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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.

"October 27.-Ditto came again; and to have ls. per week to March 1825, is 21 weeks 2 days, 11. 1s. 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 d. Patteshall v. Turford (1). 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.

Declarations in the course of business are inadmissible while the declarant is alive (m). So, entries by a witness who is alive are not evidence per se, but

(1) Sup. p. 176.

(m) 1 Esp. 328; but are admissible under certain circumstances in India, cf. Act ii. 1855, s. 39.

may be used by him for the purpose of refreshing his memory (n).

In connection with this subject it may be observed that, by 15 & 16 Vict. c. 86, s. 54, the Court of Chancery has power, where any account is required to be taken, to direct that, in taking the account, the books of account in which the accounts required to be taken have been kept, or any of them shall be taken as prima facie evidence of the truth of the matters therein contained.

(n) 4 Q. B. 189.

CHAPTER XV.

ON EVIDENCE OF STATEMENTS BY DECEASED OR

ABSENT WITNESSES.

On the general principle by which hearsay is inadmissible evidence, the statements of witnesses at former trials are not generally received at common lay, but there is a large exception to this principle, which is contained in the rule that

In a matter between the same parties, the depositions of a witness at a former trial, or suit in equity, 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 party or privy to the proceedings; 'the reason being that he had not liberty to crossexamine the witness.

The general rule has been thus stated by Mansfield, C. J.:-"What a witness, since 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" (o).

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 was subpoenaed by the defendant to appear at a subsequent trial in K. B., but did not appear; persons were admitted to prove what his evidence was at the first trial, because the court conceived there was reason to presume that he was kept away by the petitioner (p). But it appears to be doubtful whether every species of mere subsequent incapacity will let. in evidence that has been given at a former trial (q).

It appears that under the 11 & 12 Vict. c. 42, s. 17, it is not necessary to prove that a witness absent from illness is so ill as to be unable to attend, but it is sufficient if it appear that it would endanger his life to attend (r). The full effect of the above statute, and the circumstances under which the depositions of deceased or absent witnesses will be received, according to its requirements, will be considered under the head of secondary documentary evidence.

If a party give evidence of a former trial to show that a verdict was improperly obtained, the other party may rebut it by proof of other evidence given at the first trial, although the second trial be not between the same parties nor on the same rights (s).

On a new trial of an issue out of Chancery, oral

(0) Mayor of Doncaster v. Day, 3 Taunt. 262.
(p) Green v. Gatewick, Bull. N. P. 242, b.
(q) R. v. Eriswell, 4 T. R. 707.

(r) Per Platt, B., R. v. Day, 19 L. T. 35.
(s) Doe v. Parsingham, 2 C. & P. 440.

evidence of the statements at a former trial of a deceased witness were received, although the Master of the Rolls had made his usual order for reading the depositions in equity of such witnesses as had died since the first trial (t).

In order to render a deposition of a deceased or absent witness admissible, it must appear that it was taken on oath in a judicial proceeding in some cause, and that the party to be affected by it had an opportunity to cross-examine the witness (u). In actions of ejectment brought against the same person, and involving the same title, the evidence of a deceased witness in a former action will not be admitted in a subsequent one, unless the plaintiff in the second action claims through the plaintiff in the first (x).

It appears to be open to the parties to enter into an agreement, that the judge's or shorthand writer's notes at the first trial shall be received as evidence in the second; and after such consent neither party can dispute its validity (y). But the court will require distinct evidence of every such agreement (z).

The statements of absent witnesses are frequently tendered in the form of depositions by persons who have been examined, either in this kingdom or abroad, on interrogatories pursuant to commissions issued out of the Courts of Chancery or Common Law. Their admissibility will be discussed under the head of written evidence.

(t) Tod v. Earl of Winchelsea, 3 C. & P. 387.

(u) Per Hullock, B., Attorney-General v. Davison, M. & Y. 169. (x) Morgan v. Nicholl, 36 L. J. C. P. 86; L. R. 2 C. P. 117. (y) Wright v. Tatham, 1 A. & E. 3.

(z) Doe v. Earl of Derby, 8 A. & E. 783.

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