For the same reason 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 (m). The decision on the particular facts in Chambers v. Bernasconi has been much criticised 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, as previously stated, now recognized as settled.

It seems to have been taken for granted 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. 3, c. 76 (n).

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 (o). 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 extended. In the case of The Henry Coxon (p), Sir Robert Phillimore said :-"It seems to me that the

(m) Doe v. Skinner, 2 Ex. 384; Doe v. Whitcomb, 6 Ex. 601. (n) R. v. St. Mary, Warwick, 1 E. & B. 816.

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

(P) L. R., 3 P. D. 158; 47 L. J., P. D. & A. 83.

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."

It is 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 (q), 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 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

(a) 2 E. & B. 933.

P.

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." It was also held by Lord Campbell, in Bright v. Legerton (r), that any written entry or verbal declaration by a deceased solicitor, in the discharge of any duty entrusted to him, will be admissible in evidence on proof being given that he had a lawful and valid mandate. On this principle an entry by a deceased solicitor in his diary, of his having attended a client on a certain day on her executing a deed of appointment, was held sufficient evidence of the due execution of the deed (s).

When the entry or declaration does not appear to have been in the course of a trade or professional duty, but only 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 R. v. Worth (t), 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, 1824.—W. W. (the pauper) came, and to have for the half year 40s. "September 29.-Paid this 21.

(r) 1 De G., F. & J. 614.

(s) Rawlins v. Richards, 28 Beav. 370.

(t) 4 Q. B. 133.

"October 27.-Ditto came again; and to have 18. per week to March 1825, is 21 weeks 2 days, 17. 18. 6d.

"25th.-Paid this."

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 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 v. Turford (u). 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. So in Ireland, entries in registers kept in Roman Catholic chapels have been held inadmissible (x). An entry in a deceased stockbroker's 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 (y).

(u) 3 B. & Ad. 898.

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

(y) Massey v. Allen, L. R., 13 Ch. D. 558; 49 L. J., Ch. 76; 28 W. R. 212.

Declarations in the course of business are inadmissible while the declarant is alive (≈); and 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 (a).

In connection with this subject it may be observed that Ord. 33, r. 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 such objections thereto as 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 equity proceedings in county courts by the 3rd rule of the County Courts Order (1865).

(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.