the defendant for a new trial (b). So, where the prisoner was indicted for administering savin to a pregnant woman, but not quick with child, with a view to procure abortion: Bayley, J., rejected evidence of her dying declaration concerning the cause of her death, because the death was not the subject of the pending inquiry (c). But it appears that in two old cases of perjury, evidence of a confession by a deceased accomplice has been received (d). This doctrine, however, could hardly be supported in the present day (e). The dying declarations of an accomplice are receivable (ƒ), and also dying declarations made in favour of the person accused (g).

(b) Per Abbott, C. J., R. v. Mead, 2 B. & C. 605.

(c) R. v. Hutchinson, B. & C. 608, n.; R. v. Lloyd, 4 C. & P. 233; R. v. Hind, Bell, 253.

(d) Per Lord Ellenborough, Aveson v. Kinnaird, 6 East, 195. (e) Doe v. Ridgway, 4 B. & Ald. 53.

(f) R. v. Tinkler, 1 East, P. C. 354.

(g) R. v. Scaife, 1 M. & R. 551.

CHAPTER XIII.

ON EVIDENCE OF HEARSAY DECLARATIONS AGAINST

INTEREST.

WHEN a deceased person, whose veracity in other respects is unimpeached, has, during his lifetime, made a statement concerning the matter in issue, which statement was at the time opposed to his pecuniary or proprietary interest, the legal presumption is that the statement is true, or that it contains at least some elements of credibility. For in all the exceptions to the general rule by which hearsay is excluded, it must be remembered that credibility is by no means a necessary consequence of admissibility. English law, although frequently arbitrary, and perhaps unreasonable, in its dogmatic distinctions between credibility and incredibility, refuses to reject any evidence which it considers to contain any ingredients, however minute, of presumptive truth: but, while admitting it, the judge will often intimate to a jury, that they ought to give it little credit.

The rule which is now to be considered is the following:

A declaration by a deceased person (h), who

(h) In India, declarations against interest are, by Act ii. of 1855, s. 39, admissible in the lifetime of the maker, if he is incapable of giving evidence or cannot be found.

had a competent knowledge of a fact, and no interest to pervert it; and which declaration was against the pecuniary or proprietary interest of the declarant at the time when it was made; is evidence as to third parties, and is evidence of everything stated in the declaration (i).

In the leading case of Higham v. Ridgway (k), to prove the time of a birth, evidence was given, that the man-midwife, who attended the birth, was dead; and the books of the latter, who had kept them regularly, were offered in evidence. They contained an entry in the handwriting of the deceased of the circumstances of the birth, and the date. There was also a charge for attendance, against which the word "paid" was marked. It was held, that the entry was evidence of the time of the birth. Lord Ellenborough, C. J., said:"The entry made by the party was to his own immediate prejudice, when he had not only no interest to make it, if it was not true, but he had an interest the other way, not to discharge a claim, which it appears from other evidence that he had." And Bayley, J., added:-"All the cases agree, that a written entry by which a man discharges another of a claim which he had against him, or charges himself with a debt to another, is evidence of the fact which he so admits against himself; there being no interest of his own to advance by such entry. . . . . The principle to be drawn from all the cases is, that if a person have peculiar means of knowing a fact, and

(i) Middleton v. Melton, 10 B. & C. 317.
(k) 10 East, 109; 2 Smith, L. C. 287.

make a declaration of that fact which is against his interest, it is clearly evidence after his death, if he could have been examined to it in his lifetime." So, in a later case (1), the same learned judges received evidence of entries of charges made by a deceased attorney, who had prepared a lease, to show that the lease was executed at a time later than its actual date. In this case the charges for preparing the lease appear to have been paid, but not upon the face of the entries. Accordingly, Lord Ellenborough, C. J., seems to have extended the principle beyond the limit which is conceived still to be established. His Lordship said:"The ground upon which this evidence has been received is, that there is a total absence of interest in the party making the entries to pervert the fact, and, at the same time, a competency in them to know it.” But Bayley, J., received the evidence strictly as being against the interest of the declarant; and the above dictum of Lord Ellenborough, if it is to be received as a literal exposition of the conditions essential to this class of evidence, is quite irreconcilable with the current of previous and subsequent authorities (m). But it is more reasonable to presume, that his Lordship, in dwelling on one essential condition, omitted to advert to another which he may have considered too indisputable for commentary.

It may, therefore, be considered as an established principle, that, although it is necessary, it is not enough, that this class of declarations should be made by one who has no interest to pervert the facts.

(1) Doe v. Robson, 15 East, 32.

(m) See cases cited in Barker v. Ray, 2 Russ. 67.

The

declaration must be against either the pecuniary or the proprietary (n) interest of the declarant. This doctrine may be considered as finally settled by the Sussex Peerage Case (o). There, declarations as to the marriage of Lady Augusta Murray with the Duke of Sussex, made by the deceased clergyman who performed the ceremony, were tendered on the ground that they were declarations of a person who knew the facts, who was not interested in misrepresenting 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. But 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."

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

(n) Per Cockburn, C. J., R. v. Overseers of Birmingham, 1 B. & S. 768.

(0) 11 Cl. & Fin. 85.