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exception to the hearsay rule, and admissible in evidence, if relevant to the matter of inquiry, when it appears that the declarant is dead, that the declaration was, at the time when it was made, against a pecuniary or proprietary interest of the declarant, that it was of a fact in relation to a matter of which he was personally cognizant, and that he had no probable motive to falsify or misstate the fact declared, which is generally shown by proof that it was made ante litem motam.

a reading of section 435, 1 Elliott on Evidence, it seems the rule is there stated that declarations against interest are those which are made by strangers to the litigation, and not those made by persons in privity with the parties.

From

It is there said:

“Declarations against interest are distinguished from admissions and confessions, in that they are made by strangers, against their interest, rather than declarations made by a party or privy, against his own interest, and received as direct evidence of the facts declared, while admissions and confessions are received more as waivers of the proof of certain facts. Admissions are generally declarations of parties and those identified in interest with parties, and the declarant may or may not be dead, while these are declarations made by strangers since deceased; that is, by persons not in privity with the parties to the proceedings.” The rule is stated to the same effect in 4 Enc. Ev., 87-89, and in 2 Jones on Ev., sec.

327.

If it should be said that declarations against interest, as distinguished from admissions, are admissible as such only when made by strangers since deceased, and not by persons since deceased in privity with the parties then the evidence was properly excluded for it is apparent that the declarant was in privity with the party offering the testimony.

If these text-writers had said that declarations against interest

admissible, not only when made by persons since deCeased and in privity with the parties, but also when made by persons since deceased who were strangers to the litigation and to the parties such statement, we believe, would be more that is meant by the expressions of the authors referred to. We have been cited to no case where a declaration against in

are

in harmony with the adjudicated cases. Probably that is all

terest was excluded because made by a person in privity with the parties. To the contrary, we find numerous cases where such a declaration of a person since deceased was held properly admitted, though the declarant was in privity with the party litigant offering the declaration, and where it was received, not as an admission of one identified in interest with a party litigant, but as direct evidence of the fact declared. The following are a few of such cases: Coffin v. Bucknam, 12 Me. 471; Humes v. O'Bryan & Washington, 74 Ala. 64; County of Mahaska v. Ingalls, 16 Iowa 81; German Ins. Co. v. Bartlett, 188 Ill. 172, 58 N. E. 1075, 80 Am. St. Rep. 172; Lehman v. Sherger, 68 Wis. 145, 31 N. W. 733 ; Taylor v. Witham, 3 Ch. D. 605.

It is therefore necessary to inquire further into the matter. The declarant was dead. It may well be said that the facts declared were presumably within the knowledge of the deceased. They were relevant to the matter of inquiry. They were made ante litem motam. The further question is: Was it sufficiently made to appear that the declarations were against the interest of the declarant at the time when made? The authorities generally hold that to be against interest the declaration must be against a pecuniary or proprietary interest of the declarant. While Mr. Wigmore, in his work on Evidence (volume 2, section 1476), says that the doctrine should be extended to include a penal interest and all declarations of facts against interest of a deceased person nevertheless he concedes that the cases have limited the admissibility of the declarations to a pecuniary or proprietary interest at the time when made. He asserts however, that such a limitation was fixed arbitrarily. Whatever force there may be to the suggestions of Mr. Wigmore, it cannot be doubted that the rule is firmly established in England and in this country that, in the absence of a statute, the declaration, to be admissible, must be against either a pecuniary or a proprietary interest. Quite true, in the case of State v. Alcorn, 7 Idaho 599, 64 Pac. 1014, 97 Am. St. Rep. 252, it was held that it was sufficient if the declaration tended to show “a state of facts inconsistent with” the declarant's "obser

the

vations of the rules of chastity," and that no “beneficial purpose of the deceased could be served by the declaration.” In

case of Moore v. Palmer, 14 Wash. 134, 44 Pac. 142, the declarations of a deceased person, which were not even disserving, but wholly self-serving, at the time when made, were admitted, in favor of his administrator, in an action brought against him to recover for professional services rendered the deceased to show “the improbability of the deceased's paying any such sum to the appellant for legal services, and as further tending to show that such services, if any in fact were rendered, were unimportant, and the estimate in which deceased held appellant as an attorney.

If we correctly understand the questions involved in these cases, we believe the rulings there made to be against the clear weight of authority. In a sense it may be said that the declarations of the deceased, when he declared that he had not started the suit, that he was not going to sue his daughter, and that he had no knowledge of such a suit having been started, were, at the time when made, against some sort of the declarant's interest. At least, it cannot well be said that they were wholly self-serving at the time when they were de

But we are of the opinion that they were not against

or a proprietary interest. While "courts will not nicely weigh the pecuniary interest to any extent” (1 Elliott on Ev., section 441), still the pecuniary (or proprie tary) interest of a party must be clear and undoubted, as this is the main ground upon which the admissibility of this species of evidence rests.' (

clared. a pecuniary

supra.)

It is said by the appellant that “the declarations and the facts implied therefrom show a disclaimer of proprietorship in respect to the subject matter of that suit," iind were against the testator's proprietary and pecuniary interest at the time, and to the extent of the value of the property, which was shown to be $3,250. A person's declaration that he had not authorized the commencement of an action concerning property in which he has an interest, or that he knew nothing of such a suit, does not show that he did not

34 Utah-12

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claim any interest in the subject matter of the action; that is to say one may consistently claim full and complete ownership of a thing and at the same time declare that he had not authorized any action brought to assert or maintain his rights with respect to it. The declarations here did not tend to lessen the pecuniary value of the deceased's property, or impose upon him a pecuniary responsibility; nor did they tend to cast doubts upon the ownership of his property. (1 Elliott on Ev., section 441.) We are therefore of the opinion that the evidence was properly excluded.

Direct evidence was given on behalf of the respondent that the deceased subscribed his name to and verified the complaint filed in the action to cancel the deeds. The appellant gave direct evidence that the name of the deceased which was signed to the complaint was not in his handwriting. As further proof of such fact the appellant offered in evidence the signatures to two mortgages and a deed, proved to be in the handwriting of the deceased, for the purpose of furnishing a standard with which to compare the disputed signature to the complaint, and also produced an expert on handwriting by whom the appellant offered to show that the signature to the complaint and the signatures to the mortgages and deed were not written by the same person.

These offers were rejected on the ground that the disputed signature could only be compared with some instrument already in evidence for some other purpose, or which was otherwise before the court as a part of the record in the case, and that it was not competent to put in evidence some document as a standard of comparison which was not otherwise relevant to some issue in the case. Complaint is made of these rulings.

Upon this question there is much conflict in the authorities. See notes in 62 L. R. A. 817, 63 L. R. A. 163, 427, 937, 963. It seems that in the courts of common law the decisions have not been uniform. It was held by the older decisions that a comparison between the disputed writing and other writings already properly in evidence could be made by the jury, but not by witnesses, except when the witness had previous knowledge of the person's handwriting and

made such comparison in confirmation of his own testimony. With this exception comparison of handwriting by witnesses was not permissible at common law. In 1854 Great Britain by statute authorized proof of handwriting to be made by comparison, both by witnesses and jury, of a disputed writing with any writing proved to the satisfaction of the judge to be genuine. Many of the states have similar statutes authorizing the comparison to be made by any writing proved to be genuine, or, as some of the statutes provide, proved to be genuine to the satisfaction of the judge. We have no statute on the subject. In 2 Elliott on Ev., section 1105, it

is said:

“In those jurisdictions where there are no statutes regulating the admission of opinions as to a comparison of handwriting, three distinct rules seem to prevail. In a few jurisdictions the rule is that the opinions of experts based on any comparison is improper; in other jurisdictions the rule is that opinions are admissible in case the writings to be compared are in evidence for another purpose and admitted to be genuine; and the third rule is that opinions of experts are admissible as in the rule immediately preceding, and, in addition, on writings whose genuineness has been proved on the trial for the express purpose of comparison.”

In 6 Enc. of Ev., p. 410, the rule is stated as follows:

“Whether, in the absence of any statute on the subject, writings not already in evidence in the case, and which are not admissible in evidence for other purposes, although they may be genuine, can be received in evidence for the sole purpose of furnishing an exemplar or standard of comparison, there is much conflict in the authorities. Many of the courts hold that such writings cannot be received for that purpose.

Other courts, however, hold that, even in the absence of any statute where the genuineness of handwriting is involved, well-tested standards of the writing of the person whose writing is in question may be introduced for the sole purpose of comparison with that which is disputed, although they are other

wise irrelevant.”

To the first proposition cases are cited from six different jurisdictions; to the last proposition from sixteen different jurisdictions, including Utah.

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