left together, the latter having all the letters to post in his hand, and that no complaints had been received of the miscarriage of any one of them-still held that this was merely evidence of possession of a letter for . . . posting, but not sufficient proof of postage itself." Buckley, was not cited.

Statements under this head may be oral: per L. Campbell, Sussex Peerage, 11 Cl. & F. 113, 1864; Fawke v. Mills, 27 T. L. R. 202, 1911; Buckley, above.

7. See T. s. 580; Phips. pp. 50-1. Blandy, 18 St. Tr. 1135, 1752, was charged with having poisoned her father, who died on the 14th and the doctor, who was called in on the 10th, was allowed, without objection, to state all that deceased said in answer to inquiries respecting his health; but not only was he allowed to do this, but he also went on, still without objection, to state the answers of deceased to inquiries put by him, who administered the poison which deceased had taken? though no evidence was given to show that deceased was' then in articulo mortis; this case would not now be considered an authority on the latter point; on the former it is confirmed by Johnson, below. Aveson v. Lord Kinnaird, 6 East, 188, 1805, was an action on a policy of insurance, effected by a husband on the life of his wife. The defence was that the wife was a hard drinker, and was in illhealth at the time the policy was effected. The surgeon who had examined the woman on behalf of the office was called by plaintiff, and he swore positively to his belief of her good health at the time, and said that he formed his opinion principally from the satisfactory answers which she gave to his inquiries. A witness was then called for the defence, who stated that shesaw deceased a day or two after the surgeon had examined her; that she then complained of being unwell; and said that she was unwell when she went to see the surgeon, with other similar statements. A verdict was found for defendant, and a rule for a new trial obtained by plaintiff on the ground that evidence of these statements ought not to have been received, was discharged. It was assumed by all the judges, that what was said by deceased to the surgeon was evidence of her state of health at the time; and they all thought that this evidence having been produced by plaintiff, it was open to defendant to rebut it by showing that she had made_different statements on another occasion on the same subject. In the Gardner Peerage case, many doctors were examined for the claimant on their experience of protracted gestation. To ascertain the circumstances of these cases, it was necessary to inquire into the data on which the witnesses had formed their calculations, and these depended on the answers of women to certain medical inquiries about facts which had taken place some months previously. Evidence of what these answers wore was repeatedly objected to, and finally rejected by the Committee on the advice of LL. Giffard and Redesdale. In Guttridge, 9 C. & P. 472, 1840, Parke B. said: What a man says as complaint to his surgeon, is evidence': approved by Pollock C.B. in Nicholas, 2 C. & K. 248, 1846. Johnson, 2 C. & K. 354, 1847, was charged with having murdered her husband, and to prove his state of health before the day of his death, a witness was called who had seen him a day or two before; being asked in what state of health deceased appeared to be when he last saw him, he began to state a conversation between deceased and himself on this subject. This was objected to on behalf of defendant, but Alderson B. said that he thought that what deceased said to the witness was reasonable evidence to prove his state of health at the time.

The result of the cases seems to be this: that, if it becomes necessary to inquire into the state of health at a particular time of a person who is dead, a witness may detail what that person has himself said on that point only at that time; and this whether he be a medical man or not. But a medical man may go farther, and, even in the case of a person who is still living, state the answers by that person to his inquiries about such person's health; this evidence is given in cases of assault, in order to prove what the person assaulted has suffered, ‘in every day's experience': per Lawrence J. in Aveson v. Lord Kinnaird; Gloster, 16 Cox C. C. 471, 1888: statement must be confined to the state of health. The question is, whether A.'s death was caused by poison. Statements made by A. before his illness as to his state of health, and during his illness as to his symptoms, are deemed to be relevant facts': Stephen, Dig. Ev. Art 11, and Gen. View of Crim. Law, ed. 2, p. 255: evidence of Dr. Savage, Mr. Stephens and others in Palmer, 1856; and Aveson v. Kinnaird.

8. Dying declarations] This evidence is peculiar to homicide; it has been considered by some to be admissible from the fullest necessity,' since it often happens that there is no third person as an eye-witness: 1 East, P. C. 353. But it is said by Eyre C.B. that the general principle on which this species of evidence is admitted is, 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 an oath administered in a court of justice.' Woodcock, 1 Lea. 502, 1789; Bernadotti, 11 Cox C. C. 316, 1869. Probably it is the concurrence of both these reasons which led to the admission of this species of evidence.

The declaration must have been made by a person who, if alive, would have been a competent witness. Thus, in a trial for the murder of a girl four years of age, Park J. (and Parke B.) refused to hear evidence of her declarations, observing that, however precocious her mind might be, it was impossible that she could have had that idea of a future state which is necessary to make such a declaration admissible. Pike, 3 O. & P. 598, 1829. But when a child is of an intelligent mind, impressed with the nature of an oath, and expecting to die, the declaration is receivable. See Perkins, 1840, where the child was eleven years old. It is no objection to the evidence that the deceased was particeps criminis (as a woman attempting to procure abortion). Tinckler, 1 East, P. C. 354, 1781. So the statement of the deceased must be such as would be admissible if he were alive and could be examined as a witness; consequently, a declaration on matters of opinion, as distinguished from matters of fact, will not be receivable. Sellers, Carr. Supp. 233, 1796. Dying declarations in favour of the person charged with the death were admitted by Coleridge J. in Scaife, 1 Moo. & R. 551, 1836. It is no objection to a dying declaration that it has been elicited by questions put to the deceased. Fagent, 7 C. & P. 238, 1835. See also Reason and Tranter, 1 Str. 499; 16 St. Tr. 1; Foster, C. C. 293; 1 East, P. C. 320, 1722, Woodcock, above; and Mitchell, 1892, where the deceased was examined on oath by a magistrate, and the examination signed by both. See also Smith, 1 L. & C. 607; 34 L. J. M. C. 153, 1865.

The question, whether a dying declaration is admissible in evidence,

is exclusively for the judge: per L. Ellenborough. Hucks, 1 Stark. N. P. 523, 1816; Bartlett v. Smith, at 486. See also Johns, 1 East, P. C. 357; 1 Lea. 504 n., 1790.

Homicide only] It is a general rule, that dying declarations are only admissible where the death of the deceased is the subject of the charge, and they concern the circumstances of the death: per Abbott C.J., Mead, 2 B. & C. 605; 4 D. & R. 120, 1824. Therefore, on an indictment for administering savin to a woman pregnant, but not quick with child, with intent to procure abortion, when evidence of her dying declarations was tendered, Bayley J. rejected it, observing, that although they might relate to the cause of death, still such declarations were admissible only where the death was the subject of inquiry. Hutchinson, 2 B. & C. 608 n., 1822. 1822. So, in robbery, the dying declaration of the person robbed has been frequently rejected. Lloyd, 4 C. & P. 233, 1830.

In one case where A. and B. were both poisoned by the same means, on the trial for the murder of A., evidence was allowed by Coltman J., after consulting Parke B., to be given of the dying declarations of B.; the ground alleged being that it was all one transaction.' Baker, 2 Moo. & Rob. 53, 1837. But in Hind, 29 L. J. M. C. 147; 8 Cox C. C. 300, 1860, a case similar to that of Hutchinson above, the C. C. C. R. followed the rule in Mead, above; c. q. But see Mann, 1885.

Condition of declarant] Dying declarations are only admissible when made by a person who is under the influence of an impression that death is impending. There must be no hope, not only of ultimate recovery, but of a prolonged continuance of life. If that impression exists in the mind of the sufferer, the fact that death does not take place till some time afterwards will not render the statement inadmissible.

To judge whether or not such was the state of the mind of the declarant, the whole of the circumstances must be looked at. A few cases may be cited with the caution, however, that it is by no means suggested that they can become precise precedents for any future cases that may arise.

In Woodcock, 1789, and Johns, above, this kind of evidence was received in circumstances which would not now be considered sufficient to render it admissible. In the first, the surgeon distinctly stated that he did not think the deceased was aware of her condition; in the second, the deceased had never expressed the slightest apprehension of danger; and in neither case were there any circumstances which led to a different conclusion. In Woodcock, no case was reserved by Eyre C.B. for the judges; but in Johns, the judges, on a case reserved, (apparently) held that the evidence was wrongly received. But they laid it down that the apprehension of danger may be inferred from the declarant's condition and need not be expressed by him (but cf. Cleary, 1862), and whether that apprehension existed or not is for the judge and not for the jury.

In Christie, Carr. Supp. 202, 1821, the deceased asked his surgeon if the wound was necessarily mortal, and on being told that a recovery was just possible, and that there had been such an instance, he replied, 'I am satisfied,' and after this made a statement; held by Abbott C. J. and Park J. to be inadmissible. In Van Butchell, 3 C. & P. 631, 1829, the deceased said, 'I feel that I have received such an injury in the

Dying Declarations.

6

33

bowel that I shall never recover'; and, on his doctor trying to cheer him, he said that he felt satisfied he should never recover; Hullock B. rejected the evidence, saying that a man might receive an injury from which he might think that he should ultimately never recover, but still that would not be sufficient to dispense with an oath. See Reaney, 1857. In Crockett, 4 0. & P. 544, 1831, the surgeon said, ‘I had told the deceased she would not recover; and she was perfectly aware of her danger; I told her I understood she had taken something, and she said she had, and that damned man had poisoned her. I asked her what man, and she said Crockett. She said she hoped I would do what I could for her for the sake of her family. I told her there was no chance of her recovery.' Bosanquet J. thought a degree of hope was shown, and struck out the whole of this evidence from his notes. In Hayward, 6 C. & P. 160, 1833, Tindal C.J. observed that any hope of recovery, however slight, existing in the mind of the deceased at the time of the declaration being made, would undoubtedly render the evidence of such declarations inadmissible.' In Spilsbury, 7 C. & P. 187, 1835, Coleridge J. said, 'When I consider that this species of proof is an anomaly, and contrary to all the rules of evidence, and that, if received, it would have the greatest weight with the jury, I think I ought not to receive the evidence, unless I feel fully convinced that the deceased was in such a state as to render the evidence clearly admissible. It appears from the evidence . that the deceased said he thought he should not recover, as he was very ill. Now, people often make use of expressions of that kind who have no conviction that their death is near approaching. If the deceased in this case had felt that his end was drawing very near, and that he had no hope of recovering, I should expect him to be saying something of his affairs, and of who was to have his property, or giving some directions as to his funeral, or as to where he would be buried, or that he would have used expressions to his widow purporting that they were soon to be separated by death, or that he would have taken leave of his friends and relations in a way that showed he was convinced that his death was at hand. As nothing of this sort appears, I think there is not sufficient proof that he was without any hope of recovery, and that I, therefore, ought to reject the evidence.' Cf. next title. In Perkins, 9 C. & P. 395; 2 Moo. C. C. 135, 1840, a boy of about ten was severely wounded by gun-shot, and died the next morning. On the previous evening he was seen by two surgeons. One of them, who was then of opinion that he could not survive many days, said to him, 'My good boy, you must know you are now labouring under a severe injury, from which, in all probability you will not recover, and the effects of it will most likely kill you.' The other said, 'You may recover; it is impossible for me to say, but I don't think it likely that you will be alive by the morning.' The boy made no reply, but his countenance changed and he appeared distressed. From questions put to him, he seemed fully aware that he would be punished hereafter if he said what was untrue. He then made a statement to the surgeons. All the judges, except three, thought the statements made under the apprehension and expectation of immediate death. In Megson, 9 O. & P. 418, 1840, two days before her death, the surgeon told the deceased she was in a very precarious state. Next day, being much worse, she said to him that she had been in hopes of getting better, but as she was getting worse, she thought it her duty to mention what had taken place. She then made a statement. Rolfe B. held that this statement was not admissible, as it did not

sufficiently appear that, at the time of making it, she was without hope of recovery. But cf. Hubbard, below. In Howell, 1 Den. C. C. 1, 1844, the deceased had received a gunshot wound, and repeatedly expressed his conviction that he was mortally wounded. He was a Roman Catholic, and an offer was made to fetch a priest, which he declined. This was insisted on as showing either that the deceased had no sense of religion, or that he did not expect immediate death; but the judges were unanimously of opinion that the evidence was properly received. In Reaney, D. & B. C. C. 151; 7 Cox C. C. 209; 26 L. J. M. O. 43, 1857: manslaughter, deceased, eleven days before his death, signed a statement concluding with the words, I have made this statement believing I shall not recover.' Shortly before, he said, 'I have seen the surgeon to-day, and he has given me some little hope that I am better, but I do not myself think that I shall ultimately recover."' The evidence was received by Willes J.: in the C. C. C. R. five judges were of opinion that the evidence was properly received. Much reliance was placed by defendant's counsel on the word 'ultimately,' but Pollock C.B. said, 'No doubt, in order to render the statement admissible in evidence as a dying declaration, it is necessary that the person who makes it should be under an apprehension of death; but there is no case to show that such apprehension must be of death in a certain number of hours or days. The question turns rather upon the state of the person's mind at the time of making the declaration, than upon the interval between the declaration and the death.' Wightman J. said that the statement must be made under an impression that ... death must in a comparatively short lapse of time ensue.' There must be a settled hopeless expectation of immediate death,' per Lush J.; Osman, 15 Cox C. C. 1, 1881. Erle C.J. refused to infer from the nature of a wound alone, that a man must have known as soon as he had received it that he was about to die. Cleary, 2 F. & F. 851, 1862; but cf. Johns, above; Smith, 16 Cox C. C. 170, 1887; Gloster, 1888, followed by the C. C. A. in Perry, 1909, 2 K. B. 697; 78 L. J. K. B. 1034; 73 J. P. 456; 25 T. L. R. 676;, 101 L. T. 127; 2 Cr. A. R. 270: the test is, 'has all hope of life been abandoned?' It would seem, however, that in some circumstances it may be possible to draw such an inference. Morgan, 14 Cox C. C. 337, 1875; Bedingfield, ib., 342. In Pickersgill, Leeds Summer Assizes, 1869, deceased, who was suffering from the effects of poison and died the same night, said, ‘I am getting worse. I am going to die.' The doctor asked her if she thought she would get better, and she said, 'No, I shall die.' Cleasby B., after consulting Brett J., said the evidence satisfied them that the woman was in a dying state, and that she believed it. When she said she was going to die, she meant that death was imminent.' In Bernadotti, where deceased had received a knife-stab in the neck, and the bleeding, after being stopped, had recommenced, so that his life was in danger, though not in immediate danger, and a magistrate was sent for, deceased said, 'Be quick or I shall die,' just before making the declaration. Brett J., after consulting Lush J., admitted it. See also Jenkins, L. R. 1 C. C. R. 187; 38 L. J. M. C. 82; 11 Cox C. C. 250, 1869. Where a woman who had received severe injuries was standing at a neighbour's door fainting and apparently dying, and she said, 'I am dying; look to my children,' and she died that night, Hawkins J. admitted this declaration. Goddard, 15 Cox C. C. 7, 1882. A magistrate having before him an earlier statement made by the deceased [on June 29], but not when dying, repeated portions of it in his own words to her when dying [on July 7], wrote down