
    Wilson against Boerem.
    
      tremis, of would1, íflívpeten/Ztncss' ble ’evidence", viihact!on,aor a ™tian aI F with the single exception pleases of homicide, when the declaration of the deceased &£• ter the mortal factofthemurder, is admit-The declarations in ex-
    
    This was an action of assumpsit, on a promissory note for 305 dollars and 35 cents, payable in ninety days,, drawn by Thomas Shieffelin, in favour of the defendant, by whom it was endorsed to Josiah Brown, Jun. and by him to the plaintiff. The cause was tried before Mr. J. Van Ness, at the New-York sittings, in December, 1816.
    The note, endorsements, demand of payment, and notice, having been proved on the part of the plaintiff, the defendant produced witnesses to prove that the note was endorsed * * - ------—: - by Brown and the defendant, for the accommodation oí "~ i - - j.. Shieffelin, and delivered to theplaintiffby Brown, for the purpose of being discounted by him, but that he had never paid an^ ^ing on account of the note, and had pledged it to one Simmons for his own debt. The defendant’s counsel, in order further to make out the defence, offered to prove the dying declarations of Brown, in relation to the note. The evidence was objected to by the plaintiff’s counsel, but the judge ruled that the declarations of Brown, in extremis, were ad- j missible, as to all such facts, as he would be competent to j prove, if then living and present. Accordingly, his wife/ Susan Brown, was called, who testified that her husband died of a consumption, of which he had been ill for some time ; that after he considered himself a dying man, and his recovery hopeless, he in conversation with her, when alone, told her that the note had been drawn and endorsed for the purpose of getting it discounted for Shieffelin; that he had delivered it to the plaintiff and charged him with» wrongfully converting it to his own use, by pledging it!, for a debt, and that the plaintiff had never paid him any thing for the note. The witness also stated, that her husband died about a week after this conversation ; that no physician or clergyman had been with him, near the time that it took place, and that he had afterwards walked about the room. Charles L. H. Shieffelin, the son of the maker of the note, testified that Brown died on a Friday, and that on the Sunday preceding, he called to see him ; that Brown, then considered himself a dying man, and was confined to his bed, and that he gave him the same account of the note as he had given to the preceding witness. Thomas Shieffelin, the maker of the note, also testified, that he called to see Brown, who said, that the doctor had given him over, and made the same statement to this witness. . Testimony was produced on the part of the plaintiff) to repel this defence, which it is unnecessary to notice.
    The judge charged the jury, that if they believed the note in question had been drawn and endorsed for the special purpose stated by the witnesses on the part of the defendant, and that this was known to the plantiff when he took it, and if they also were satisfied that the note had never been negotiated for a valuable consideration to the plaintiff) but that it had been left with him by Brown merely to raise money for the benefit of Shieffelin, that then they ought to find for the defendant, otherwise for the plaintiff. The jury found a verdict for the defendant, which the plaintiff now moved to set aside, and that a new trial be granted.
    
      Sampson, for the plaintiff, contended,
    that the evidence of the declarations of Brown was inadmissible, being mere hearsay. (Gilb. L. of Ev. 6th ed. 135.) It is a settled rule in the law, that hearsay is no evidence.
    Nor will the fact, that Brozan was in extremis, when he made the declarations, create any exception to the rule, and make them evidence. It is true, that some of the elementary writers on the law of evidence, appear to have fallen into that error; and Phillips, in his late treatise, (p. 200.) after stating that “ the dying declarations .of a person who has received a mortal injury, are constantly admitted in criminal prosecutions,” and the reason of the rule, adds, (p. 201.) that “ the same kind of evidence, is admissible in civil cases, as well as in trials for murder.” (See also, M'Nally's Evid. 174.) But such evidence was nevef admitted in a civil case, nor in any criminal case, except that of homicide, and then from necessity only. Mr. East, in his treatise of the Pleas of the Crown, (vol. 1. 353. 360.) considers the admission of such evidence as peculiar to the case of homicide, and he states the circumstances under which it is admissible in that case. Mr. Peáke, in his Compendium, of the Law of Evidence, (p. 15. 3d ed.) also states the same limitations, as to the admission of the dying declaration of the party, in cases of murder, and cites Woodcock's case, (2 Leach C. L. 563.) and the observations of Lord C. B. Eyre, as to the reasons for allowing such declarations to be evidence, under the peculiar circumstances of the case. Mr. Lutterell's case, (Rex. v Reason and Tranter, 1 Str. 499. 6 St. Tr. 195. Foster C. L. 293.) appears to be the first in which the dying declarations of the deceased were admitted, and that was a very peculiar case, which seemed to justify some relaxation of the strict law of evidence. In the works of the earlier writers on criminal law, Coke, Hale, and Hawkins, no such rule is to be found. Hale, (2 H. P. C. 52.) refers to the statute of 1 & 2 Ph. & Mar. cap. 13. which authorizes magistrates to take the examinations of prisoners, and the depositions of witnesses produced against them, and to return them to the court of gaol delivery. He cites Welsh's case, (2 H. P. C. 285.) in which the examination of Mrs. P. taken before commissioners, under an act of parliament, was not allowed to be read against W. on an indictment, for a forcible marriage of P. because it was a proceeding according to the civil law, in a civil cause.
    
      Hearsay evidence has sometimes been received on questions of pedigree, prescription, or custom, depending on general reputation; but a late case,
       (Berkley Peerage, Phillips Ev. 178.) in the house of lords, in which all the judges delivered their opinions, shows with what extreme caution this species of evidence, even on questions of pedigree, is allowed ; and it is never received where the declaration is made after a controversy has arisen on the question, post litem motam, for the declaration must be made under circumstances which precluded the possibility of any bias or interest operating on the mind of the person whose declaration is offered to be proved.
    
      In Wright v. Littler, (3 Burr. 1244. 1255.) the declaration of Medlicott, as to the forgery, came out on a cross examination, and no objection was made at the trial, and it was allowed under the special circumstances of the case. In Aveson v. Kinnaird, (6 East, 188.) evidence of the declaration of the wife, as to the state of her health, was admitted, to contradict the evidence of a surgeon, who had examined her. These are the cases cited by Mr. Phillips; but the evidence was admitted not to prove the declarations of a person in extremis, and who if living might have been a witness, but merely to contradict what the same person had, when living, declared.
    In Jackson, ex dem. Coe, v. Kniffen, (2 Johns. R. 31.) this court decided, that evidence of the declarations of a testator, in extremis, that a will previously executed by him was extorted .by duress, was not admissible. Livingston, J. thought the declarations of a dying person ought never to be received as evidence in civil cases, and he doubted whether they ought to be received at all, even in criminal proceedings, unless in the single case where the party injured was the only witness, and his death might otherwise defeat the ends of public justice. In Gray v. Goodrich, (7 Johns. Rep. 95.) the court say, that what a deceased person has been heard to say, except upon oath, or in extremis, and when he came to a violent end, never has been considered as competent evidence.
    Again; Brown, if living, would not have been a competent witness. He was an endorser of the note, and incompetent, not only on the ground of interest, but on the principle which excludes a party to a negotiable paper from invalidating it by his testimony. (Phillips' Ev. 50.)
    
      Van Wyck, contra, contended,
    that Brown, if living, would have been a competent witness, as his testimony did not go to invalidate the note in its first inception; (Woodhull v. Holmes, 10 Johns. Rep. 231.) and that evidence of his declarations in extremis was admissible. In criminal cases it is undoubtedly the practice to receive such evidence; and courts are more cautious in admitting evidence in criminal, than in civil cases. The opinion of C. B. Eyre, in 
      Woodcock’s case, has been cited; and the principle on which such evidence is to be received is very forcibly stated by him. “ They-are declarations made in extremity, when the party is at the point of death, and every hope of this world is gone ; when every motive to falsehood is silencéd, and the mind induced by the most powerful considerations to speak the truth; a situation so solemn and so awful, is considered by the law as an. obligation, equal to that which is imposed by a positive oath, administered in a court of justice.’* All men are disposed to assent to the truth of declarations, made under circumstances which afford, perhaps, a higher test of truth, than if made by the party under the ordinary sanction of an oath. It is objected, that there can be no .cross-examination in such case. But what is the object of a cross-examination ? To elicit the truth. But if the death bed, and the awful situation of the party, affords the strongest test of the truth of what he declares, no other or better test can be desired. We do not say that the evidence is, of itself, conclusive. It is hearsay evidence; but where a foundation has been laid for it by other evidence, it ought to,go to.a jury, either to corroborate or contradict the previous testimony. In Wright v. Clymer (S. C. 1 Wm. Bl. 345.) which has been cited, Lord Mansfield was of opinion, that the evidence was proper to be left to the jury. The case of Aveson v. Kinnaird is, also, in point. (Phillips’ Law of Ev. 201)
    
      
       Vid. 4 Campbell's N. P. Rep. 401. a report of the Berkley Peerage Case, before the house of lords, May 13, 1811. Vid. also, Rex. v. Cotton, 3 Campb. N. P. Rep. 444.
    
   Thompson, Ch. J.

delivered the opinion of the court. Assuming that Brown would have been a competent witness, had he been living, and admitting that he was in ex-tremis, when the declarations were made which were received in evidence, (of which, however, there is very great doubt,) the only question in the case is, whether such declarations were at all admissible. No case, "either in the Fpg'lish courts or in our own, has fallen under my observatian, where such evidence has been admitted in -acivil suit. Such testimony is inconsistent with two fundamental rules (in the law of evidence. It is mere hearsay, not under oath, and no opportunity is given for cross-examination; and writers on the law of evidence have, I apprehend, either fallen into a mistake, or been a little unguarded, in laying down the rule relative to the admission of the dying decíaration of a person, even in criminal cases. Phillips, in his Treatise, (p. 200.) says such evidence is constantly admitted in criminal prosecutions, and is not liable to the comtaon objection against hearsay evidence. If he means to be understood, that this is a general rule of evidence in criminal prosecutions, he is not supported by any adjudged case. It is, I apprehend, confined to the single case of homicide ; and so it seems to be considered by East; in his Crown Law. (vol. 1. p. 253.) “ Besides,” says he, “ the usual evidence of guilt in general cases of felony,” there is one kind of evidence more peculiar to the case of homicide, which is the declaration of the deceased, after the mortal blow, as to the fact itself, and the party by whom it was committed. Evidence of this sort is admissible, in this case, on the fullest necessity. For it often happens, that there is no third person present to be an eye witness to the fact, and the usual witness, on occasion of other felonies, namely, the party injured himself, is got rid of. Whatever might have been the ground on which this kind of evidence was first admitted, in cases of homicide, we find it has long been an established rule in such cases, and, I may say, in such cases only. For wherever this rule is recognized by elementary writers, the eases referred to in support of it will be found to be those of homicide only. (Stra. 499. 2 Leach. 569. 638. 12 Vin. 118. 1 East’s C. L. 353.) Baron Eyre, in Woodcock’s case, considers it an exception to the general rule, which requires that witnesses should be examined in. open court on oath, and an opportunity afforded for cross-examination.

Phillips, (p. 201.) in treating of this rule in criminal proceedings, says, the same kind of evidence is admissible in civil cases, as well as in trials for murder. But he is not' supported by any of the cases referred to, or by any other adjudged cases, that I have found. Wright, ex dem. Clymer, v. Littler, (3 Burr. 1244. 1 Wm. Blacks. 345.) has been urged in support of this rule. But a recurrence to the facts will show that the circumstances of that case were special and peculiar; and the admission of the declaration of Medljcott was not supported under this rule. Lord Mansfield, in pronouncing the opinion of the court, says, the testimony comes out on the cross-examination of the defendant’s counsel, and no objection made to it; and after mentioning the special circumstances of the case, he says, no general rule can be drawn from it; thereby expressly excluding the idea that the evidence was admitted merely as the dying declaration of Medlicott. Nor does the case of Aveson v. Lord Kinnaird, (6 East, 188.) which has also been pressed upon the court, in any measure support such a- rule of evidence. It- was an action on a policy of insurance, on the life of. the plaintiff’s wife, warranted in good health when the policy was effected, and the dying declarations of the wife, as to her state of health at that time, were' admitted; but not as declarations made, in extremis, by a person who might have been a witness, if living; for she could not, under any circumstances, have been a witness, if living. The plaintiff had produced a surgeon as a witness, to show, from his examination of her, and what she told him, that she was in a good state of health; and her account to another person of her health, at the same time, Lord Ellenborough said, was but a sort of cross-examination of the same witness. That the inquiry was upon the subject of her own health, which was a fact of which her own declaration was evidence. That such declarations are always received upon such inquiries, and must be resorted to, from the very nature of the thing. I think it may safely be affirmed, that no such rule of evidence in civil cases is to be found in practice in the English courts; with us there certainly is none such, and wherever it has been in any measure alluded to, it has uniformly been with disapprobation. That the question is still open with us, appears from the case of Jackson v. Vredenburgh, (1 Johns. Rep. 163.) where it is said, that it will be unnecessary to determine whether, under any and what circumstances, the declarations of a competent witness, in articula mortis, can be introduced as legal evidence in a civil cause. In Jackson v. Kniffen, (2 Johns. Rep. 35.) Mr. Justice Livingston says, if the declarations of dying persons are ever to be received in evidence, (on which, if res integra, much might be said,) yet, in civil cases they never should be admitted. In Capron v. Austin, (7 Johns. Rep. 96.) it is said, that the law requires the sanction of an oath to all paroi testimony. It never gives credit to the bare assertion of any one, however high his rank, or pure his morals; and it is fairly to be inferred from this case, that the court meant to say, that decíarations in extremis were inadmissible evidence, except in the single case of homicide. Having an opportunity to» cross-examine a witness is a high and important right, and ought not to be violated, except from the most imperious necessity; and I am persuaded, that neither principle nor policy requires the adoption of any such rule of evidence in civil cases. The dying declaration of Brown, in the case before ns, ought not, therefore, to have been admitted in evidence. The verdict must, accordingly, he set aside, and a new trial awarded, with costs, to abide the event.

Judgment reversed.  