Declarations concerning pedigree are admissible only (1) when made prior to the commencement of the suit; (2) by a deceased person; (3) who was related by blood or marriage to the person or family to which such declarations refer. The declarations themselves are not admissible to prove the relationship of declarant to the person or family referred to; that must be proved aliunde. Where the purpose of the suit is to reach the estate of the declarant, and not to establish right through him, such declarations concerning kinship are admissible without other proof of relationship.

In order to render declarations as to pedigree admissible, it must be shown that they were made before the controversy arose and concerning legitimate relationship. Illegitimate pedigree cannot be proved by declarations of deceased persons.

SECTION 26. MATTERS OF PUBLIC AND

GENERAL INTEREST.

A third exception to the rule excluding hearsay is, when the declarations relate to matters of public and general interest, the term "public" being used to denote that which concerns each and every subject and citizen of a state or nation, and the term "general" a considerable portion of the people of such state or nation, or a certain community.

Such declarations have been received to establish or disprove boundaries, public highways, rights of common, ancient rights, incorporations of towns and grants of land by Indian tribes. Hearsay evidence is admitted in such cases, because the public having an interest in the question, the right is supposed to have been a subject of frequent discussion with individuals,

having the same inducements, and equal means to correct information relating to it, and on the principle that individuals are supposed to be conversant with their own affairs.3

Public boundaries between different political divisions of a state or country, or the boundaries of the state or country itself, are most frequently drawn in question, or rights of way by prescription or otherwise. Public boundaries or public highways are always matters of at least general, if not public interest, and hearsay evidence of general repute is always held admissible.

SECTION 27.

DECLARATIONS OF RES GESTÆ.

Spontaneous declarations, made simultaneously with a transaction or occurrence, and expressive of its character, motive, object, or cause, are regarded as res gestae and admissible in evidence along with the main facts of the transaction or occurrence, and as a part thereof, and explanatory of its nature.

In criminal cases, statements made at the time of the commission of the offense by the accused are generally admissible to prove the intent, when not self-serving. This is especially true in the law of conspiracy. The unlawful combination and the common design having been established by evidence sufficient in the mind of the court, each and every act or declaration of each of the conspirators in furtherance of the common design becomes admissible against each and all of the conspirators, the act of each being the act of all.

When such declarations consist of questions and answers, statements and exclamations, occurring

* 1 Greenleaf, Secs. 128-130.

shortly after the transaction or occurrence, the problem becomes hopelessly involved. And where such declarations become narrative of a past transaction, or sufficient time has elapsed in which to plan and utter false and misleading statements, they are not allowed by courts to be introduced in evidence. They must occur contemporaneously with the main facts of the transaction or event. Involuntary exclamations of pain so closely associated with the accident as to be a part of the res have been received in evidence.

SECTION 28.

ANCIENT POSSESSIONS AND DOCUMENTS.

The term "ancient document" includes any deed or other instrument thirty years old or more. Such document, when it comes from proper custody, proves itself, and is admissible in evidence without the usual formal proof of execution and delivery by attesting witnesses, after its age has been proved by the direct evidence of living witnesses who have seen the paper more than thirty years ago. A showing that it comes from proper custody and is probably genuine is indispensable. A paper is in proper custody if in the possession of one claiming under it, or his heirs, or representatives, especially if found among undisputed muniments of title to the land to which it relates.

If the document found be a muniment of title, coupled with continuous undisputed possession thereunder for at least thirty years, it affords good evidence of title. Some rights, however, must have been asserted under such document, some acts of ownership or otherwise exercised consistent with the rights granted by the document.

If the above conditions for admission without proof of execution are met, such proof of formal execu

tion need not be made, even though one of the subscribing witnesses be easily accessible. A deed over thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof, the subscribing witnesses being presumed dead.

The thirty-year period is computed from the time the deed is offered in evidence, and not from the time of the commencement of the suit.

SECTION 29. DYING DECLARATIONS.

Dying declarations are statements of relevant and material facts, made by a sane mind under the realization and solemn sense of impending death, by one who was about to die, and who has abandoned all hope of living, and who subsequently died, relating to the cause and circumstances surrounding his death, and the particulars and manner of the killing of declarant.

Such declarations are admissible only in cases of homicide, where the death of the deceased is the subject of the charge, and where the circumstances attending the death are the subject of the dying declarations.

The objections to dying declarations are: (1) They are not under oath; (2) the accused has not the opportunity of confronting the declarant; (3) and there is no opportunity for cross-examination. These conditions, however, were brought about by the wrongful act of accused, and he cannot complain. The awful solemnity of impending death silences every motive to falsehood and supplies a sanctity equivalent to an oath.

The reason for the admission of dying declarations is one of necessity. The assassin's act is a deed of

darkness and of cunning, and the fatal blow is generally struck when no one but the assassin and his victim are present. And to exclude such dying declarations on the ground of hearsay would mean the evasion of justice by the shrewdest and most subtle murderers.

If the statement of the deceased was reduced to writing and signed by him before death, it is necessary that the writing be produced, if existing; and no copy or parol evidence thereof can be received. Where the declarations have been repeated at different times, some of which were reduced to writing, and others not, the declarations not reduced to writing nay be proved by parol, if the written declaration cannot be produced. Sometimes, where the deposition of the victim has been taken, and, for want of compliance with legal formalities, is inadmissible, it has still been received in evidence as a dying declaration.

SECTION 30. ADMISSIONS.

The terms "admissions" and "confessions" are sometimes mistakenly used interchangeably. Strictly speaking, admissions usually apply to civil transactions and other matters of fact in criminal cases not involving criminal intent. The term confession is usually confined to acknowledgment of guilt in criminal cases. An admission, competent as evidence in a judicial action or proceeding, is a voluntary acknowledgment in express terms, or by implication, or by some act, by a party in interest, or by another by whose statement he is legally bound, against his interest, of the existence or truth of a fact in dispute material to the issue.* Admissions are of two kinds, private and judicial. The former relate to statements or acts made or done 1 Enc. of Ev., 357.