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are evidence of all facts to which they refer, without corroborative evidence dehors of the charge which is entered as liquidated, yet it appears to be necessary that extrinsic evidence should be given to show that the person making the entry or declaration was in the situation in which he purports to be. The character of the party making the entry or declaration must be established before the entry is read, unless they be made by a person in a public character, in which case due appointment will be presumed.2 But agency must be proved, where the declaration was by an agent. Thus, 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 parol evidence to show that they affected the declarant in a pecuniary character. 3 But 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.4
There appears to be no distinction between oral and written declarations for the purposes of this rule. This view seems to have been recognised in the Sussex Peerage Case; and to be supported by subsequent authority.5
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. So, in ejectment by A., the
1 Doe v. Vowles, 1 M. & R. 166; contrà, R. v. Heyford, 2 Sm. L. C. 194 a, and note.
2 Davies v. Morgan, 1 C. & J. sup. p. 54.
3 Baron de Rutzen v. Farr, 4 Ad. & Ell. 53.
Wynne v. Tyrwhitt, 4 B. & Ald. 376.
52 Smith L. C. 197, r.; Edie v. Kingsford, 23 L. J. 23, C. P. • Doe d. Lindsey v. Edwards, 5 A. & E. 95.
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. So, a declaration by a deceased occupant, that he managed an estate for the claimant, is evidence for the latter.2
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.3 So, the receipts of an ancient receiver of rents, brought from the muniment chest of the family, are unobjectionable evidence.4
Where there is privity of interest between the declarant and a party, the declaration is received on this ground; and it will be admissible, even though the declarant be alive.5 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. 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.6
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 motam.
This rule is said to have been somewhat extended
1 Doe d. Daniel v. Coulthard, 7 A. & E. 235.
2 Baron de Bode's case, 8 Q. B. 208.
3 Mayor of Exeter v. Warren, 5 Q. B. 773. Musgrave v. Emerson, 16 L. J. 175, Q. B.
5 Woolway v. Rowe, 1 A. & E. 114.
Pavendick v. Bridgwater, 24 L. J. 289, Q. B.; Sup. p. 154.
to an anomalous class of cases, where the declarations have been made by persons who have had no interest to misrepresent facts. The privilege, as it really exists, appears to have been confined to ecclesiastical cases in which a vicar or other incumbent has claimed a benefit on the ground of an entry or statement made by a former incumbent. But the cases are obscure and the doctrine doubtful. In several instances, also, the statements appear to have been admissible as being against interest. It is not conceived to be necessary to do more than notice the questionable existence of these exceptions.1
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 authorize its reception; at whatever time it was made, it is admissible." The first part of this dictum applies of course only to entries made within thirty years prior to the time when they are tendered.3
See cases referred to; Rosc. N. P. 1 Phill. 267 to 270. * Parke, B.: Doe d. Patteshall v. Turford, 3 B. & Ad. 898. 3 Ante, p. 135.
ON EVIDENCE OF DECLARATIONS MADE IN THE COURSE OF PROFESSIONAL DUTY.
It was stated in the last chapter, that, notwithstanding some adverse authorities, declarations are not admissible merely because the deceased witness had no apparent interest to misrepresent the truth. But there is a class of cases, which are now to be considered, in which this condition, coupled with proof that the deceased made the declaration in the course of his trade or professional duty, is held to be a sufficient reason for admitting the statement in evidence. The foundation of this rule will not perhaps sustain a close analysis; but, as in declarations against interest it is presumed that no man will wilfully or fraudulently state falsely what is injurious to his pecuniary advantage, so in the present case it is presumed that the deliberate statement by a man of anything which he has done strictly in the course of his daily duty presents a primâ facie presumption of credibility.
The philosophy of this doctrine may appear to be disputable; but it may at least be regarded as a legal compliment to human nature. It has therefore long been a settled principle that
Declarations made by a person, strictly in the course of his 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.1 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 way 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 shopbook itself singly, without more.
Accordingly, in Pritt v. Fairclough,2 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 letter-book containing a letter, which purported to be the 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 letter-book 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.3
In an important case of ejectment, the lessor of the plaintiff had instructed A. to serve the defendant with notice to quit. A. entrusted the commission to his
Salk. 285; 1 Sm. L. C. 139 and notes.
23 Camp. 305.
3 Hagedon v. Reed, 3 Camp. 379.
• Doe d. Patteshall v. Turford, 3 B. & Ad. 890.