of an entry business and in 5. A declaration or entry made by a person strictly 5. In the case in the course of his trade or business, and in perform- made in the ance of his duty, and without any apparent interest on course of his part to misrepresent the truth, if contemporaneous discharge of with the fact, is evidence after his death against third a duty. persons (h). The entry or declaration must have been made both in the course of business and in discharge of duty (i). The leading case upon this principle is that of Price Price v. Earl v. Earl of Torrington (k). The plaintiff there was a of Torrington. brewer, and the action was for beer sold and delivered to the defendant. The evidence given to charge the defendant was that the plaintiff's drayman, who had since died, had in the usual course of his business and in discharge of his duty, made and signed a note of the fact of the delivery of the beer in a book kept for that purpose. It was held that this was good evidence and admissible. between this vious one. This class of cases is entirely distinct from that Distinction previously mentioned where the entry is admitted as class of cases against interest. Here the entry is not at all admitted and the preon that ground, but simply on the ground of duty or course of business; it must also be carefully noted that here, unlike that other class of cases, only so much of the entry is admitted as it was in the course of the person's ordinary duty to make, and no matter in the entry extraneous to this can be admitted (). In the case of an entry falling under this rule it is essential to prove that it was made at the time it purports to bear date, for it must be a contemporaneous entry (m). (h) Powell's Evidence, 206, et seq. (i) Massey v. Allen, L. R. 13 Ch. D. 558; 49 L. J. Ch. 76; 28 W. R. 212; Trotter v. Maclean, L. R. 13 Ch. D. 574; 28 W. R. 244; 42 L. T. 118. (k) 1 S. L. C. 344; Salkeld, 285. (1) Reg. v. Birmingham, 1 B. & S. 763; see also I S. L. C. 346, 347. (m) Per Parke, J., Doe v. Turford, 3 B. & A. 898. But this and the previous class of cases apply to oral statements as to entries in writing. Reputation. Presumptions sometimes furnish evidence. In both this class of cases and that in which the matter is admitted as against interest, not only are statements in writing admitted, but any oral statement made by a person against his interest, or in the course of his business and duty, is also equally admissible (n). There is no distinction in principle between the written entries of a deceased person and his verbal declarations. Where the statements are merely verbal, there is reason for watching more carefully the evidence by which those declarations are proved, but if it is clearly shewn that they were in fact made, there is no reason whatever why there should be any distinction between the admissibility of the verbal declarations and of the written entries (o). There are also some other cases in which hearsay evidence will be admitted (p), but the foregoing are the chief. Evidence of general reputation, general character, and general notoriety, is original evidence and not hearsay, so that general evidence is admissible to prove marriage, except in prosecutions for bigamy, or in divorce proceedings (q). Presumptions also sometimes furnish evidence. Thus it is a rule that where a person goes abroad and is not heard of for seven years, the law presumes the fact Presumption that such person is dead, but not that he died at the beginning or the end of any particular period during those seven years (r). This presumption—and, indeed, any presumption of law-is liable to be rebutted, and as to death after seven years. (n) See Sussex Peerage Case, 11 C. & F. 85; Staplyton v. Clough, 2 E. & B. 933; and 2 S. L. C. 345. (0) Per Thesiger, L.J., in Bewley v. Atkinson, L. R. 13 Ch. D. 283; 49 L. J. Ch. 153; 28 W. R. 638. (p) See Powell's Evidence, 137-225. (9) Powell's Evidence, 147-149. (r) Nepean v. Doe, 2 S. L. C. 584; 2 M. & W. 910. although, as stated above, there is no presumption of the time of death, such a presumption may arise from particular circumstances. This is, however, purely matter of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims the right to the establishment of which that fact is essential. There is also no presumption of law in favour of the continuance of life, though an inference of fact may legitimately be drawn that a person alive and in health on a certain day was alive a short time afterwards (s). It has also been held that where a person has not been heard of for seven years, and during that period, that is before the expiration of the seven years, a gift is made to him, he must, until the contrary is shewn, be taken to have been in existence at the date of the gift, and if the contrary cannot be shewn there is no failure of the gift, but it will go to his representatives (t). Deeds and other documents, until the contrary is Deeds, &c., shewn, are presumed to have been executed or written are presumed at the date they bear (u). to have been executed at their date. wills, after a coming from Public records and documents (x) are evidence of their Deeds and own authenticity, and deeds or wills which are thirty lapse of thirty years old, and come from the proper custody, or from years, and that custody in which it was most reasonable to expect the proper to find them, prove themselves (y). The thirty years themselves. are computed from the date of the instrument, even in the case of a will (2). Formerly, the mere statement (8) Wing v. Angrave, 8 H. of L. Cas. 183; In re Phené, L. R. 5 Ch. 239; Hickman v. Upsall, L. R. 20 Eq. 136. (t) In re Corbishley's Trusts, L. R. 14 Ch. D. 846; 49 L. J. Ch. 266; 28 W. R. 536. (u) Powell's Evidence, 80, 81. (x) As to what are public documents, see Sturla v. Freccia, L. R. 5 App. Cas. 623; 50 L. J. Ch. 86; 29 W. R. 217; Brooke v. Brooke, L. R. 17 Ch. D. 833; 50 L. J. Ch. 528; 30 W. R. 45. (y) Powell's Evidence, 82, 83. (z) McKenire v. Fraser, 9 Ves. 5. On presumptive evidence generally, see Powell's Evidence, 66–98. custody, prove Provision of to statements or recitals in deeds, &c. or recital of some fact in a deed, however old, was not evidence to prove that fact; but it has been provided by the Vendors and Purchasers Act, 1874 (a), that in the completion of any contract for sale of land made Act, 1874, as after the 31st of December, 1874, and subject to any stipulation to the contrary in the contract, recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions (b). II. As to the competency of II. As to the competency of witnesses and the admissiwitnesses, &c. bility of particular evidence. Omichund v. Decision of later cases. As a general rule, every person is a competent witness in an action. It was, however, in very early times considered that persons not professing the Christian faith were incompetent as witnesses (c), but the contrary was decided in the well-known case of Omichund v. Barker (d). In that case the question was whether the testimony of witnesses of the Gentoo religion, and sworn according to that religion, was admissible, and after a very full consideration the Court decided, in an elaborate judgment, that it was admissible, and that it was not necessary for a witness to hold the Christian faith, but that when any witness believes in the existence of a God who will punish him in this world, his evidence must be admitted. In later cases, however, it was ruled that belief in a God who will punish in this world is not (a) 37 & 38 Vict. c. 78. (b) Sect. 2. See hereon Bolton v. London School Board, L. R. 7 Ch. D. 760; 47 L. J. Ch. 461. (c) See I S. L. C. 473. (d) I S. L. C. 7th ed., 455 (omitted in 8th ed.); Willes, 538. sufficient, but that the belief must be in a future state of rewards and punishments (e). the Evidence The law, therefore, until lately was as above, and in Provision of so far as the actual taking of an oath is concerned, is Amendment so still; but a very important provision has somewhat Act, 1869. recently been made, for by the Evidence Amendment Act, 1869 (f), it has been provided as follows: "If any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge (g) is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise and declaration: 'I solemnly promise and declare that the evidence given by me to the Court shall be the truth, the whole truth, and nothing but the truth.' And any person who, having made such promise and declaration, shall wilfully and corruptly give false evidence, shall be liable to be indicted, tried, and convicted for perjury, as if he had taken an oath" (h). under this An atheist, therefore, is under this provision capable An atheist can of giving evidence, although, not having the necessary provision give religious belief before stated, of course he cannot take evidence. an oath. persons of Persons who were infamous,—as criminals,—were for- Criminals or merly inadmissible as witnesses, but it is now provided infamous that no person shall be excluded from giving evidence character were formerly exby incapacity from crime (i). Any person, therefore, cluded from giving whatever he may have been guilty of, is competent as evidence, but a witness, and it is for the jury to say to what extent are not now. they will credit his testimony. In some cases it may (e) Reg. v. Taylor, Peake, 11; Maden v. Catanach, 31 L. J. (Ex.) 118. (f) 32 & 33 Vict. c. 68, s. 4. (g) By 33 & 34 Vict. c. 49, this is to extend to any person or persons having by law authority to administer an oath. (h) Ibid. (i) 6 & 7 Vict. c. 85, s. I. |