Click v. Hamilton , 41 S.C.L. 65 ( 1853 )

The opinion of the Court was delivered by

Wardl aw, J.

We confine our attention to the admissibility of the oral declarations of Lewis Click, which were rejected. Two witnesses testify that the plaintiff said, that he had authorized the defendant to pay the money specified in the receipt to the plaintiff’s father, Lewis Click, or his brother, John Click; one of the witnesses adding, that the plaintiff further said, that if his father would acknowledge that defendant had paid any money on this receipt, he (plaintiff) would admit it.

A written acknowledgment, signed by Lewis Click, that part of the money was paid to him, has been admitted: Lewis Click is dead, and his oral acknowledgment of further payment to him has been excluded.

The admissibility of Lewis Click’s declare tions depends upon the truth of the testimony given by the witnesses above mentioned: if the declarations should be heard, and these witnesses be disbelieved, the result should be the same as if the declarations had never been heard; for then a payment to Lewis Click might be shown, but nothing would appear to render that available in discharge of the defendant’s liability to the plaintiff.

As the declarations of an agent, made in the course of his agency, or as part of the res gestee, the declarations in question cannot be sustained; for they were made after the transaction, which they narrate, was past. They stand, however, upon either of two other footings : They are, first, the answers made by a third person, to whom a party has referred another for information on a disputed fact (1 Phil. Ev. 100); and, second, they are the acknowledgments of a deceased person made against his interest, ante litem motam, where no inducement to falsehood existed. (1 Phil. Ev. 255.) See Hunter vs. Campbell, 1 Spear, 53; Lowry vs. Moss, 1 Strob. 63.

Between the written and the oral declarations of Lewis Click, there is no difference in kind, or in principle: in degree, the written may be much more certain and worthy of credit; but the oral, if so proved as to be safely relied on, notwithstanding the danger of misconstruction and misrepresentation, have just the same effect against the plaintiff, and incidentally against Lewis Click’s representatives.

Testimony material to the issue was, then, improperly rejected, and the motion for new trial is granted.

O’Neall, Withers, Whitner and Glover, JJ., concurred.

Motion granted.