CHAPTER XI.

DECLARATIONS AGAINST INTEREST.

§ 668.1 A FOURTH EXCEPTION to the rule rejecting hearsay evidence is allowed in favour of declarations made by persons since deceased against their pecuniary or proprietary interest.3 The ground upon which this evidence is received, is the extreme improbability of its falsehood. The regard which men usually pay to their own interests is considered a sufficient security against any wilful mis-statement, and affords also a reasonable inference that the declarations or entries were not made under any mistake of fact, or want of information on the part of the declarant. The danger of any fraud in the statement will be still less dreaded, if it be borne in mind, that the evidence is not receivable till after the death of the declarant, and that if the opponent can show that the statement was made with any sinister motive, it will at once be rejected. The ordinary tests of truth, afforded by the administration of an oath and by cross-examination, are certainly here wanting; but their place is in some measure supplied by the circumstances of the declarant; and the inconveniences that would result from the exclusion of evidence, having such guarantees for its accuracy in fact and its freedom from fraud, are rightly considered much greater in general, than any which are likely to be experienced from its admission.3

§ 669. In order to render declarations against interest admis- §03 sible as such, it must appear, either by proof or by presumption,* that the declarant is dead; and the mere fact that he has

1 Gr. Ev. § 148, in great part.

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2 Sussex Peer., 11 Cl. & Fin. 103–114; Higham v. Ridgway, 10 East, 109; 2 Smith, L. C. 270, S. C.; id. 281, n.; Short v. Lee, 2 Jac. & W. 464, 488, per Plumer, M. R.

3 1 Ph. Ev. 294.

Doe v. Michael, 17 Q. B. 276; ante, § 198.

5 Phillips v. Cole, 10 A. & E. 106, 111, per Ld. Denman ; Spargo v. Brown,

absconded abroad in consequence of a criminal charge, or that he is otherwise out of the power of the party to produce as a witness, will not be sufficient.1 It would seem, also, from many of the cases, that the declarant must be shown to have had a competent, if not a peculiar, knowledge of the facts, which form the subject matter of the declaration; and, indeed, in the Sussex Peerage claim, the rule was so laid down. In all these cases, however, the "law" was "taken for granted;" and in Crease v. Barrett, where the question was expressly raised, the Court of Exchequer after argument held, "that it was not necessary that the deceased person should have his own knowledge of the fact stated,-that, if the entry charged himself, the whole of it became admissible against all persons,-and that the absence of such knowledge went to the weight, and not to the admissibility, of the evidence." 5

§ 670. It was long a matter of doubt in Westminster Hall, § 604 whether the absence of all interest to misrepresent, coupled with peculiar knowledge in the declarant, would not render his declarations admissible after his death: 6 but it is now fully determined, first, that the statement or entry must be against the interest of the person making it; and, secondly, that the interest must be of a pecuniary or proprietary nature. These points were decided

9 B. & C. 935; Smith v. Whittingham, 6 C. & P. 78. See ante, § 641, and post, § 703.

1 Stephen v. Gwenap, 1 M. & Rob. 120, per Alderson, J.

2 Higham v. Ridgway, 10 East, 122, per Bayley, J.; Marks v. Laheè, 3 Bing. N. C. 419, per Tindal, C. J.; 420, per Parke, J.; 421, per Vaughan, J.; Barker v. Ray, 2 Russ. 76, per Ld. Eldon; Short v. Lee, 2 Jac. & W. 475, 488, 489, per Plumer, M. R.

3 11 Cl. & Fin. 112, per Ld. Brougham and Ld. Denman.

As to which, see per Ld. Denman in O'Connell v. The Queen, 11 Cl. & Fin. 373.

1 C. M. & R. 925; 5 Tyr. 464, 465, S. C.

6 See per Ld. Hardwicke in Glynn v. Bk. of England, 2 Ves. Sen. 38; per Le Blanc, J., in Higham v. Ridgway, 10 East, 120, 121; per Bayley, J., in Gleadow v. Atkin, 1 C. & M. 424; per Ld. Ellenborough in Roe v. Rawlings, 7 East, 290; and Daly v. Wilson, Milw., Ec. Ir. R. 658–660.

7 Berkeley Peer., Pr. Min. 655, cited and confirmed in Sussex Peer., 11 Cl. & Fin. 108, 109.

8 Sussex Peer., 11 Cl. & Fin. 103-114; explained and acted upon by Ld.

in the Sussex Peerage case, where, in order to prove the marriage of the Duke of Sussex and Lady Augusta Murray, statements made by the clergyman, since deceased, who had married them at Rome, were tendered in evidence, on the ground that they were clearly against his interest, inasmuch as they related to an act which rendered him liable to prosecution while living, or which, at least, he believed to be illegal. Lord Chancellor Lyndhurst, in declaring his opinion that this evidence should be rejected, observed, "It is not true that the declarations of deceased persons are in all circumstances receivable in evidence, when in some way or other they might injuriously affect the interest of the party making them. Nor is it true, that because, while living, a party would be excused from answering as to certain facts, his declarations as to those facts become evidence after his death. These are not correlative nor corresponding propositions." Lord Brougham also added, "To say, if a man should confess a felony for which he would be liable to prosecution, that, therefore, the instant the grave closes over him, all that was said by him is to be taken as evidence in every action and prosecution against another person, is one of the most monstrous and untenable propositions that can be advanced."

§ 671. The courts will not weigh with nice scales the amount § 605 of the pecuniary interest, but will admit every entry which, at the time when it was made, completely charged the maker to any extent. But an incomplete charge will not be sufficient; and, therefore, an entry in the following form, " April 4th.-A. came as a servant, to have for the half year 21.," was held to be inadmissible as a declaration against interest, the court considering it merely as a memorandum of an agreement, which must be supposed to have been made on fair terms, and was, consequently, as much in favour of the maker's interest as against it. If the master had to pay for the services, the servant had to perform

Denman in Davis v. Lloyd, 1 C. & Kir. 276. See, also, Smith v. Blakey, 2 Law Rep., Q. B. 326; 36 L. J., Q. B. 156; 8 B. & S. 157, S. C.

111 Cl. & Fin. 110.

2 Id. 111, 112. This case overrules Standen v. Standen, Pea. R. 45.

3 Orrett v. Corser, 21 Beav. 52; Richards v. Gogarty, I. R. 4 C. L. 300.

them. Mr. Justice Coleridge observed, that "this was not an entry against the party's interest, unless the mere making of a contract be so; and if that were the case, the existence of a contract would be against the interest of both parties to it."1

The

§ 672. It is now determined both with reference to this exception, and also to that which relates to declarations made in the course of duty or business, that the term "declaration" includes a mere oral statement, as well as a written memorandum.3 former may indeed be entitled to less weight with the jury than the latter, but the law of England recognises no distinction between statements made by word of mouth and those made in writing, except where the writing is by deed.

§ 606

§ 673. It is further clear that the term "declaration," as ap- § 607 plied to the exception under discussion, embraces all written statements, whether made at the time of the fact declared, or on a subsequent day, though the exception is most frequently exemplified by entries in books of account. Where these are books of collectors of taxes, stewards, bailiffs, or receivers, which are subject to the inspection of others, and in which the entries are generally of money received, charging the party making them, the exception clearly applies. But private books, though exclusively retained within the custody of their owners, are also admissible on the same principle; for their liability to be produced in courts of law on notice, and the possible chance of their contents becoming known through accident, are deemed sufficient security

1 R. v. Worth, 4 Q. B. 132, 139.

2 R. v. Buckley, 13 Cox, 293.

3 R. v. Birmingham, 31 L. J., M. C. 63; 1 B. & S. 763, S. C. See Stapylton v. Clough, 2 E. & B. 933; Fursdon v. Clogg, 10 M. & W. 572, 574–576; Sussex Peer., 11 Cl. & Fin. 103-114. See, also, post, § 708. In Smith v. Blakey, 8 B. & S. 164, Blackburn, J., is reported to have questioned this proposition as being "too broadly stated," but the learned Judge cited no authority in support of his view of the law, and his comment was a mere obiter dictum. Doe v. Turford, 3 B. & Ad. 898, per Parke, B.; Short v. Lee, 2 Jac. & W. 475, per Plumer, M. R. Gr. Ev. § 150, in great part. 6 Barry v. Bebbington, 4 T. R. 514; Goss v. Watlington, 3 B. & B. 132 ; Whitnash v. George, 8 B. & C. 556.

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against fraud; and as the entry is not admissible, unless it either charges the party making it with the receipt of money on account of a third person, or acknowledges the payment of money due to himself, it is considered, in either of these events, as sufficiently against his interest to be brought within the exception.

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§ 674. No valid objection can be taken to the admissibility of 6 an entry, which charges the person making it with receiving money from another, on the ground that such entry forms only a part of a general debtor and creditor account, the balance of which is in favour of the receiver; for, if an action were brought against the receiver by his employer, that part of the account which charged the receiver would be evidence against him, while the entries which showed his discharge, though not absolutely inadmissible for him, would, as compared with the entries against his interest, be entitled to very little weight; and even if it were otherwise, the admission of the receipt of money would still be against his interest, as the balance in his favour would thereby be diminished to the extent of the sum admitted.5 Besides, a man is little likely to charge himself for the mere purpose of getting a discharge; and as almost all entries, which are tendered in evidence as being declarations against interest, are inserted in accounts containing items on both sides, the objection, if it were allowed to prevail, would strike at the very root of the exception under review.7

§ 675. Whether an entry made by a party acknowledging the § 50 payment of money as due to himself, will be admissible as a declaration against interest, in cases, where such entry is the only evidence of the charge of which it shows the subsequent liquidation,

Higham v. Ridgway, 10 East, 122, per Bayley, J.; Roe v. Rawlings, 7 East, 291, per Ld. Ellenborough; Middleton v. Melton, 10 B. & C. 317. 2 See Foster v. M'Mahon, 11 Ir. Eq. R. 287, 299-302.

3 Rowe v. Brenton, 3 M. & R. 267, 268; Williams v. Geaves, 8 C. & P. 592, per Patteson, J.; R. v. Worth, 4 Q. B. 134, per Coleridge, J.; Clark e. Wilmot, 1 Y. & C. Ch. R. 53. 4 See 2 Smith, L. C. 256.

5 See 8 C. & P. 594, per Ludlow, Serj., arguendo.

6 See per Littledale, J., in Rowe v. Brenton, 3 M. & R. 268. 7 See per Ld. Tenterden, in id.