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sake of argument, that the entry tendered was evidence of the fact, and even of the day when the arrest was made (both which facts it might be necessary for the officer to make known to his principal); we are all clearly of opinion that it is not admissible to prove in what particular spot within the bailiwick the caption took place, that circumstance being merely collateral to the duty done." Accordingly, an entry by a deceased steward of a matter not in the course of his duty, but only important in his opinion to his master's interest, will not be received. It is right to observe, that the decision on the particular facts in Chambers v. Bernasconi, has been much criticized by learned judges and other authorities; but the principle on which it was given, viz., that the act was not in the course of a duty, but collateral to it, is recognised as settled.2
On the general doctrine, it seems to have been taken for granted, in a late case, that an entry of the receipt of rates, by the deceased clerk of a collector, is evidence of the payment of rates, under the 4 & 5 Will. 4 c. 76.3
When the entry has been made on hearsay, it will not be received. Thus, in an action for goods sold, where the only evidence of delivery was an entry made by a witness, by the direction of a deceased foreman, who was not present when the goods were delivered, but who in the course of business had himself been informed of the delivery by the collier whose duty it was to deliver the coals, and who was also dead, the entry was rejected. This case is also to be remarked, as containing the opinion of Lord Abinger, that the doctrine of Price v. Torrington ought not to be
1 Doe d. Padwick v. Skinner, 18 L. J. Ex. 107; see also 20 L. J 297, Ex.
21 Phill. 292; Poole v. Dicas, 1 Bing. N. C. 649, per Tindal, J., and Parke, B.: 1 Sm. L. C. 141.
3 R. v. St. Mary, Warwick, 22 L. J. 109, M. C.
4 Brain v. Price, 11 M. & W. 773.
ON DECLARATIONS IN THE COURSE OF BUSINESS. 127
It appears to be now settled law, that there is no distinction between verbal and written declarations made in the course of a duty, so far as regards their admissibility. But oral evidence will not be received to contradict, nor even to explain, a written entry which has been made in the course of business. Thus, in Stapylton v. Clough,1 to prove service of a notice to quit, a duplicate notice indorsed with the day of service, and signed in the course of duty by a deceased agent, was tendered; but it was also sought to explain and vary the particulars of the indorsement, by evidence of subsequent oral declarations made by the deceased. But the court held, that the indorsement must be received as it stood; and Lord Campbell said :-"I agree with what I am reported to have said in the Sussex Peerage Case, that there is no distinction between verbal and written declarations made in the course of a duty, so far as regards their admissibility. But to deduce from this doctrine that whatever is said subsequently to the time of making the entry respecting the transaction may be admitted in evidence, would lead to the greatest injustice. How can it be said, that the verbal declaration of Jackson was made in the course of his duty? What he did in discharging his duty was signing the written entry. What he may babble during the rest of his life on the subject cannot be admitted in evidence, contradicting, as it does here, what he has before written."
Several cases are collected by Mr. Phillipps, in which indorsements on bonds and notes, by the obligee or payee, of payment of interest, or part of the principal, have been received, on somewhat anomalous grounds, partly as declarations against interest, and partly as declarations in the course of business.2 These cases are now subject to Lord Tenterden's Act, 9 Geo. 4, c. 14, s. 3, by which it is enacted that "no indorsement or memorandum of payment, written or made upon any promissory note or
1 23 L. J. 5. Q. B.
2 1 Phill. 297 to 301.
bill of exchange, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the Statute of Limitations." On this section it has been decided, in an action by the executor of the payee of a promissory note against the maker, that an entry made by the plaintiff, under the direction of the deceased, in a memorandum-book, acknowledging the receipt of interest within six years, took the case out of the statute.' But here the declaration was received as against the interest of the deceased.
It must be admitted that some obscurity hangs over the principle on which this class of evidence has been received in some cases, and rejected in others. Thus, in some it appears to have been assumed by learned judges that it ought not to be received unless the effect of the original declaration was such as would create a responsibility in the declarant; and therefore, in some cases, this species of evidence has been rejected, because the declarant was a principal and not an agent. In Reg. v. Worth, to prove a settlement by hiring and service, the following document, made, according to personal custom, in the memorandum-book and handwriting of the pauper's deceased master, was tendered:
April 4, 1842.-W. W. (the pauper) came, and to have for the half year 40s.
September 29.-Paid this 21.
October 27.-Ditto came again; and to have 1s. per week: to March 1825, is 21 weeks 2 days, 17. 1s. 6d.
The court held this evidence to have been rightly rejected. Lord Denman said:"In a case of this kind the entry must be against the interest of the party who writes it, or made in the discharge of some duty for which he is responsible. The book here does not show any entry operating against the interest of the party. The memorandum could only fix upon him a liability
1 Bradley v. James, 22 L. J. 193, C. P.
2 4 Q. B. 133.
ON DECLARATIONS IN THE COURSE OF BUSINESS. 129
on proof that the services referred to had been performed; and whether, on dispute, a jury would have found him liable for the sum so entered, or more or less, we cannot say. Nor was this an entry made in the course of duty, as in Doe d. Patteshall v. Turford. The act there was performed by a principal in the firm, and not by a clerk; but it was done by a person acting under the same responsibility." The other judges delivered similar judgments. It may, however, be doubted, with great respect, whether this embodies actual law; otherwise this case must be regarded as extending considerably the doctrine which seems to have been held in Price v. Torrington, and followed in later cases. Thus, in Doe v. Turford, the condition which Mr. Justice Taunton seems to have held as chiefly or solely essential was that the declaration should be made by the deceased in the ordinary course of his business; and in Poole v. Dicas, Tindal, C. J., held the entry to be admissible on the ground that it was an entry made at the time of the transaction, and made in the usual course and routine of business by a person who had no interest to misstate what had occurred.
Declarations in the course of business are inadmissible while the declarant is alive. So entries by a witness who is alive are not evidence per se, but may be used by him for the purpose of refreshing his memory.2
1 1 Esp. 328. 2 4 Q. B. 139.
ON EVIDENCE OF STATEMENTS AT FORMER TRIALS BY DECEASED OR ABSENT WITNESSES.
Ir has been said that, at common law
XLII. In a matter between the same parties, the depositions of a witness, at a former trial may be used on a subsequent trial; if the witness be dead; or if he be sought and cannot be found; or if he have been subpoenaed and have fallen sick on the way.
But the matter in issue must be the same, and the depositions cannot be given in evidence against any person who was not a party to the suit; and the reason is, because he had not liberty to cross-examine the witness.1
The general rule has been thus stated by Mansfield, C. J.:-"What a witness,si nce dead, has sworn upon a trial between the same parties, may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having been given."2
The same rule holds if a witness be kept away by collusion, or other improper means. Thus in an old case where a witness was sworn in a trial at C. B., and
1 Bull. N. P. 238, 239, a.
2 Mayor of Doncaster v. Day, 3 Taunt. 262; 8 Q. B. 245.