448 ENTRIES BY AGENTS-PROOF OF AGENCY. proof, and therefore entries have been rejected for want of it, though apparently made as much as fifty, seventy, and even one hundred and sixty years before the trial (f). In Davies v. Morgan, where the entry bore date 1673, Mr. Baron Bayley, in refusing to admit it in evidence, said, "The character of the evidence must be established before the entry is read; you cannot read it to show the position of the party making it; that must be proved aliunde "(g). So, in Short v. Lee, Sir Thomas Plumer said, with reference to a book seventy years old, which purported to have been kept by a tithe-collector named Beale, "If the writings of persons not invested with the proper characters were received, nothing could be more dangerous to property. Suppose that Beale was not the person authorised to collect the tithes, but nevertheless had for some purpose made these entries; then if after his death the book purporting to be a collector's book was to be evidence to prove that he was collector, and his being collector was to prove the entries to be correct, the consequence would be, that the rights of the rector on the one hand, or those of the parishioners on the other, would be exposed to the greatest danger, and perhaps from the writing of a person having a contrary interest" (h). Still, if ancient books come from the proper repository, slight proof of the official character of the writer will usually be sufficient to warrant their admission; and if they contain strong internal evidence of their actually being what they purport to be, they may, it seems, on that ground alone be submitted to the jury (i). § 478. Under the head of declarations against proprietary interest, may be classed the statements made by persons while in possession of land, explanatory of the character of their possession; and it is now well settled that such declarations, if made in disparagement of the declarant's title, are receivable, not only as original admissions against himself and all persons who claim title through him (j), (ƒ) Manby v. Curtis, 1 Price, 225; Short v. Lee, 2 Jac. & Wal. 466, 467; Davies v. Morgan, 1 C. & Jer. 590, 591. (g) 1 C. & Jer. 591. (h) 2 Jac. & Wal. 467, 468. (2) Doe v. Thynne, 10 East, 206, 210; Brune v. Thompson, C. & Marsh. 3639, per Lord Denman; Mayor of Exeter v. Warren, 5 Q. B. 773. See ante, § 419. (j) Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 780, 784, 785; Doe v. Pettett, DECLARATIONS AGAINST PROPRIETARY INTEREST. 449 but also as evidence for or against strangers (k). Whether in this latter event they are to be regarded as primary or as secondary evidence, and therefore whether they are admissible in the lifetime of the declarant, or only in cases where his death can be proved, are points which do not appear to have been distinctly decided. In most of the cases where the evidence has been received, the declarant was dead (); but on two occasions, at least, the evidence was admitted, though the declarant was living (m). The only ground on which it can be contended that these declarations are receivable as original evidence, appears to be that they are statements accompanying the act of possession, and as such constituting parts of the res gesta; but this argument proves too much, as the effect of it would be to let in all the declarations of the occupier, whether in disparagement or in support of his title; an extension of the rule which, however consistent it may be with principle, is certainly not warranted by judicial decisions (n). The safest course therefore is to regard these declarations as merely secondary evidence, and consequently as only receivable when the declarant is dead; and further to consider that their admissibility depends on the simple ground that they are made against the interest of the declarant (o). 5 B. & A. 223; Doe v. Austin, 9 Bing. 41. For the American authorities connected with this subject, see West Cambridge v. Lexington, 2 Pick. 536; Little v. Libby, 2 Greenl. 242; Rankin v. Tenbrook, 6 Watts, 388, 390; Jackson v. Bard, 4 Johns. 230, 234; Weidman v. Kohr, 4 Serg. & R. 174; Gibblehouse. Strong, 3 Rawle, R. 437; Davis v. Campbell, 1 Iredell, R. 482; Crane v. Marshall, 4 Shepl. 27. (k) Carne v. Nicoll, 1 Bing. N. C. 430; 1 Scott, 466, S. C.; Doe v. Jones, 1 Camp. 367; Davies v. Pierce, 2 T. R. 53; Walker v. Broadstock, 1 Esp. 458; Doe v. Rickarby, 5 Esp. 4; Peaceable v. Watson, 4 Taunt. 16; Doe v. Coulthred, 7 A. & E. 235. (1) Carne v. Nicoll, 1 Bing. N. C. 430; 1 Scott, 466, S. C.; Doe v. Jones, 1 Camp. 367; Davies v. Pierce, 2 T. R. 53; Peaceable v. Watson, 4 Taunt. 16; Doe v. Coulthred, 7 A. & E. 235; Doe v. Pettett, 5 B. & A. 223. (m) Walker v. Broadstock, 1 Esp. 458, per Thomson, B.; Doe v. Rickarby, 5 Esp. 4, per Lord Alvanley. (n) See Doe v. Wainwright, 8 A. & E. 700, 701. (0) See Phillips v. Cole, 10 A. & E. 111, where Lord Denman, in pronouncing the judgment of the Court, observes, "It is clear that declarations of third persons alive, in the absence of any community of interest, are not to be received to affect the title or interests of other persons, merely because they are against the interest of those who make them." GG 450 DECLARATIONS AGAINST PROPRIETARY INTEREST. § 479. It should here be remembered that possession is primà facie evidence of seisin in fee-simple (o); and consequently any declaration by the possessor that he is tenant in tail, or for life, or for years, or by sufferance, as it makes strongly against his own interest, might safely be received in evidence, on account of its probable truth (p). It matters not whether the declaration be made verbally (q), or in writing (r), or by deed (s), or in an answer to a bill in Chancery (t), for the same principle applies in all these cases; but it must relate to matters, either within the declarant's own knowledge, or on which he has himself formed an opinion; and therefore an answer to a bill in Chancery, narrating what the declarant has heard another person state respecting his title, is not admissible to defeat his estate, at least if he does not add that he believes such statement to be true (u). § 480. It is difficult to fix with precision how far these declarations are admissible as evidence of the facts contained in them. They have been received to show the name of the landlord under whom the declarant held (v); as also that the tenement which he occupied was freehold and not copyhold (w); but, in strictness, it would seem that they ought to be confined to the simple proof of the interest which the declarant enjoyed in the premises. It appears that, in all these cases, it must be proved that the declarant was actually in possession of the land in question; since otherwise his declaration that he has a limited interest therein, may be regarded in the light rather of a statement in his own favour than of one against his interest (x). Still, slight evidence on this head (0) Ante, § 97. (p) Chambers v. Bernasconi, 1 Cr. & Jer. 457, per Lord Lyndhurst; Peaceable v. Watson, 4 Taunt. 17, per Sir James Mansfield, C. J.; Crease v. Barrett, 1 C. M. & R. 931; 5 Tyrwh. 473, S. C., per Parke, B. (9) Carne v. Nicoll, 1 Bing. N. C. 430; 1 Scott, 466, S. C. de Bode's Case 8.2.4 (r) Doe v. Jones, 1 Camp. 367. (s) Doe v. Coulthred, 7 A. & E. 235. (t) Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 779, 780. (u) Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 780, 784-786, by the Lords, confirming the unanimous opinion of the judges. (v) Peaceable v. Watson, 4 Taunt. 16; Holloway v. Rakes, cited by Buller, J., in Davies v. Pierce, 2 T. R. 55; Doe v. Green, 1 Gow, R. 227. (w) Doe v. Jones, 1 Camp. 367. (x) See Crease v. Barrett, 1 C. M. & R. 919, 931; 5 Tyrwh. 458, 473, S. C. DECLARATIONS AGAINST PROPRIETARY INTEREST. 451 will, it seems, suffice; and therefore where a person was seen felling timber in a wood, this was held to be a sufficient act of ownership, though probably he was in fact a mere labourer, to raise a presumption that he was possessed of the fee, and consequently to let in any statement made by him as to who was the actual proprietor (y). § 481. In applying this rule, care must be taken to distinguish between statements made by an occupier of land in disparagement of his own title, and such declarations as merely go to abridge or encumber the estate itself; since, though the former are receivable, the latter will be rejected. For instance, if an occupier state that he is only tenant for life, this, after his death, will be admissible evidence against a stranger; but if he admit that the property was intersected by a public highway, or that a neighbour had an easement in the land in question, such admission will only bind himself and those who claim under him, and will be inadmissible to establish the highway or the easement as against his landlord or a stranger (z). The grounds for this distinction are obvious; for, though it is scarcely possible to imagine any inducement, which will lead a person, possessed of premises in fee, to admit that he is only tenant, many causes might induce a tenant to acknowledge the existence of an easement or a highway, which might be either not inconvenient, or even absolutely beneficial to him (a). § 482. There is another class of entries, the admissibility of which in evidence is regarded by some persons as anomalous (6); by some, as governed by the rule which admits old leases, rent-rolls, surveys, &c. (c); and by others, as falling within the principle of the present exception (d); we allude to entries contained in the books of deceased rectors or vicars, which have long been admitted in favour of their successors, or of parties claiming the same interest (y) Doe v. Arkwright, 5 C. & P. 575, per Parke, B. (*) R. v. Bliss, 7 A. & E. 550; Scholes v. Chadwick, 2 M. & Rob. 507, per Cresswell, J.; Tickle v. Brown, 4 A. & E. 378, per Patteson, J. (a) See R. v. Bliss, 7 A. & E. 551, per Lord Denman; Daniel v. North, 11 East, 375, per Le Blanc, J. (b) Outram v. Morewood, 5 T. R. 123, per Lord Kenyon. (c) Stobart v. Dryden, 1 M. & W. 617, per Parke, B. (d) 1 Ph. Ev. 308, 309, 452 ENTRIES IN BOOKS OF DECEASED RECTORS. as the maker of the entries (d). Sir Thomas Plumer, in a case before him (e), said: "It is admitted, that the entries of a rector or vicar are evidence for or against his successors. It is too late to argue upon that rule, or upon what gave rise to it; whether it was the cursus Scaccarii, the protection of the clergy, or the peculiar nature of property in tithes. It is now the settled law of the land. It is not to be presumed, that a person, having a temporary interest only, will insert a falsehood in his book, from which he can derive no advantage. Lord Kenyon has said, that the rule is an exception; and it is so; for no other proprietor can make evidence for those who claim under him, or for those who claim in the same right and stand in the same predicament. But it has been the settled law as to tithes, as far back as our research can reach. We must therefore set out from this as a datum; and we must not make comparisons between this and other corporations. No corporation sole, except a rector or vicar, can make evidence for his successor." The rule, however, extends to admit the books of ecclesiastical corporations aggregate (f), and, as it would seem, those also of lay impropriators in fee; though these last would certainly be open to considerable suspicion, since a lay impropriator in fee, having a permanent interest to advance, might possibly be induced to make evidence for his heirs (g). With respect to all these books, too, though the law admits them as evidence, juries will do well not to place implicit reliance on the statements they contain; for, in point of fact, the clergy, like members of all other professions, are, or at least have been, occasionally actuated by a strong esprit de corps, and the entries in their books evince not unfrequently a commendable leaning in favour of the rights of the church. General observations have sometimes been made respecting these books, which may seem to authorise the admission of any kind of statement contained in them. But such books will be rejected unless the entries contain receipts of money or ecclesiastical dues, or are, in other respects, apparently prejudicial to the pecuniary or proprietary interests of the makers (h). And proof (d) See Daly v. Wilson, Milw. Eccl. Ir. R. temp. Radcliffe, 658–660. (g) Id. 478-480, and cases there cited. (h) 1 Ph. Ev. 309; Ward v. Pomfret, 5 Sim. 475. |