$57. Declarations must be contemporaneous or nearly so. The necessity for the contemporaneous character of the decla'rations has been much discussed, but it is impossible to lay down any rule which will be applicable to all cases. In one instance1 an exclamation uttered only a few moments after a person had been assaulted, and while she was seeking to escape, was held inadmissible because not contemporaneous with the main transaction.

Though the majority of the American decisions, however, do not require that the act and the declarations should be precisely contemporaneous provided they are otherwise connected, in many of the states the strict English doctrine is adhered to. Their unpremeditated and spontaneous character being the main ground for their reception, it is clear on the whole that, where any interval has elapsed between the act and the declaration, the likelihood that the declarant has taken advice or considered what he should say would have a bearing on their exclusion. It has been repeatedly held that, when a single day had intervened, the declaration was not admissible. But where the declaration was made soon after. the event with which it was connected, it is admissible, pro

1 Reg. v. Bedingfield, 14 Cox's Cr. 75 Mich. 472; Durham v. Shannon, Cas. 341. 116 Ind. 403.

United States v. Noelke, 17 Blatchf. 570; United States v. Angell, 11 Fed. Rep. 41; State v. Moore (Mo., 1893), 22 S. W. Rep. 1086; State v. Mason, 112 Mo. 374; Penn. Ry. Co. v. Lyons, 129 Pa. St. 113; Lewke v. D. D. E. B. etc. Co., 46 Hun, 283; Texas, etc. Co. v. Barron, 78 Tex. 421; Dwyer v. Bassett, 1 Tex. Civ. App. 513; Evans v. State (Ark., 1893), 22 S. W. Rep. 1026; State v. Raven (Mo., 1893), 22 S. W. Rep. 376; State v. Daugherty, 17 Nev. 376; Ohio, etc. Co. v. Cullison, 40 Ill. App. 67; Texas, etc. Co. v. Robertson, 82 Tex. 657; Mayes v. State, 64 Miss. 329; State v. Frazier, 1 Houst. (Del.) 176; Jones v. State, 71 Ind. 66; Gulf, etc. Co. v. York, 74 Tex. 374; 12 S. W. Rep. 68; Wormsdorf v. Detroit City R. Co.,

3 Goff v. Bank, 47 N. W. Rep. 190. 4 Noyes v. White, 19 Conn. 250; Montgomery v. McGuire, 25 Ill. App. 31; Ft. Smith Oil Co. v. Slover (Ark., 1894), 24 S. W. Rep. 106; Short v. N. Pac. El. Co., 45 N. W. Rep. 706; Southerland v. W. & W. R. Co., 11 S. E. Rep. 189; 106 N. C. 100; Corinth v. Lincoln, 34 Me. 310.

5 Harriman v. Stowe, 57 Mo. 93; Insurance Co. v. Mosley, 8 Wall. (U. S.) 397; Hanna v. Hanna (Tex., 1893), 21 S. W. Rep. 720; Chapin v. Cambria Iron Co., 145 Pa. St. 478; Butler v. Manhattan Ry. Co., 24 N. Y. S. 442; Miss. Pac. Ry. Co. v. Baier (Neb., 1893), 55 N. W. Rep. 913; Ohio & M. Ry. Co. v. Stern (Ind., 1892), 31 N. E. Rep. 180; Jewel v. Jewel, 1 How. (U. S.) 219; Penn. R. Co. v.

vided a period, however short, has not elapsed which would give an opportunity for deliberation.1

§ 58. Entries a part of the res gestæ and made by third persons. Sometimes entries made by third parties in books of record or account, or letters and telegrams sent by them, are original and primary evidence, even though the parties themselves be not called. Entries are divided into public and private. The former are those made by a public official in the course of his public duties. The latter are made by private persons in the exercise of their commercial or professional callings.

To render entries made by a third party admissible as original evidence, they must possess substantially the characteristics requisite in the case of verbal declarations which are a part of the res gesta.

The general rule is that, whether the entry or writing be one that is made in the performance of an official, professional or private duty, the party must have been legally authorized to make it and it must have been made in the course of business. So the writing itself must be relevant to the transac

Lyons, 18 Atl. Rep. 759; 129 Pa. St. 113; Lewke v. D. D. E. B. & B. R. Co., 46 Hun, 283; Thomas v. Herrall, 18 Oreg. 546; Insurance Co. v. Sheppard, 85 Ga. 751; Stevens v. Castel, 63 Mich. 118.

1 Durkee v. Cent. P. Ry. Co., 69 Cal. 533; Tennis v. Railway Co. (Kan., 1891), 25 Pac. Rep. 876. "The modern doctrine has relaxed the ancient rule that declarations, to be admissible as part of the res gestæ, must be strictly contemporaneous with the main transaction. It now allows evidence of them when they appear to have been made under the immediate influence of the principal transaction and are so connected with it as to characterize or explain it. What time may elapse between the happening of the event and the time of the declaration, and the declaration be yet admissible, must depend upon the character of the transaction itself. The admissibility

of a declaration in connection with evidence of the principal fact, as stated by Mr. Greenleaf, must be determined by the judge according to the degree of its relation to the fact and in the exercise of a sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description. The principal points of attention are, he adds, whether the declaration was contemporaneous with the main fact and so connected with it as to illustrate its character." Vicksburg & Meridian R. Co. v. O'Brien, 119 U. S. 99, 105-6.

2 Rollins v. United States, 23 Ct. Cl. 106 (official letter); McDonald v. Carnes, 7 S. Rep. 919; 90 Ala. 147; State v. Martin, 15 S. W. Rep. 529; Cobb v. Malone, 86 Ala. 571; 8 S. Rep. 693; Bolling v. Fannin (Ala., 1893), 12 S. Rep. 59; Webster v. Webster, 1 F. & F. 401.

tion with which it is sought to be connected, and must relate to and be contemporaneous with it and be illustrative of it.' It is also required that the person who is the author of the entry or writing should have been in a position where he would have peculiar opportunities of possessing a knowledge of the occurrence to which the entry relates, and that, having such knowledge, he must also have been impartial and without apparent motive to deceive by fabricating evidence or perverting the circumstance described. These requirements being met, the writings are admissible as original evidence, and though the party, if living and if he can be found, should be called to testify, yet his non-production or incompetency as a witness will not render the entries or writing hearsay evidence. A foundation for the introduction of the entries or documents must be laid by testimony which will serve to identify them and show their contemporaneous character as a part of the res gesta.

3

The rule under consideration is of very extensive usefulness and application. Under it not only are books of account and public records kept by third persons admitted as original

1 Stallings v. Hallum, 79 Tex. 421; Baldridge v. Penland, 68 Tex. 441; Cont. Ins. Co. v. Insurance Co., 51 Fed. Rep. 884; Lassone v. Boston & L. R. Co. (N. H., 1893), 24 Atl. Rep. 902; Lewis v. Meginnis, 30 Fla. 419; Bolling v. Fanning (Ala., 1893), 12 S. Rep. 59; Farrington v. Hayes (Vt, 1893), 25 Atl. Rep. 1091; Livingston's Appeal (Conn., 1893), 26 Atl. Rep. 470.

2 Welch v. Barrett, 15 Mass. 380; Bank v. Whitehill, 16 S. & R. 89; Davis v. Fuller, 12 Vt. 178; Nichols v. Webb, 8 Wheat. 326; Brewster v. Doan, 2 Hill, 537; Hart v. Kendall, 82 Ala. 144; Kansas, etc. Co. v. Smith, 90 Ala. 25; McVey v. Durkin, 136 Pa. St. 418. Entries made by a bank messenger or notary public in books ordinarily kept by such persons are admissible in an action on a promissory note to show that payment has been demanded and that the

indorser has received notice of protest for non-payment. Welch v. Barrett, 15 Mass. 380; Halliday v. Martinett, 20 Johns. 168; Bank v. Mitchell, 15 Conn. 206; Nichols v. Webb, 8 Wheat. 326; Nichols v. Goldsmith, 7 Wend. 360; Sherman v. Crosby, 11 Johns. 70; Sherman v. Atkins, 4 Pick. 283; Hart v. Kendall, 82 Ala. 144, cited in 1 Greenl. on Evid., § 114.

3 Augusta v. Windsor, 19 Me. 317; Nichols v. Webb, 8 Wheat. 326.

4 But see St. Louis, etc. Co. v. Henderson (Ark., 1893), 21 S. W. Rep. 873.

5 Meconce v. Mower, 37 Kan. 298; 15 Pac. Rep. 155; Fowler v. Schafer, 32 N. W. Rep. 292; Stallings v. Gottschalk (Md., 1893), 26 Atl. Rep. 524; Healey v. Bauer, 65 Hun, 621; Livingston's Appeal (Conn., 1893), 26 Atl. Rep. 470; Farrington v. Hayes (Vt., 1893), 25 Atl. Rep. 1091.

evidence,' but private books, photographs, maps and surveys have also been received. Thus an entry made in the diary of a surgeon who was present in a professional capacity at the birth of a person is admissible when the exact date of that event is in issue. Though a certificate of a person's baptism is inadmissible to show the date of his birth, yet his baptism may be shown by the entry made at the time according to the rules of the church by the priest who baptized him, where the entry was made as a part of the ceremony, though the book in which it was made was not required to be kept. From these instances it will be seen that the rule by which such entries are admitted as original evidence of the occurrence which they record and of which they form a part is not confined to records of a public character.

In very many cases private entries and writings, such as receipts, indorsements of service on legal process, and press copies of letters, have been received when the party who made them was dead or for other reasons could not be produced, and it was shown that the party was impartial, and, having competent knowledge, had made a true and accurate record of the transaction.9

§ 59. Entries against interest and entries which are a part of the res gestæ distinguished.- Entries and writings

1 Bell v. Kendrick (Fla., 1890), 6 S. 718; Kennedy v. Doyle, 10 Allen Rep. 868. See post, §§ 142a–160.

2 Chenango Corp. v. Lewis, 63 Barb. (N. Y.) 111.

3 Mississippi, etc. Co. v. Moore, 15 S. W. Rep. 714; Kansas, etc. Co. v. Smith, 90 Ala. 25; 8 S. Rep. 43. See § 38.

4 Ewing v. State, 81 Tex. 172; Rowland v. McCowan, 20 Oregon, 538; 26 Pac. Rep. 853; McVey v. Durkin, 136 Pa. St. 416; Weld v. Brooks, 25 N. E. Rep. 719; 152 Mass. 297. See post, § 145.

5 Higham v. Ridgway, 10 East, 109. 6 Lavin v. Aid Society, 74 Wis. 349. Contra, Jacobi v. Order of Germania, 26 N. Y. S. 318.

7 Hunt v. Order of Chosen Friends, 64 Mich. 671; 31 N. W. Rep. 576; Kabok v. L. I. Ins. Co., 4 N. Y. S.

(Mass.), 161; Witcher v. McLaughlin, 115 Mass. 167; McGuirk v. Mut. L. Ins. Co., 66 Hun, 628. The register of a parish kept by its priest is admissible to prove a marriage solemnized by him if regularly kept and if it shows the facts which are essential to constitute a valid marriage contract. State v. Doris, 40 Conn. 145; Erwin v. English, 61 id. 502; 23 Atl. Rep. 753; Jacobi v. Order of Germania, 26 N. Y. S. 318.

8 See post, § 150a; Stapylton v. Clough, 2 El. & Bl. 933.

9 De Arnold v. Neasmith, 32 Mich. 231; Steubing v. New York El. R. Co., 19 N. Y. S. 313; Gould v. Conway, 59 Barb. (N. Y.) 355; Bank v. Mitchell, 15 Conn. 206.

or declarations made by persons who are not parties to the suit which are admissible as evidence because they are concomitant of the main transaction and form a part of it should be distinguished from those which are admissible solely because they are against the interest of the declarant. The former are original evidence forming a part of the res gesta, and the fact that they were made, rather than their truth or falsity, is the main fact to be shown. Hence the fact that the declarant is alive or dead, or the fact that he is interested or the amount of his interest in making the entry or declaration, has no material bearing on the admissibility of such statements, although his interest may be considered by the jury in estimating the weight or credit which they may attach to such entries. But in the latter class of declarations the primary fact that they are against interest is never to be lost sight of; nor should it be forgotten that these declarations, constituting not original evidence but an exception to the rule rejecting hearsay, are introduced to substantiate the truth of the facts asserted in them, and not merely to show that they were uttered at the date of the transaction in issue.?

§ 60. A party's own books are evidence. Upon the question whether entries made in the books of a party to the suit are admissible as evidence in his own favor under the proposition that such entries constitute a part of the res gestæ, the cases are at considerable variance. If the entry was made by an employee of the party having personal knowledge of the facts, in the usual course of his employment, in books which were kept for such entries, and if it was made at or near the date of the transaction and is illustrative of it, then there can be no objection to its admission upon the principles already laid down. It is really hearsay evidence, however, because the book-keeper or other person making the entry was not on oath or cannot be produced, or, being produced, has wholly forgotten the circumstances attending the transaction.3

1§§ 117, 118.

21 Greenl. on Evid., §§ 120, 147. Schuckman v. Winterbottom, 9 N. Y. S. 733; Hancock v. Kelly, 2 S. Rep. 281; 81 Ala. 368; Brower v. East Rome Town Co., 84 Ga. 219;

Ross v. Brusie, 11 Pac. Rep. 760; 70 Cal. 465; Moore v. Knott, 14 Oreg. 35; Lamberty v. Roberts, 9 N. Y. S. 607; Griesbacher v. Tanenbaum, 8 id. 582; Blumhart v. Rohr, 70 Md. 339; Barnes v. Dow, 59 Vt. 530;