court of justice." In this case, it was held that a statement made by the deceased to a magistrate, who administered an oath to her extra-judicially, could not be received; but that a statement made by her when her dissolution was fast approaching, and when she must have known the fact, although she said nothing that indicated such a knowledge, was receivable. In this case the judge left it to the jury to say whether the statement was made under the apprehension of death; but the modern practice is for the judge himself to decide this question. It will be observed that, in this case, although the statement was inadmissible as a statement on oath, in a situation where an oath was improperly administered; there was no objection to it on the ground that the statement was made in answer to a formal and solemn inquiry. Accordingly, it is not held to be necessary that the statement should be voluntary or spontaneous; and answers, in articulo, to questions put by a surgeon, for the purpose of ascertaining whether he ought to call in a magistrate, have been received.1

It is stated by Lord Denman,2 that "with regard to declarations made by persons in extremis, supposing all necessary matters concurred, such as actual danger, death following it, and a full apprehension at the time of the danger and of death, such declarations can be received in evidence; but all these things must concur to render such declarations admissible." To these three conditions a fourth must be added, viz., religious sentiment.3

1. The declaration must be made when the declarant is in actual danger.

This proposition is commonly stated more broadly, that the declaration must be made in extremis or in articulo mortis 4 but there appears to be no definite

1 R. v. Fagent, 7 C. & P. 238.

2 11 Cl. & Fin. 112.

3 R. v. Pike, 3 C. & P. 598.

R. v. Van Butchell, 3 C. & P. 631. Per Hullock, B.

limitation of the time, before death, within which the declaration must be made; and recent cases support the doctrine, that declarations made under apprehension of death, if otherwise admissible, will not be rejected because a considerable time elapses between the declaration and the death. Thus, in R. v. Mosley,1 the declarations were held by all the judges to have been rightly received, although the deceased did not die until eleven days after making them, and although the surgeon held out slight hopes of recovery to him until a few hours before his death. Here, however, the deceased had frequently expressed a belief, prior to the statement, that he should never get better.

2

2. It appears also that the doctrine laid down by Hullock, B., that "the declarations" are admitted only if "they are made under an impression of almost immediate dissolution," is by no means literally correct. It is true, as stated by Tindal, C. J., in R. v. Hayward, that "any hope of recovery, however slight, existing in the mind of the deceased at the time of the declarations made, will undoubtedly render the evidence of such declarations inadmissible;" and accordingly it has been held lately,3 that in the absence of expressions or conduct to show that the deceased was under the impression of approaching death, his statements are inadmissible. In this case the deceased had said, he was "a murdered man, and it would have been better if they had killed him on the spot than left him to linger; and that he thought he should never get over it; Ibut he lived several weeks afterwards. The learned judge at first held a statement made at the time of this remark to be admissible; but afterwards rejected it, on its appearing on cross-examination that the deceased had not used the phrase, "murdered man," in its literal sense, and that he did not really

1 1 Moo. C. C. 97.

2 6 C. & P. 157.

Wightman, J.: R. v. Qualter, 6 Cox Crim. Cas. 357.

1

believe at the time that he was dying. The learned judge said "The general principle is, that the deceased must be under the apprehension that he will die;" but the question, whether the impression in the mind of the deceased must amount to an apprehension of immediate death, was not touched. But in a later case, the same learned judge has stated his opinion more broadly. In that case it appeared that at the time of the statement the deceased was under the full impression that she would die, but there was no evidence to show that the impression amounted to an expectation of immediate dissolution; and it was contended for the prisoner, that as the statements had not been made under an impression of immediate death, i. e., not in articulo mortis, they were inadmissible. But the learned judge said :—"It is not necessary that the person making the declaration should believe himself to be in danger of immediate death, if he believes that he will not recover from the disorder under which he is labouring. Reg. v. Van Butchell is an exceptional case. The deceased was of opinion throughout that she would die; and I receive her statement." The learned judge, in the same case, also received evidence of a subsequent declaration, made by the deceased after she had recently said that "she was better;" but no other evidence had been offered to show that her previous impression, of death ensuing before long, had been altered.

In a still later case the deceased made a declaration, stating at the time that he believed he should not recover. His spine was then broken in such a way that death must have followed soon. Shortly before he had made the declaration, he had said to a witness: "The surgeon has given me some little hope that I am better; but I do not myself think that I shall ultimately recover." The declaration was held to be admissible.2

Where the prisoner was indicted for poisoning J. K., and it appeared that J. K. had eaten some cake and died; soon after which, the servant who had made the cake ate some, and died also; it was held by Coltman, J., after consulting Parke, B., that the dying declarations of the servant were evidence against the prisoner, because the two consecutive deaths formed one transaction.1

It is held strictly, that evidence of this description is only admissible where the death of the deceased is the subject of the charge, and where the circumstances of the death are the subject of the dying declaration. Accordingly, where the defendant had been indicted by the deceased for perjury, and after conviction had shot the prosecutor, it was held that a dying declaration by the latter as to the circumstances of the perjury was inadmissible, on an application by the defendant for a new trial.2 So where the prisoner was indicted for administering savin to a pregnant woman, but not quick with child, with a view to procure abortion : Bayley, J., rejected evidence of her dying declaration concerning the cause of her death, because the death was not the subject of the pending inquiry.3 But it appears that in two old cases of perjury, evidence of a confession by a deceased accomplice has been received.1 This doctrine, however, could hardly be supported in the present day.5

The dying declarations of an accomplice are receivable, and also dying declarations made in favour of the person accused.7

1 R. v. Baker, 2 M. & R. 53.

2 Per Abbott, C. J.: R. v. Mead, 2 B. & C. 605.

3 R. v. Hutchinson, 2 B. & C. 608, n.; R. v. Lloyd, 4 C. & P. 233. Per Lord Ellenborough: Aveson v. Kinnaird, 6 East, 195; and see 1 Camp. 210.

Doe v. Ridgway, 4 B. & Ald. 53. R. v. Tinkler, 1 East P. C. 354. 7 R. v. Scaife, 1 M. & R. 551.

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CHAPTER XIII.

ON EVIDENCE OF HEARSAY DECLARATIONS AGAINST INTEREST.

WHEN a deceased person, whose veracity in other respects is unimpeached, has, during his lifetime, made a statement concerning the matter in issue, which statement was at the time opposed to his pecuniary or proprietary interest, the legal presumption is that the statement is true, or that it contains at least some elements of credibility. For in all the exceptions to the general rule by which hearsay is excluded, it must be remembered that credibility is by no means a necessary consequence of admissibility. English law, although frequently arbitrary, and perhaps unreasonable, in its dogmatic distinctions between credibility and incredibility, refuses to reject any evidence which it considers to contain any ingredients, however minute, of presumptive truth; but, while admitting it, the judge will often intimate to a jury, that they ought to give it little credit.

The rule which is now to be considered is the following:

A declaration by a deceased person, who had a competent knowledge of a fact, and no interest to pervert it; and which declaration was against the pecuniary or proprietary interest of the declarant at the time when it was made; is evidence as to