are not introduced as witnesses. Thus, if it is necessary to ascertain the motives which actuated a person's conduct, the information upon which he relied is important, and in substantiating the prudence, legality or good faith with which he claims to have acted he may introduce evidence of what advice or information he received. For this reason, in a suit for malicious prosecution, the advice or information which defendant acted upon may be given in evidence as original evidence tending to prove the existence of a probable cause.' But it has been held that the declaration of one not a party to the suit is not admissible to show the declarant's intention. So, too, where the question of a person's sanity is involved, oral and written communications had with the alleged lunatic are admissible to show how his mental condition was regarded by those having dealings with him, but only in a case where the communications, being connected with some act done by him, have become a part of the res gesta.3

To prove the fact of bankruptcy, or that a bankrupt has absconded, a witness may testify to what the bankrupt said about his financial condition or his future intentions. The same rule is applicable to the statement made to persons endeavoring to serve civil process where one is alleged to be avoiding its service. So language used by a person, either contemporaneous with or shortly before or after a certain act, is admissible to show the condition of his mind, i. e., its weakness or strength at the time of the act. But such declarations are not admissible to show his intention where the law

Leahey v. Marsh, 155 Pa. St. 458; McClafferty v. Phelp, 151 id. 86; Com. v. Felch, 132 Mass. 22; Finn v. Frink, 84 Me. 261; Mark v. Hastings (Ala., 1893), 13 S. Rep. 297; Owens v. State, 74 Ala. 401; Hahn v. Schmidt, 64 Cal. 284; Atkins v. State, 69 Ga. 595; Johnson v. Miller, 82 Iowa, 693. 2 North Stonington v. Stonington, 31 Conn. 412.

3 Paine v. Aldrich, 30 N. E. Rep. 725; 133 N. Y. 544. So where fraudulent intent is in issue, the declarations of a party or of some third

person are always admissible to prove or to rebut the fraudulent intent. O'Hare v. Duckworth, 4 Wash. St. 470; Ferbrache v. Martin (Idaho, 1893), 32 Pac. Rep. 252; Snyder v. Free (Mo., 1893), 21 S. W. Rep. 847; Hicks v. Sharp, 89 Ga. 311.

4 O'Hare v. Duckworth, 4 Wash. St. 470; State v. Penn, 13 Bank. Reg. 464.

5 Sumner v. Williams, 5 Mass. 144; Buswell v. Luicks, 8 Daly (N. Y.), 518. Cf. Werner v. Com., 80 Ky. 387.

requires intention to be manifested in writing as in the case of wills.1

So, generally, if the only fact in issue is whether a certain statement was or was not made by some third person, it is not absolutely necessary to call that person, but the substance of his language may be given in evidence by one who was present and heard it.2

§ 52. Expressions of bodily or mental feeling.— Oral expressions of mental or physical sensations, where the declarant's condition of body or mind is material, may be given in evidence by a person who has heard them. The fact primarily in issue under such circumstances is whether the exclamations indicating' pain, anger, malice or other passion were uttered, and to this fact the witness may testify, leaving all inquiry whether the feelings were feigned or real for the jury to determine. So ejaculations indicating the existence of pain or malice may be testified to by any one who heard

3

1 Canada's Appeal, 47 Conn. 450; Mooney v. Olsen, 22 Kan. 69; Maye v. Bradlee, 127 Mass. 414; Bush v. Bush, 87 Mo. 480; Tingly v. Cowgill, 48 Mo. 201; Rusling v. Rusling, 36 N. J. Eq. 726; Marx v. McGlynn, 88 N. Y. 357; Herster v. Herster, 122 Pa. St. 239; Conway v. Vizzard, 122 Ind. 266; Potter v. Baldwin, 133 Mass. 427; Shailer v. Bumstead, 99 Mass. 112; Gibson v. Gibson, 24 Mo. 227; Middleditch v. Williams, 45 N. J. Eq. 726. Where undue influence is alleged in the execution of a will, the declarations of the testator are admissible to show the state of his mind and his feelings towards his relatives and the beneficiaries under the will. Jones v. Roberts, 37 Mo. App. 163; Gardner v. Frieze, 16 R. I. 640. See post, § 208, 222.

2 Phelps v. Foot, 1 Conn. 387. 3 Bloomington v. Osterlee, 139 Ill. 120; Bennett v. Northern Pac. R. R. Co. (N. D., 1893), 49 N. W. Rep. 408; Lacas v. Detroit City R. Co. (Mich., 1893), 52 N. W. Rep. 745; Sturgeon v.

Sturgeon (Ind., 1893), 30 N. E. Rep. 805; Holly v. Bennett, 46 Minn. 386; Blair v. Madison, 81 Iowa, 313; Smith v. Dittman, 16 Daly, 427; Grand Rapids, etc. Co. v. Huntley, 38 Mich. 537; Insurance Co. v. Mosley, 8 Wall. (U. S.) 397; Rogers v. Crain, 30 Tex. 284; Sanders v. Reister, 1 Dak. Ter. 151; Towle v. Blake, 43 N. H. 92; Hanna v. Hanna (Tex., 1893), 21 S. W. Rep. 720; Butler v. Man. Ry. Co., 24 N. Y. S. 142; Hatch v. Fuller, 131 Mass. 574; Livingston's Case, 14 Gratt. (Va.) 592; Stevenson v. State, 69 Ga. 68.

4 State v. Crawfoot (Mo., 1893), 22 S. W. Rep. 371; Hall v. State, 31 Tex. Crim. Rep. 565; Gibson v. State, 23 Tex. 414; State v. Corcoran, 38 La. Ann. 949; Harrison v. State, 79 Ala. 29; Newton v. State, 42 La. Ann. 33; Pitman v. State, 22 Ark. 354; State v. Bradley, 64 Vt. 465; State v. Gainor (Iowa, 1892), 50 N. W. Rep. 947; State v. Hoyt, 46 Conn. 330; Le Beau v. People, 34 N. Y. 223; State v. Harrod, 102 Mo. 590; State v. Wentworth,

them. This principle is applied in an action brought by a wife to recover damages for the alienation of her husband's affections. The husband's declarations or letters, addressed to the wife or to third persons, dating prior to the alleged perpetration of the wrong by defendant, are admissible as original evidence of the fact that before the alienation she possessed his affection.2

The statements or declarations of a sick person, or of one who has met with an accident, regarding his present pain and suffering, and the nature, present symptoms and existing effects of the illness or accident from which he is suffering, are admissible as original evidence. When the declarations of the sick person are merely narrative of prior details connected with his illness, they will generally be inadmissible whether made to a physician or to some other person, unless, being connected with the patient's present condition, they are considered a part of the res gesta.*

37 N. H. 196; Pete v. State, 44 La. Ann. 14; Dixon v. State, 13 Fla. 636; Hardee v. State, 31 Tex. Crim. Rep. 289; Everett v. State, 62 Ga. 65; Riggs v. State, 30 Miss. 635; Schoolcraft v. People, 117 Ill. 271; State v. Sullivan, 51 Iowa, 142; State v. Hymer, 15 Nev. 49. See post, § 189. 1 On this ground the threats made by a person charged with homicide are, if not too remote, admitted to show his malice or premeditation.

2 Yundt v. Hartranft, 41 Ill. 9; Rounds v. Rounds, 64 Vt. 432; Willis v. Barnard, 8 Bing. 376; Gilchrist v. Bale, 8 Watts, 355; Wilton v. Webster, 7 Car. & P. 198; Coleman v. White, 43 Ind. 429; Bigoonette v. Paulet, 134 Mass. 123.

Helton v. Alabama M. Ry. Co. (Ala., 1893), 12 S. Rep. 276; Hewett V. Eisenbart (Neb., 1893), 55 N. W. Rep. 252; Bush v. Barnett, 96 Cal. 202; International, etc. Co. v. Kuehn (Texas, 1893), 21 S. W. Rep. 58; Schuler v. Third Ave. R. Co., 1 Misc. R 351; Brusch v. St. Paul City Ry.

Co. (Minn., 1893), 55 N. W. Rep. 57; Newson v. Dodson, 61 Texas, 91; Fay v. Harlan, 128 Mass. 244; Earl v. Tupper, 45 Vt. 275; Matteson v. N. Y. & R. R. Co., 62 Barb. (N. Y.) 364; Chicago, etc. Co. v. Spilker (Ind., 1893), 33 N. E. Rep. 280; State v. Howard, 32 Vt. 380; Taylor v. Railroad Co., 48 N. H. 309; Gray v. McLaughlin, 26 Iowa, 279; Bloomington v. Osterle, 139 Ill. 120; Bennett v. Railroad Co., 2 N. D. 112; Lacas v. Railroad Co., 92 Mich. 412.

4 Roosa v. Boston Loan Co., 132 Mass. 439; Jones v. Portland, 88 Mich. 598; Collins v. Waters, 54 Ill. 485; Davidson v. Cornell, 132 N. Y. 228; Smith v. State, 53 Ala. 486; Ashland v. Marlborough, 99 id. 47; Mayo v. Wright, 63 Mich. 40; Illinois Central R. R. Co. v. Sutton, 42 id. 438; Lacas v. Railroad Co., 92 Mich. 412; Barber v. Miriam, 11 Allen (Mass.), 322; Schuler v. Third Ave. R. R. Co., 20 N. Y. S. 683; Holly v. Bennett, 46 Minn. 486; Blair v. Madison, 81 Iowa, 313. Cf. post, §§ 188-190.

There are many cases, however, which sustain a different rule as regards declarations descriptive of past events. Thus, where a physician is called to diagnose the disease or determine the nature of the accidental injury with a view to the proper method of treating it, or to testify as an expert, it is held that he may testify to language of the patient describing his symptoms, condition, feelings and other details either past or present. Only language which is used in the examination or treatment, or to enable the physician to testify as an expert, is admissible.1 The admissibility of statements of physical suffering of this sort is largely due to the necessity of proving facts which can only become known to others through the utterances of the sufferer himself. A scream, a groan, or a cry of some sort, is the natural expression of intense pain in man, and testimony that a scream was heard is always original evidence. Some of the courts seem to limit the admissibility of testimony to mere involuntary exclamations or ejaculations of pain, as screams, groans or sighs, basing their rulings upon the fact that as the common-law disability of a party as a witness no longer exists, the sufferer may and should be placed upon the stand, if living, while, if deceased, his prior suffering is immaterial, as it does not constitute an element in the damages to be recovered by his representatives.2

The competency of a party as a witness is purely statutory, and the rule that statutes amendatory of or derogatory to the common law should be strictly construed would doubtless apply. It cannot be reasonably conceived that the legislature, by adding to the rights of the party by making him compe

1 Equitable Mut. Life Acc. Ass'n v. McCluskey (Colo., 1892), 29 Pac. Rep. 383; Mut. Life Ins. Co. v. Tillman, 84 Tex. 31; 19 S. W. Rep. 294; Davidson v. Cornell, 10 N. Y. S. 521; Quaife v. Chicago, etc. Ry. Co., 48 Wis. 513; Louisville, New Alb. & Chick. R. R. Co. v. Falvey, 104 Ind. 416; Cleveland, Col., C. & Ind. R. R. Co. v. Newell, 104 Ind. 269; Chicago, etc. Co. v. Spilker (Ind., 1893), 33 N. E. Rep. 280; Bloomington v. Osterle,

139 Ill. 120; Pullman v. Smith, 79 Tex. 468. Contra, Abbot v. Heath (Wis., 1893), 54 N. W. Rep. 574; Jones v. Portland, 88 Mich. 598; Davidson v. Cornell, 132 N. Y. 228.

2 Stewart v. Everts (Wis., 1890), 44 N. W. Rep. 1092; Caldwell v. Murphy. 11 N. Y. 416; Reid v. N. Y. C. R. R. Co., 45 N. Y. 574; Werely v. Persons. 28 N. Y. 344; Abbot v. Heath (Wis., 1893), 54 N. W. Rep. 574.

tent as a witness, intended by implication to abridge his rights in another direction and deprive him of the legitimate advantage which he had enjoyed by having his declaration of suffering, other than mere ejaculations, rendered inadmissible.1 The fact that a victim of rape was crying, or made immediate complaint, being material evidence of such complaint, is admissible as original evidence, though it seems that a witness will not be permitted to testify to the particular facts and details of the assault as related by the complainant, unless the statement is so closely connected with the commission of the crime in time and place as to form a part of the res gestœ.3

$53. Pedigree-Oral and written declarations.-The term "pedigree" includes facts relating to the descent and relationship of an individual, to his birth, marriage and death, and to the dates upon which these several events occurred. The declarations of third persons to such facts are receivable if the declarants are deceased, if they were related to the person whose pedigree is involved or to one from whom he is descended, so that they would not only have adequate means of knowing but an active interest in knowing the facts. So it was held at an early period that the deceased declarant must have been connected by family ties, either of marriage or blood, with the party whose pedigree is under investigation.

1 Hancock v. Leggett, 115 Ind. 546. 2 State v. Bedard, 26 Atl. Rep. 719. 3 Johnson v. State, 21 Tex. App. 368; Territory v. Godfrey, 6 Dak. 46. 4 Territory v. Edie (N. M., 1893), 30 Pac. Rep. 581; Baccio v. People, 41 N. Y. 265; People v. O'Sullivan, 104 N. Y. 493; People v. McCrea, 32 Cal. 98; People v. Stewart (Cal., 1893), 32 Pac. Rep. 8. Contra, Barnes v. State, 88 Ala. 204. If, however, the complaint is too long delayed, it will not be admissible. Richards v. State (Neb., 1893), 53 N. W. Rep. 1027. But contra, State v. Mulkern, 85 Me. 106.

5 McMurrin v. Rigby, 80 Iowa, 322; Castillo v. State (Texas, 1892), 19 S. W. Rep. 892. The declarations of a child four years old have been re

ceived. State v. Jerome, 82 Iowa, 749; 48 N. W. Rep. 722.

61 Greenl. on Evid., § 104; 1 Whart. on Evid., § 208; Swink v. French, 11 Lea, 80; Amer. Tr. Co. v. Rosenagle, 77 Pa. St. 516. In Stephen's Dig. Evid., §31, this rule is confined to cases where the pedigree is directly in issue, and where the pedigree while relevant is merely collateral, the evidence is excluded. Whitbeck v. Walters, 4 C. & P. 375. This rule, however, has not received universal support. See contra, Clark v. Owens, 18 N. Y. 434; North Brookfield v. Warren, 16 Gray, 174.

71 Greenl. on Evid., § 103, citing Vowles v. Young, 13 Ves. 140; Casey v. O'Shaughnessy, 7 Jur. 1140; Gregory