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of the truth of the whole statement in it, and consequently to be evidence, not merely that 2801. 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, in the recent case of Percival v. Nanson,1 a paper purporting to be an entry by a deceased receiver of rents received from T. H., as one of three proprietors, was held to be evidence of the fact, that two other proprietors were equally interested with T. H. In this case, Pollock, C. B., drew an important distinction between entries made against interest, and entries made in the course of business. His Lordship said :—“ 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."
It is held, that declarations against interest are admissible against third parties, even though the declarant himself received the facts on hearsay.2
Thus, in the last case, 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." And Pollock, C. B., said at the same time:-" So, 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."3
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
1 21 L. J. 1, Ex.
2 Crease v. Barrett, 1 C. M. & R. 919.
21 L. J. 2, Ex.
defendant, to prove fraud and the plaintiff's cognisance of it, tendered declarations of the first indorsee, who was alive, but not called. They were rejected; and Lord Denman, in delivering the judgment of the court, 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." Here there was held to be no community or privity of interest between 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. 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.3
But an entry by a deceased person against interest will be good evidence, although it appear 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.4
Although it seems from the preceding cases to be at length clearly established, notwithstanding some adverse authorities, that declarations against interest are evidence of all facts to which they refer, without corro
1 10 Ad. & El. 106.
2 Sup. p. 72; 9 B & C. 938.
3 Stephen v. Gwenap, 1 M. & R. 120.
borative evidence dehors,1 yet it appears to be necessary that extrinsic evidence should be given to show that the person making the entry or declaration was in the situation in which he purports to be. The character of the party making the entry or declaration must be established before the entry is read, unless they be made by a person in a public character, in which case due appointment will be presumed. But agency must be proved, where the declaration was by an agent. Thus, accounts of rents signed by a person styling himself clerk to a steward, but not proved aliunde to have been so employed, although they were found among family muniments; were rejected, because there was no other parol evidence to show that they affected the declarant in a pecuniary character.3 But proof of handwriting, and other extrinsic evidence of authenticity, will be unnecessary when entries have been made thirty years previously, and are produced from proper custody.4
There appears to be no distinction between oral and written declarations for the purposes of this rule. This view seems to have been recognized in the Sussex Peerage Case; and to be supported by subsequent authority.5
As miscellaneous instances of cases, in which declarations against interest have been admitted as evidence, the following may be mentioned. Where a deceased tenant, by a written instrument, acknowledged L. as his landlord, this was held to be evidence of L.'s title as against subsequent tenants who did not claim through the declarant. So, in ejectment by A., the declaration by deed of a deceased receiver of rents and
Doe v. Vowles, 1 M. & R. 166; contra, R. v. Heyford, 2 Sm. L. C. 194 a, and note.
2 Davies v. Morgan, 1 C. & J. and 1 Phill. 278.
3 Baron de Rutzen v. Farr, 4 Ad. & Ell. 53.
4 Wynne v. Tyrwhitt, 4 B. & Ald, 376.
52 Smith L. C. 197, n.; Edie v. Kingsford, 23 L. J. 23, C. P.
Doe d. Lindsey v. Edwards, 5 A. & E. 95.
profits, that he held under A.'s ancestor, is evidence against third parties of A.'s title. So, a declaration by a deceased occupant, that he managed an estate for the claimant, is evidence for the latter.2
In an action by the corporation of Exeter for port duties, documents more than thirty years old, which purported to be the receipt of such duties by ancient receivers, but which were unsigned, and in the third person, were admitted.3 So the receipts of an ancient receiver of rents, brought from the muniment chest of the family, are unobjectionable evidence.4
Where there is privity of interest between the declarant and a party, the declaration is received on this ground; and it will be admissible even though the declarant be alive.5 But although the acts of tenants, at least before the 2 & 3 Will. 4, c. 71, appear to have been evidence against the reversioner, yet it has been said that their declarations were not evidence against him.6
It will be observed, that in all the preceding cases where entries have been tendered, great stress has been laid on the circumstances of the custody from which they are produced. The declarations under consideration are also subject to the remarks which have been made on the declarations discussed in the two preceding chapters, as to the necessity that they must be made ante litem motam.
This rule is said to have been somewhat extended to an anomalous class of cases, where the declarations have been made by persons who have had no interest to misrepresent facts. The privilege, as it really exists, appears to have been confined to ecclesiastical cases in which a vicar or other incumbent has claimed a benefit on the ground of an entry or statement made by a
1 Doe d. Daniel v. Coulthard, 7 A. & E, 235.
2 Baron de Bode's case, 8 Q. B. 208.
3 Mayor of Exeter v. Warren, 5 Q. B. 773.
4 Musgrave v. Emmerson, 16 L. J. 175, Q. B.
5 Woolway v. Rowe, 1 A. & E. 114.
• Per Patteson, J., Tickle v. Brown, 4 A. & E. 378.
former incumbent. But the cases are obscure and the doctrine doubtful. In several instances, also, the statements appear to have been admissible as being against interest. It is not conceived to be necessary to do more than notice the questionable existence of these exceptions.1
It has been said that in the case of an entry against interest, "proof of the handwriting of the party, and his death, is enough to authorize its reception; at whatever time it was made, it is admissible."2 The first part of this dictum applies of course only to entries made within thirty years prior to the time when they are tendered.3
1 See cases referred to; Rosc. N. P. Phill. 267 to 270.