senting them, and who had an interest in being silent concerning them, because the unlawful celebration of the marriage might have subjected him to a prosecution. All the judges concurred in holding, that the declaration must be adverse to some pecuniary interest in the declarant, and that even the fear of a prosecution was not a sufficient interest to let in a declaration as contrary to it. Lord Campbell said:-"As to the point of interest, I have always understood the rule to be, that the declaration, to be admissible, must have been one which was contrary to the interests of the party making it in a pecuniary point of view. I think it would lead to most inconvenient consequences, both to individuals and the public, if we were to say that the apprehension of a criminal prosecution was an interest which ought to let in such declarations in evidence" (g). It is also settled law that the declaration, or written statement, is evidence of all the facts which it contains, and that in such cases the difference between oral and written statements is not one of admissibility, but only of weight (). According to Parke, B., the entry in Higham v. Ridgway was evidence, not only of the payment of the man-midwife's charges, but also of partus cum forcipe (i). (g) See also Smith v. Blakey, L. R., 2 Q. B. 326; 36 L. J., Q. B. 156; 15 W. R. 492; Massey v. Allen, L. R., 13 Ch. D. 558; 49 L. J., Ch. 76; 28 W. R. 212. (h) R. v. Birmingham, 1 B. & S. 763; Bewley v. Atkinson, L. R., 13 Ch. D. 283; 49 L. J., Ch. 153; 28 W. R. 638. (i) Percival v. Nanson, 7 Ex. 3. P. P So the statement of a deceased person that he occupied a house at 207. a-year was admitted to prove not only the tenancy, but also his acquirement of a settlement of the annual value of 10. Again, where, in order to establish a settlement, it was proved that the pauper's grandfather had occupied a house for four years in the appellant parish, and a book containing certain entries of payment of rent which were proved to be in his handwriting was produced, these entries were admitted in proof of the grandfather's settlement by renting a tenement, on the ground that, the four years' occupation being by itself primâ facie evidence of a seisin in fee, the proof of payment of rent would cut down the interest to a tenancy, and that therefore the evidence was against proprietary interest (). In Davies v. Humphreys (1), which was an action for contribution by one of several makers of a promissory note against a co-surety, the plaintiff, to establish the suretyship, relied on a receipt indorsed on the note by the deceased payee acknowledging a part payment of 2801. of the principal sum of 3007.; and adding, "the 3007. having originally been advanced to E. H." (the defendant). This was held to be evidence of the defendant's liability. Parke, B., in delivering the judgment of the court, said:"That the receipt was evidence of the fact of payment, which is admitted, in every case in which the (k) R. v. Birmingham, 1 B. & S. 768; R. v. Exeter, 10 B. & S. 433. (1) 6 M. & W. 153. proof of payment would be relevant, was not disputed; but it was denied that the whole entry would be admissible to show that the 3007. was advanced to E. H. . . . but the entry of a payment against the interest of the party making it has been held to have the effect of proving the truth of other statements contained in the same entry, and connected with it." His Lordship, after referring to Higham v. Ridgway, and Doe v. Robson (m), added: "Without overruling these cases (and we do not feel ourselves authorized to do so), we could not hold the memorandum in question not to be admissible evidence of the truth of the whole statement in it, and consequently to be evidence, not merely that 2807. was paid by the plaintiff to the payee, as for a debt due from E. H. as principal, but also of the fact, that the debt was due from E. H. to him." Thus, also, where a paper purported to be an entry, by a deceased receiver, of rents received from T. H., as one of three proprietors, it was held to be evidence that two other proprietors were equally interested with T. H. Pollock, C. B., drew an important distinction between entries made against interest, and entries made in the course of business: If the entry is admitted as being against the interest of the party making it, it carries with it the whole statement; but if the entry is made merely in the course of a man's duty, then it does not go beyond those matters which it was his duty to enter" (n). (m) 15 East, 33. (n) Percival v. Nanson, 7 Ex. 3. It is held, that declarations against interest are admissible against third parties, even though the declarant himself received the facts on hearsay (o). Thus, in Percival v. Nanson (p), Alderson, B., said: "An entry in an attorney's bill of a service of notice on A. B. would be evidence of a service, although, such notice being generally served by an attorney's clerk, the attorney probably had no personal knowledge of such service." Pollock, C. B., also said: "If an accoucheur puts down in his book the name of a lady whom he had delivered, and debits himself with the payment, such entry would be evidence of the name, although he may have known nothing of her name except from the information of others." The declarant must be deceased at the time when the evidence is offered. Thus, in assumpsit on a promissory note by an indorsee against the maker, the defendant, to prove fraud and the plaintiff's cognizance of it, tendered declarations of the first indorsee, who was alive, but was not called. They were rejected; and Lord Denman said:-"It is clear that declarations of third persons alive, in the absence of any community of interest, are not to be received to affect the title or interests of other persons, merely because they are against the interest of those who make them " (q). Here there was held to be no community or privity of interest between (0) Crease v. Barrett, 1 C. M. & R. 919. (p) 7 Ex. 1. (4) Phillips v. Cole, 10 A. & E. 111. -the plaintiff and the absent witness; but if that had existed, the evidence would have been admitted according to the principle already quoted, as laid down by Bayley, J., in Spargo v. Brown (r). So it has been held that the entries of a person against his interest are not evidence between third parties, if the declarant be alive, although it appears that he has absconded on a criminal charge, and that it was quite impossible to produce him as a witness (s). An entry by a deceased person against interest will be good evidence, although it appears that persons are living, and not called, who are acquainted with the fact. Thus, entries by a deceased collector, charging himself with the receipt of taxes, were received as evidence against a surety that the money had been paid, although the persons who paid it were living, and might have been called. An attempt was made in this case to exclude his evidence, because the entries were contained in a private note-book, and not a public account-book; but the distinction was overruled (). After the expiration of a long term the death of the declarant will be presumed (u), although in other cases it must be proved. It seems to be at length clearly established, notwithstanding some adverse authorities, that declarations against interest are evidence of all facts to which they refer, without corroborative evidence (r) 9 B. & C. 938, and supra, p. 153. |