The doctrine was also discussed in Poole v. Dicas (ƒ), where 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.

The entry must be contemporaneous. In all the above cases great importance was attached to the fact that the entries were immediately subsequent to, and virtually contemporaneous with, the transaction. In Doe v. Turford (g), 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 authorise its reception; at whatever time it is made, it is admissible; but in the other case [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 seems, however, to be sufficient if the entry be made on the same day, or even on the following morning. But if not made until two days after the event it is not contemporaneous (h).

The entry must be of matters which it is the duty of the writer to do and to record. The entry must be an entry of a particular thing which it was the duty of the person making the entry to do, and it must be also his duty to record it (i). The existence of the duty must be proved aliunde (k). This is in accordance

(f) 1 Bing. N. C. 649.

(h) The Henry Coxon, 3 P. D. 156.

(g) 3 B. & Ad. 890.

(i) Smith v. Blakey, L. R. 2 Q. B. 326; Trotter v. Maclean, 13 Ch. D.

574.

(k) Bright v. Legerton, 2 De G. F. & J. 614.

with the dicta of the judges in Doe v. Turford (l) and Percival v. Nanson (m), to the effect that an entry in the course of business, unlike an entry against interest, is evidence only of the facts which it was the duty as well as the custom of the deceased declarant to enter, i and the same principle was laid down in Chambers v. Bernasconi, which was argued first in the Exchequer and then in the Exchequer Chamber (n).

Personal custom is not equivalent to a duty.Therefore entries in the books of a deceased solicitor or bills of costs delivered by him are not admissible on the ground that it was his duty to keep proper books, or that they were made out in the course of his duty. The contrary was once held by Lord ROMILLY (0), but his decision cannot be relied upon after what has been said by the judges in subsequent cases (p). Nevertheless, the books and bills of costs of a deceased solicitor may be admissible in evidence for reasons other than the rule under discussion in this chapter, e.g., as declarations against interest (q), or on special grounds against particular people (r). In short, whenever the entry or declaration does not appear to have been in the course of such a duty as previously mentioned, but only of a personal custom, not creating responsibility in the declarant, it is inadmissible. On this principle, the account books of deceased tradesmen, made by themselves, are not evidence for their executors to charge a debtor. So in Ireland, entries in registers kept in Roman Catholic chapels have been held inadmissible (s). An entry in a deceased stockbroker's

(1) 3 B. & Ad. 898.

(m) 7 Ex. 3.

(0) Rawlins v. Richards, 28 Bea. 370.

(n) Tyr. 335.

(p) Bright v. Legerton, 2 De G. F. & J. 617; Hope v. Hope, W. N. (1893) 21; Ecroyd v. Coulthard, W. N. (1897) 25.

(q) Ante, p. 170.

() Bright v. Legerton, 2 De G. F. & J. 6063 cf. Bradshaw ▾ Widdrington, [1902] 2 Ch. 430.

(8) Ennis v. Carrol, 17 W. R. 344.

day-book was held inadmissible to prove that certain shares were purchased for the client, it not being the duty of the stockbroker, as between himself and his client, to keep the book (t).

The entry must not be made on hearsay. It has long been settled that, when the entry has been made on hearsay, it will not be received. 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 person whose duty it was to deliver the goods, and who was also dead, the entry was rejected (u). In the case of The Henry Coxon (x), Sir ROBERT PHILLIMORE said:

"It seems to me that the authorities point to this, that entries in a document made by a deceased person can only be admitted as evidence when it is clearly shown that the entries relate to an act or acts done by the deceased person, and not by third parties."

Verbal and written declarations made in the course of a duty, stand on the same footing, 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 (y), 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. It was 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

(t) Massey v. Allen, 13 Ch. D. 558.

(u) Brain v. Price, 11 M. & W. 773.

(x) 3 P. D. 158; cf. Ryan v. King, 25 L. R. (Ir.) Ch. 184.
(y) 2 El. & Bl. 933.

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."

Declarations in the course of duty are inadmissible while the declarant is alive (z); but although entries by a witness who is alive are not evidence per se, they may be used by him for the purpose of refreshing his memory (a).

In connection with this subject it may be observed that Order XXXIII., Rule 3, of the R. S. C., 1883, provides that, where an account is directed to be taken, the court may direct that, in taking the account, the books of account in which the accounts required to be taken have been kept, shall be taken as primâ facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. This is a similar power to that conferred on the Court of Chancery by 15 & 16 Vict. c. 86, s. 54 (b). The same principle is adopted for proceedings in county courts by Rule 8 of Order XXIV. of the County Court Rules, 1903.

(z) Digby v. Steadman, 1 Esp. 328.

(a) R. v. Worth, 4 Q. B. 139.

(b) The power was exercised in Banks v. Cartwright, 15 W. R. 417, in the case of books of account kept by trustees to which the beneficiaries had access.

de 00.51.5

CHAPTER XV.

STATEMENTS BY DECEASED OR ABSENT

WITNESSES.

ON the general principle by which hearsay or secondhand evidence is inadmissible, the statements of witnesses at former trials would not be received, but for the rule that

In a matter between the same parties, the statements of a witness at a former trial may be used on a subsequent trial, if the witness be dead or has become insane; or if he is out of the jurisdiction, or has been diligently sought for and cannot be found; or if he has been subpoenaed, but is too ill to attend (a).

The matter in issue must be substantially the same, and the statements, which must have been made on oath in a judicial proceeding, cannot be given in evidence against any person who was not party or privy (b) to the proceeding (c); because the person against whom this evidence is tendered, or some one to whom he is privy, must have had an opportunity to cross-examine the witness (d). The statements must be such that they are admissible against the party tendering them as well as against the opposite party (e).

(a) If the illness is temporary the proper course would seem to be to postpone the trial (Harrison v. Blades, 3 Camp. 458).

(b) "Privy" for this purpose means "claiming under," and does not include privity in blood. See Morgan v. Nicholl, L. R. 2 C. P. 117.

(c) Lady Llanover v. Homfray, L. R. 19 Ch. D. 224; cf. Morgan v. Nicholl, ubi supra.

(d) Attorney-General v. Davison, M'Clel. & Y. 169; cf. Nevil v. Johnson, 2 Vern. 447.

(e) See Morgan v. Nicholl, ubi supra.