Thayer v. Lombard

• Citation: 165 Mass. 174,42 N.E. 563
• Parties: THAYER v. LOMBARD et al.
• Decision Date: 04 January 1896
• Court: United States State Supreme Judicial Court of Massachusetts

165 Mass. 174

42 N.E. 563

THAYER v. LOMBARD et al.

Supreme Judicial Court of Massachusetts, Norfolk.

January 4, 1896

This was an action of contract on a promissory note made by Joseph W. Lombard, the defendants' testator. At the trial in the superior court before Hammond, J., the defendants offered to prove that, when the deceased was told that he could not recover, he stated to his wife and brother that he knew he could not get well, and that he had but a short time to live, and that he then stated that all the notes he owed appeared on his note book, and all debts in form of accounts on his other books. The court excluded the evidence, and the defendants excepted.

COUNSEL

J. Everett, for plaintiff.

R.T. Lombard, for defendants.

OPINION

FIELD, C.J.

The dying declarations of the defendants' testator were not admissible to prove the facts to which the declarations related. The facts in controversy were facts in the past, and not facts concerning the feelings or thoughts of the testator existing at the time the declarations were made. See Chapin v. Inhabitants of Marlborough, 9 Gray, 244. The present case does not bring the declarations within any of the exceptions known to the common law, where declarations of deceased persons are admitted in evidence. The admission of the declarations of a deceased person, on the ground that they are dying declarations, is, by the common law, confined to prosecutions for homicide, and there is no statute which makes them evidence in a civil action. 1 Greenl.Ev. § 156. Exceptions overruled.