Page:Harvard Law Review Volume 10.djvu/544

5i8 HARVARD LAW REVIEW. required, as violations of personal rights are seldom acts of such a con- tinuing nature as are properly the subjects of an injunction. Supposing, however, that such a continuing tortious act, likely to inflict irreparable injury, does clearly appear as it did in the case of Monson v. Tiissaiids^ supra, it would seem desirable, at first sight, that an injunction should be issued, if it possibly can be. The impossibility, unlawfulness, or even impropriety of the courts thus spontaneously extending their equitable jurisdiction, would not seem to be beyond dispute. The fact that a libel is a crime, as well as a tort to an individual, would not apparently prevent equity from interfering to prevent it. Nor would the necessity of trying the question of the existence of the libel by a jury appear to prevent equity from furnishing relief of the peculiar nature that equity alone can give, when the particular circumstances might require it. There is no reason, however, to suppose that Amer- ican courts of equity will soon, or indeed ever, unless by the aid of statutes, make such an innovation as to interfere for the protection of any but property rights. Contradiction of Dying Declarations. — The recognized excep- tions to the rule against hearsay rest on precedent rather than reason. According as judges are influenced chiefly by intimate knowledge of the history of the law of evidence, or by the desire to apply its principles on a basis of rationality which the authorities themselves do not warrant, these exceptions contract or expand in their application in various juris- dictions. But the tendency to restrict the scope of the exception known as " Dying Declarations " has been practically universal. Apparently the original reason for admitting this species of evidence lay in the belief that the solemn occasion of death furnished a guaranty of truth equal to an oath in court. To-day the exception is strictly limited to cases of the deceased's statements concerning the homicide which forms the subject of the charge, and the declarant must have realized himself beyond hope of life. Whether the modern strict application is due to the fact that the position of one in articulo mortis is no longer regarded with the same awe as formerly perhaps deserves consideration. Certain it is that the reason usually assigned for this exception at present is rather the neces- sity which requires this evidence to convict murderers against whom, from the nature of the crime, other testimony is often lacking, than any intrinsic value in what is said in anticipation of death. In light of the foregoing considerations, the decision of the Supreme Court in Carver v. United States, 17 Sup. Ct. Rep. 228, is eminently satisfactory. It was there held that statements, themselves not admissi- ble under any of the exceptions to the hearsay rule, might come in to impeach a dying declaration already admitted. The only possible ex- ception that could be taken to this decision is, that it ignores the generally adopted rule that, in order to impeach the testimony of a witness by proof of previous contradictory statements, the witness must first be asked whether he made such statements. It is submitted that this objection is not a valid one. The rule ignored is one of practice rather than of evi- dence, and on principle should not be extended to the case of dying declarations. The necessity which requires the admission of the hear- say would seem to involve the abrogation of the rule that the witness be given a chance to explain or deny. In other words, if one exception be made, it is only fair to make a second. The argument to the contrary