Exeter, were admitted as evidence for them against a claim of modus. Short v. Lee, 2 J. & W. 478. But the reception of this evidence has given rise to much observation, and is to be regarded as an exception to general rules. See the cases cited, 1 Phil. Evid. 247. (n).

Declarations of witnesses at a former trial.] Where a witness was examined in a former action on the same point between the same parties, his testimony may be proved, if he is since dead; B. N. P. 242. ; or if he appears to be kept away by contrivance. Green v. Gatewick, ib. 243. It seems to be enough if the parties to the two actions are substantially, though not nominally, the same; as where the lessor of plaintiff in the second, was joined with other lessors in the former action. Wright v. Doe d. Tatham, 1 A. & E. 18, 19. So if the parties and the title in issue are the same, the evidence is admissible, though the land sought to be recovered is different. Doe d. Foster v. Derby, 1 A. & E. 791. (note). But where the parties are neither the same, nor in privity with each other, such testimony is not admissible, though the original title, and one of the parties, may be the same. S. C. ibid. 783.

The former testimony must be proved either by the judge's notes, or by the evidence of a person who can repeat the words of the witness. Ennis v. Donisthorne, 1 Phill. Ev. Part 1. ch. 7. § 7. Mayor of Doncaster v. Day, 3 Taunt. 262. Crease v. Barrett, 1 Tyr. & Gr. 112. See post," Proof of Depositions."_

Hearsay of persons speaking against their own interest admissible.] In a variety of cases the declarations of deceased persons, made against their own interest, have been admitted. See the cases collected, Barker v. Ray, 2 Russell's Rep. 67. (n). And they are said to be admissible as evidence of all the facts there stated, though some of them may not have been within the party's own knowledge; for the whole declaration must be taken together. Crease v. Barrett, 1 C. M. & R. 919. One of the leading cases is that of Higham v. Ridgway, 10 East, 109., where the time of a child's birth was proved by production of the book of the deceased man-midwife referring to his ledger, in which ledger his charge for attendance was marked as paid. See also Gleadow v. Atkin, 1 C. & M. 424., by which it appears that such an entry would be admissible, though the party, if living, could not have been examined. Accord. Short v. Lee, 2 J. & W. 489. Entries by a deceased steward of money received by him from different persons in satisfaction of trespasses committed on the waste, and thereby charging himself to the amount received, are admissible to prove that the right to the soil of the waste was in his master. Barry v. Bebbington, 4 T. R. 514. And if the entries be ancient, and the document comes from the proper custody, the handwriting need not be proved. Wynne v. Tyrwhitt, 4 B. & A. 376. So a bill of lading signed by a deceased master of a vessel for goods deliverable to a consignee, is evidence of property in the consignee, even in trover for the goods against a third person. Per Lawrence J., Haddow v. Parry, 3 Taunt. 305. Receipts of rent by a steward, specifying the tenure of the land in respect of which it is paid, are evidence of the tenure. Doe d. Harpur v. Dodd, 3 Wooddeson Comm. 332. In an action against a co-surety for contribution, a receipt given by the deceased creditor, professing to acknowledge a payment by the

plaintiff of a sum of money," originally advanced to E. H.," is evidence, not only of the payment, but also of the original advance to E. H. as principal. Davies v. Humphreys, 6 M. & W. 153.

A declaration by a deceased occupier of land that he rents it under a certain person, is evidence of that person's seisin; Uncle v. Watson, 4 Taunt. 16.; even in a writ of right, to prove the seisin by taking esplees. Carne v. Nicoll, 1 New Ca. 430. The principle is, that, occupation being presumptive evidence of a seisin in fee, any declaration, claiming a less estate, is against the party's interest. Crease v. Barrett, 1 C. M. & R. 931. A deed by a deceased party, shown to be in the receipt of the rents and profits, in which S. is stated to be the legal owner in fee, is evidence of such ownership for a party claiming under S. Doe v. Coulthred, 7 A. & E. 235. So a written attornment to L. by a tenant in possession, is evidence of L.'s seisin. Doe v. Edwards, 5 A. & E. 95.

Entries made by a deceased collector of rates, charging himself with the receipt of money, and made by him in the public books of his office, are admissible against his surety to prove the receipt. Goss v. Watlington, 3 B. & B. Ĭ32. And the same has been held with regard to the entries of a clerk. Whitnash v. George, 8 B. & C. 556. So entries in the land-tax collector's book, stating A. B. to be rated for a particular house, and his payment of the sum rated, are evidence to show that A. B. was occupier of the premises at the time. Doe v. Cartwright, R. & M. 62. See also Doe v. Seaton, 2 A.& E. 171. So entries made by a deceased collector of taxes in a private book, charging himself with the receipt of money, are evidence against a surety of the receipt of the money, though the parties who paid it are alive and might be called. Middleton v. Melton, 10 B. & C. 317. It seems, that the entries of receipts by a deceased accountant are admissible, though the balance may be in his own favour; per Patteson J., Williams v. Geaves, 8 C. & P. 593. ; and ancient ministers' accounts, rendered to the lord of a manor, and debiting themselves with the issues and profits of the manor, are admissible evidence in favour of a successor, though the roll contains a quietus at the end of it; per Lord Denman C. J. in Brune v. Thomson, London sittings after M. T. 1841, and Erskine J. S. C. Bodmin Sp. Ass. 1842. But if the party who made the entry be alive, though out of the jurisdiction of the court so that he cannot be called, the proof of the entry is inadmissible. Stephen v. Gwenap, 1 M. & Rob. 121. Where plaintiff shewed payment of rent to A. B. in order to prove a tenancy under him, and not under defendant, defendant was not allowed to rebut the evidence by producing written accounts, rendered by A. B. to him, of these very rents; A. B. being alive, and not called. Spargo v. Brown, 9 B. & C. 935.

On the subject of the doctrine in Higham v. Ridgway (antè, p. 34.), it was observed by Littledale J., in Doe v. Vowles, 1 M. & Rob. 261., that "the cases had gone far enough," and where it was attempted to prove the possession of a house at a certain time by producing a deceased tradesman's bill for repairs with his receipt on it, found among the papers of the party charged, and there was no other proof that the work was done, Littledale J., rejected it. In Fursdon v. Clogg, Excheq. M. T. 1841, the point was argued whether the oral declaration of a deceased collector, made when paying over money to his

landlord's steward, that he received it from A. B., is evidence of a payment by A. B.? The point was considered as unsettled, and no judgment has yet (E. T. 1842), been delivered.

The declarations of persons who, at the time of making them, stood in the same situation and interest as the party to the suit, are evidence against that party; thus the declaration of a former owner of plaintiff's land, that he had not the right claimed by plaintiff in respect of it, is admissible. Woolway v. Rowe, 1 A. & E. 114. They are admissible though the maker is alive, and not produced, S. C. So the landlord's description of property in a former lease is evidence against a subsequent lessee, but not against a prior lessee. Crease v. Barrett, 1 C. M. & R. 919. And a declaration in an answer in Chancery by one who has sold property, is not evidence against a person claiming under him by a conveyance long anterior to the bill filed. Gully v. Bishop of Exeter, 5 Bing. 171. The declarations of tenants are not evidence against reversioners, though their acts are. Per Patteson J., Tickle v. Brown, 4 A. & E. 378.

Declarations of parties, identified in interest with those against whom they are offered, are in the nature of admissions, and as such belong rather to the next head of evidence.

Hearsay of persons making entries, &c. in the regular discharge of their duty.] Where an entry or declaration is made by a disinterested person in the course of discharging a professional or official duty, it is, in general, admissible after the death of the party making it. Thus a notice, indorsed or served by a deceased clerk in an attorney's office whose duty it was to serve notices, is evidence of service. Doe v. Tur ford, 3 B. & Ad. 890. An attorney's bill with an indorsement upon it, "March 4. 1815, delivered a copy to C. D.," which is proved to be in the handwriting of a deceased clerk, whose duty it was to deliver a copy of the bill, and proved to have existed at the time of the date, has been held to be evidence to prove the delivery of the bill. Champneys v. Peck, 1 Stark. 404. Best C. J., is said to have been of opinion, that a banker's ledger was receivable in evidence in an action between the assignees of a customer and a third party, to show that the customer at a certain time had no funds in the banker's hands, without calling the clerks. Furness v. Cope, 5 Bing. 114. An entry of dishonour of a bill, made by a notary's clerk in the usual course of business, is evidence of the fact of dishonour after the clerk's decease. Poole v. Dicas, 1 New Ca. 649. In Marks v. Lahee, 3 New Ca. 408., an entry by the plaintiff's attorney's clerk in a day-book, stating a tender and refusal by the defendant, was held evidence of a replication to that effect; but there was a previous entry of a receipt by him of the money for the purpose of such tender. Upon the same principle, contemporaneous entries by a deceased shopman, or servant, in his master's books in the ordinary course of business, stating the delivery of goods, are evidence for his master of such delivery. Price v. Lord Torrington, 1 Salk. 285. Pritt v. Fairclough, 3 Camp. 305.; and cases cited by Parke J., Doe v. Turford, 3 B. & Ad. 898. În order to render such entries evidence, it must appear that the shopman is dead; that he is abroad and not likely to return is not sufficient. Cooper v. Marsden, 1 Esp. 1.

By stat. 7 Jac. 1. c. 12., the shop book of a tradesman shall not be

evidence in any action for wares delivered, or work done, above one year before the bringing of the action, except the tradesman or his executor shall have obtained a bill of debt or obligation of the debtor for his said debt, or shall have brought against him some action within a year next after the delivery of the wares, or the work done. By sect. 2. the act is not to extend to traffic or dealing between merchant and merchant, merchant and tradesman, or tradesman and tradesman, for any thing within the compass of their mutual trades and merchandize. But though an entry made in the course of office, reporting facts necessary to the performance of a duty, may be admissible; yet the statement in it of other extraneous circumstances, however naturally they may find a place in the narrative, is no proof of those circumstances. Thus a return by a sheriff's officer of an arrest at a specified place is not evidence as to the place of arrest. Bernasconi, C. M. & R. 368.

As to entries in public books, registers, &c., see post, Evidence."

Chambers v.

Effect of

ADMISSIONS.

The express admissions of a party to the suit, or admissions implied from his conduct, are evidence against him; but he is at liberty to prove that such admissions were mistaken or untrue, except in cases of estoppel. Per Bayley J., Heane v. Rogers, 9 B. & C. 586.

Admissions, made with a view to a compromise and in order “to buy peace," are not evidence against the maker. B. N. P. 236. But an acknowledgment of a party's handwriting, though made pending a treaty of compromise, is evidence against him. Waldridge v. Kennison, 1 Esp. 143. So, an admission of facts before arbitrators. Gregory v. Howard, 3 Esp. 113. An offer of a specific sum by way of compromise is evidence, unless accompanied with a caution that the offer is confidential or without prejudice. Wallace v. Small, M. & M. 446.

It is no objection to the proof of an admission that it was made under compulsive process: thus an answer to a bill in Chancery, filed against the defendant by a stranger, may be read against him to show the admission of a particular fact. Grant v. Jackson, Peake, 203. The examination of a party before commissioners of bankrupt is evidence against him; Robson v. Alexander, 1 M. & P. 448.; though part only of his deposition was noted down. Milward v. Forbes, 4 Esp. 172. So, testimony given in court may be used in an action against the witness, though he was prevented from entering into an explanation of the cir cumstances under which the fact took place, it being irrelevant. Collett v. Lord Keith, 4 Esp. 212. So, though the compulsory power was illegally exercised. Stockfleth v. De Tastet, 4 Camp. 10. So, on process to compel attendance before the House of Commons. Merceron, 2 Stark. 366. But such compulsive admission is no evidence of an account stated. Tucker v. Barrow, 7 B. & C. 623. An acknowledgment by a defendant, that his trade is a nuisance, is admissible, though not conclusive, evidence against him on an indictment for carrying on the same trade in another place. R. v. Neville, Peake, 91. If A., having title to premises in the possession of B., suffer B., to make alterations inconsistent with such title, it is evidence to go to the jury that A. has recognised the right of B. and has done such acts as are neces

R. v.

sary to confirm it. Doe v. Pye, 1 Esp. 364. So where, upon a building lease of fifty-nine feet, more or less, the lessee took sixty-two feet and a half, but the ground taken agreed with the abuttals in the lease, and the lessor marked out the ground and saw the progress of the defendant's building without objection, this is evidence of an acquiescence in the lessee's title. Neale v. Parkin, 1 Esp. 229. And in an action for debt, evidence that the plaintiff has taken the benefit of the Insolvent Debtors' Act, and not inserted the debt in question in his schedule, is an admission, as against him, of its not being due. Nicholls v. Downes, 1 M. & Rob. 13. Letters written by a party are evidence against him, without producing those to which such letters are answers. Lord Barrymore v. Taylor, 1 Esp. 326. But such letters are not evidence in favour of the writer, except in proof of a notice, or a demand. Richards v. Frankum, 9 C. & P. 221.

Though the contents of a written instrument cannot, in general, be proved without production of it (see antè, p. 1.); yet what a party to the record says, is primary against himself as an admission, though it relates to the contents of a written paper or deed, and though the contents be directly in issue in the cause. Slatterie v. Pooley, 6 M. & W. 664. See Fox v. Waters, 12 A. & E. 43. So a parol admission of a debt is evidence on an account stated, though it refers to a written instrument not produced. Newhall v. Holt, 6 M. & W. 662. A defendant in ejectment may prove an admission of the lessor of the plaintiff that he had sold and assigned his lease to a third person, though such assignment must be in writing. Doe v. Watson, 2 Stark. 230. A notice signed by partners, stating that the partnership "has been dissolved," is evidence against them of the dissolution, though the partnership was by deed. Doe v. Miles, 1 Stark. 181. S. C. 4 Camp. 373. But an admission, in an answer in Chancery of the execution of a deed, is only secondary evidence, and does not supersede the necessity of proving it in the regular way. Call v. Dunning, 4 East, 53. Cunliffe v. Sefton, 2 East, 187, 188. But see Bowles v. Langworthy, 5 T. R. 366., and Slatterie v. Pooley, suprà. So with regard to matters of record and judicial proceedings, as the insol vency and discharge of the plaintiff. Scott v. Clare, 3 Camp. 236. But this objection does not apply where the party enters into a formal admission with a view to a trial of the cause; and it seems doubtful, from the above case of Slatterie v. Pooley and from the cases respecting admissions of the title of the assignees of bankrupts, cited post, p. 40., whether Scott v. Clare is to be considered as law.

Admissions may sometimes be presumed from the silence or,conduct of a party when certain statements are made: on this ground it is that the statements of any one in the presence and hearing of the party against whom they are offered are evidence. But the deposition of a witness, taken in a judicial proceeding against a party, is not evidence in another proceeding against that party merely on the ground that he was present, and did not cross-examine the witness; Melen v. Andrews, M. & M. 336.; for the nature of a judicial proceeding prevents a party from interposing to contradict or comment on the statement of a witness, as he would in common conversation. Accord. per Alderson, B., in Short v. Stoy, Winton Sum. Ass. 1836.

Where the plaintiff sued as administrator, during the absence of the executor abroad (under 38 G. 3. c. 87.), Lord Denman C. J.,