ting the former is a violation of the rule, alike of law and common sense, that a man shall not be allowed to manufacture evidence for himself (n). Tradesmen's books, it is said, are in general accurately kept; but may not the reason of this be that as the law will not allow them to be used for the purpose of fraudulently charging others, they are now kept for the sole and bonâ fide purpose of refreshing the memory of the tradesman as to what goods he has supplied. tions. § 487. 7. The last exception to this rule which we 7. Dying declapropose to notice is that of declarations made by persons in expectation of approaching death (o). "Nemo moriturus præsumitur mentiri (p)"-the circumstances under which such declarations are made may fairly be assumed to afford a guarantee for their truth, at least equal to that of an oath taken in a court of justice. Hence the dying declarations of a child of tender years will be rejected, unless he appears to have had that degree of religious knowledge which would render his oath receivable (9), as likewise will those of an adult not likely to be affected with a religious sense of his approaching dissolution (r). The principal objection however to second-hand evidence is, not its being unguarded by an oath, but that the party against whom it is offered is deprived of his power of cross-examining, and the jury of the opportunity of observing the demeanour of the person whose testimony is relied on. Besides, if the solemnity of the occasion on which dying declarations are made constituted their sole ground of admissibility, it would not be confined, as it appears to be by law, to a solitary class of cases, i. e., charges of homicide where the language of the deceased (n) Infra, ch. 4 and ch. 6. (0) 1 Phill. Evid. ch. 8, sect. 6, 10th Ed.; Tayl. Evid. Part 2, ch. 13. (p) 2 Ho. St. Tr. 18. referred to the injury which he expected would cause his death (s). Two other reasons plead for the reception of this evidence in those instances. 1. The difficulty of procuring better proof of the fact the injured party being no more, the most obvious and direct source of evidence has perished. 2. Although society has an immense interest in punishing crimes of such magnitude, the witnesses who appear to prove it have rarely an interest in putting into the mouth of the dying man language which he did not use. In civil matters it is far otherwise; as fatal experience has taught men in all countries where nuncupative wills have been allowed. (s) Some old cases in which such declarations were received in civil proceedings seem over ruled in Stobart v. Dryden, 1 M. & W. 615. CHAPTER IV. RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET. of this maxim. § 488. "RES inter alios acta alteri nocere non de- Different forms bet (a)." "Res inter alios actæ alteri nocere non debent (b)." No person is to be affected by the acts of others unless he is connected with them either personally, or by his agents, or by those whom he represents. To the above forms of the maxim, some books add, "sed quandoque prodesse potest (c)," or "possunt (d) ;" and in some it runs, nec nocere nec prodesse possunt (e)." These additions are, however, unnecessary; for the rule is only of general, not universal application, there being several exceptions both ways. Neither does the expression "inter alios" mean that the act must be the act of more than one person; it being also a maxim of law "factum unius alteri nocere non debet (f)." And the Roman law, from Extent of it. which both maxims were probably taken, expressly says, "Exemplo perniciosum est ut ei scripturæ credatur, quâ unusquisque sibi adnotatione propriâ debitorem con (a) Co. Litt. 152 b, 319 a; 2 Inst. 513; 6 Co. 51b; Broom's Max. 735, 2nd Ed. This rule was well known at Rome. "Inter alios res gestas aliis non posse præjudicium facere sæpe constitutum est:" Cod. lib. 7, tit. 60, 1. 1. "Inter alios factam transactionem absenti non posse facere præjudicium notissimi juris est:" Id. 1. 2. See also Dig. lib. 2, tit. 14, 1. 27, § 4. So in the canon law," Res inter alios acta (b) 12 Co. 126. (e) 4 Inst. 279. See also Bon- Distinction between res inter alios acta and derivative evidence. stituit (g)." Nor does it make any difference that the act was on oath,-" jusjurandum inter alios factum nec nocere, nec prodesse debet (h);"-consequently the sworn evidence of a witness in a cause or proceeding cannot be made available in another cause or proceeding between other parties. One important branch of this rule, "res inter alios judicata alteri nocere non debet," will be more properly considered under the head of res judicata (i). § 489. Following out the great principle which exacts the best order of evidence, it is obvious that things done ab alio or inter alios are even more objectionable than derivative or second-hand evidence. The two are, indeed, sometimes confounded; but the distinction between them seems to be this, that derivative or secondhand evidence indicates directly a source of legitimate evidence, while res inter alios acta either indicates no such source, or at most only indirectly. Suppose, for instance, on an indictment for larceny, witness A. were to depose that he heard B. (a person not present) say that he saw the accused take and carry away the property, this evidence is objectionable as being offered obstetricante manu; but it indicates a better source, namely, B. Suppose, however, a witness, C., were to depose that he overheard two persons unknown forming a plan to commit the theft in question, in which they spoke of the accused as an accomplice who would assist them in its execution, this evidence is but res inter alios acta, for it shews no better source of legal proof; although as indicative evidence, and putting officers of justice, &c. on a track, it might not be without its use. (g) Cod. lib. 4, tit. 19, 1. 7; Poth. Obl. § 724. (h) 4 Inst. 279. See Dig. lib. 12, tit. 2, 1. 3, § 3, and 1. 9, § 7, and 1. 10. (i) Infra, chap. 9. tion does not of res gestæ. § 490. There is likewise this point of resemblance be- Maxim in questween second-hand evidence and res inter alios acta that, exclude proof like the former, the latter must not be understood as excluding proof of res gesta. The true meaning of the rule under consideration is, that a party is not to be affected by what is done behind his back-not that when the matter in issue consists of an act done, which, although an individual may be accountable for, is separable from his person, proof may not be given of that act before he is connected with it by evidence. This is best illustrated in criminal cases. Offences, as has been shewn in a former place (k), are rightly divisible into delicta facti permanentis and delicta facti transeuntis, i. e. into offences which leave traces or marks; such as homicide, arson, burglary, &c.; and offences which do not; such as conspiracy, criminal language, and the like. With respect to the former, it is every day's practice to give proof of a corpus delicti-that a murder, an arson, a burglary, &c. was committed-before any evidence is adduced affecting the accused, although without such evidence the antecedent proof of course goes for nothing. And the same holds when the crime is delicta facti transeuntis. Thus, on an indictment for libel, proof may first be given of the libel, and the defendant then shewn to be the publisher of it. Another illustration is afforded by prosecutions for conspiracy, where it is a settled rule that general evidence may be given of the existence of a conspiracy before the accused is shewn connected with it(); for here the corpus delicti is the conspiracy, and the participation of the accused an independent circumstance which may or may not be true. The rule that the acts and declarations of conspirators are evidence against their fellows rests partly on this principle, and partly on that of prin (k) Supra, chap. 1, sect. 3, sub-sect. 2, § 425. (1) See the authorities collected in Rosc. Crim. Ev. 414, 3rd Ed. |