BSA Section 26 — Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

CHAPTER II RELEVANCY OF FACTS — Statements by persons who cannot be called as witnesses

General

Summary

Statements, whether written or verbal, about relevant facts made by a person who is dead, cannot be found, has become incapable of giving evidence, or whose attendance cannot be obtained without unreasonable delay or expense, are themselves considered relevant facts in the specific situations listed below.

Under clause (a), a statement is relevant when it is made by a person about the cause of their own death, or about any circumstances of the event that led to their death, in cases where the cause of that person's death is in question. This applies whether or not the person expected to die when making the statement, and regardless of the type of proceeding in which the cause of death is being examined.

Under clause (b), a statement is relevant when it was made by such a person in the ordinary course of business. This includes entries or memoranda made in business books, records made in the discharge of professional duty, written acknowledgements of receiving money, goods, securities, or property, documents used in commerce that the person wrote or signed, and the date on a letter or other document that the person usually dated, wrote, or signed.

Under clause (c), a statement is relevant when it goes against the financial or property interests of the person making it, or when, if true, it would expose that person to criminal prosecution or to a lawsuit for damages.

Under clause (d), a statement is relevant when it gives the opinion of such a person about the existence of a public right, custom, or matter of public or general interest, provided that the person would likely have been aware of it if it existed, and the statement was made before any controversy over that right, custom, or matter had arisen.

Under clause (e), a statement is relevant when it relates to the existence of a relationship by blood, marriage, or adoption between people, and the person making the statement had special means of knowing about that relationship, and the statement was made before the question in dispute was raised.

Under clause (f), a statement is relevant when it relates to the existence of a relationship by blood, marriage, or adoption between deceased persons, and is made in a will or deed concerning the affairs of the family to which any such deceased person belonged, or in a family pedigree, or on a tombstone, family portrait, or other thing where such statements are usually made, and the statement was made before the question in dispute was raised.

Under clause (g), a statement is relevant when it is contained in a deed, will, or other document that relates to any transaction specified in clause (a) of section 11.

Under clause (h), a statement is relevant when it was made by a number of people and expressed their feelings or impressions on a matter that is relevant to the case.

The section then provides illustrations. For clause (a), statements made by a person about the cause of their death, such as referring to a murder, rape, or actionable wrong, are relevant when those causes are in question. For clause (b), an entry in a deceased surgeon's regularly kept diary about attending a birth is relevant to the date of birth, a deceased solicitor's diary entry about meeting a person is relevant to that person's location on a given day, a letter from a deceased member of a merchant firm about a ship's departure is relevant to the ship's sailing date, and a letter from a deceased agent about receiving rent is relevant to whether rent was paid. For clause (c), a deceased clergyman's statement about performing a marriage that would be a crime is relevant to whether the marriage was legal. For clause (a) again, a letter dated by a person who cannot be found is relevant to whether that person wrote it on that day. For the general introductory part, a protest made by a captain whose attendance cannot be procured is relevant to the cause of a shipwreck. For clause (d), a deceased village headman's statement that a road was public is relevant to whether it is a public way. For clause (b), a deceased business person's statement of grain prices made in the ordinary course of business is relevant to the price on a certain day. For clause (e), a statement by a deceased person that another person was his son is relevant to the question of paternity. For clause (f), a letter from a deceased father announcing a birth is relevant to the date of birth, and an entry in a deceased father's memorandum book about his daughter's marriage is relevant to whether and when the marriage occurred. For clause (h), remarks made by a crowd of spectators about a caricature are relevant to the similarity and libellous character of the caricature in a libel suit.

Official Text

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases, namely:—

(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

(b) when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him;

(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;

(d) when the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;

(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;

(f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;

(g) when the statement is contained in any deed, will or other document which relates to any such transaction as is specified in clause (a) of section 11;

(h) when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations.

(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was raped. The question is whether she was raped by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A's birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Nagpur on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Mumbai harbour on a given day. A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders is a relevant fact.

(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship. A protest made by the captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased business person in the ordinary course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A. A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

Sections referred to

Referred to by

Old <-> New Code Mapping

  • IEA §32 — Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant