1849. DOE d. judgment of this court the simple question of law, upon the legality of such construction. With that direction, so understood, I do not find fault, thinking it substanKINGLAKE tially right." That case is precisely in point. [Maule, J. The entries before 1745 seem to exclude the wood and underwood, rather than the land.] V. BEVISS. As to the rejection of evidence. The documents that were objected to, and rejected by the learned judge, -the pipe-rolls of the manor of Taunton Deane, came from the custody of the clerk of the castle. These were tendered as evidence on the ground that they contained accounts in which the deceased reeves charged themselves with moneys received on account of the lord. They were objected to as altogether inadmissible, on account of the custody from which they came, and also on the ground that it did not appear, upon the face of the particular entries, or on any other part of the account, that the reeve acknowledged the receipt of the specific sum for which by the entry he claimed a credit. To render documents of this sort admissible, they must be in some way authenticated: it is not in general enough to shew that the party is dead. As to antient documents, the rule has to some extent been relaxed; but still there must be something upon the face of the document to identify it as the document which it purports to be: The Mayor, &c., of Exeter v. Warren. (a) These accounts do not appear to have been audited, or signed; nor is any balance struck they are evidently imperfect; and there is nothing upon the face of them,-as there was in the documents tendered in The Mayor, &c., of Exeter v. Warren,―to shew that they were originals. In Phillipps on Evidence (b), it is said: "It is a question of considerable importance how far declarations against interest are receivable in respect of matters forming a part of (a) 5 Q. B. 773. (b) 9th edit., Vol. I. p. 310. the declarations, but not in themselves affecting the interest of the declarant. Where declarations of deceased persons, acknowledging the receipt of money, have been admitted, it appears that they have often been admitted as evidence, not merely of the fact of the deceased having received the money, but also of the circumstances stated as the occasion of the payment." (a) In Warren v. Greenville (b), upon a question whether a surrender to a recovery could be presumed, the book of a deceased attorney was produced, which contained a charge of a sum for suffering a recovery, two items of which related to the drawing of a surrender; and it appeared by the book that the bill was paid: the court held that the entries were admissible evidence, and material upon the inquiry into the reasonableness of presuming a surrender. In Higham v. Ridgway (c), upon a question respecting the age of a person suffering a recovery, an entry made by a deceased accoucheur in his book, of having delivered a woman of a child on a certain day, referring to his ledger, in which he had made a charge for his attendance, and marked the charge as paid, was held admissible evidence of the time of the child's birth. Lord Ellenborough there said: "The question is, whether the books of a manmidwife attending upon a woman at the time of her delivery, and making charges for such his attendance, which he thereby acknowledges to have been paid, are evidence of the time of the birth of the son, as noted in those entries. That the books would be evidence in themselves, as recording this event of the birth, and other similar events in the course of his attendance on his patients, at the several times when they took place, I am by no means prepared to say. Nor is my opinion (a) See the cases collected in the note to Barker v. Ray, 2 Russ. 67. (b) 2 Stra. 1129. 1849. DOE d. KINGLAKE v. BEVISS. 1849. DOE d. KINGLAKE V. BEVISS in this case formed with reference to the declarations of parents, &c., received in evidence, as to the birth or time of the birth of their children. But I think the evidence here was properly admitted, upon the broad principle on which receivers' books have been admitted, viz. that the entry made was in prejudice of the party making it. In the case of the receiver, he charges himself to account for so much to his employer. In this case, the party repelled by his entry a claim which he would otherwise have had upon the other for work performed and medicines furnished to the wife; and the period of her delivery is the time for which the former charge is made; the date of which is the 22nd of April, when it appears, by other evidence, that the man-midwife was, in fact, attending at the house of William Fowden. If this entry had been produced when the party was making a claim for his attendance, it would have been evidence against him that his claim was satisfied. It is idle to say that the word paid only shall be admitted in evidence, without the context, which explains to what it refers: we must, therefore, look to the rest of the entry, to see what the demand was which he thereby admitted to be discharged. By the reference to the ledger, the entry there is virtually incorporated with, and made a part of, the other entry, of which it is explanatory." That case was much considered in Davies v. Humphreys. (a) There, by a promissory note, Evan Humphreys, W. Davies, and John Humphreys jointly and severally promised to pay to John Evans 3007., with interest. W. Davies having afterwards paid John Evans 280l. on account of the note, the latter made the following indorsement upon it:- "Received of W. Davies the sum of 2801. on account of the within note, the 300l. having been (a) 6 M. & W. 153. originally advanced to Evan Humphreys." In an action brought by W. Davies, who had paid the whole amount due, against John Humphreys, to recover contribution from him "as a co-surety," it was held that the indorsement was admissible in evidence to prove not only the payment of the 2801., but also that the money was originally advanced to Evan Humphreys as principal. And Parke, B., in delivering the opinion of the court, said (a): “In the case of stewards' books, the receipts of money as rent, would be equivalent to the proof of payment of money as rent, and establish the title of the person receiving it, and the like. But the authorities have gone beyond that limit; and the entry of a payment against the interest of the party making it, has been held to have the effect of proving the truth of other statements contained in the same entry, and connected with it; as in the case of Higham v. Ridgway, where the memorandum of the payment of the midwife's charge for attending a birth, was held to be evidence of the date of the birth (b); and Doe v. Robson (c), where the entry of charges paid for a lease, as drawn on a certain day, was held to be evidence that the lease was so drawn, which the proof by an eyewitness of the same payment on account of such charges, would not have been: and there are many other cases to the same effect. Without overruling these cases (and we do not feel ourselves authorised to do so), we could not hold the memorandum in question not to be admissible evidence of the truth of the whole statement in it, and consequently to be evidence, not merely that 2807. was paid by the plaintiff to the payee, as for a debt due from Evan Humphreys as principal, but also of the fact that the debt was due from Evan Humphreys (a) 6 M. & W. 166. (b) Was held to make the other book evidence of the date 1849. DOE d. KINGLAKE V. BEVISS. 1849. DOE d. v. BEVISS. to him." The language of the court there pretty strongly intimates that the inclination of judges of the present day is, not to extend the rule. In Stead v. KINGLAKE Heaton (a), where the question was as to the existence of a customary payment for the repair of a parish church, churchwardens' accounts were produced, in which were the following entries: "Received of Haworth, who this year disputed this our antient custom; but, after we had sued them, paid it accordingly, 87., and 17. for costs." At the head of the same page was written — "It is an antient custom thus to proportion church-lay: first, the chapelry of Haworth pay one-fifth, Bradford a third of the remainder, and the rest to be legally divided according to the churchwardens of the several other townships in the parish." The court were of opinion that the entry of payment was clearly admissible, because the officers thereby charged themselves with the receipt; and that the other entry was admissible because immediately referred to; and that both of them, being written on the same page, and on the same subject, must be taken into consideration together, being both parts of one and the same transaction, each explaining the other. In Rudd v. Wright (b), a survey was tendered in evidence, which had been made for the use of Trinity College, Cambridge, the impropriators of a living of which the plaintiff was vicar, and in this survey certain closes were stated as being titheable to the vicar. Lord Lyndhurst observed, that, although this document would be evidence against the college in a suit between them and the vicar, it would admit of some consideration whether it was admissible in evidence against a third person; but that it was unnecessary to decide that question, because the object of producing (a) 4 T. R. 669. (b) Cor. Lord Lyndhurst, C. B., Exch., 11th July, 1832; cited 1 Phill, Evid. 9th edit. 314. |