ante, p. 403.

As to secondary evi

As to the proof of an award, see dence of letters, see ante, p. 374. And as to the effect of notice to produce written instruments, see ante, p. 382, 386.

Books of Accounts &c.] Entries in the books of a merchant or tradesman &c., may be used in evidence for the purpose of refreshing the memory of the clerk who made them; see 1 Esp. 1; or the entry may be read in evidence for the master, upon proof of the clerk's death, and proof of his handwriting, 2 Salk. 690. 1 Salk. 285, 2 L. Raym. 873, 6 Mod. 264, where the effect of the entry is to change the clerk who made it. 2 Esp. 646. 4 T. R. 514, and see 7 East, 279. 10 Id. 109. 15 Id. 32. But proving merely that the clerk is abroad, is not sufficient; 1 Esp. 1, and see ld. 328. Bul. N. l. 282; and even where his death can be proved, this evidence is admissible only within a year after the making of the entry, if the books be those of a "tradesman or handicraftsman," and produced for the purpose of establishing a debt against one of his customers; 7 Jac. 1. c. 12; which however has been holden to extend to entries in a banker's book. 2 Esp. 705. tradesman's books or other books of accounts, if produced at a trial, may be good evidence against the owner, Tr. per Pais, 348, and see Hardw. 378. 2 Str. 1130, or between other parties, 10 East, 109, and see 1 Stark. 259. 2 Str. 1128, after the year.

But a

So in all other cases, the entries or statements of a deceased person, whereby he charges himself with the receipt of money, either on the account of third persons, or as having been paid to him on his own account, is evidence of the fact at any distance of time, on the ground that the entry or statement was against his interest at the time he made it. Therefore the private account of a deceased collector of taxes, in which he entered the sums received by him as such, was holden to be good evidence of those receipts, in an action against his surety. 10 B. & C. 317. So accounts of receipts of rent by a deceased executor, as such, has been holden good evidence of a taking of esplees in a writ of right, although the demandant appeared to claim under him. 9 Bing. 687. So in ejectment, where both parties claimed under J. S., entries of the receipt of rents by a deceased steward of J. S., were allowed to be given in evidence by the defendants against the plaintiff, for the purpose of identifying the premises. 2 Ad. & E. 171. And for this purpose, it is immaterial whether the entries be actually in the handwriting of the party, or in that of another person and signed by the party. 6 Car. & P. 139. But a book containing entries by a deceased steward of a manor of the fines assessed, not distinguishing such as had been paid from such as had not, was holden not to be evidence; for as these entries did not show whether any of the fines had been paid, they had not

the effect of charging the person who made them. 7 Bing. 433. So, where the plaintiff, in order to shew that he was tenant of certain premises to one John Brown, proved his payment of the rent for them to Brown during the whole of the time (10 years) that he had occupied them; and the defendant, in order to meet this evidence, tendered in evidence certain accounts in the handwriting of Brown, (who was still alive.) accounting with him as his agent for these rents: but this evidence was holden to be inadmissible, as Brown was alive, and might be produced as a witness. 9 B. & C. 935.

In the case of ecclesiastical dues, it is also every day's practice to admit entries in the hooks of a parson or vicar as evidence for his successor. 2 Vez. 43. Bamb. 46. They are good evidence also against the successor. See Bumb. 143.

Where the right to the soil was in issue, entries written in a book by the steward of a former owner, from whom title was derived, of re ceipts of money by the steward for that owner, as a satisfaction for trespasses committed on the place in question, where holden to be admissible evidence, the steward being dead. 4 T. R. 514. Sec 10 East, 206. 5 T. R. 121. So, an entry of the receipts of money by officers of a township from the officers of another tow iship, as a proportion of church rates made in a parish book, was holden to be evidence to charge the latter officers with the same proportion in future. 4 T. R. 639.

In order to shew the state of a trader's affairs, before his bankruptcy, at the time he made a payment which was sought to be impugned as a fraudulent preference, his banker's ledger was produced at the trial, to prove that he had no balance to his credit there; one clerk alone attended with the book, although the entries were made by several, but it ap peared that the book was open to all the clerks in the banking house, as a general book of reference as to the balances to the credit of the different customers of the house: it was objected that the trader's account in this book was not evidence, without calling all the clerks who made the entries in it; but the court held it to be good evidence to prove the negative, that he had no funds there, although it might not be admissible to prove the affirmative. 5 Bing. 114.

Where it was proved to be the invariable practice in the office of a certain attorney, when instructed to serve a tenant with a notice to quit, that a notice and duplicate were written, the one served, and a memorandum indorsed on the other of the fact and time of service by the clerk or person who effected the service; and it appeared that the attorney himself, being instructed by a client to serve notices to quit upon three tenants, made out the notices and duplicates, took them with him for the purpose of serving them, and upon his return wrote the

usual memoradum of service on the back of them; after the death of the attorney, the client, in an ejectment by him against one of these tenants, after proving the above facts, and that the attorney had duly served the other two notices on the day mentioned in the memoranda indorsed upon them, put in the duplicate of the notice to the defendant, a.d the attorney's indorsement on it, as evidence of the service of the notice and this was holden to be admissible evidence of the service of the original notice, the indorsement being made by the attorney in the regular discharge of his duty, according to the uniform practice of his office. 3 B. & Ad. 890. and see 1 Stark. R. 404. Camp. 305.

3

*Where it was sought to effect a defendant with a certain notice, it was proved that the notice was inserted by way of advertisement in the Norfolk Chronicle, which circulated in the city of Norwich, where the defendant lived; but Lord Tenterden, C. J. refused to receive the evidence, without proof also that the defendant was in the habit of taking in that newspaper. Moody & M. 153. and see 1 Stark. R. 186. 3 Bing. 2.

[*438]

*CHAPTER III.

PAROL EVIDENCE.

SECT. I.

In what Cases receivable.

PAROL EVIDENCE is inferior to written evidence: and as the general rule is that the best possible evidence shall be given, (see ante, p. 372,) it follows of course that parol evidence can never be received, where there is written evidence of the same fact. And so strict is the rule in this respect, that where an agreement in writing on unstamped paper, was designedly destroyed by one of the parties to it, it was holden that it was not open to the other party to give any evidence whatever of the matter of agreement: parol evidence could not be received of it, because it had been reduced to writing; nor could parol evidence be received of the contents of the written instrument, as secondary evidence, because if the instrument itself were produced, it could not be received in evidence for want of a stamp. 2 Barn. & Ald. 478. And where parol evidence of the contents of an unstamped agreement, which had been lost, was tendered in evidence, not for the purpose of enforcing the instrument, but merely to prove the value of a tenement mentioned in it, the court held that it could not be received, for the same reason. 3 B. & Ald. 588. But where a parol contract is made subsequently to a written contract, the latter being substituted for the former, parol evidence may of course be given of the latter contract. 12 East, 578. 1

M. & S. 21, but see 4 Bing. 459. So, if the second contract were also a contract in writing, the parties are bound by the terms of the second contract, and not by those of the first: as if there be an agreement in writing for the sale of a ship, and afterwards a bill of sale is executed, the bill of sale is the only contract which is deemed obligatory on the parties. 2 Stark. 105. So, if a contract have been reduced to writing, but not signed by the parties, parol evidence may be given of it. 3 B. & Ald, 326. 2 Adol. & E. 514, and see 2 Brod. & B. 99, and ante, p.

376. *So, where merely the fact of tenancy, and the value of the premises, were to be proved, the court held that these might be proved by parol evidence, although the party held under a written agreement; and that parol evidence of the fact that certain rent was paid, was receiva ble as proof of the annual value. 7 B. & C. 611. So parol evidence may be given of a partnership, although it be created by deed. 1 Stark, 405. As to the mode of objecting that parol evidence is not the best evidence of any particular fact, see ante, p. 377-379; and as to the cases in which parol evidence may be received as secondary evidence of a written instrument, where the written instrument is proved to have been burnt, destroyed or lost, or in the possession of the opposite party, see ante, p. 379-382.

To prove the defendant's admission of a debt due, the plaintiff produced a book containing a written entry signed by the defendant, but which, being couched in the terms of a promissory note, was rejected for want of a stamp: Held, that a verbal admission of the debt made by the defendant before, or contemporaneously with the entry, was properly received in evidence. Singleton v. Ballot, 2 Tyr. 409.

Secondly, As to the admissibility of parol evidence, to contradict, add to, vary or explain a written instrument; in the first place, it is a general rule that parol evidence is not admissible to contradict a record; 1. Ro. Abr. 757. See 15 East, 378; or to shew that any particular matter came in question under it, which does not appear upon the face of it. 1 Esp. 43. Parol evidence that a writ was sued out on a day different from that on which it bears teste, is indeed admissible, see 2 Bur. 950. Style, 156. 1 W. BI. 215. 312, and may perhaps be deemed an exception to this rule. If a fine be levied, and no uses declared, parol evidence may be admitted to rebut the presumption that the uses resulted to the conusor; 1 Doug. 24; which however is no contradiction of the record.

In an action upon a written agreement to procure for the plaintiff (an attorney)" the prosecutions for felony arising in the Town Clerk's Office:" Held, that letters written by the plaintiff previously to the contract, were not evidence to the defendant, to prove that the agreement was intended to include only the prosecutions at the sessions, and not those at the assizes. Hughes v. Statham, 4 B. & C. 187.

It is also a general rule, (and was so even before the Statute of Frauds,) that no parol evidence can be admitted to control what appears upon the face of a deed or will &c; not only to avoid the perjuries which the admission of such evidence might give rise to, but from a presumption that whatever the parties had in contemplation at the time was reduced to writing. 5 Co. 68 a, b. 8 Co. 155 a. Keilw. 49. Bac. Abr.