4

cannot be supported by any of the reasons whereon the admissibility of rectors' books is made to rest,' and which, so far as regards parol instruments, has been expressly reprobated by the Legislature.' It is therefore not unreasonable to contend that the Courts should require strict proof of the time when the indorsements were really made, before they consent to admit them in evidence. In ordinary cases, the law may safely presume that a document was written at the time it bears date; but an exception to this rule prevails, where a note signed by a bankrupt is put in by his assignees to support the petitioning creditor's debt. Now, why is this excep tion allowed? Clearly, because it is so much to the interest of the petitioning creditor to support the fiat, that he might collusively induce the bankrupt to ante-date the instrument, by means of which his debt is to be established. Then, does not this reason. ing apply equally to the indorsements under discussion, which, if really made within twenty years from the date of the bond, are received, because, being in such case entries against the interest of the obligee, they are presumed to be true; but, if made beyond the twenty years, are rejected, because, after the lapse of that time, it would be so obviously to the advantage of the obligee to revive, by their means, the remedy barred by the statute, that the law presumes they are false? But surely it is as easy to fabricate a date, as to fabricate an indorsement, of which the date forms part, and it seems a strange mode of checking such fraudulent practices to say to an obligee, "Your remedy on the bond is barred by the statute, and therefore if you now indorse upon it any admission that you have received some interest from the obligor, no credit, after your death, will be given to such admis sion; but carry on your deceit one step further, and add to your indorsement a date, which will give it the semblance of having been made while your remedy was unimpaired, and then, at your death, your representatives may recover against the obligor."

§ 627. The authorities on this subject lay down no decisive rule. In the case of Searle v. Lord Barrington, extrinsic evidence was

1

Ante, § 621.

3

29 Geo. 4, c. 14, § 3.

Ante, § 137. See also another exception noticed ante, §§ 137, 520.

See Potez v. Glossop, 2 Ex. R. 194, 195, per Parke, B.

6

given of the time when the indorsements were made,' though that fact is only mentioned loosely by Mr. Brown,' and is not noticed at all by the other reporters. In Bosworth v. Cotchett' it seems, indeed, to have been unsuccessfully contended before the House of Lords, that unless evidence were given, independent of the note, to show when the indorsements were made, they could not be received; but as that case is not reported, and is noticed so shortly by our text writers that the grounds of the decision cannot be ascertained, it will scarcely be considered as a binding authority. In Sanders v. Meredith, in addition to an indorsement signed by the obligee, a witness was called, who proved actual payment of the interest.' The case of Gleadow v. Atkin throws but little light upon the subject. There the payment of interest by the obligor to a stranger was proved; and in order to show that this payment had been made on account of the bond, the executors of the obligee relied on an indorsement in his handwriting, whereby he acknowledged that the principal sum due on the bond was trust-money, to which the stranger was entitled. This indorsement bore the same date as the bond itself, and was countersigned by the attesting witness of the bond. The Court held that it was admissible in evidence, and rightly so; because, in the first place, many circumstances concurred to show that the indorsement was written on or about the day of the date, and next, it signified little when it was written, as it was equally against the interest of the obligee at all times."

§ 628. The only modern case which directly supports the

1 Per Bayley, B., in Gleadow v. Atkin, 1 Cr. & M. 421, 424, stating the result of his own researches.

23 Brown, P. C. 594, where the reporter says that "other circumstantial evidence" was given to prove that the bond had not been satisfied.

3 2 Str. 826; 8 Mod. 278; 2 Lord Raym. 1370.

4 Judgment in Dom. Proc. 6th May, 1824.

Per Vaughan, B., in Gleadow v. Atkin, 1 Cr. & M. 428.

was of counsel in Bosworth v. Cotchett.

His lordship

6 1 Ph. Ev. 333; 3 St. Ev. 824. In this last work the case is cited as

Parr v. Cotchett.

3 M. & Ry. 116.

1 Cr. & M. 410.

"See per Bayley, B., 1 Cr. & M. 417.

presumption in question is that of Smith v. Battens.

There the

point was, whether an indorsement of interest on a promissory note, which bore date before the 1st of January, 1829, when Lord Tenterden's Act came into operation, could be admitted in evidence for the purpose of taking the case out of the statute, without some extrinsic proof of the time when it was actually written; and Mr. Justice Taunton, apparently on the authority of Bosworth v. Cotchett, received it, observing that, "in the absence of all evidence to the contrary, he should assume that it was written at the time it bore date." Now, although this case was subsequently cited with approbation by the Court of Common Pleas, and by Lord Justice Turner, on a more recent occasion," as supporting the general doctrine that documents are presumed to have been written at the time they bear date, it may be doubted whether, with respect to the particular question before the Court, the case be law. To throw on the defendant the burthen of proving negatively that the indorsement was not written on the day of the date, was in fact to shut the door upon all inquiry into the matter; because, as the note continued in the hands of the payee or his representatives, it was scarcely possible for the maker to ascertain at what time any indorsement was written upon it.

§ 629. This view of the subject is much confirmed by the language of Lord Ellenborough in Rose v. Bryant,' where the administrator of an obligee of a bond, for the purpose of meeting certain direct evidence of payment in the year 1794, proposed to read an indorsement, which appeared to have been made on the bond in the following year, and which acknowledged the receipt of interest and of part of the principal. In refusing to admit this evidence, his lordship said, "I think you must prove that these indorsements were on the bond at or recently after the times when they bear date, before you are entitled to read them. Although it may seem at first sight against the interest of the obligee to admit part payment, he may thereby in many cases set up the bond for the residue of the sum secured. If such

1 1 M. & Rob. 341.

2 Cited in the Report as Parr v. Crotchett. 3 In Anderson v. Weston, 6 Bing. N. C. 302, 303. 4 Briggs v. Wilson, 5 De Gex, M. & Gord. 20.

52 Camp. 321.

indorsements were receivable whensoever they may have been written, this would be allowing the obligee to manufacture evidence for himself to contradict the fact of payment. I have been at a loss to see the principle on which these receipts, in the handwriting of the creditor, have sometimes been admitted as evidence against the debtor; and I am of opinion they cannot be properly admitted, unless they are proved to have been written at a time when the effect of them was clearly in contradiction to the writer's interest." Perhaps the safest rule that can be laid down on this subject is, that if the indorsement appear by its date to have been written within the twenty years, the question may be left to the jury, under all the circumstances of the case, whether it were really so written; the law raising no presumption either way.

See per Vaughan, B., in Gleadow v. Atkin, 1 Cr. & M. 426.

CHAPTER XII.

DECLARATIONS IN THE COURSE OF OFFICE OR BUSINESS.

§ 630. In many of the cases cited in the preceding chapter, the admissibility of the statements and entries tendered in evidence rested on the ground, not only of their being prejudicial to the pecuniary or proprietary interests of the parties making them, but of their having been made in the ordinary course of business or professional employment. The class of cases, therefore, which forms the FIFTH EXCEPTION to the rule rejecting hearsay evidence, consists of such declarations as fall within this last category. The considerations which have induced the Courts to recognise this exception appear to be principally these ;-that, in the absence of all suspicion of sinister motives, a fair presumption arises that entries made in the ordinary routine of business are correct, since, the process of invention implying trouble, it is easier to state what is true than what is false; that such entries. usually form a link in a chain of circumstances, which mutually corroborate each other; that false entries would be likely to bring clerks into disgrace with their employers; that as most entries made in the course of business are subject to the inspection of several persons, an error would be exposed to speedy discovery; and that, as the facts to which they relate are generally known but to few persons, a relaxation of the strict rules of evidence in favour of such entries may often prove convenient, if not necessary, for the due investigation of truth.'

§ 631. One of the earliest cases,' illustrative of this subject, was an action for beer sold and delivered, the plaintiff being a

1 Poole v. Dicas, 1 Bing. N. C. 653, per Tindal, C. J.; 1 Ph. Ev. 319; 1 St. Ev. 348, 349. 2 Gr. Ev., § 116, in part.

3 Price v. Torrington, 1 Salk. 285; 2 Lord Raym. 873; 1 Smith's Lead. Ca. 139; id. 235, 4th ed, S. C. ; Pitman v. Maddox, 2 Salk. 690; 2 Lord Raym. 732, S. C.; Rowcroft v. Basset, Pea. Add. R. 199, 200, per Le Blanc, J.