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William Mead, being apprehended and tried at the last Summer assizes for Yorkshire for that offence, was found guilty of manslaughter.
D. F. Jones, (with whom was Chitty,) on shewing cause now against the rule for a new trial, proposed to read an affidavit of the dying declaration of James Law, in which he denied all participation in the smuggling transaction to which Mead had deposed in the Exchequer; whereupon
Copley, A.G. (with whom were Clarke, Gurney, and Walton,) for the defendant, interposed, and objected to the reception of Law's dying declaration, on the ground that such declarations are admissible only in cases where the death of the deceased is the subject of inquiry in a court of justice, and where the declaration relates to the immediate circumstances of the death. The declaration now tendered had reference not to the circumstances under which the deceased came by his death, but to a transaction long antecedent, and consequently could not be admissible as evidence upon an inquiry concerning this perjury, which was a matter wholly collateral to the death of the deceased. Upon this principle, it was held in Doe v. Ridgway (a), that in the proof of a pedigree, the dying declarations of A. as to the relationship of the lessor of the plaintiff to the person last seised, are not receivable in evidence.
Jones and Chitty contrà. The dying declaration of the deceased now proposed to be read is so intimately connected with the subject of the present inquiry, that it cannot be rejected upon the principles contended for on the other side. In Mr. Phillips's Treatise on the Law of Evidence, page 200, it is laid down, that the principle upon which evidence of this nature is excepted out of the general rule as to hearsay evidence, is founded partly on the awful situation of the dying person, which is considered to be as pow
(u) 4 B. and A. 53.
erful over his conscience as the obligation of an oath, and partly on a supposed absence of interest on the verge of the next world, which dispenses with the necessity of crossexamination. (a) This principle equally applies to civil as to criminal cases, and cannot be limited to those only where the death of the deceased is the immediate subject of charge against the defendant. This has been laid down in the case of a subscribing witness to a bond, whose dying declarations were allowed to be given in evidence by Heath, J.(6) to prove
it a forgery; and in Wright v. Littler, (c) evidence of a dying confession by the subscribing witness to a deed was admitted. So that these are authorities to shew that the rule contended for on the other side cannot be confined to the narrow limit of an inquiry into the cause or circumstances of the death. But in this case the dying declaration is pertinent and relevant to the matter which is the subject of the indictment for perjury. The circumstances of the death are so connected with the motive for the hostility which the defendant is supposed to have entertained towards the deceased, and depend so much upon each other as not to be separated. The deceased, after giving an account of the manner of his death, proceeds, as a part of the same statement, to negative his having been present at the transaction to which Meud deposed in the Exchequer, and which was the cause of that angry feeling which led to the fatal catastrophe. The dying declaration, therefore, of the deceased respecting the smuggling transaction is part of the res gestæ, and may now be received. But, admitting that this declaration could not be admitted upon the trial itself, still it may be received in the discretion of the Court as to the reasonableness of granting a new trial, on the same
(a) Ld. Mohun's case, 12 How. St. Tr. 949. Rex v. Reason and Tranter, 1 Stra. 499. S. C. 16 How. St. Tr. 1. Tinckler's case, 1 East, P. C. 354. and 2 Hume's Com. on the Law of Scotland, respecting Crimes, 391. Woodcock's case, 2 Leuch, Cr. C. 566. and Bambridge's case, 17 How. St. Tr. 383.
(b) Cited by Lord Ellenborough in Avison v. Kinnaird, 6 East, 195. (c) 3 Burr. 1244.
principle that the affidavits of parties to the record, both in civil and criminal cases, on motions for new trials, are admitted.
ABBOTT, C.J.-I am of opinion that the affidavit of the dying declaration of this person is not admissible upon this inquiry. I believe it is a general rule that evidence of this description is only admissible where the death of the deceased is the subject of inquiry, and the circumstances of the death are the subject of the dying declaration. There may be exceptions to this general rule; but this is not one. That part of the dying declaration which is relied upon in this case does not appear to have been made for the purpose of accusing any body, but rather of clearing the deceased himself from the imputation of having been concerned in the smuggling transaction there adverted to; and therefore, on that ground, it is inadmissible. The cases relied upon in the argument for the prosecution are, in their nature, perfectly dissimilar to this, and afford no reason for taking this case out of the general rule, to which I have adverted. In the case before Mr. Justice Heath, cited in Avison v. Kinnaird, the declaration amounted to a confession, by the deceased himself, that he had been guilty of a heinous offence, in having been concemed in forging the bond in question. So also in the case of Wright v. Littler the same observation arises. For these reasons, therefore, I am of opinion that this affidavit ought not to be received.
BAYLEY, HOLROYD, and Best, Js. concurred.
The affidavit was therefore rejected.
The King v. Rawson and others.
THESE defendants had been indicted at the last Assizes indictment at
for the county of Lancaster for a riot and assault. It was the Assizes for a misdemea- arranged with the prosecutor, that if they submitted to a nor, defendants consented
verdict of guilty, they should not be brought up for judgto plead guilty, ment; and upon that understanding they pleaded guilty upon an understanding
accordingly. Since then the prosecutor had obtained a that they were side-bar rule for taxing his costs, although nothing had not to be brought up for been said at the Assizes upon the subject of costs. judgment; and no stipulation having been
Scarlett on a former day obtained a rule nisi for dischargthen made by the prosecutor ing that rule on the ground that inasmuch as nothing was
said at the Assizes upon the subject of costs when the dement of his costs : Held fendants submitted to a verdict, the prosecutor ought not to that he was
be suffered now to impose that term upon the defendants. not afterwards entitled to a Had the prosecutor stipulated for costs, that might be a rule on the Crown side to
different matter. have his costs taxed.
Cross, Serjt. now shewed cause against the rule, and insisted that the prosecutor was always considered as being intitled to his costs as a matter of course in cases of this nature. It was implied by one of the conditions of the agreement, that the prosecutor was to have his costs, if he consented not to bring the defendants up for judgment.
for the payo
Per CURIAM.-It is by no means a matter of course that a prosecutor is intitled to his costs where a defendant submits to a verdict of guilty upon an understanding that he is not to be brought up for judgment. If a prosecutor means to impose that term upon the defendant, it should be made matter of stipulation at the time, or there should be at least some understanding between the parties upon the subject. If a prosecutor, by agreeing not to bring the defendant up for judgment, expects to derive a benefit not usually given to prosecutors, he should take care to have
the matter distinctly understood when he enters into the arrangement with the defendant. It does not appear here that the subject of costs was mentioned at all at the Assizes, and we think, therefore, that the prosecutor cannot now call
upon the defendants to pay his costs.
LAMBERT v. BUCKMASTER.,
February 9. ON shewing cause against a rule for referring it to the An attorney
upon Master to review his taxation of costs, the case was this :
deeds, papers, John Buckmuster and William Buckmaster, co-partners in and writings
belonging to trade, had been in the habit of employing Mr. Watson, an
a bankrupt, attorney, sometimes separately, and sometimes jointly. He not merely for
bis bill for buhad been concerned for John Buckmaster separately, and siness done also for the partnership, in bringing and defending different before the
bankruptcy, actions, and each partner was indebted to him to a consi- but for the derable amount. On the 16th November, 1822, they be- costs of an accame bankrupts, and a joint commission issued against against him
after the comthem. At the period of the bankruptcy, Mr. Watson had mission issued, in his possession two leases, which were the separate pro- to recover the
amount of his perty of John Buckmaster; and after the commission bill, unless it issued, he brought two several actions, one against J. Buck- appears that,
as an attorney, master alone, for his separate bill of costs, and the other he bad impro
perly comagainst the partnership, for the costs due on the joint ac- menced the count; and in each action he recovered the amount of his action for the bills, and the costs of those actions were taxed at the sum creasing costs. of 471. Before the actions were brought, notice was given to the assignees that they would be brought, unless the bills were paid, but they declined paying them. The assignees having claimed the leases which were in the possession of Mr. Watson, he refused to deliver them up, claiming a lien upon them, not only for the amount of his original bills of costs, but also for the costs of the actions. The assignees insisted that they were not liable to pay more than the costs
purpose of in