An entry by a deceased person against interest will be good evidence, although it appears that persons are living, and not called, who are acquainted with the fact. Thus, entries by a deceased collector charging himself with the receipt of taxes, were received as evidence against a surety that the money had been paid, although the persons who paid it were living, and might have been called. An attempt was made in this case to exclude his evidence, because the entries. were contained in a private note-book, and not a public account-book; but the distinction was overruled (z) After the expiration of a long term the death of the declarant will be presumed (a), although in other cases it must be proved. The status of the party making the entry or declaration must sometimes be established before the entry is read, unless it be made by a person in a public character, in which case due appointment will be presumed (b). Thus agency must be proved, where the declaration was by an agent; and accounts of rents signed by a person styling himself clerk to a steward, but not proved aliunde to have been so employed, although they were found among family muniments, were rejected, because there was no other evidence given to show that the accounts affected the declarant in a pecuniary character (c). Proof of handwriting, and other extrinsic evidence of authenticity, will be unnecessary when entries have been made thirty years previously, and are produced from proper custody (d). It has been said that in the case of an entry against interest "proof of the handwriting of the party and his death is enough to authorise its reception; at (z) Middleton v. Melton, 10 B. & C. 317. (d) Wynne v. Tyrwhitt, 4 B. & Ald. 376. whatever time it was made, it is admissible" (e). The first part of this dictum applies of course only to entries made within thirty years prior to the time when they are tendered. As miscellaneous instances of cases in which declarations against interest have been admitted as evidence, the following may be mentioned. Where a deceased tenant, by a written instrument, acknowledged L. as his landlord, this was held to be evidence of L.'s title as against subsequent tenants who did not claim through the declarant (f). In ejectment by A., the declaration by deed of a deceased receiver of rents and profits, that he held under A.'s ancestor, is evidence against third parties of A.'s title (g). A declaration by a deceased occupant, that he managed an estate for a claimant, is evidence for the latter (h). In an action for specific performance of an agreement to take a lease, an entry of a deceased landlord in his own handwriting in his rent-book of a promise to grant a lease to a tenant was held admissible in evidence against the tenant as being against the landlord's proprietary interest (i). In an action by the Corporation of Exeter for port duties, documents more than thirty years old, which purported to be the receipt of such duties by ancient receivers, but which were unsigned and in the third person, were admitted (k). So, the receipts of an ancient receiver of rents, brought from the muniment chest of the family, are unobjectionable evidence (1). Wherever there is privity of interest between the declarant and a party to the proceedings, the declaration will be received; and it will be admissible, even though (e) Per PARKE, B.: Doe v. Turford, 3 B. & Ad. 898. (g) Doe v. Coulthard, 7 A. & E. 235. (i) Connor v. Fitzgerald, 11 Ir. L. R. 106. the declarant is alive (m); but neither the acts nor the declarations of deceased tenants, although against their interest, are any evidence against the reversioner; for a tenant cannot derogate from the title of his landlord; and, therefore, in a disputed right of common, the plaintiff was not allowed to give evidence of declarations made concerning it by a deceased former tenant of the farm, in respect of which the plaintiff claimed the right (n). The declarations of a person in possession of property are admissible, after his decease, to cut down his title, not only as against those claiming under him, but also against strangers (o); but declarations of what he heard other persons say are not admissible (p). The same document may be proof of possession, and also admissible as a declaration against interest (q). The acceptance of an allotment under an award made by commissioners under an Inclosure Act by a person. against his interest is evidence that the land allotted was waste of the manor (r). It will be observed that, in all the preceding cases where entries have been tendered, great stress has been laid on the circumstances of the custody from which they are produced. The declarations under consideration are also subject to the remarks which have been made on the declarations discussed in the two preceding chapters, as to the necessity that they must be made. ante litem motem. (m) Woolway v. Rowe, 1 A. & E. 114. (n) Papendick v. Bridgwater, 5 E. & B. 166. (P) Lord Trimleston v. Kemmis, 9 C. & F. 780. L. E. CHAPTER XIV. DECLARATIONS MADE IN THE COURSE OF It has long been a settled principle that— Declarations made by a person, strictly in the course of a trade or professional duty, and without any apparent interest to misrepresent the truth, if contemporaneous with the fact, are evidence, after his death, against third persons, of the essential subject-matter, but not of its surrounding circumstances. Price v. Torrington is generally cited as the leading case on this rule (a). 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 course 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 good evidence of a delivery, but otherwise of the shop-book itself singly, without more. On the same principle, in Pritt v. Fairclough (b), 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 letterbook containing a letter, which purported to be the (a) Salk. 285. (b) 3 Camp. 305. 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 letterbook 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 (c). Declarations by a deceased rector have also been admitted as evidence as to the custom of electing churchwardens in his parish (d). In an action (e) of ejectment, the lessor of the plaintiff had instructed A. to serve the defendant with notice to quit. A. entrusted the commission to his partner B., who had not served such notices before. B. prepared three notices to quit (two of them being for service 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: "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." (c) Hagedon v. Reed, 3 Camp. 379. |