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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. Woolvay 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. E.ceter, 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 theirordinary 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. Dukin field, 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 å 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 day book, 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 Ě. & 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.

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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. Paduick v. Skinner, 3 Exch. 84. See also Doe d. 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 Cocon, 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; 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 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, d Dover Ry. Co., L. R., 5 Q. B. 314. The letters of a party may be prover 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. Rogers, 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., Id. See also Bailey v. Macaulay, 13 Q. B. 815. Such a mistaken impression, however, will not exclude his admission, though it will impair its weight as evidence against him. Newton v. Belcher, 9 Q. B. 612. The value of an admission depends on the circumstances under which it was made ; where it is a mere inference drawn from facts, the admission goes no further than the facts prove. See Bulley v. Bulley, L. R., 9 Ch. 739. An admission that his trade is a nuisance is evidence, though not conclusive, against a defendant. R. v. Neville, 1 Peake, 91.

By Rules, 1883, 0. xxxii., r. 1, "any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party."

Admissions made with a view to a compromise and in order “to buy peace," are not evidence against the maker. B. N. P. 236. But an acknowledgment of a party's handwriting, though made pending a treaty of compromise, is evidence against him. Waldridge v. Kennison, 1 Esp. 143. So an admission of facts before arbitrators. Gregory v. Howard, 3 Esp. 113. An offer of a specific sum by way of compromise is evidence, unless accompanied with a caution that the offer is confidential, or without prejudice. Wallace v. Small, M. & M. 446 ; Nicholson v. Smith, 3 Stark. 128. But generally, neither letters written without prejudice," nor replies to such letters, though not similarly guarded, can be used as evidence, Paddock v. Forrester, 3 M. & Gr. 903; Hoghton v. Hoghton, 15 Beav. 278 ; 21 L. J., Ch. 482, 725, 728, and see In re River Steamer Co., L. R., 6 Ch. 822. So, where a correspondence has begun with a letter written “without prejudice,” that covers the whole correspondence. Ex parte Harris, 44 L. J., Bky. 33. Offers made without prejudice have, however, sometimes been allowed to be given in evidence for the person making the offer, to show a willingness to settle the dispute. Jones v. Fo.call, 15 Beav. 388 ; 21 L. J., Ch. 725; Williams v. Thomas, 2 Dr. & S. 29; 31 L. J., Ch. 674.

Admissions on compulsory process.] It is no objection to the proof of an admission that it was made under compulsory process ; thus, an answer to a bill in Chancery, filed against the defendant by a stranger, may be read against him, to show the admission of a particular fact. Grant v. Jackson, Peake, 203. So, the defendant's answer to interrogatories administered by the plaintiff to him in another suit is admissible against him. Fleet v. Perrins, L. R., 3 Q. B. 536, Ex. Ch. ; L. R., 4 Q. B. 500. But semb. the compulsion must not be illegal. R. v. Garbett, 1 Den. C. C. 236. See R. v. Coote, L. R., 4 P. C. 599. The examination of a party before commissioners of bankrupt is evidence against him ; Robson v. Alexander, 1 Moore & P. 448; R. v. Wheater, 2 Moo. C. C. 45 ; although there was an irregularity in the proceedings which had been waived by the appearance of the bankrupt for examination ; R. v. Widdop, L. R. Ž C. C. 3; or though part only of his deposition was noted down ; Milward v. Forbes, 4 Esp. 172; or though the compulsory power was exercised on irrelevant matters. Stockfleth v. De Tastet, 4 Camp. 10. So testimony given in Court may be used in an action against the witness, though he was prevented from entering into an explanation of the circumstances under which the fact took place, it being irrelevant. Collett v. Keith, Ld., 4 Esp. 212. So testimony on process to compel attendance before the House of Commons. R. v. Merceron, 2 Stark. 366. See obs. in R. v. Gilham, 1 Moo. C. C. 203. But such compulsory admission is no evidence of an account stated. Tucker v. Barrow, 7 B. & C. 623.

Admission of the contents of documents.] Though the contents of a written instrument cannot in general be proved by a witness without production of


Contents of Documents.

61 it (see ante. p. 1); yet what a party to the record says is primary evidence against himself as an admission, though it relates to the contents of a written instrument, and though the contents be directly in issue in the

This was first deliberately ruled in Slatterie v. Pooley, 6 M. & W. 664 ; followed by King v. Cole, 2 Exch. 628 ; Fox v. Waters, 12 Ad. & E. 43. The doctrine has been impugned and regarded as objectionable. See Lawless v. Queale, 8 Ir. L. Rep. 382 ; it is, however, established by subsequent cases. There can be no doubt, however, that such an admission ought in some cases to have no weight; as where the party relying upon it is manifestly withholding more satisfactory evidence in his own power ; or where the admission assumes a degree of knowledge, whether of faw or of fact, which the party admitting is not likely to possess; as the construction of a deed of settlement; the contents of a fine or recovery, &c “ If the plaintiff is himself in the box, you may ask him as to the contents of a document, and his answer will be good evidence. Perhaps the judge might say that the document ought to be produced. I should do so myself in some cases.Per Pollock, C. B., in Farrow v. Blom field, 1 F. & F. 653. See also the observations in Boulter v. Peplou, 9 C. B. 493 ; 19 L. J., C. P. 190. To make such oral admission of any value when it relates to a written document, it ought to be clear and distinct; thus where the defendant, in order to show that an expired Jease had been renewed by the ancestor of the plaintiff, proved a statement by the ancestor many years ago, that the land had been" new-lived” by him, without more, it was held insufficient. Doe d. Lord v. Crago, 6 C. B. 90.

A statement made by the plaintiff that his demand for work done had been referred to an arbitrator, who awarded that nothing was due, was admitted as evidence against him. Murray v. Gregory, 5 Exch. 468. The registered copy of a deed, signed and certified by the plaintiff, was held to be primary evidence of its contents against him. Boulter v. Peplov, supra. A copy of a document sent by a party is primary evidence against him. See Slowe v. Querner, L. R., 5 Ex. 155, 159. A machine copy of a letter written by the plaintiff to a third person, may be used as an admission on the part of the plaintiff, though not admissible as a letter. Nathan v. Jacob, 1 F. & F. 452. So an abstract of title containing recitals, which had been relied upon by the defendant in a suit in Chancery, was admitted as evidence against him in a subsequent action of the matters so recited, without producing the original deeds. Pritchard v. Bagshaw, 11 C. B. 459; 20 L. J., C. P. 161. See also R. v. Basingstoke, 14 Q. B. 611.

The following are some of the earlier cases bearing on the same doctrine :--The terms of a lease may be proved by oral admissions. Howard v. Smith, 3 M. & Gr. 254. An oral admission of a debt is evidence on an account stated, though it refers to a written instrument not produced. Newhall v. Holt, 6 M. & W. 662. A defendant in an action for the recovery of land may proye an admission of the plaintiff that he had sold and assigned his lease to a third person, though such assignment must be in writing. Doe d. Louden v. Watson, 2 Stark. 230. A notice signed by partners, stating that the partnership, "has been dissolved," is evidence against them to the dissolution, though the partnership was by deed. Doe d. Waithman v. Miles, 1 Stark. 181 ; 4 Camp. 373. It was formerly held, that an admission in an answer in Chancery of the execution of a deed was only secondary evidence, and did not supersede the necessity of proving it in the regular way. Call v. Dunning, 4 East, 53; Cunliffe v. Sefton, 2 East, 187, 188. So with regard to matters of record and jüdicial proceedings, as the insolvency and discharge of the plaintiff, oral evidence of admissions has been held insufficient. Scott v. Clare, 3 Camp. 236. But since the case of Slatterie v. Pooley,

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