8 N.H. 40 | Superior Court of New Hampshire | 1835
On trial of this case the plaintiff offered his book of accounts, to show the indebtedness of the servant to the plaintiff, and the extent of the damage the plaintiff had sustained by the servant’s leaving the plaintiff’s employ prior to the expiration of his term of service, and while the plaintiff’s claim against the servant remained unpaid. This evidence was rejected by the court. It was applicable merely to the extent of damage. The verdict of the jury has negatived any claim of damage, or cause of action against the defendant. The ruling is, therefore, immaterial, and could in no manner have prejudiced the plaintiff as to his general right of recovery.
The only question in the case which it becomes necessary to consider, is, whether the declarations made by the servant, at the time of his leaving the employ of the plaintiff, of the motives which governed him in leaving, are admissible as evidence.
The testimony of the witness as to mere declarations of the servant could not certainly be evidence ; for the servant himself should be produced, and proof of his sayings would be rejected on the general rule respecting hearsay evidence. There are, however, exceptions to the general rule. Where declarations of an individual are so connected with his acts
The evidence in such case is not regarded as mere hearsay testimony. It does not rest upon the credit due to the de-clarant, but may be admitted even though the declarant in ordinary cases would not be believed upon his oath. The testimony is admitted on the presumption, arising from experience, that when a man does an act, his cotemporary declaration accords with his real intention, unless there be some reason for misrepresenting such intention. Its connection with the act gives the declaration greater importance than what is due to the mere assertion of a fact by a stranger, or a declaration by the party himself at another time. It is part of the transaction, and may be given in evidence in the same manner as any other fact.
In this instance the servant, at the time of preparation for leaving, disclosed causes for such a design, of a character strongly implicating himself, and tending to negative entirely any suspicion of intentional misrepresentation of his true motive. He communicated this design in connection with the fact of asking advice what course to pursue, and accompanied his declarations of the motive assigned, with the act of leaving. The declaration then is so connected with the fact as to give character to it, and the fact carries with it, at the same time, in the declaration, evidence of the motive.
Where it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the person who did the act, proof of what the person said at the time of doing it is admissible, to shew its true character. Richardson’s N. H. Justice 164.
Where in cases of bankruptcy, the question is with what intent the party absented himself from his house, his declaration, cotemporary with the fact of departure, is evidence to explain that intention. 1 Starkie’s Ev. 48.
On the same principle, in an action against a voluntary
We are of opinion that the declarations of the servant, made in this instance in connection with the act of leaving, became part of the res gestae, and are admissible as being fully within the rule applicable to cases of that character. There must, therefore, be
Judgment on the verdict.
