Declarations against Interest.

55

which S. is stated to be the legal owner in fee, is evidence of such ownership for a party claiming under S. Doe d. Daniel v. Coulthred, 7 Ad. & E. 235. So, a written attornment to L. by a tenant in possession is evidence of L.'s seisin. Doe d. Lindsey v. Edwards, 5 Ad. & E. 95. Acceptance by A. of an allotment under an inclosure award is evidence that previously the allotment was not A.'s land. Gery v. Redman, 1 Q. B. D. 161.

Land was held by A., B., C., &c., as successive tenants for life, with power to lease for 21 years, reserving the ancient rent. A paper in which the rent of the land was stated, indorsed by A., "a particular of my estate," was held admissible to show what the ancient rent was, for A. had an interest to make the rent as low as possible, and so increase the fine upon renewal. Roe d. Brune v. Rawlings, 7 East, 279. A declaration by a deceased person, that he held certain land as tenant at a rent of 201. a-year, was held to be evidence, in a question of settlement of a pauper, that the rent was over 10l. a-year. R. v. Birmingham, 1 B. & S. 763; 31 L. J., M. C. 63; R. v. Exeter Union, L. R., 4 Q. B. 341.

An oral declaration is as admissible as a written one. S.CC.; Bewley v. Atkinson, 13 Ch. D. 283, C. A.

Entries by a deceased collector of rates, charging himself with the receipt of money, and made by him in the books of his office, are admissible against his surety to prove the receipt. Goss v. Watlington, 3 B. & B. 132. And the same has been held with regard to the entries of a clerk as against his surety. Whitnash v. George, 8 B. & C. 556. So, entries in the land-tax collector's book stating A. B. to be rated for a particular house, and his payment of the sum rated, are evidence to show that A. B. was occupier of the premises at the time. Doe d. Smith v. Cartwright, Ry. & M. 62. See also Doe d. Strode v. Seaton, 2 Ad. & E. 171. So, entries made by a deceased collector of taxes in a private book, charging himself with the receipt of money, are evidence against a surety of the receipt of the money, though the parties who paid it are alive, and might be called. Middleton v. Melton, 10 B. & C. 317.

It seems that the entries of receipts by a deceased accountant are admissible, though the balance may be discharged or be in his own favour. Rowe v. Brenton, 3 M. & Ry. 268; Acc. per Patteson, J., Williams v. Geaves, 8 C. & P. 593. And ancient ministers' accounts, rendered to the lord of the manor, and debiting themselves with the issues and profits of the manor, are admissible evidence in favour of a successor to show the possession of port dues, though the roll shows the account balanced and a quietus at the end of it; per Lord Denman, C. J., in Brune v. Thompson, London Sittings after M. T. 1841; Acc. Erskine, J., S. C., Bodmin Sp. Ass. 1842. So, ancient receivers' accounts of a city, though unsigned, and in the third person, are admissible on behalf of the city, to prove the receipt of port dues. Exeter, Mayor of, v. Warren, 5 Q. B. 773. So, old accounts rendered to the corporation of vicars-choral, Exeter, by their officers, showing receipt of tithe, and balanced by payment, and a quietus, are evidence for them, against a modus. Short v. Lee, 2 Jac. & W. 464. In Beaufort, Dk. of, v. Smith, 4 Exch. 450, accounts rendered to the plaintiff's ancestors, lords of Gower, by his receivers, showing the receipt of a manorial toll on coal exported out of the manor, formed the principal evidence upon which the plaintiff's right to it was established. So, in Waddington v. Newton, Wint. Sum. Ass. 1850, Coleridge, J., admitted the ministers', or receivers', accounts of the bishopric of Winchester, extending from the reign of John to Hen. 8, to show a right of fishery in the lord, by continual receipt of the issues of the fishery, value of fish sold, &c. In Doe d. Kinglake v. Beviss, 7 C. B. 456, the same series of accounts was tendered, to show the lord's ownership of a certain wood, as against the copyholder, who claimed it; for this purpose, the lord relied upon entries of receipts on the sale of timber, and also

entries in the same roll in which the accountant discharged himself by payment of wages to the woodward of the same wood: the court held the receipt admissible, but not the discharge; and they cited Knight v. Waterford, 4 Y. & Coll. 293, in which the accounts of a deceased receiver were admitted to prove the receipt of rent for tithes by the lord of the manor, but not to prove his liability to pay land-tax and poor-rate on them, by showing that the account had always allowed the amount to the person paying the rent, the two entries being separate and unconnected. Accord. Whaley v. Carlisle, 15 W. R. 1183, July, 1867, Ir. Ex. Ch. In Bullen v. Michel, 2 Price, 399, certain account rolls of the Abbey of Glaston were tendered, to prove payment of tithe by certain lands of the abbey; the accounts showed receipts by the reeve, and payments out of the moneys received, which accounts were allowed at the foot by the bailiff of the abbey; among the payments were payments in respect of the tithe in question they were put in evidence by the vicar to disprove a modus set up by the defendant, and other landowners who did not claim under the abbey, but whose claim was shown to be inconsistent with the above payments by the abbey; they were held admissible both as to charge and discharge, because the two were part of one account, and because the discharge had been allowed by the bailiff of the abbey. Whether this case can be reconciled with Doe d. Kinglake v. Beviss, and Knight v. Waterford, supra, by any sound distinction, may be questionable. It is observable on this class of documents, that old computi, i.e., accountants' rolls, are almost invariably written in the third person, and name the accountant only at the head of the roll, and sometimes refer to particulars of the account elsewhere. It is further observable, that a distinction has been taken between the public accounts of crown officers and the accounts of private persons in favour of the superior credit due to the former, as public records.

In order to show title to a quit rent, a party put in evidence a signed rental 100 years old, charging the party signing it, found in the same box with contemporaneous unsigned accounts, the amount of the sum received being the same in both papers: held, that the accounts and rental together were admissible. Musgrave v. Emmerson, 10 Q. B. 326; 16 L. J., Q. B. 174. These two reports differ materially.

If the party who made the entry be alive, though out of the jurisdiction of the court, so that he cannot be called, the proof or the entry is generally inadmissible. Stephen v. Gwenap, 1 M. & Rob. 121. Where plaintiff showed payment of rent to A. B. in order to prove a tenancy under him, and not under defendant, defendant was not allowed to rebut the evidence by producing written accounts rendered by A. B. to him of these very rents, A. B. being alive and not called. Spargo v. Brown, 9 B. & C. 935. After the lapse of a long time, the death of the party accounting will be presumed and in one case the lapse of 55 years was considered enough to dispense with proof of death, although, if alive, he would not have been of an age beyond the ordinary term of human life. Doe d. Ld. Ashburnham v. Michael, 17 Q. B. 276; 20 L. J., Q. B. 480.

:

Generally the question of admitting statements against interest made by deceased persons occurs where the suit is inter alios, and the declarant is a stranger to it; and it has therefore been doubted whether, in a suit by an executor to recover the balance due on an alleged contract for work done, the plaintiff could put in evidence a declaration of the testator to a third person respecting a payment made by the defendant to the testator, in order to prove the liability of the defendant for certain extra work. Per Jervis, C. J., in Edie v. Kingsford, 14 C. B. 759; 23 L. J., C. P. 123. But in Bradley v. James, 13 C. B. 822; 22 L. J., C. P. 193, where the plaintiff sued as executor of the payee of a note, he was allowed to rebut the Statute of Limitations by proof of a written acknowledgment made

Entries in discharge of Ordinary Business.

57

in a book by the testator, of payment of interest on the note by defendant within six years. So, entries on the debtor side of testator's accountbook of the receipt of interest on a sum of money for which the executors were suing, were held admissible to prove that the money was lent, and not given, to the defendant, the testator's son. Peck v. Peck, 21 L. T., N. S. 670, H. T. 1870, C. P. The cases decided on Searle v. Barrington, Ld., mentioned ante, p. 36, also favour the reception of such declarations.

The declarations against interest of persons who at the time of making them stood in the same situation and interest as the party to the suit, are evidence against that party; thus, the declaration of a former owner of plaintiff's land, that he had not the right claimed by plaintiff in respect of it, is admissible. Woolway v. Rowe, 1 Ad. & E. 114. Such declarations are admissible though the maker is alive and not produced. S. C. So, the landlord's description of property in a former lease is evidence for a third person against a subsequent lessee of the same landlord, but not against a prior lessee. Crease v. Barrett, 1 C. M. & R. 919. A declaration in an answer in Chancery by one who has sold property, is not evidence against a person claiming under him by a conveyance anterior to the bill filed. Gully v. Exeter, Bp. of, 5 Bing. 171. The declarations of tenants are not evidence against reversioners, though their acts are. Per Patteson, J., Tickle v. Brown, 4 Ad. & E. 378; Accord. Papendick, v. Bridgwater, 5 E. & B. 166; 24 L. J., Q. B. 289.

The declarations of parties identified in interest with those against whom they are offered are in the nature of admissions, and as such belong rather to another head of evidence. See tit. Admissions, post, p. 59.

Hearsay of persons making entries, &c., in the regular discharge of their ordinary business or office.] Where an entry or declaration is made by a disinterested person in the course of discharging a professional or official duty, it is, in general, admissible after the death of the party making it. Thus a notice, indorsed or served by a deceased clerk in a solicitor's office, whose duty it was to serve notices, is evidence of service. Doe d. Patteshall v. Turford, 3 B. & Ad. 890; Doe d. Padwick v. Skinner, 3 Exch. 84; R. v. Dukinfield, 11 Q. B. 678. So, the entries in the books of a deceased solicitor in his handwriting relating to a deed prepared by him and executed by a deceased client were held good evidence of the execution of the deed. ~ Rawlins v. Rickards, 28 Beav. 370. See Waldy v. Gray, L. R., 20 Ex. 238; Sly v. Sly, 2 P. D. 91. But it must first be shown aliunde that the solicitor was authorised to act for the person on whose behalf he purported to act. Bright v. Legerton, 2 D. F. & J. 606. A receipt signed by a clerk employed by a collector to collect for him, proves a payment to the collector himself. R. v. S. Mary, Warwick, 1 E. & B. 816; 22 L. J., M. C. 109. It should seem on principle that contemporary oral declarations so made in course of business inay also be admissible. Per Lord Campbell, Sussex Peerage case, 11 Cl. & Fin. 113; Semb. acc. per cur. in Stapylton v. Clough, 2 E. & B. 933; 23 L. J., Q. B. 5. Whether an oral statement made by a receiver on paying over money is evidence not only of the receipt, but also of the very party from whom it was received, was discussed but not decided, in Fursdon v. Clogg, 10 M. & W. 572. An attorney's bill with an indorsement upon it, "March 4, 1815, delivered a copy to C. D.," which is proved to be in the handwriting of a deceased clerk, whose duty it was to deliver a copy of the bill, and proved to have existed at the date, has been held to be evidence to prove the delivery of the bill. Champneys v. Peck, 1 Stark. 404. It has been held that a banker's ledger was receivable in evidence in an action between the assignees in bankruptcy of a customer

and a third party, to show that the customer at a certain time had no funds in the banker's hands, without calling the clerks who made the entries therein. Furness v. Cope, 5 Bing. 114. Semble, such evidence would not be admissible to prove assets. S. C. But now see the Bankers' Books Evidence Act, 1879, post, p. 116. An entry of dishonour of a bill, made by a notary's clerk in the usual course of business, is evidence of the fact of dishonour, after the clerk's decease. Poole v. Dicas, 1 N. C. 649. In Marks v. Laheè, 3 N. C. 408, an entry by a deceased clerk of the plaintiff's attorney, in a daybook, stating a tender by him and refusal by the defendant, was held evidence of a replication to that effect; but there was a previous entry of a receipt by him of the money for the purposes of such tender.

Upon the same principle, contemporaneous entries by a deceased shopman or servant in his master's books in the ordinary course of business, stating the delivery of goods, are evidence for his master of such delivery. Price v. Torrington, Ld., 1 Salk. 285; and cases cited by Parke, J., Doe d. Patteshall v. Turford, 3 B. & Ad. 898.

In order to render such entries evidence, it must appear that the shopman is dead; that he is abroad, and not likely to return, is not sufficient. Cooper v. Marsden, 1 Esp. 1. The entry, too, must be by the person who actually did the act recorded by it. Polini v. Gray, 12 Ch. D. 411, C. A. Thus, an entry of goods sold made by a witness on the dictation of A., who had received information of the sale from B., a servant of the vendor, whose duty it was to report the sale to A., was rejected as evidence of the sale, though A. and B. were both dead. Brain v. Preece, 11 M. & W. 773. Where a person employed to serve a notice on R. brought back the duplicate notice indorsed as so served, but stated orally that he had delivered it to W., it was held, that, after the death of the person serving, it was not competent to give in evidence his oral statement of service on W. Stapylton v. Clough, 2 E. & B. 933; 23 L. J., Q. B. 5. As to proof of notice of calls made by a public company from the memorandum of a deceased clerk, see E. Union Ry. Co. v. Symonds, 5 Exch. 237, cited post, Part III., Actions by companies. An entry in a letter-book kept by a deceased clerk in the course of duty is secondary proof of the contents of the letter sent, and of the posting of it, if that was the course of business. Pritt v. Fairclough, 3 Camp. 305; Hagedorn v. Reid, Ib. 379.

By stat. 7 Jac. 1, c. 12, s. 1, the shop-book of a tradesman shall not be evidence in any action for wares delivered, or work done, above one year before the bringing of the action, except the tradesman or his executor shall have obtained a bill of debt or obligation of the debtor for his said debt, or shall have brought against him, or his executors, some action for the said debt within a year next after the delivery of the wares, or the work done. By sect. 2, the act is not to extend to traffic, or dealing between merchant and merchant, merchant and tradesman, or tradesman and tradesman, for anything within the compass of their mutual trades and merchandise. This statute seems to recognise the previous admissibility of shop-books. But the act is of little practical importance, and the admissibility of such books at common law, in favour of the tradesman, must generally depend on the principles already referred to. See Symonds v. Gas Light Co., 11 Beav. 283.

Entries made by deceased persons in the course of their business, or in discharge of their duty, are admissible only where it is the duty of the deceased both to do the act and to make an entry or record of having done it. Smith v. Blakey, L. R., 2 Q. B. 326; Massey v. Allen, 13 Ch. D. 558.

Thus an entry of a hiring at certain wages in the deceased master's private book, with a memorandum of payment, is inadmissible evidence, inter alios.

R. v. Worth, 4 Q. B. 132; for it was neither his duty to make it, nor was he interested in making it in the proper sense of interest." An entry purporting to be the substance of a lease made by the lord of a manor, contained in a book of his steward 200 years old, is not evidence of the lease either as secondary evidence or as an entry made in the course of duty or business. Doe d. Padwick v. Skinner, 3 Exch. 84. See also Doe ď. Padwick v. Wittcomb, 6 Exch. 601 ; 20 L. J., Ex. 297; 4 H. L. C. 425.

Entries made in the log of a ship by a deceased mate cannot be used as evidence for her owners in an action brought against them for collision. The Henry Coxon, 3 P. D. 156.

A book in which a deceased chief rabbi had made an entry of circumcisions performed by him, was held inadmissible to prove the age of a Jew, although it was proved that a Jew was ordinarily circumcised on the eighth day after his birth. Davis v. Lloyd, 1 Car. & K. 275, cor. Denman, C. J., after consulting Patteson, J.

In Edie v. Kingsford, 14 C. B. 759; 23 L. J., C. P. 123, Jervis, C. J., stated that declarations "in the course of business" were, while declarations "in the course of duty" were not, receivable in evidence, but the cases, supra, recognise no such distinction.

Though a contemporaneous entry made in the course of office, reporting facts necessary to the performance of a duty, may be admissible, yet the statement in it of other extraneous circumstances, however naturally they may find a place in the narrative, is no proof of these circumstances. Chambers v. Bernasconi, 1 C. M. & R. 347; 4 Tyrw. 531; Ex. Ch.; Polini v. Gray, ante, p. 58. Thus, a return by a sheriff's officer of an arrest at a specified place is not evidence, inter alios, of the place of arrest. Chambers

v. Bernasconi, supra. There are some important distinctions between the effect of declarations against interest and declarations made in the course of office or business. The former declarations are evidence of all the facts stated and whensoever made; the latter are evidence only of the facts which it was the business of the officer or writer to state, and they must generally be contemporaneous with the act done. Smith v. Blakey, supra, per cur. The cases on this subject are collected in 1 Smith's L. Cases, notes to Price v. Torrington, Ld.

As to entries in public books, registers, &c., see post, Effect of documentary evidence.

ADMISSIONS.

Admissions by a party to the record out of court are evidence, and primary evidence, of the fact so admitted. In an action by M. and his wife, for injuries caused to the wife by defendants' negligence, the defendants were allowed to prove that M. and C., his attorney's clerk, had conspired to suborn false witnesses, as this was an admission, by conduct, of M., that he had a bad case. Moriarty v. L., Chatham, & Dover Ry. Co., L. R., 5 Q. B. 314. The letters of a party may be proved against him without producing the rest of the correspondence on either side. Barrymore, Ld., v. Taylor, 1 Esp. 326. But though the express admissions of a party to the suit, or admissions implied from his conduct, are evidence against him, he is at liberty to prove that such admissions were mistaken or untrue, except in the case of estoppel. Per Bayley, J., Heane v. Royers, 9 B. & C. 586. And it matters not whether the mistake arose from misapprehension of law or of fact. Thus, it may be shown that the admission was made under an erroneous view of the party's own legal liability; Newton v. Liddiard, 12 Q. B. 925; as where defendant made admissions under an impression that provisional committee-men were liable for work done for a company. S. C.,