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458

HOW DATE OF INDORSEMENT PROVED.

or his representatives, it was scarcely possible for the maker to ascertain at what time any indorsement was written upon it.

§ 488. This view of the subject is much confirmed by the language of Lord Ellenborough in Rose v. Bryant (h), 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 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 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 appears 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 (i); the law raising no presumption either way, and the Courts not interfering with the decision at which the jury shall arrive.

(h) 2 Camp. 321.

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

DECLARATIONS IN COURSE OF BUSINESS, WHY ADMISSIBLE. 459

CHAPTER XII.

DECLARATIONS IN THE COURSE OF OFFICE OR BUSINESS.

§ 489. 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 (a).

§ 490. One of the earliest reported cases (b), illustrative of this subject, was an action of assumpsit for beer sold and delivered, the

(a) Poole v. Dicas, 1 Bing. N. C. 653, per Tindal, C. J.; 1 Ph. Ev. 319; 1 St. Ev. 348, 349.

(b) Price v. Torrington, 1 Salk. 285; 2 Lord Raym. 873; 1 Smith's Lead. Ca. 139, 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.

460

DECLARATIONS IN COURSE OF OFFICE OR BUSINESS.

plaintiff being a brewer. a brewer. In order to prove the delivery, it was first shown that, in the usual course of the plaintiff's business, the draymen came every night to the clerk of the brewhouse, and gave him an account of the beer delivered during the day, which he entered into a book kept for that purpose, to which the draymen set their hands. An entry in this book, which stated the delivery of the beer in question, and was signed by a drayman, whose signature and check were proved, was then put in, and Lord Holt held that it was sufficient evidence to maintain the action. So, where the question was whether a notice to quit had been served upon a tenant, the indorsement of service upon a copy of the notice, made by the attorney who served it, was held after his death to be admissible in proof of that fact; it being shown to be the ordinary course of business in his office to preserve copies of such notices, and to indorse the service thereon (c). So, also, the books of the messenger of a bank, and of the clerk of a notary, have been held admissible to prove the dishonour of a bill of exchange by the acceptor, and notice to the indorser, upon proof that the entries were made in the usual routine of business (d); and, upon like proof, the letter-book of a merchant plaintiff, in which a deceased clerk had inserted what purported to be the copy of a letter to the defendant, and had further made a memorandum stating that he had sent the original letter, has been admitted as evidence of the fact of sending, as also of the contents of the letter, the defendant having been served with notice to produce the original (e).

§ 491. Though the cases cited above have established beyond dispute the existence of the exception we are now discussing, several of the judges have, of late years, evinced great disinclination to extend its principle beyond the limits strictly warranted by

(c) Doe v. Turford, 3 B. & Ad. 890; R. v. Cope, 7 C. & P. 726, 727, per Lord Denman.

(d) Sutton v. Gregory, Pea. Add. R. 150, per Lord Kenyon; Poole v. Dicas, 1 Bing. N. C. 649; 1 Scott, 600; 7 C. & P. 79, S. C.; Nichols v. Webb, 8 Wheat. 326; Welch v. Barrett, 15 Mass. R. 380; Halliday v. Martinett, 20 Johns. 168; Butler v. Wright, 2 Wend. 369; Hart v. Williams, id. 513; Nichols v. Goldsmith, 7 Wend. 160.

(e) Pritt v. Fairclough, 3 Camp. 305; Hagedorn v. Reid, id. 379. See also Champneys v. Peck, 1 Stark. R. 404.

DISINCLINATION TO EXTEND THIS RULE.

461

In

antecedent decisions. Thus, in an action for the price of coals, which had been sold at the pit's mouth, an entry was rejected, which appeared to have been made in the following manner. the ordinary course of business, it was the duty of one of the workmen at the pit, named Harvey, to give notice to the foreman of the coal sold; and the foreman, who was not present when the coal was delivered, and who was unable to write, used to employ a man named Baldwin to make entries in the books from his dictation. Baldwin read over these entries every evening to the foreman. At the time of the trial, Harvey and the foreman were dead, and Baldwin was called to produce this book, with the view of proving thereby the delivery of the coal in question; but the Court held that it was inadmissible (f). The ground of this decision appears to have been, that, although the entries, being made under the foreman's direction, might be regarded as made by him, yet, inasmuch as he had no personal knowledge of the facts stated in them, but derived his information at second-hand from the workman, there was not the same guarantee for the truth of the entries as might be found in Price v. Torrington, Doe v. Turford, and Poole v. Dicas; in all of which cases the party making the entry had himself done the business, a memorandum of which he had inserted in his book. It seems more difficult to reconcile the case of Davis v. Lloyd (g) with sound principle, or with previous decisions. There, in order to show that a Jew was of age, it was proved that Jewish children were circumcised on the eighth day from their birth, and that it was the duty of the chief rabbi to perform this rite, and to make an entry thereof in a book kept at the synagogue. Upon proof that the rabbi was dead, this book was tendered in evidence; but Lord Denman, after consulting Mr. Justice Patteson, rejected it, though it does not appear on what grounds. In another case (h) it became necessary to show that a contract of service had been for less than a year; and, in order to do this, proof was given that the employer, who was dead, had in the course of his business been in the habit of hiring farm servants, and that his practice, when he did so, was to enter the time and terms of such hiring in a book kept by him for that purpose. This book, which contained entries of the service

(f) Brain v. Preece, 11 M. & W. 773. (h) R. v. Worth, 4 Q. B. 132.

(9) 1 C. & Kir. 275.

462 ENTRIES MUST BE CONTEMPORANEOUS WITH ACTS NARRATED.

in question, and showed that the servant had been engaged for half a year only, was tendered in evidence; but the Court held that it was inadmissible, on the ground that, although it might be the practice of the master to make such entries, it was not his duty to do so.

§ 492. In many respects the rules which regulate the reception of the species of evidence under discussion, are the same as those which prevail with respect to declarations against interest. For instance, the death (i), the handwriting, and the official character, of the person who made the entry must be proved; and it should further appear that he had no motive to mis-state. In some particulars, however, there is a marked distinction between the two classes of cases.

§ 493. First, in order to render admissible entries made in the course of office or business, they must, unlike declarations against interest, be proved to have been made contemporaneously with the acts which they relate. This distinction was expressly pointed out by Mr. Baron Parke in Doe v. Turford. "It is to be observed," said the learned judge, "that in the case of an entry against interest, proof of the handwriting of the party, and his death, is enough to authorise its reception; at whatever time it was made it is admissible; but in the other case [of an entry made in the course of business], it is essential to prove that it was made at the time it purports to bear date: it must be a contemporaneous entry" (k). In using the word "contemporaneous," it is not meant that the entry must have been made at the immediate time of the occurrence; but it will be sufficient if made within so short a time after, as reasonably to be considered part of the transaction. Thus, if the business be done in the morning, and the entry be made in the evening of the same day (1), or perhaps even on the following morning (m), it will be sufficient; though, where several inter

(i) See Cooper v. Marsden, 1 Esp. 1, per Lord Kenyon. See ante, § 465. (k) 3 B. & Ad. 897, 898, cited and approved by Park, J., in Poole v. Dicas, 1 Bing. N. C. 654, 655.

(1) Price v. Torrington, 1 Salk. 285; Ray v. Jones, 2 Gale, 220; Curren v. Crawford, 4 Serg. & R. 3, 5. (m) Ingraham v. Bockins, 9 Serg. & R. 285.

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