Indorsements on note. affirmed the judgment of the Exchequer Chamber. The grounds of the decision in the Exchequer Chamber, and in the House of Lords, do not appear in any of the reports. (1) The case of Searle v. Lord Barrington, has been followed by that of Bosworth and Parr v. Cotchett, determined in the House of Lords. (2) In that case the payee of a promissory note had written indorsements of the half-yearly pay (1) Upon the argument in the case of Bosworth v. Cotchett, Lord Eldon directed the record in Searle v. Lord Barrington to be examined, and it appeared that there was no mention of any circumstances to shew, that the indorsements were made before the presumption of payment could have arisen. The time of the death of the obligee does not appear to have been proved. It appears from a note in Brown's reports, that Mr. B. Comyns was for revising the judgment; and that Lord Raymond, Ch. J., Mr. Justice Eyre, and Mr. Justice Probyn, were absent. The observation of the Court, that the jury might have reason to believe that the indorsement was made with the privity of the obligor, shews the loose ideas on the subject of evidence which prevailed at the period of the decision. In Glynn v. Bank of England, 2 Ves. 43, Lord Hardwicke states, that he considers, that in Searle v. Lord Barrington, the indorsements were made within the twenty years. Some credit appears to have been given to a presumption that the indorsements were within time, from the fact of their appearing to be so by their date, vide by Lord Hardwicke, ib., and Turner v. Crisp, 2 Str. 827. But if there had been no date at all, the probability of a person fabricating the entry would not have been stronger than that of a person fabricating a date. Lord Hardwicke, 2 Ves. 43, seems to have considered that the declarations of an individual might be available for his representatives, when they were originally against his interest; and when it is only by the consequential use of them, that his property is benefited. But this assumes a positive sacrifice of interest to be proved in the first instance, and in the next place an absence of any contemplation of a greater future benefit. Lord Hardwicke, however, lays it down as a fundamental rule, that a man shall not be permitted to make evidence for himself; and on this ground, that a list of bank notes, in the testator's handwriting, was inadmissible for his representatives, to prove the fact of his having been formerly in session of the notes. (2) Tried at Leicester Sum. Ass. 1819, before Richards, Ch. B. Judgment in the House of Lords, 6th May, 1824. By the stat. 9 Geo. 4, c. 14, it is enacted, that "no indorsement or memorandum of payment, written or made, by or on behalf of the party to whom such payment should be made, shall be deemed sufficient proof of such payment, so as to take the case out of the statute of limitations." In this case and in that of Searle v. Lord Barrington, (the principle of which appears to be condemned by the stat. of 9 Geo. 4, c. 14, notwithstanding what is said, in the latter case, respecting the privity of the obligor, the ground of the decisions appears to have been the inference to be drawn from the ordinary course of business. The usual course of business, indeed, proves, that when interest is paid, such is the usual way of receipting it, and that is all. the absence of all evidence to the contrary, an indorsement on a promissory note, admitting the receipt of interest, will be presumed to have been made at the time it bears date, see Smith v. Battey, 1 M. & Ro. 341. In ment of interest, from the time of making the note till his death (which happened within six years of the date of the note), and the like indorsements had been written by his executor (who died before the commencement of the action); and it was adjudged, that these indorsements were admissible in evidence, in answer to a plea of the statute of limitations; though there was no extrinsic evidence offered of the time when the indorsements were made, and though more than six years had elapsed between the death of the maker of the note, and that of the executor. In the case of Gleadon v. Atkin, (1) it was held, that an indorsement upon a bond in the handwriting of the obligee, which appeared to have been made at or about the time when the bond was executed, but which was not proved to have been ever seen by the obligor, stating that the bond was given to the obligee in trust for a third person, was admissible in evidence to connect the payments of interest with the bond, the bond being upwards of twenty years old, but interest having been paid within twenty years by the obligor to the third person. The authorities of Searle v. Lord Barrington and Bosworth and Cotchett, were relied on in the decision of the Court, and Bayley, B., observed, that he had discovered by his own research, that in Searle v. Lord Barrington, evidence was given of the time when the indorsements were made, though it is not stated in the reports. The Court appears to have considered these two decisions as well as the case before them to fall within the principle, treated of in the first section of this chapter, that the declarations of a person having peculiar means of knowledge, having no interest to misrepresent and making a declaration against his interest are admissible in evidence after his death. It has been held, that where indorsements of receipts of part of a bond were proved to have been made after the presumption of payment had taken place, they were inadmissible. (2) (1) 1 Cr. & M. 410. (2) Turner v. Crisp, 2 Str. 827. The Chief Justice saying, that it differed from the case of Searle v. Lord Barrington, where the indorsements appear to have been made before they could be thought necessary to be made use of to en And further, it has been held, that if a defendant produces direct evidence of payment of a principal sum and interest at a certain time within twenty years, the plaintiff cannot be allowed to encounter that evidence by an indorsement in the handwriting of the obligee, purporting that interest and part of the principal were paid at a subsequent time; on the ground, that supposing the fact to be true, that the bond had been satisfied by payment, it would obviously be to the advantage of the obligee to make such an indorsement which might afterwards be used as evidence in an action on the bond. (1) Lord Ellenborough, in this case observed, that he was at a loss to see the principle on which such receipts in the handwriting of a creditor had sometimes been admitted as evidence against the debtor, and that he was of opinion, that they could not properly be admitted, unless they were proved to have been written at a time when the effect of them was clearly in contradiction to the writer's interest. (2) The statute 7 Jac. 1, c. 12, enacts, that the shop-book of a tradesman shall not be evidence in any action for wares delivered, or work done, above one year after the bringing of the action, except the tradesman or executor shall have obtained a bill of debt or obligation of the debtor for the said debt, or shall have brought against him some action, within a year next after the delivery of the wares or work done. And the second section provides that nothing in the act shall extend to the mutual trading and merchandize between tradesman and tradesman. At the time of making that act of parliament, there was an opinion growing up, that after a certain length of time, a man's shop-books would be evidence for him after the year, to prevent which the act was made. (3) But it appears by several authorities, that shop-books alone, unless under the counter the presumption. And see by Lord Hardwicke, in Glynn v. Bank of England, 2 Ves. 43. (1) Rose v. Bryant, 2 Camp. 321. (2) Lord Ellenborough appears to have considered that such indorsements were only evidence as declarations against interest. The limitation of actions on bonds is now provided for by stat. 3 & 4 W. 4, ch. 42. The cases in the text refer to the presumption of payment, before the statute, where no demand had been made for twenty-years. 43. (3) By Lord Hardwicke, 2 Ves. circumstances which have been noticed, are not admissible evidence either within or after the year. (1) It will appear, in the cases before mentioned, relative to declarations against interest, and in the cases which have been subsequently considered, that the declarations were those of persons deceased; the necessity for this circumstance being proved will be considered more particularly in the part of the work which treats of the subject of primary and secondary evidence. (2) It has been held, that the entries of a person still living against his interest are not evidence between other parties, though it be shewn that he is abroad, having absconded from a criminal charge, and though it be altogether out of the power of the party to produce him as a witness. (3) It is also requisite, that where the declarations are in the nature of written entries, they should be produced from the proper custody. This circumstance, which is essential for their authentication, is particularly considered in that part of the work which treats of the proof of written evidence. (4) (1) B. N. P. 282. In Pitman v. Maddox, 2 Salk. 69. In Price v. Lord Torrington, 1 Salk. 285. Lord Raym. 732, 745. In Sikes v. Marshall, 2 Esp. 705, 745. Lord Kenyon, says, that since the statute of James, shop-books are not evidence after the year. And further respecting shop-books, see 12 Vin. Ab. Ev. 88. A. b. 15, "Books." Smartle v. Williams, Comb. 249. Blackeln v. Crofts, Comb. 348. Lee v. Lee, Keb. 27, in pl. 68. Cary's Rep. 45. Crouch v. Drury, Keb. 27, pl. 78. See further as to tradesmen's books, Digby v. Stedman, 1 Esp. 328. Cooper v. Marsden. 1 Esp. 1. (2) The necessity for proving the death of the declarant is a criterion for distinguishing declarations against interest, or in the course of business from declarations which are part of the res gesta, and such as are in the nature of admissions, between which it is often difficult to discriminate, see Wooley v. Roe, 1 N. & Glen. 114. In Furness v. Cope, 5 Bing. 114, a banker's ledger was received in evidence to shew that a customer had no funds in his the banker's hands, on account of the inconvenience of calling all the clerks of the house; it was said that it might not be admissible to prove the affirmative. (3) Stephen v. Gwenap, 1 M. & Ro. 120, and see Harrison v. Blades, 3 Camp. 457, incapacity to attend from illness, Manby v. Curtis, 1 Price, 282. Cooper v. Marsden, 1 Esp. 2. (4) Vide infra, part 2. CHAPTER XVII. OTHER EXCEPTIONS TO THE RULE WHICH EXCLUDES HEARSAY EVIDENCE. AN exception to the rule excluding hearsay evidence, of great practical importance, exists in the case where particular facts have been inquired into by public authority. Some of the inquiries alluded to have been made by persons on their oaths; some have been made by persons not sworn themselves, but who have received their information upon oath; some have neither of these guarantees for their accuracy. Analogous to the exception just mentioned, is one which includes numerous instances, where credit is given to statements on account of the authority and peculiar knowledge of the person making them, or of their official and public character. There are also various statutory exceptions, which relate, in general, to inquiries of public concern, and where due care is taken to provide for the accuracy and fidelity of the state ments. As the evidence, which is the subject of these exceptions, is chiefly of a nature depending on the character of particular documents, the plan of the work requires that the consideration of it should be postponed until the subject of written evidence is treated of. The principal public documents which are used in evidence will be noticed in the second part, and the effect of each will be explained, whether as supplying hearsay evidence receivable in Courts of Justice, or as operating in other ways. It has been impossible to avoid altogether anticipating the subject of public documents in the preceding chapters, particularly as regards the evidence of depositions, verdicts, and other public documents in matters of pedigree and upon ques |