Western Maryland Railroad v. Manro

Brent, J., delivered the opinion of the Court. We have carefully examined the authorities cited in the argument of this case, and do not think that they furnish any support for the admissibility of the evidence which was offered and rejected by the Court below. To enable the appellant to recover the amount of stock subscribed by the appellee, it was necessary under the decision in Taggart vs. The Western Maryland Railroad Co., 24 Md., 538, to prove the payment by the appellee of one dollar upon each share of stock at the time of his subscription. . To prove this payment the declarations of Jacob Mathias, then deceased, were offered in evidence. He was one of the commissioners authorized to receive subscriptions to the stock of the Baltimore, Carroll and Frederick Railroad Company, afterwards changed by the Act of 1853, ch. 37, to the name of the appellant, and did take the subscription of the appellee for five shares. The offer was made to prove' by a witness, who was the first acting treasurer for the commissioners, that shortly after the date of the above subscription, Mathias handed to him five dollars, and then said to him that the appellee “ had paid him (Mathias) the said sum of five dollars for and on account of the said subscription of stock at the time of making the subscription.” It is contended that this evidence was admissible upon the ground that it was the declaration of a party, since deceased, made against his pecuniary interest. We have been referred to a number of authorities upon this point, and especially to the case of Higham vs. Ridgway, 1 East., 109. While its conclusion has been acquiesced in, a great deal of learning has been exhausted in subsequent cases in discussing the'reason and application of its doctrine. It is unnecessary to review in this opinion these decisions, and examine the soundness of the distinctions established by some of them, to enable us to reach a correct conclusion upon the question of the admissibility of the evidence offered in the present case. The general rule in regard to the declarations of a person, since deceased, was conceded; and it is this, to render them [283] admissible against third persons, “it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest.” 1 Greenleaf Ev., sec. 147. The first and second requirements are fully established in this case, but was the declaration against or at variance with the interest of the declarant? All the authorities concur that this interest must be a pecuniary one, and it is equally certain that such an interest must be made to appear affirmatively. How the declaration offered was against the interest of Mathias we have been unable to discover. It did not create a debt or establish any liability on his part to pay a sum of money to any person or body corporate. It did not furnish any ground, or pretext even, upon which lie might have been sued or proceeded against either in law or equity. He paid the money, spoken of, to the treasurer for the commissioners, who w'as the proper party to receive it, and thereby cancelled any claim which had or could have existed against him for its payment; and not until then did he make the declaration that he had received it from the appellee. It is true that the very tact of the payment over of the money in itself may corroborate the declaration as to the person from whom he received it, and may create the strongest presumption of the “ extreme improbability of the declaration being untrue,” yet it is not sufficient to gratify the stringent requirement of the rule. The declaration must be against the interest of the party making it, otherwise it is wholly incompetent and inadmissible where the rights of third parties are to be affected. Another ground, upon which it is claimed the declaration offered was admissible is, that it was made in the ordinary course of duty. The case of Stapylton vs. Clough, 2 Ellis & Blackburn, 933, is relied upon in support of this position. It would be straining that case very far to admit this testimony upon its authority. While it recognizes the doctrine that declarations, whether by word of mouth or by writing, of a [284] person deceased, are admissible, if made in the ordinary course of duty, the oral declaration there offered was held to be inadmissible because it did not appear to fulfil the condition required. Coleridge, J., says, page 938, “ the admissibility is an exception from the general law of evidence, allowed upon the ground that credit may be given to what is done in the ordinary discharge of a duty. Unless an act be done in the ordinary course of business, it is not done in the ordinary discharge of the duty. You must, therefore, lay the foundation for the admission of the evidence by showing that the act was done in the ordinary course of business.” No evidence has been offered to show that the declaration in this case was made in the ordinary course of business, and we presume none such could have been offered. It has never been held, and is not yet the law, that any declaration is admissible because it was made while in the discharge of a duty, but it must be such as enters into and forms a part of the ordinary course and routine of the particular business as it is usaully conducted and carried on. Had there been an entry by Mathias of the payment- by the appellee, in his stock subscription-book, it might then have been claimed that such an entry was admissible, because, in the usual and ordinary course of duty. But, it cannot be presumed that it was in the ordinary course of his duty to make oral declarations of such payment. Equally as reasonable would be the presumption that it was his duty to declare orally who had taken shares of stock. (Decided 8th March, 1870.) We do not think the testimony offered was competent, upon either of the grounds claimed, for its admissibility. The declaration was neither against the interest of the declarant nor made in the ordinary course of duty. It was, therefore, properly rejected, and the judgment of the Court below will be affirmed. Judgment affirmed. Baktol, C. J., and Robinson, J., dissented.