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Upon the same principle, in a late case, in an action of ejectment by the first tenant in tail under a settlement (by which an estate was limited to A for life, remainder to B for life, remainder to C his eldest son for life, remainder to C's eldest son in tail, &c., with a power to the tenants for life to grant leases on condition of reserving the ancient rent) against the defendant who claimed as lessee of C, to recover a part of the estate, which, as the lessor of the plaintiff complained, had been demised for less than the ancient rent, the Court of King's Bench held, that a letter, addressed to B, by one intimately acquainted with the property, purporting to be a particular account of the ancient rents at that time, and recognized as such by B, and preserved by the successive owners of the estate, ought to have been received at the trial, as evidence of the ancient reserved rent against C, (a succeeding tenant for life, subject to the restrictions of the same power,) and also against the defendant claiming under C. This old paper, so accredited and adopted, was considered to be equivalent to a declaration by B himself. Lord EUenborough, in delivering the judgment of the Court, said, " The contents of the paper were adverse to the title of the person who had possession of it, by diminishing the interest in the fine on renewal, in the same proportion as it raised the rent to be reserved. Then at such a distance of time, with the means of knowledge which he had of the fact, and his interest in declaring it the other way, we think that his declaration is evidence of the fact to go to the jury." (1)
So, where the question was, whether some horses, which had been taken by the defendant under a heriot custom, belonged to the plaintiff or to one A. B, a deceased tenant of the defendant, declarations by A. B were offered
(1) Roed.Bnmev.Rawlings, 7East, 14 East, 3*8; Doe d. Reece v. Rob179,190. See also the following cases, ion, 15 East, 33; Price v. ] .ittlewood, in which declarations of deceased per- 3 Campb. 188. Searle v. Ld. Barringions, against their interest, were re- ton,fuj>'a, p. Ii5. And as to decbraceived in evidence ; Baggalley v. Jones, tions by persons jointly interested, see I Campb. 367; Morewood v. Wood, fufra, p. 71.
in evidence, for the purpose of proving that the horses belonged to the plaintiff before A. B's death, in which declarations A. B stated that he had given up his farm and all his stock to the plaintiff. This evidence was rejected at the trial; but the Court of Common Pleas, on a motion for a new trial, held that the declarations ought to have been admitted, since they were against the interest of the person who made them, and might have been given in evidence against him in his life-time, if the plaintiff had brought an action for the horses. (1)
Upon the same principle, a paper signed by many deceased copyholders of a manor, importing what was the general right of common in each copyholder, and agreeing to restrict it, is evidence of reputation even against other copyholders not claiming under those who signed it (2). So, a declaration by the owner or occupier of adjoining land, that his neighbour's land extends to such a spot, accompanying an act of forbearance to go beyond the spot for that reason, (or without such act, if he speaks against his interest,) is evidence that the land extends so far (3). So, the declaration of a deceased occupier of land, that he rented it under a certain person, is evidence of that person's seisin (4). Such admissions or declarations against interest appear to be evidence upon the same principle, as the acts of a party against his interest; they differ in degree and in their effect, rather than in their nature. An act of forbearance on one side is an admission of right on the other; and proof of the exercise of a right, which has been acquiesced in, is still stronger evidence that the right exists. It is the constant practice to receive such evidence on questions concerning tolls, rights of way, freehold in wastes, and other cases of the same kind. (5)
(1) Ivatv. Finch, 1 T«um. Rep. 141- (4) Uncle T. W1tson, 4 Ttunt. 16. (a) Chtpman v. Cowlan, i.^Eatt, 10. 'to tuprd, y. 182. Doe dem. Baggalley (3) Sir T. Stanley v. White, 14 F.«st, v. Jones, I Campb. 367. 33ii 339.34i- (5) 1 Str. 659. 14 East, 341.
1 Campb. 310.
The memorandum or entry, before it can be received in evidence, must be proved to be authentic; as, by shewing it to be the hand-writing of the deceased person, who knew the fact there stated, or that it was signed by him (1): or, (if signed by another,) that it was made by his order, or afterwards acknowledged by him. And as to the question, whether a book produced was a receiver's book, that may be determined by internal evidence, on an inspection by the Court . (2)
In all the cases which have been mentioned on this subject, the person, who had made the entry or declaration in question, was deceased at the time of the trial: if the rule were not confined to such cases, there would be great danger of collusion. It has, therefore, been held, that such evidence is not admissible where the person is incapable of attending from illness. (3)
Entries in the books of a tradesman by his deceased TraJnshopman, who therein supplies proof of a charge against" himself, have been admitted on the same principle to be evidence of the delivery of goods, or of other matter there stated within his own knowledge. Thus, in an action of assumpsit, the usual course of the plaintiff's dealings appeared to be, that the draymen of the plaintiff, who was a brewer, should come every night to the clerk of the brewhouse, and give him an account of the beer delivered out by them, which hu set down in a book kept for the purpose, and the draymen signed it; the drayman, who signed the particular entry offered in evidence, had since died, but his hand-writing was proved; and this entry was held to be good evidence of the delivery of the beer, for which the action was brought (4). This declaration of the
(I) 4T.R. 515, 516. Jonea v. (4) Price v. Ld. Torringtoo, I Salk.
Waller, 3 Gwill. 847. Yate v. Leigh, a85; a Ld. Ray. 873, S. C. And aee
3 Gwill. 861. Pitman v. Madox, a Salk. 690; Calvert
(a) Doe d. Webber v. Lord G. V. Archbiahop of Canterbury, a Esp. N.
Thynne, ioEatt.ioO. 4T.R.516. P.C.645; Philipson v. Chase, a Campb.
(3) Harmon v. Blades, 3 Campb. 110; Hagedoru v. Reid, 3 Campb.
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book. tradesman's servant, of having delivered the goods, is also an admission, that he received them for that purpose, and would have been evidence against him, in an action for not delivering them according to his instructions. But it is clearly distinguishable from entries in the book of a receiver, who by making a gratuitous charge against himself, knowingly against his own interest, and without any equivalent, repels every supposition of fraud. A disposition to commit fraud would have tempted him to suppress altogether the fact of his having received any thing, or to misrepresent the amount of the sum, but not to mis-state the ground or consideration for which it was received; that is, not to mis-state the only fact sought to be established by the proposed evidence. On the other hand, the declaration of the tradesman's servant is offered in evidence to prove the fact of delivery, and as he gives the account not against his own interest, (which is some security for the truth of the statement in the other case,) the probability of his account being true or false is neither greater nor less than the probability of his being honest or dishonest, which is nothing more than may be said in every case of hearsay. The circumstance of his thereby acknowledging the receipt of goods, which, it may be said, would be evidence in an action against him, seems to amount to little or nothing. It was the least he could say: to have said nothing at all, would, as he must have known, necessarily lead to some inquiry. These considerations may serve to shew how cautiously such declarations by shopmen are to be admitted in evidence, to charge third persons with the receipt of goods; more particularly, as the tradesman may easily be furnished with evidence of delivery, by taking a memorandum from the purchaser, or by requiring some other security.
In the case of Evans and Lake (1), a merchant's books were received in evidence under particular circumstances. The question there was, whether certain goods, which had been bought in the name of Mr. Lake, were purchased on
(1) Bull. N. P. 182, J83; and see Cooper v. jMar■ii«n, 1 Eip. N. P. C 1.
lus his own account, or in trust for Sir Stephen Evans. To prove the latter of these positions, the assignees of Sir Stephen Evans, who were the plaintiffs, first shewed, that there was no entry in the books of Mr. Lake relating to this transaction; they then produced several receipts in the possession of Sir S. Evans for the payment of part of the goods, and on the back of the receipts there was a reference in the hand-writing of Sir Stephen's bookkeeper, since deceased, to a certain shop-book of Sir Stephen. Upon this, the question was, whether the book so referred to, in which was an entry for the payment of money for the whole of the goods, should be read. And the Court of King's Bench on a trial at bar admitted the entry, not only as to the part mentioned in the receipts, but also as to the remainder of the goods then in the hands of Mr. Lake's son. In this case, (which Ld. Hardwicke(1) has observed upon, as "new and having gone a great way,") the entry was not offered by the assignees, as evidence of payment against the seller of the goods, but as corroborating evidence to shew, that while the books of the other party concerned took no notice whatever of the goods, those of Sir S. Evans, under whom the plaintiffs claimed, treated the goods as bought on his account.
In another case, where the plaintiff, to prove delivery of wine to the defendant, produced a book belonging to his cooper since dead, whose name was subscribed to several articles, which it was proposed to read after proof of the hand-writing, Lord Raymond C. J. would not allow it, saying it differed from Lord Torrington's case (2) *«
(I) In Glyn v. Bk. of England, (a) Clerk v. Bedford, Bull. N. P. 1 Ves. 43. 382.
• See the Case of Cooper v. Marsden, 1 Esp. N. P.C. I., where, in order to pro e payment of a draft at a banker's, the banking-house book was offered in evidence, in which book there was an entry of the payment of the draft in question. Lord Kenyon ruled, that the entry could only be proved by the clerk who made it, if living; and that other proof wa« not admissible, though he might be abroad. According to the report of this case, no objection seems to have been taken against the admissibility of the entry itself, on the ground of its being found in a third person's book; nor does that point appear to have been noticed.
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