord Kenyon, in Standen v. Standen, Peake, 45, was denied.

On a somewhat similar principle the declarations of a testator as to his intentions are admissible to support his will if disputed on the ground of fraud, circumvention, or forgery. Doe d. Ellis v. Hardy, 1 M. & Rob. 525; Doe v. Stevens, Q. B., E. T., 1849, MS. So they are admissible to impeach the will by proving such fraud; Doe d. Small v. Allen, 8 T. R. 147; and vide ante, p. 20. So such declarations by a testator made before execution of his will are admissible to prove that alterations to the will or any incorporated document were made prior to execution; In re Sykes, L. R., 3 P. & M. 26, and Dench v. Dench, 2 P. D. 60; following Doe d. Shallcross v. Palmer, 16 Q. B. 47; 20 L. J., Q. B. 367 ; but declarations made after execution cannot so be used. S. C. In the case of a lost will declarations by a testator as to its existence and contents, and whether made before or after execution, are admissible. Sugden v. S. Leonards, Ld., 1 P. D. 154, C. A. So such declarations are admissible to show what papers constitute the will. Gould v. Lakes, 6 P. D. 1.

Hearsay of persons against their own interest admissible.] In a variety of cases, the declarations of deceased persons (not parties) made against their own interest have been admitted. See the cases collected, Barker v. Ray, 2 Russ. 67, n. And they are admissible as evidence of all the facts therein stated, though some of them may not have been within the party's own knowledge; for the whole declaration must be taken together. Crease v. Barrett, 1 C. M. & R. 919; Percival v. Nanson, 7 Exch. 1; 21 L. J., Ex. 1 ; and see R. v. Birmingham, 1 B. & S. 763; 31 L. J., M. C. 63. Thus the time of a child's birth was proved by production of the book of the deceased man-midwife referring to the ledger, in which ledger his charge for attendance was marked as paid, there being also evidence adduced that the work was done. Higham v. Ridgway, 10 East, 109. It seems that such an entry was admissible, though the party, if living, could not have been examined as being an interested party; Gleadow v. Atkin, 1 Cr. & M. 424, per Bayley, B. Accord. Short v. Lee, 2 J. & W. 489. So the book of a deceased mason, containing charges for repair of a bridge, marked as paid, was admitted to prove repairs, and so to fix a parish with an obligation. R. v. Heyford, 2 Smith's L. Cases, 8th ed. 346; cor. Parke, B. So an entry by a deceased person, J., "J. W. paid me 3 months' interest," followed by other entries indicating a loan to J. W., is prima facie against J.'s interest, and admissible in evidence. Taylor v. Witham, 3 Ch. D. 605. In these last two cases the decision of Littledale, J., in Doe d. Gallop v. Voules, 1 M. & Rob. 261, was disapproved. All the cases on the subject are collected in the note to Higham v. Ridgway, 2 Smith's L. Cases.

A letter from a deceased manager of the plaintiff's business, stating that the defendant had sent three cases to the office, and giving details of the transaction under which they were sent, is not admissible, the possibility of pecuniary loss to the manager, in the event of the loss of the cases, being too remote. Smith v. Blakey, L. R., 2 Q. B. 326. The day-book and ledger of a deceased broker, debiting himself with the price of shares bought, is not evidence of the purchase, as an entry made against interest, for it might have been to the advantage of the deceased. Massey v. Allen, 13 Ch. D. 558. The admissibility of the book in Higham v. Ridgway, supra, depended on

the pecuniary interest of the deceased, and it is settled that an interest arising from the liability of the party to a prosecution, if his statement was true, is not such an interest as will make his declarations evidence; and for this reason the statement of a clergyman that he had celebrated an irregular marriage was held not to be evidence of the marriage. Sussex Peerage, 11 Cl. & Fin. 85, 107. Nor is the declaration of a party admissible merely because he would, if alive, have been excused from answering questions on the subject. S. C., Id. 110.

Entries by a deceased steward, of money received by him from different persons in satisfaction of trespasses committed on the waste, and thereby charging himself to the amount received, are admissible to prove that the right to the soil of the waste was in his master. Barry v. Bebbington, 4 T. R. 514. And if the entries be old and the document comes from the proper custody, the handwriting need not be proved. Wynne v. Tyrwhitt, 4 B. & A. 376. So a receiver's entry of a receipt of separate rents from A., due from himself and two others, B. and C., is a proof of payment not only by A., but also by B. and C., although the rents of B. and C. do not appear to have been paid directly to the receiver; Percival v. Nanson, 7 Exch. 1; 21 L. J., Ex. Î; and it is enough if a steward's account be signed by a third person for the real steward, where the authority to sign for him appears on the books containing the arrears to have been recognized, and the person so signing debits himself with the balance. Doe d. Ashburnham v. Michael, 17 Q. B. 276; 20 L. J., Q. B. 480. A bill of lading, signed by a deceased master of a vessel, for goods deliverable to a named consignee, is evidence of property in the consignee, even in trover for the goods against a third person. Per Lawrence, J., Haddow v. Parry, 3 Taunt. 305. Receipts of rent by a steward, specifying the tenure of the land in respect of which it is paid, have been held evidence of the tenure. Doe d. Harpur v. Dodd, 3 Wooddeson Comm. 332. So where the deceased agent of the owner A., of the servient tenement, paid 6d. to A., stating that it was for the lights of the dominant tenement, this was held to be evidence, against a subsequent owner of the latter, of payment of the rent. Bewley v. Atkinson, 13 Ch. D. 283, C. A. The same point was raised but not decided in Fursdon v. Clogg, 10 M. & W. 572. In an action against a co-surety for contribution, a receipt given by the deceased creditor, professing to acknowledge a payment by the plaintiff of a sum of money, "originally advanced to E. H.," is evidence not only of the payment, but also of the original advance to E. H. as principal debtor. Davies v. Humphreys, 6 M. & W. 153.

A declaration by a deceased occupier of land, that he rents it under a certain person, is evidence of that person's seisin; Peaceable d. Uncle v. Watson, 4 Taunt. 16; see also Carne v. Nicholl, 1 N. C. 430. The principle is, that occupation being presumptive evidence of a seisin in fee, any declaration claiming a less estate is against the party's presumed proprietary interest; Crease v. Barrett, 1 C. M. & R. 931; and, therefore, a declaration by a deceased copyholder, that he held only for his life, is evidence of such limited interest; Doe d. Welsh v. Langfield, 16 M. & W. 497; and such declaration may be proved by production of the official books of an inclosure commission kept under an act of parliament, and containing an entry of a claim made by the declarant. S. C. Or, by the recital in a deed to which deceased was a party. Sly v. Sly, 2 F. D. 91. But the declaration of a party in possession, as to what he heard a third person say, is not evidence to cut down his estate, unless he has himself expressed his own belief of the statement. Trimlestown v. Kemmis, 9 Cl. & Fin. 780. A declaration by a person in the management of an estate that he managed for his son is evidence of the son's interest. De Bode's case, 8 Q. B. 208. A deed by a deceased party, shown to be in the receipt of the rents and profits, in