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Decisions of the Superior Courts of New South Wales, 1788-1899

Doe dem. Malcolm v. Smith [1850] NSWSupC 3 [dying declaration ejectment Crown grant, to alien]

dying declaration - ejectment - Crown grant, to alien

Supreme Court of New South Wales

Stephen C.J. and Dickinson J., 8 May 1850

Source: Sydney Morning Herald, 9 May 1850, Supreme Court Collection, vol. 3, pp 98-99


His Honor Mr. Justice DICKINSON delivered the judgment of the Court.

This was an action of ejectment, on the demise of Jean Malcolm.

At the trial, the plaintiff gave in evidence a grant from the Crown of the land in dispute, to one Simon Lear; and a conveyance from him of the same land, to the lessor of the plaintiff. The attesting witness to the deed proved, that the said Lear was dead; and the defendant's counsel sought to show, by cross-examination of the witness, and by similar evidence on the defendant's part, that, while Lear was in possession under the Crown grant, he said that he was an alien. His Honor the Chief Justice, on objection made, rejected this evidence; and the Jury delivered a verdict for the plaintiff.

A new trial was moved for during the last term, on account of His Honor's rejection of that evidence. Mr. Broadhurst contended that the evidence was admissible, as falling within the ordinary rule that declarations of a deceased person, contrary to his interest, are admissible to prove the fact declared, even against third persons.

Mr. Foster for the plaintiff contended, that though the declaration of a former occupier of land, after his decease, are admissible in evidence, when made directly in derogation of his interest therein, yet there was no case to show that his declarations are admissible, when made as to collateral facts---from which it may accidentally appear, that his interest in the land was less than the apparent interest. He urged that though a declaration was admissible, which by its terms immediately and directly impeached a man's interest in land occupied by him, it was not so when made of a collateral fact, which might be used by others to the injury of his estate. He contended that, although a man cannot speak in disparagement of his interest in a matter without injuring it, he might have said that he was an alien even if he had not possessed land; and the mere accident of his having a grant of land, could not make the evidence admissible. For the cases merely showed the admissibility of declarations, necessarily and intrinsically noxious to specific interests, and he urged that they should not be extended to instances of declarations which were only accidentally and extrinsically injurious.

The following cases were cited:--- 1 Taylor on Evidence, 449; Com. Dig. Alien, C. 4; Carne v. Nicoll, 1 Bingh. N.C. 430; Barker v. Ray, 2 Russ. 67, note; 2 Steph. Comm. 429; Doe v. Penfold, 8 C. and P. 536; Lord Trimlestown v. Kemmis, 9 Cl. and Fin. 780; Peaceable v. Wa'son, 4 Taun. 16; and the 10 Jarman's Bythewood, p. 5.

We have considered this case with some anxiety, as we have been much struck with Mr. Foster's assertion, that there is none like the present to be found among the decisions; and, having carefully searched, we have not been able to discover any one like it.

The safe administration of justice is so dependent upon the careful observance of the rules of evidence, that the presentation to our notice of a new instance for admitting testimony, without the sanction of an oath in open Court, warns us of the great necessity for caution.

Juries have to express opinions, on matters of which they have no personal knowledge; and they have found their judgments, on measuring by their own experience the testimony of witnesses. Writers on the human understanding have investigated the conditions of rational acquiescence in the narrations of others, and the matters which are likely to induce erroneous belief in what it reported to us. They have instructed us what we may safely consider, and what we should reject, when we form our opinion on the testimony of others.

Upon the same principles the Law of Evidence is formed; with these exceptions, that an apparently artificial efficacy is given to certain matters---as judicial records, recitals made by public authority, &c.; while certain other matters, which might in certain cases elucidate the truth, are withheld from a Jury. These exceptions are founded upon considerations of public advantage, of higher importance than any individual detriment that may be occasioned by them. Now, as the abstract writers to whom I have referred have laid down, as the primary conditions of evidence, that witnesses should be persons of strict veracity, and report only what they personally know, the Law of Evidence has laid down as its corner stone, that "every fact should be deposed to before a Jury upon oath, in the presence of the party to be affected thereby:" the oath being the highest sanction for the veracity of a witness, and his narrative in open Court exposing him to a cross-examination, whereby his knowledge may be ascertained.

To this rule, however, there are several exceptions; of which one of the most signal is that, under which it was sought to give the evidence which the Chief Justice rejected at the trial of this cause; namely, that declarations and entries, made by persons since deceased, against the interest of the persons making them at the time they were made, are admissible in evidence. This exception has been confined, by the House of Lords, to declarations made against the pecuniary and proprietary interests of the declarants; and they have refused to extend it to other matters, such as confessions of felony, or other facts besides the last mentioned interests. Sussex  Peerage Case, 11 Cl. and Fin. 85; and Lord Trimlestone v. Kemmis, 9 Cl. and Fin. 780. See also Stobart v. Dryden, 1 M. and W. 615. It may be urged, however, that Lear's declaration that he was an alien, did affect his proprietary interest; as the Grant to him was thereby voidable at the least;---and that since, in Higham v. Ridgway, 10 East, and Davis v. Humphrey, 6 M. and W. the entries were respectively admitted, not only as to the pecuniary interest, but also as to the accompanying facts to which they had reference, so, in the present case, the declaration that he was an alien, though of an independent fact, as much affected the declarant's interest as any direct disparagement of his title would have done.

We think, nevertheless, that the evidence was rightly rejected; for, in the first place, it did not appear that the declaration was made with reference to the lands granted, as the entry of the payment was, with reference to the birth, in Highnam v. Ridgway. Secondly; the exception in the case of declarations against proprietary, is not so wide as in that against pecuniary interests; for, though in the latter the declaration is admissible, even when the declarant had no actual knowledge of the fact stated, in the former it is admissible, when declared upon the information of others than the declarant himself. See Crease v. Barrett, 1 C. M. and R. 919; Berry v. Berrington, 4 T. R. 515; and Trimlestone v. Kemmis, 9 Cl. and Fin. 780. Thirdly; it has been declared, on high judicial authority, that the practice of receiving declarations in evidence, is an exception from our general rules; and that it has been carried as far as it can with safety, and should not be extended farther.

The evidence tendered at the trial, seems to us to present an entirely new proposition. The declaration of the deceased, that he was an alien, did not ex vi termini disparage any pecuniary or proprietary interest; for it does not appear intrinsically, by the declaration, that the declarant had either of those interests which could be thereby affected; nor, if he had, was it made with any reference to such interest. Again, though the declaration was of a fact, (like the case of a felony,) independent of any such interest, yet by extrinsic evidence it appears he had a proprietary interest, which would be affected by the circumstances declared. The question therefore for our consideration is, whether we shall make a new exception to the fundamental rule of evidence before mentioned. The rule, we think, is so excellent, and the exception thereon engrafted by Highnam v. Ridgway and other cases is so very refined, that we conceive it would not be safe to make the new exception that is required, because, under the circumstances of this case, it happens to fall within the reason of the exceptions, established by the last mentioned decisions.

It may be doubted, whether the principle on which that exception is founded really exists, in some of the instances; where the aid of legal skill was obviously necessary, to discover that the declaration was against the party's interest. For the generality of tenants can hardly be aware, that their possession affords them prima facie evidence of seisin in fee. But, as pecuniary interest is one of such a tender nature, that the regard which men pay to it, and in acquiring information about it, is a sufficient guarantee in general against men prejudicing themselves by any erroneous statement affecting it, the law not only dispenses in all such cases with the oath, and power of cross-examination, but will even receive the evidence, when it appears that the declarant had no personal knowledge of the fact declared; leaving the absence of such knowledge, for the consideration of a jury. But, as we have before observed, no declaration against proprietary interest is receivable, unless it is made on the declarant's own knowledge.

In the present case it may be observed, that Lear's declaration that he was an alien must have been of a fact heard from others; and, therefore, was inadmissible. But, should it be contended that the rule, as laid down by the House of Lords in Trimlestone v. Kemmis , is not to be confined to the declarant's knowledge in the strict sense of that term, but to his reasonable assurance as distinguished from mere rumours,---and that as, when he made it, he was in possession of land, his interest was as much affected by the declaration, as by a declaration of another person being his landlord, and therefore that the evidence should have been admitted,---we answer, that in every similar case it would be necessary to institute enquiries, as to the reasonableness of the declarant's belief that he was an alien, and whether he had possession of land when he made the declaration, and was aware of the prejudicial effect of his declaration, and also into other collateral matters. All those enquiries might elucidate the truth of the particular case, but would give to that case an undue portion of the public time; and that circumstance we consider a sufficient reason, for not extending the exception in favour of declarations against interest, so as to embrace the piece of evidence here offered.

For the remarks of Mr. Baron Rolfe, in the Attorney-General v. Hitchcock, 1 Exchequer Reports, 105 , we think directly applicable.

"The laws of evidence on this subject, as to what ought or ought not to be received, must be considered as founded on a sort of comparative consideration of the time to be occupied in examinations of this nature, and the time which it is practicable to bestow on them. If we lived for a thousand years, instead of about sixty or seventy, and every case were of sufficient importance, it might be possible, and perhaps proper, to throw a light on matters in which every possible question might be suggested, for the purpose of seeing by such means whether the whole was unfounded, or what portion of it was not; and to raise every possible enquiry, as to the truth of the statements made. But I do not see how that could be: and in fact, mankind find it to be impossible. Therefore some line must be drawn."

This principle very much pervades the law of evidence; for, although the declarations of deceased relatives are admissible, on a question of pedigree of which they might have a slender knowledge, the declarations nevertheless of servants and intimate acquaintances are not admissible, however great the knowledge they might happen to possess. For, as it was said by Mr. Justice Burrough in reference to such declarations,

"if we go beyond the line, where are we to stop? We should have to begin, in every case, the life and habits of the party who made the declaration; and, on account of this uncertainty, such evidence must be excluded."

Again; declarations about pedigree are excluded when made post litam motam; whether the lis mota was known to the party who made the declaration, or not. For, if an enquiry were to be instituted in each instance, whether the existence of the controversy was or was not known, at the time of the declaration, much time would be wasted, and great confusion would be produced. Again; though the credit of a witness may be impeached, by examining other witnesses as to his general bad character, yet it cannot be affected by examining them as to any particular offences; for, in that case, the witness would be entitled to call other witnesses to show his innocence, and the public time would be wasted by the trial of collateral issues. Holman v. Johnson, 2 Bing. 86; Berkley Peerage Case, 4 Campb. 417; Watson's Trial, vol. 2, p. 280 and 217; and Harris v. Tippett, 2 Camp. 637.

Hence it is clear, by the Law of Evidence, that when (in exceptional cases especially) a line has once been drawn , particular cases are not to be brought within it merely by parity of reasoning; for, in such case, the functions of the Jury would be suspended, while the Judge was trying collateral issues of facts, to ascertain the admissibility of the evidence offered. Bartlett v. Smith, 11 M. and W. 486.

And, for the several reasons now given, we think it safer to hold that the declaration by Simon Lear, that he was an alien, was not admissible; and that his Honor the Chief Justice, therefore, correctly rejected the evidence.

There will consequently be no new trial.

Published by the Division of Law, Macquarie University