CHAPTER X.

STRANGERS' DECLARATIONS AGAINST INTEREST.

§ 117. Declarations of third persons | § 1196. The knowledge of the declar

§ 117. Declarations of third persons and other declarations distinguished. The declarations of third persons who are neither parties to the suit nor in privity with the parties constitute another exception to the rule rejecting hearsay evidence. To render such declarations admissible and to permit the production of the declarant as a witness to be dispensed with three elements must concur. In the first place it must be shown affirmatively that the declarant cannot be produced because he is dead, for declarations of this description are not only hearsay but are secondary evidence as well.

As in the case of declarations constituting evidence of reputation, it must also be shown that the person possessed adequate knowledge or was in such a situation that the possession of adequate knowledge may be presumed from the circumstances. And finally the declarations must have been against his interest when they were made.

It may be of value to distinguish declarations which are admissible on the ground just described from those which are receivable as evidence of reputation and pedigree or as a part of the res gesta, on the one hand, and from those which are receivable because they are admissions, on the other.

The principal basis for the reception of admissions is the strong presumption of their truth, arising from the fact that they are declarations against interest, made by a party to the suit or by some one in privity with him. The declarations which are under consideration in this chapter resemble ad

missions in that they are against interest, but they differ from admissions in that they are admissible not because against the interest of parties to the suit or persons in privity with them, but because they are against the interest of strangers, i. e., third persons who had no interest in the present subjectmatter and who are not identified in any way with those who are parties or privies to it. The persons who have made these declarations must have been possessed of adequate knowledge and must be deceased at the time of the suit, the declarations in these respects resembling pedigree, while in the case of admissions, no such requirements exist, though on the other hand a joint interest or identity of interest must be shown prior to the admission of the latter.

The declarations of third parties against interest need not, though they often do, constitute a part of the res gesta which is in litigation, nor need they be such entries as are made in the course of official or private duty, though it usually happens that they often possess such characteristics in common with the others which render them admissible.

The declarations of third persons against interest usually consist of written entries made in books of record or account, and from the circumstances of the case it frequently happens that such books, aside from any question of competency, are provable under the rules laid down with respect to ancient documents. But in most of the cases these book-entries against interest are wholly or partly admissible on other grounds, i. e., as constituting a part of the res gesto and as made in the course of the performance of private or professional duty.

§ 118. Declarations must be against interest. In the first place the declarations must have been against the interest of the third person at the time they were made. Self-interest prompts all persons to exercise a certain degree of care and attention in the conduct of their own affairs and to acquire a more or less intimate knowledge of what concerns themselves. Based upon these considerations, a strong probability exists that such declarations are true, while, on the other hand, the

1See § 53.

Hosford v. Rowe, 41 Minn. 247; Bla

2 Briberg v. Donovan, 23 Ill. App. lock v. Miland, 87 Ga. 573. 62; Bartlett v. Patton, 33 W. Va. 71;

necessity of the case requires their admission, as the only persons who have perhaps the amplest knowledge are long since deceased.1

The question has been raised whether the declaration is receivable as evidence of all the facts which are contained in it or only as evidence of those facts by virtue of which it is opposed to the pecuniary interest of the person making it. Though controverted by the earlier cases, it is now the rule that the whole declaration or entry may be given in evidence to show statements independent of and collateral to the main assertion. So the written receipt of a deceased person is admissible not only to show that the payment was made, which is the fact against his interest, but to show also the time. or place of payment and the person for whose account the money was paid. But statements of facts collateral to the fact which constitutes the entry a declaration against interest are not receivable unless connected with it by reference or by necessity in order to explain it. The mere fact that they were contemporaneously made does not render them admissible.3

$119. The interest of the declarant. The declaration must have been opposed to the pecuniary or proprietary interest of the person making it, and the adverse interest should be shown by independent evidence or be inferable from the circumstances of the case itself."

A declaration is opposed to a person's interest if a part only

1 Bird v. Hueston, 10 Ohio St. 418. 2 Lamar v. Pearse (Ga., 1893), 17 S. E. Rep. 92; Davie v. Humphreys, 6 M. & W. 153; In re Gracie's Estate (Pa., 1893), 27 Atl. Rep. 1083; Marks v. Lahee, 3 Bing. N. C. 408. Cf. Edward v. Cook, 4 Esp. 49.

3 Livingston v. Arnoux, 56 N. Y. 507. Cf. Malone v. Gates, 66 Tex. 22, which was an action to recover for the value of a quantity of timber. The party who measured the timber being dead, it was held proper to admit all his declarations as to the manner in which he made the scale or measure used by him.

Davis v. Lloyd, 1 C. & K. 276; Bartlett v. Patton, 33 W. Va. 71. Cf. Thistlethwait v. Thistlethwait, 13 Ind. 355.

5 Lamar v. Pearse (Ga., 1893), 17 S. E. Rep. 92; Higham v. Ridgway, 10 East, 109; Ivat v. Finch, 1 Taunt. 141; In re Gracie's Estate (Pa., 1893), 27 Atl. Rep. 1083. Though the declarant may be deceased, and though he may have had competent knowledge, his declarations not constituting part of the res gesta are inadmissible if not against his interest. Blalock v. Miland, 87 Ga. 573.

charges him with a liability, or where other portions of the book or document in which it occurs may discharge him from liability in whole or in part. So a declaration in the form of a book entry is admissible where it is the only evidence of the charge, and even where the same book shows a counterbalancing or overbalancing entry, so that upon the whole the declaration or entry does not charge the party and is not against his interest.2

3

$119a. Death of the declarant.-To render declarations of third persons against interest admissible against the parties it must be shown that the declarant is deceased; and it has also been held in such a case that the deceased person must have been competent to testify as to the declaration against his interest if he had been alive at the date of the suit. The earlier decisions, however, support the contrary rule, that the incompetency of the declarant as a witness, if living, is immaterial, basing their reasoning upon the fact that, as the declaration is in its nature an admission or confession, it is very probably true, despite the disqualification of the person from testifying because of interest.

5

These declarations.

§ 119b. Knowledge of the declarant. of deceased persons against their interest, while differing in some respects from declarations or entries made in the usual course of employment, resemble them in this: that they must have been made by a person who had a good knowledge of the facts or whose duty and interest it was to have that knowledge. If the stranger was possessed of competent knowledge of the transaction, it is immaterial that the entry does not show that it was made on his personal knowledge.'

1 Stephen's Dig., art. 28.

21 Greenl. on Evid., § 151; Higham v. Ridgway, 10 East, 109; Rowe v. Brenton, 3 Man. & R. 267.

3 Bartlett v. Patton, 10 S. E. Rep. 4; 33 W Va. 71; Hosford v. Hosford, 41 Minn. 245; 42 N. W. Rep. 1018; Linney v. Wood, 66 Tex. 22. In Griffith v. State (Tex., 1890), 14 S. W. Rep. 230, it was held that declarations which are admissible because the declarant is deceased are also admissible where he is so physically or mentally incapacitated that he is un

able to testify in court or to have his deposition taken.

4 Heidenheimer v. Johnston, 76 Tex. 200; 13 S. W. Rep. 46.

51 Greenl. on Evidence, § 153, citing Doe v. Robson, 15 East, 32; Middleton v. Melton, 10 B. & C. 317; Schenck v. Warner, 37 Barb. 258.

6 Clapp v. Engledow, 72 Tex. 252; 10 S. W. Rep. 252; Friberg v. Donovan, 20 Ill. App. 62.

71 Greenl. on Evid., § 153, citing Crease v. Barrett, 1 Cr., M. & R. 219.

Entries made in the performance of professional or private duty, such as, for example, indorsements of service or the returns made on writs by the officials or private persons serving them, are receivable against the parties to a suit, partly because of the implied agency which exists between the party against whom they are introduced and the declarant, but mainly because the entries form a part of the res gesta, i. e., the fact of service. Such entries, however, are only available as evidence so far as they consist of statements of fact which it was the duty of the person to record, while the entry of a stranger against his interest is evidence of all facts contained in it which were actually recorded.

§ 119. Statements of predecessor against interest, when evidence in behalf of successor. The statements of a deceased owner of property in his own favor are never admissible evidence in behalf of those claiming the property by virtue of a title derived from him,' except where they are a part of the res gesto already in evidence, or have been acquiesced in by the adverse party or by one in privity with him. Neither are statements against interest made by a predecessor in estate admissible as evidence for his successor after his decease.1

In England one exception was made to the rule that no proprietor can make evidence in favor of his successor in interest. From the very earliest times the book entries of a deceased rector or vicar were received as evidence for or against his successor, but only to show the receipt of tithes or other money due the church, or similar entries against the interest of the party who made them and which from this circumstance were presumed to be true."

1 Reese v. Murnane, 31 Pac. Rep. 1027; 5 Wash. St. 372; In re Smith, 95 N. Y. 517; Schmidt v. Packard, 31 N. E. Rep. 944; 132 Ind. 398; Blalock v. Miland, 87 Ga. 573.

2 See ante, § 115, "Boundaries."

3 See § 79.

But in White v. Chouteau, 10 Barb. 202, the declaration of the owner of the goods against interest was received in favor of a surety claiming under him as against the principal debtor.

51 Greenl. on Evid., § 155, citing

4 Outram v. Morewood, 5 T. R. 123, Short v. Lee, 2 Jac. & W. 477.