on oath but as we shall see hereafter, when we come to consider the rule that the best evidence must always be given, the rule applies to the quality, and not the quantity of evidence; and that a fact may often be proved by independent testimony, notwithstanding there may be two distinct ways of proving it. Thus the mere fact that there has been a written receipt given for money, will not preclude the proof of payment by oral witnesses who saw the payment; but this will become cleared hereafter. () Thus in the case of Middleton v. Melton,y) a private book, kept by a deceased collector of taxes, containing entries by him, acknowledging the receipt of sums in his character of collector, was also held to be admissible evidence in an action against his surety, although the parties who had paid him were alive and might have been called. So the verbal admissions of a party to the suit are evidence against him: even though his statement refers to the contents of a written instrument.

§ 187. The entries must be proved to be in the hand-writing of the party purporting to have made them or by his authority, before they can be received. Where the entry is thirty years old, it proves itself.

§ 188. Cases may be conceived in which a party may have made a fictitious entry charging himself apparently against his own interest. The instance brought forward by Best in § 483 is such.

"Cases may be put where his doing so would be an advantage to him. g. the accounts of the receiver or steward of an estate have through neglect or worse, got into a state of derangement, which it is desirable to conceal from his employer, and one very obvious way of setting the balance straight is by falsely charging himself with having received money from a particular person."

So in Mahomed Ghouse v. Budroodeen, heard on the 7th Feb. 1859, before Sir A. Bittleston in the late Supreme Court of Madras, where the defendant was indebted to the plaintiff on several accounts and had made payments, the question was, whether these payments had been appropriated by either party to particular accounts. The plaintiff produced two of the promissory notes, on one of which was endorsed two payments; on the other four. They were held fictitious.

§ 189. A case of frequent occurrence in this country is that of a party charging himself with receipt of interest by way of endorsement on a stale bond, in order to take it out of the Regulation of Limitations. (2) This entry is however only apparently against the interest of the party making it; since it enables him to bring his suit. In these cases

(x) See Taylor, § 305-6. (y) 10 B. and C. p. 317. (2) Reg. II of 1802, Sec. XVIII.

satisfactory evidence ought to be given, that the entry was made before the presumption of satisfaction had arisen and in accordance with this view, the language of Lord Ellenborough in Rose v. Bryant,(a) may be cited.

"I think you must that these endorsements were on the bond at, prove 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 endorsements were receiv

able 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 hand-writing 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."(b)

$ 190. The case of Searle v. Lord Barrington,(e) is also to be consulted. It will be found stated in Starkie, p. 478, note b.

"The bond was dated June 24, 1697; the endorsement of interest on the bond, under the hand of the obligee, was dated 1707, being three years before the death of the obliger; and the cause was first tried, Trin. 1724. Pratt, C. J., was of opinion that this endorsement was not evidence; but the three other Judges were of opinion that it ought to have been left to the jury, for they might have reason to believe that it was done with the privity of the obliger; because it was the constant practice for the obligee to endorse the payment of interest, and that for the sake of the obliger, who is safer by such an endorsement than by taking a loose receipt. Upon a second trial, Lord Raymond, C. J., admitted the evidence, and a bill of exceptions was tendered, and after judgment in the King's Bench for the plaintiff, a writ of error was brought in the Exchequer Chamber; and upon argument, five of the Judges were of opinion to affirm, and two to reverse, the judg. ment was afterwards affirmed in the House of Lords."(d)

Starkie's remarks, p. 478, may be usefully consulted He writes:"If this case is to be taken as an authority for the general position, that an endorsement of the receipt of interest on a bond bearing date within the space of twenty years from the date of the bond, shall in itself, and without any proof that it was actually made within that space of time, or with the privity of the obliger, be evidence to rebut the presumption of payment, it seems to be difficult to support it upon principle; for it amounts

(a) 2 Cam., p. 321. (b) See also Taylor, § 483-8. (c) 2 Strange, p. 826. (d) In the report of the case before the House of Lords, 3 Brown P. C., p. 593, it appears that there was extrinsic evidence of the date of the entry.

to this, that in this particular case the party shall have an opportunity of making evidence in his own closet, in order to rebut a presumption which would otherwise arise against him. If this be so, the case must be regarded as anomalous, and as an exception to the plain fundamental rule that a man shall not be permitted to make evidence for himself. If, on the other hand, this further limitation is to be applied to the reception of such evidence, that reasonable proof shall be adduced to show that the endorsement existed before the presumption of satisfaction had arisen, the doctrine seems to be more consonant with the principle above stated; a presumption arises that the obligee would not falsely and wantonly make an endorsement prejudicial to his own interest at the time from which he could derive no benefit. It seems to be clear, at all events, that such evidence would be inadmissible, if the endorsement appeared to have been made after the presumption had arisen.(e)

CHAPTER XV.

VI. ENTRIES MADE IN THE COURSE OF BUSINESS.

§ 191. The leading case on this topic is Price v. Lord Torrington,) selected by Mr. Smith in his Leading Cases, vol. 1, p. 139, 277, 5th Ed.

§ 192. The ground for admitting such evidence is the warrant of experience that it is usually free from suspicion of carelessness or fraud. Of course it is always open to show that there are errors or fraud, but if there be no reason for imputing one or the other, the entries are trustworthy.

"It is observable," writes Starkie,() "that the object of the rule is to guard not against fraud, but negligence and carelessness: the slightest suspicion of fraud would be sufficient at once to exclude such evidence; and the imposing of the limitation, that the entry, to be admissible, should be apparently against the interest of the party making it, would afford no security against fraud; the forger of a false entry would take care to obviate any objection of this description, by admitting payment or some other fact apparently against the interest of the supposed author of the

(e) It is a frequent custom in this country for a bond to provide that no payment of interest or principal shall be of effect unless endorsed on the back of the instrument. This is useful precaution; but it still leaves room for false entries by the obligee, in the event of the Regulation of Limitations having run, since it is the obligee generally who endorses payments as admissions against himself; it might be useful to provide that every payment should at the time of its being endorsed by the obligee be also initiated by the obliger.

66

Exemplo perniciosum est," said Gallienus, "ut ei scripturæ credatur quá unusquisque sibi debitorem constituit " Personne," says Domat (2, 153) ne peut s' acquerir un

droit ni se rendre creancier d'un autre par des actes q'uil puisse faire à sa volonte." (g) Page 465.

(f) 1 Salk., p. 285.

document. The consideration that the entry is against the interest of the party is therefore principally material, as it affords reason for supposing that a person would not be likely to commit any error or mistake which might afterwards turn to his prejudice. When, however, it is considered that in many instances such entries remain in the private custody of the parties who make them, it is not probable that the consideration that the document might be published by accident or mistake, and might, in some possible state of circumstances, be turned to the prejudice of the party, would cause him to exercise a decree of exactness and caution, so far beyond that which he would have used in the common course of professional or official duty, or ordinary habits of business, as to supply a sound and useful test, operating to the admission of the former, the rejection of the latter. In the absence of all suspicion of any motive to the contrary, it is fairly presumable that all entries made in the ordinary routine of business are truly made. The same motive which induced a party to use the pains and trouble of making an entry at all, would usually induce him to make a true entry; a false one would be of no value, and the making it would frequently be more troublesome than to make a true one; it would require the additional trouble of invention; and although the sparing of trouble might, in many instances, induce a party to state particulars without sufficient accuracy, it would seldom cause him to invent and state a transaction which never happened."(h)

§ 193. The entry, when made in the course of business should be contemporaneous, or nearly so with the fact it chronicles. In the case of Price v. Lord Torrington, the entry was made on the evening of the day on which the beer was delivered, and signed by the drayman. The necessity of the entry being what is called contemporaneous, we have already dwelt on and it is clear that if a man makes his entries after some distance of time from the principal fact, his memory is more likely to err as his recollection grows fainter and fainter.

§ 194. By Act II of 1855, Sec. XXXIX, before referred to, this

(h) See the grounds stated at large, Poole v. Dicas, 1 Bing. N. C. 653. Taylor § 489, writes thus:

"The considerations which have induced the Courts to recognize 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 favor of such entries may often prove convenient, if not necessary, for the due investigation of truth,"

(i)

See ante § 182.

description of evidence is now receivable in the same cases as entries against interest, even when the maker is not dead. By Act II of 1855, Sec. XL., such entries, so far as they relate to the limited purposes of identifying any "bank notes or other securities for the payment of money, or other property, and the prayer in, or receiver of them" are receivable, even though the maker of the entry is capable of being produced as a witness.

§ 125. It is necessary that the party making the entry should have had a personal knowledge of the fact to which it relates. Thus in Price v. Lord Torrington, the drayman, who delivered the beer, signed the entry.(4) But supposing you were to go into a shop and purchase an article on credit from the tender, who merely reported the fact of your purchase to a clerk in another room, who rendered the sale; such an entry would not be receivable, because the clerk would have no personal knowledge of the sale, but merely have made an entry of something told him by a third party (the tender), which so far as he (the clerk) knew, might be true or not true. So again: if a rough draft were made at the time of sale by a clerk whose duty it was to watch the sale and make the entry then and there, and such rough drafts were afterwards written up fair into a ledger by another clerk, the ledger entry, on the same principle, would not be receivable. We shall see hereafter, that such entry would not be receivable except under particular circumstances on another principle, viz., that it was a copy. But supposing those particular circumstances to exist in a particular case, and in the absence of better evidence, the ledger entry were admissible as a copy, the first named objection, viz., that it was made by a person who knew nothing of the fact, would be fatal to its admission.

§ 196. Illustrative of the above paragraph we may cite the case of Brain v. Preece.(m) There, coals were delivered by a coalman, whose duty it was to report deliveries to a foreman. It so happened that neither the coalman nor the foreman could write. The latter therefore dictated his entries to a clerk. When the case came on for trial, both coalman and foreman were dead. It was held that the entry was not receivable.

§ 197. So in Davis v. Lloyd) Jewish children are circumcised on the eighth day. An entry by the Rabbi of the Synagogue, whose

(k) It is not necessary that the declaration made in the course of duty should be in a written form. See the Sussex Peerage case and per Lord Campbell, Stapylton v. Clough 2 E. and B. 933. S. C. 18 Jur. 60. See ante, § 172, note (g) (1) See ante, § 178, note (k). (m) 11 M. and W., p. 377.

(n) 1 C. and K 275.