438 DECLARANT MUST BE DEAD. party to produce as a witness, will not be sufficient (d). 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 (e); indeed, so recently as in the Sussex Peerage claim, the rule has been so laid down (f). In all these cases, however, the "law" was "taken for granted" (g); 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" (h). § 466. It was long a matter of doubt in Westminster Hall, whether the absence of all interest to misrepresent, coupled with peculiar knowledge in the declarant, would not render his declarations admissible after his death (i); but it is now finally determined, first, that the statement or entry must be against the interest of the person making it (j); and secondly, that the interest must be of a pecuniary or proprietary nature (k). These points were decided 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 (d) Stephen v. Gwenap, 1 M. & Rob. 120, per Alderson, J. (e) Higham v. Ridgway, 10 East, 122, per Bayley, J.; Marks v. Laheè, 3 Bing. N. C. 419, per Tindal, C. J.; 420, per Park, J.; 421, per Vaughan, J.; Barker v. Ray, 2 Russ. 76, per Lord Eldon; Short v. Lee, 2 Jac. & Walk. 475, 488, 489, per Plumer, M. R. (ƒ) 11 Cl. & Fin. 112, per Lord Brougham and Lord Denman. (g) As to which, see per Lord Denman in O'Connell v. The Queen, 11 Cl. & Fin. 373. (h) 1 C. M. & R. 925; 5 Tyrw. 464, 465, S. C. (i) See per Lord Hardwicke in Glynn v. Bank 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 Cr. & Mee. 424; per Lord Ellenborough in Roe v. Rawlings, 7 East, 290; and Daly v. Wilson, Milw. Eccl. Ir. R. temp. Radcliffe, 658 -660. (j) Berkeley Peerage, Pr. Min. 655, cited and confirmed in Sussex Peerage, 11 Cl. & Fin. 108, 109. (k) Sussex Peerage, 11 Cl. & Fin. 103-114; explained and acted upon by Lord Denman, in Davis v. Lloyd, 1 C. & Kir. 276. ENTRY AGAINST PECUNIARY OR PROPRIETARY INTEREST. 439 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" (7). 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” (m). § 467. The Courts will not weigh with nice scales the amount 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 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" (n). § 468. Whether, with reference to this exception, and to that which relates to declarations made in the course of duty or (7) 11 Cl. & Fin. 110. (m) Id. 111, 112. This case overrules Standen v. Standen, Pea. R. 45. (n) R. v. Worth, 4 Q. B. 132, 139. 440 VERBAL STATEMENTS-WRITTEN STATEMENTS. business, the term "declaration " includes a mere verbal statement, is a question still undecided. In the case of Fursdon v. Clogg (0), the point was much discussed, the one side insisting that the cases went no further than to admit written entries, and the other contending, with apparently much more reason (p), that, although verbal statements might be entitled to less weight with the jury than such as were written, yet the law of England recognised no distinction whatever between matter by parol and in writing, except where the writing was by deed. The Court of Exchequer, according to Mr. Starkie (q), intimated a present opinion in favour of the admissibility of the evidence; but this fact is not mentioned in the report of the case, and it there simply appears that, after taking time to consider, the judges declined to pronounce any decision on the subject, their judgment resting wholly on another point (r). § 469. Whatever may be the fate of this question, there can be no doubt but that the term declaration, as applied to the exception we are now considering, embraces all written statements, whether made at the time of the fact declared, or on a subsequent day (s), 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, subject to the inspection of others, and in which the first entry is generally of money received, charging the party making it, they are clearly within the principle of the exception (t); but it has been extended still further, to include entries in private books also, though retained within the custody of their owners; their liability to be produced in courts of law on (0) 10 M. & W. 572, 574, 575. (p) See Davies v. Pierce, 2 T. R. 53; Holloway v. Rakes, cited id. 55; Strode v. Winchester, 1 Dick. 397; Ivat v. Finch, 1 Taunt. 141. In the Sussex Peerage case a verbal declaration was tendered in evidence, as having been made against the interest of the declarant, but neither the counsel nor the judges questioned its admissibility on the ground of its not having been in writing. 11 Cl. & Fin. 103-114. (q) 1 St. Ev. 613. (r) 10 M. & W. 575, 576. (s) Doe v. Turford, 3 B. & Ad. 898, per Parke, B.; Short v. Lee, 2 Jac. & Walk. 475, per Plumer, M. R. (1) Barry v. Bebbington, 4 T. R. 514; Goss v. Watlington, 3 B. & B. 132; Whitnash v. George, 8 B. & C. 556. ENTRY IN DEBTOR AND CREDITOR ACCOunt. 441 notice, and the possible chance of their contents becoming known through accident, being deemed sufficient security against fraud (u) ; and the entry not being admissible, unless it 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; in either of which cases it would be evidence against him, and therefore is considered as sufficiently against his interest to bring it within this exception. § 470. No valid objection can be taken to the admissibility of an entry, which charges the person making it with receiving money for 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 (v) ; 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 (w); and even if this were not so, 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(x). Besides, a man is little likely to charge himself for the mere purpose of getting a discharge (y); 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 we are discussing (z). § 471. Whether an entrymade by a party, acknowledging the payment of money as due to himself, will be admissible as a decla (u) Higham v. Ridgway, 10 East, 122, per Bayley, J.; Roe v. Rawlings, 7 East, 291, per Lord Ellenborough; Middleton v. Melton, 10 B. & C. 317. (v) Rowe v. Brenton, 3 M. & Ry. 267, 268; Williams v. Geaves, 8 C. & P. 592, per Patteson, J.; R. v. Worth, 4 Q. B. 134, per Coleridge, J.; Clark v. Wilmot, 1 You. & Col. N. C. C. 53. (w) See 2 Smith's Lead. Ca. 195, 196. (x) See 8 C. & P. 594, per Ludlow, Serj., arguendo. (y) See per Littledale, J., in Rowe v. Brenton, 3 M. & Ry. 268. (2) See per Lord Tenterden, in id. 442 WHEN ENTRY IS SOLE EVIDENCE OF CHARGE. ration against interest, in cases where such entry is itself the only evidence of the charge of which it shows the subsequent liquidation, is a question of more difficulty, and the authorities on the subject are highly conflicting. On the one hand, two Nisi Prius decisions may be cited, which seem expressly to negative the admissibility of such evidence. In the first case (z) it became necessary to show that a mortgagee, through whom the plaintiff claimed, had repaired the premises in dispute; and for this purpose, the plaintiff produced a receipted bill for the repairs, in the handwriting of a deceased carpenter, which had been found among the mortgagee's papers. An objection was raised to the reception of this paper as not containing any statement against the interest of the carpenter; since, though it showed that his demand had been paid, it furnished the only evidence that such a demand had ever existed. Mr. Justice Littledale rejected the evidence, observing, that "the cases had gone quite far enough.” In the other case (a) the evidence tendered was of a similar nature, excepting only that, instead of being a bill and receipt, it was an entry in a deceased tradesman's book, showing that he had done certain work, and had been paid for so doing. Mr. Baron Gurney refused to admit this evidence, apparently relying on the authority of Doe v. Vowles. On the other hand, Lord Denman(b) and Mr. Baron Parke (c) appear, on separate occasions, to have admitted such entries, and the latter very learned judge is stated to have expressly disapproved of Doe v. Vowles (d), saying that he thought it contrary in principle to Higham v. Ridgway (e). On examining, however, the case of Higham v. Ridgway, it scarcely seems to furnish a safe guide on the subject; for there it was proved by evidence aliunde, that the service charged for in the account had in fact been performed; and although Lord Ellenborough first lays down the general doctrine, that "the evidence was admissible upon the broad principle on which receivers' books have been admitted, namely, that the entry made was in prejudice of the party making it" (f),—he afterwards, in two different (z) Doe v. Vowles, 1 M. & Rob. 261. (a) Doe v. Burton, 9 C. & P. 254. (¿) R. v. Hendon, cited, arguendo, in 9 C. & P. 255. (d) Ante, n. (c). (e) 10 East, 109. (f) 10 East, 117. |