
    Charles W. Thayer vs. Richard T. Lombard & another, executors.
    Norfolk.
    November 25, 1895.
    —January 4, 1896.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathkop, JJ.
    
      Dying Declarations as Evidence in a Civil Action.
    
    The admission of the declarations of a deceased person on the ground that they are dying declarations is by the common law confined to prosecutions for homicide, and there is no statute which makes them evidence in an action of contract.
    Contract, upon a promissory note for |100, dated December 1, 1891, and made payable six months thereafter to the order of the defendants’ testator.
    At the trial in the Superior Court, without a jury, before Hammond, J., the plaintiff testified that he lent to Lombard one hundred dollars on the day of the date of the note, and the defendants introduced evidence that the testator had for a number of years before the date of the note, and up to the time of his death, employed a bookkeeper who had kept a regular set of books, including a note and a cash book; that the testator was taken sick on December 16, 1891, and was ever afterwards confined to his house; that he took to his bed on May 5, 1892, executed his will on May 17, and died on May 29; and that the note did not appear in his note-book, and no entry of cash corresponding in- amount appeared in his cash-book on or near the date of the note.
    The defendants offered to prove that, on May 6, 1892, the testator was informed that he could not recover; that he stated to his wife and brother, the defendants, that he knew he could not get well, and that he - had but a short time to live, and wished to arrange his business affairs ; and that on May 17 or 18, after his will was executed, he gave bis executors information about his estate, his property and debts, and stated to them that all the notes he owed appeared on his note-book, and all debts in form of accounts on his other books.
    The judge excluded the evidence, and found for the plaintiff; and the defendants alleged exceptions.
    
      
      R. T. Lombard, for the defendants.
    
      J. Everett, for the plaintiff, submitted the ease on a brief.
   Field, C. J.

The dying declarations of the defendants’ testator were not admissible to prove the facts to which the declarations related. The facts in controversy were facts in the past, and not facts concerning the feelings or thoughts of the testator existing at the time the declarations were made. See Chapin v. Marlborough, 9 Gray, 244. The present case does not bring the declarations within any of the exceptions known to the common law where declarations of deceased persons are admitted in evidence. The admission of the declarations of a deceased person on the ground that they are dying declarations is by the common law confined to prosecutions for homicide, and there is no statute which makes them evidence in a civil action such as this is. 1 Greenl. Ev. § 156.

Exceptions overruled.  