As the common law excludes certain class es of persons from giving testimony in par ticular cases, because it deems their exclu sion conducive, in general, to the ,discovery of the truth, so it excludes certain materials and statements from being introduced as testimony in a cause, for a similar reason. Thus, as a general rule, it requires witnesses to speak to facts within their own knowl edge, and excludes hearsay evidence.
Hearsay is the evidence, not of what the witness knows, himself, but of what he has heard from others.
It is the genera] rule that hearsay is in admissible ; Central Pac. R. Co. v. Feldman, 152 Cal. 303, 92 Pac. 849 ; and evidence which appears to be hearsay should be ex cluded ; Moore v. Maxwell & Delhomme, 155 Ala, 299, 46 South. 755 ; so also facts which the witness could know only by hearsay se inadmissible. See HEARSAY.
Such mere recitals or assertions cannot be received in evidence for many reasons, but principally ' for the following ; First, that the party making such declarations is not on oath ; and, secondly, because the par ty against whom it operates has no oppor tunity of cross-examination ; 1 Phil, Ev. 185. See, for other reasons, 1 Stark. Ev. pt. 1, p. 44; Tay]. Ev. 508. The general rule exclud ing hearsay evidence does not apply to those declarations to which the party is privy, or to admissions which he himself has made.
Many facts, from their very nature, either absolutely or usually exclude direct evidence to prove them, being such as are either necessarily or usually imperceptible by the senses, and therefore incapable of the ordi nary means of proof. These are questions of pedigree or relAtionship, character, pre scription, custom, boundary, and the like ; as also questions which depend upon tile exer cise of particular skill and judgment. Such facts, some from their nature, and others from their antiquity, do not admit of the ordinary and direct means of proof by living witnesses : and, consequently, -resort must be had to the best means of proof which the nature of tile case affords. The rule permit
ting a resort to hearsay evidence, however, in cases of pedigree extends only to the ad mission of declarations by deceased persons who were related by blood or marriage to the person in question, and not to declarations by servants, friends, or neighbors ; Flora v. Anderson, 75 Fed. 217. And "general reputa tion in the family," which is admissible in matters of pedigree, or to establish the facts of birth, marriage, or death, is confined to declarations of deceased members of the family, and family history and traditions handed down by declarations of deceased members, in either case made ante litem motam, and originating with persons pre sumed to have competent knowledge of the facts stated ; and evidence of the opinion or belief of . living members of a family as to the death of another member, or of general reputation among a person's liVing friends and acquaintances as to his death, is not within the rule, and is inadmissible; In re Hurlburt's Estate, 68 Vt. 366, 35 Atl. 77, 35 L. R. A. 794. See BOUNDARY ; CUSTOM ; PEDI GREE; PRESCRIPTION.
Admissions are the declarations which a party by himself, or those who act under his authority, make of the existence of cer tain facts. But where an admission is made the foundation of a claim, the whole state ment must be taken together ; Perkins v. Lane, 82 Va. 59. See Bryan v. Kelly, 85 Ala. 569, 5 South. 346 ; ADMISSIONS.
A statement of all. the distinctions between what is to be regarded as hearsay and what is to be deemed original evidence would ex tend this article too 'far. The general prin ciple is that the mere declaration, oral or written, of a third person, as to a fact, standing alone, is inadmissible.
Res gestce. -But where evidence of an act done by a party is admissible, his dec larations made. at the time, having a tend ency to elucidate or give a character to the act, and which may derive a degree of credit from the act itself, are also admissible, as part of the res pesky; Sessions v. Little, 9 N. II. 271; Steph.: Dig. Ey. § 2, 7. See RES