CHAPTER XIII.

ON EVIDENCE OF DECLARATIONS MADE IN THE COURSE OF PROFESSIONAL BUSINESS.

It was stated in the last chapter that, notwithstanding some adverse authorities, declarations are not admissible merely because the deceased witness had no apparent interest to misrepresent the truth. But there is a class of cases which, are now to be considered, in which this condition, coupled with proof that the deceased made the declaration in the course of his trade or profession, is held to be a sufficient reason for admitting the statement in evidence. The foundation of this rule will not perhaps sustain a close analysis; but, as in declarations against interest it is presumed that no man will wilfully or fraudulently state falsely what is injurious to his pecuniary advantage, so in the present case it is presumed that the deliberate statement by a man of anything which he has done strictly in the course of his daily profession presents ? prima facie presumption of credibility. The philosophy of this doctrine may appear to be disputable; but it may at least be regarded as a legal compliment to human nature. It has therefore long been a settlec principle that

XLI. Declarations made by a person, strictly in the course of his trade of professional business, and without any apparent interest to misrepresent the [EV.]

M

truth, if contemporaneous with the fact, are evidence, after his death, against third parties, of the essential subjectmatter, but not of its surrounding circumstances.

Higham v. Ridgway is virtually as much an illustration of the present, as of the preceding, rule. Although the declarations there were received as being against the interest of the declarant, yet there can be little doubt that, as entries in the course of business, they were evidence of the charge, of the delivery, and probably of the time of delivery. All these elements appear to be essentially contained in the substance of the entry as professional memoranda; and as such were admissible. But if the case had been argued on these grounds, the inference to be drawn from Percival v. Nanson1 would be that the entry would not be evidence of partus cum forcipe, nor of any other immaterial circumstances which it was not the professional duty, as well as the custom, of the deceased to enter. This doctrine will be discussed more fully subsequently.

Price v. Torrington is generally cited as the leading case on this rule.2 The short report of it in Salkeld is as follows:-The plaintiff, being a brewer, brought an action against the Earl of Torrington for beer sold and delivered; and the evidence given to charge the defendant was, that the usual way of the plaintiff's dealing was that the draymen came every night to the clerk of the brewhouse and gave an account of the beer they had delivered out, which he set down in a book kept for that purpose, to which the draymen set their names; that the drayman was dead, but that this was his hand set to the book; and this was held

Sup. p. 116, and 21 L. J. 2, Ex.

2 Salk. 285; 1 Sm. L. C. 139 and notes.

good evidence of a delivery: but otherwise of the shop book itself singly, without more.

1

Accordingly, in Pritt v. Fairclough, after evidence had been given that it was the course of business in the plaintiff's office for a deceased clerk to copy all letters, a letter-book containing a letter which purported to be the copy by the deceased of a letter which the defendant refused to produce was held good secondary evidence. So, where it was material to show that a licence had been sent to A. by the plaintiff, evidence was given, that it was the course of business in the plaintiff's office that such licences should be copied in the letter-book and noted before they were sent, and the copy and noted memorandum, in the handwriting of a deceased clerk, that the licence had been sent, were then received.2

In an important case3 of ejectment, the lessor of the plaintiff had instructed A. to serve the defendant with notice to quit. A. intrusted the commission to his partner B., who had not served such notices before. B. prepared three notices to quit (two of them being to be served on other persons), and as many duplicates. He then went out, and on his return delivered to A. three duplicate notices (one of which was a duplicate of the notice to the defendant), indorsed by B. It was proved that the two other notices had been served on the persons for whom they were intended; that the defendant had subsequently requested A. that he might not be compelled to leave, and that it was the invariable practice for A. and B.'s clerks, who usually served the notices to quit, to indorse, on a duplicate of such notice, a memorandum of the fact and time of service. It was held, on these facts, that the third duplicate was admissible to prove that the notice had been served on the defendant. Parke, B., said:

13 Camp. 305.

2 Hagedon v. Reed, 3 Cainp. 379.

Doe d. Patteshall v. Turford, 3 B. & Ad. 890.

"It was proved to be the ordinary course of this office, that when notices to quit were served, indorsements like that in question were made; and it is to be presumed that the principal observed the rule of the office as well as the clerks." And Taunton, J., observed: "A minute in writing like the present made at the time when the fact it records took place by a person since deceased, in the ordinary course of his business, corroborated by other circumstances, which render it probable that that fact occurred, is admissible in evidence."

This doctrine may be considered as finally settled by Poole v. Dicas.1

There it was held that an entry made in a bill-book, in the course of business, by a notary's clerk since deceased, of the dishonour of a bill, which he had been instructed to present for payment, was evidence of the dishonour.

In this case, and in the previous one of Doe d. Patteshall v. Turford, great importance was attached to the fact that the entries were immediately subsequent to, and virtually contemporaneous with, the transaction. In the former case, Parke, B., said :—“It is to be observed, that in the case of an entry against interest, proof of the handwriting of the party, and his death, is enough to authorize its reception; at whatever time it is made it is admissible; but in the other case [scil., in declarations in the course of business,] it is essential to prove that it was made at the time it purports to bear date it must be a contemporaneous entry." So, in Poole v. Dicas, Tindal, C. J., said:" If there were any doubt whether the entry were made at the time of the transaction, the case ought to go down to trial again."

It has been intimated that, according to the dicta of the judges in Doe v. Turford and Percival v. Nunson, an entry in the course of business, unlike an entry against

11 Bing. N. C. 649.

interest, is evidence only of the facts which it was the duty as well as the custom of the deceased declarant to enter. The cases on this head are not quite consistent; but the general rule appears still to be maintained according to the principle laid down in Chambers v. Bernasconi, which was argued first in the Exchequer, and then in the Exchequer Chamber. In that case,

in order to establish an act of bankruptcy by keeping house, it was necessary to prove the place where the plaintiff had been arrested; and the evidence offered was a paper brought from the file of the under-sheriff, and addressed to him, and purporting to be signed by the deceased officer who had made the arrest. paper was as follows:

The

9th November 1825.

I arrested Abraham Henry Chambers, the elder only, in South Molton Street, at the suit of William Brenton.

THOMAS WRIGHT.

It was proved that, by the course of the office, the officer was required, immediately after an arrest, to transmit to the sheriff's office a memorandum or certificate of the arrest; and that for the last few years an account of the place where the arrest took place had been also required from him. The court held the document not to be admissible evidence of the place of arrest, apparently on the ground, that it was not the officer's duty to make the entry of the place, because the strict course of office business could not be considered to be affected by the recent innovation in its practice. Lord Denman, in delivering judgment, said:— "We are all of opinion that, whatever effect may be due to an entry, made in the course of any office, reporting facts necessary to the performance of a duty, the statement of other circumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circumstances. Admitting, then, for the

11 Tyr. 335; S. C. 4 Tyr. 531.