Declarations, to be admissible as original evidence, must have been made at the time of doing the act to which they relate ; Enos v. Tuttle, 3 Conn. 250 ; Seaggs v. State, 8 Smedes & M. (Miss.) 722 ; In re Taylor, 9 Paige Ch. (N. Y.) 611; Cherry v. McCall, 23 Ga. 193; O'Kelly v. O'Kelly, 8 Mete. (Mass.) 436; Banfield v. Parker, 36 N. H. 353 ; Tomp kins v. Saltmareh, 14 S. & R. (Pa.) 275; 1 B. & Ad. 135. For cases of entries in books, see Sterrett v. Bull, 1 Binn. (Pa.) 234 ; In graham v. Bockius, 9 S. & R. (Pa.) 285, 11 Am. Dec. 730 ; Faxon v. Hollis, 13 Mass. 427; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22.
To authorize their admission as secon dary evidence, the declarant must be dead : 11 Price 162; 1 C. & K. 58 ; Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334 ; and the laration must have been made before any controversy arose ; 3 Campb. 444 ; 10 B. & C. 657; 4 M. & S. 486; Hamilton v. Smith, 74 Conn. 374, 50 Atl. 884 ; Elliott v. Peirsol, 1 Pet. (U. S.) 328, 7 L. Ed. 164. The rule that such declarations must have been made ante litem motam was applied to cases of pedigree in the Berkeley Peerage Case, 4 Camp. 401; and to matters of public inter est in 3 id. 444 ; and, part ratione, the Con necticut cases above cited apply the same principle to boundary cases, the latest one in date excluding declarations made after the controversy arose which would have contradicted those of the same person made before it, which were admitted. In the opin ion of the supreme court approving this ruling, Judge Baldwin said that, while it may seem hard that the earlier declarations could not be met by proof of the later in consistent ones, "the latter, having been ut tered after the dispute which resulted in this suit had arisen, do not carry that ab solute assurance of sincerity and impartial ity on which is rested this exception to the rule excluding hearsay evidence." And yet the opinion had stated that at the time of the later declarations, which were thus ex cluded, suit had not been brought, and there was no claim that declarant knew of any dis pute.
It must also appear that the declarant was in a condition or situation to know the facts, or that it was his duty to know them; 9 B. & C. 935 ; 2 Sm. Lead. Cas. 193, note. The test to be applied to dying declarations to determine their admissibility is a living witness would have been permitted to testify to the matters contained in the declaration; State v. Foot You, 24 Or. 61, 32 Pac. 1031, 33 Pac. 537.
The declarations of an agent respecting a subject-matter, with regard to which he rep resents the principal, bind the principal ; Story, Ag. §§ 134-137; 2 Q. B. 212; Batch elder v. Emery, 20 N. H. 165; Winter v. Burt, 31 Ala. 33 ; Wellington v. B. R., 158 Mass. 185, 33 N. E. 393 ; if made in the line of his duty and within the scope of his au thority; Weeks v. Inhabitants of Needham, 156 Mass. 289, 31 N. E. 8; Pittsburgh & L. S. Iron Co. v. Kirkpatrick, 92 Mich. 252, 52 N. W. 628; Van Doren v. Bailey, 48 Minn. 305, M. N. W. 375 ; if made during the continuance of the agency with regard to a transaction then pending; 8 Bingh. 451;
Mechanics' Bank v. Bank of Columbia, 5 Wheat (U. S.) 336, 5 L. Ed. 100; Hannay v. Stewart, 6 Watts (Pa.) 487; Woods v. Banks, 14 N. H. 101; Hayward Rubber Co. v. Dunclilee, 30 Vt. 29; Raiford v. French, 11 Rich. (S. C.) 367; Winter v. Burt, 31 Ala.
33 ; Burgess v. Inhabitants of Wareham, 7 Gray (Mass.) 345; Vail v. Judson, 4 E. D. Smith (N. Y.) 165; Idaho Forwarding Co. v. Forwarding Ins. Co., 8 Utah, 41, 29 Pac. 826, 17 L. R. A. 586; and similar rules ex tend to partners' declaration ; 1 Greenl. Ey. § 112; Fail v. McArthur, 31 Ala. 26; Tucker v. Peaslee, 36 N. H. 167; Slipp v. Hartley, 50 Minn. 118, 52 N. W. 386, 36 Am. St. Rep. 629. See PARTNER.
Where several defendants are interested in the relief prayed against them, admis sions of one of them, made against his own interest, are admissible in evidence to af fect hirn, although they would not be evi dence to affect his co-defendants. See Grace v. Nesbitt, 109 Mo. 9, 18 S. W. 1118; Red ding v. Wright, 49 Minn. 322, 51 N. W. 1056; Roberts v. Kendall, 3 Ind. App. 339, 29 N. E. 487.
As to declarations made over a telephone, See TELEPHONE.
When more than one person is concerned in the commission of a crime, as in cases of riots, conspiracies, and the like, the declara tions of either of the parties, made while acting in the common design, are evidence against the whole ; 3 B. & Ald. 566; Com. v. Crowninshield, 10 Pick. (Mass.) 497; State v. Thibeau, 30 Vt. 100; Mack v. State, 32 Miss. 405; Poole v. Gerrard, 9 Cal. 593; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; People v. Collins, 64 Cal. 293, 30 Pac. 847; but the declarations of one of the rioters or conspir ators made after the accoynpl4shment of their object and when they no longer acted together, are evidence only against the par ty making them; 2 Russ. Cr. 572; 1 Mood. & M. 501; Brown v. U. S., 150 U. S. 93, 14 Sup. Ct. 37, 37 L. Ed. 1010; Sparf v. U. S, 156 U. S. 58, 15 Sup. Ct. 273, 39 L. Ed. 343. And see 2 C. & P. 232; Chelmsford Co. v. Demarest, 7 Gray (Mass.) 1; Cora. v. Ingra ham, id. 46. If one of two persons accused of having together committed a crime of murder makes a voluntary confession in the presence of the other, under such cir cumstances that he would naturally have contradicted it if he did not assent, the con fession is admissible in evidence against both ; Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343.
See HEARSAY EVIDENCE; BOUNDARY; MAR RIAGE; DOMICIL; REPUTATION; PEDIGREE; CONFESSION. And for an extensive collection of cases on the points herein stated see Chamb. Best. Ey. §§ 496-505 and the Amer ican notes thereto.
In Scotch Law. The prisoner's statement before a magistrate.
When used on trial, it must be proved that the prisoner was in his senses at the time of making it, and made it of his own free will; 2 Hume 328; Alison, Pr. 557. It must be signed by the witnesses present when it was made ; Alison, Pr. 557, and by the prisoner himself ; Arkl. Just. 70. See Paterson, Comp. §§ 952, 970.