debtor. Thus, in Reg v. Worth,' to prove a settlement by hiring and service, the following document, made, according to personal custom, in the memorandum book and handwriting of the pauper's deceased master, was tendered :

"April 4, 1824.-W. W. (the pauper) came, and to have for the half year 40s.

66

September 29.-Paid this 27.

"October 27.-Ditto came again; and to have 1s. per week: to March 1825, is 21 weeks 2 days, 17. I's. 6d.

"25th.-Paid this."

The court held this evidence to have been rightly rejected. Lord Denman said:"In a case of this kind the entry must be against the interest of the party who writes it, or made in the discharge of some duty for which he is responsible. The book here does not show any entry operating against the interest of the party. The memorandum could only fix upon him a liability on proof that the services referred to had been performed; and whether, on dispute, a jury would have found him liable for the sum so entered, or more or less, we cannot say. Nor was this an entry made in the course of duty, as in Doe d. Patteshall v. Turford.2 The act there was performed by a principal in the firm, and not by a clerk; but it was done by a person acting under the same responsibility." The other judges delivered similar judgments.

Declarations in the course of business are inadmissible while the declarant is alive.3 So, entries by a witness who is alive are not evidence per se, but may be used by him for the purpose of refreshing his memory.4

1 4 Q. B. 133. 2 Sup. p. 139. 3 1 Esp. 328. 4 4 Q. B. 139.

[EV.]

146

CHAPTER XV.

ON EVIDENCE OF STATEMENTS AT FORMER TRIALS BY DECEASED OR ABSENT WITNESSES.

ON the general principle by which hearsay is inadmissible evidence, the statements of witnesses at former trials cannot be received generally. The exception to this principle is contained in the rule that

In a matter between the same parties, the depositions of a witness at a former trial may be used on a subsequent trial, if the witness be dead; or if he be sought and cannot be found; or if he have been subpoenaed and have fallen sick on the way.

But the matter in issue must be the same, and the depositions cannot be given in evidence against any person who was not a party to the suit; and the reason is, because he had not liberty to cross-examine the witness.1

The general rule has been thus stated by Mansfield, C. J.: "What a witness, since dead, has sworn upon a trial between the same parties, may be given in evidence, either from the judge's notes, or from notes that

1 Bull. N. P. 238, 239, a.

have been taken by any other person who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having been given."1

The same rule holds if a witness be kept away by collusion, or other improper means. Thus, in an old case where a witness was sworn in a trial at C. B., and was subpoenaed by the defendant to appear at a subsequent trial in K. B., but did not appear; persons were admitted to prove what his evidence was at the first trial, because the court conceived there was reason to presume that he was kept away by the petitioner.2 But it appears to be doubtful whether every species of mere subsequent incapacity will let in evidence that has been given at a former trial.3

It appears that under the 11 & 12 Vict. c. 42, s. 17, it is not necessary to prove that a witness absent from illness is so ill as to be unable to attend, but it is sufficient if it appear that it would endanger his life to attend. The full effect of the above statute, and the circumstances under which the depositions of deceased or absent witnesses will be received, according to its requirements, will be considered under the head of secondary documentary evidence.

If a party give evidence of a former trial to show that a verdict was improperly obtained, the other party may rebut it by proof of other evidence given at the first trial, although the second trial be not between the same parties nor on the same rights.5

On a new trial of an issue out of Chancery, oral evidence of the statements at a former trial of a deceased witness were received, although the Master of the Rolls had made his usual order for reading the deposi

1 Mayor of Doncaster v. Day, 3 Taunt. 262; 8 Q. B. 245.

2 Green v. Gatewick, Bull. N. P. 242, b.

3 R. v. Eriswell, 4 T. R. 707.

4 R. v. Day, per Platt, B., 19 L. T. 35.

* Doe. d. Lloyd v. Parsingham, 2 C. & P. 440.

tions in equity of such witnesses as had died since the first trial.1

In order to render a deposition of a deceased or absent witness admissible, it must appear that it was taken on oath in a judicial proceeding in some cause, and that the party to be affected by it had an opportunity to cross-examine the witness.2

It appears to be open to the parties to enter into an agreement, that the judge's or shorthand writer's notes at the first trial shall be received as evidence in the second; and after such consent neither party can dispute its validity.3 But the court will require distinct evidence of every such agreement.*

The statements of absent witnesses are frequently tendered in the form of depositions by persons who have been examined, either in this kingdom or abroad, on interrogatories pursuant to commissions issued out of the Courts of Chancery or Common Law. Their admissibility will be discussed under the head of written evidence.

It

A question has often arisen, and has never yet been satisfactorily decided, as to how far a judge's notes are evidence of what took place at a former trial, and whether the judge himself may be made a witness. would appear from the dictum of Mansfield, C. J., in Mayor of Doncaster v. Duy, already cited, that a judge's notes at a former trial are evidence on a subsequent trial; and although, strictly speaking, this cannot, perhaps, be regarded as included in the principle by which courts take cognisance of the acts and signatures of public officers, inasmuch as judges, virtute officii, are not required to take notes of the cases before them, but do so merely for their own personal convenience and satisfaction; yet, considering that their notes have all

Tod v. Earl of Winchelsea, 3 C. & P. 387.

2 Hullock, B.: M'Clel. & Y. 169.

3 Wright v. Doe d. Tatham, 1 A. & E. 20, S. C. 41 A. & E. 789; Lord Denman.

the authenticity and value of public documents, there seems to be no reason why, even without the aid of a statute, such notes, purporting to be signed by the judge, should not be received as good evidence. Since, also, it appears to be the more established doctrine that the judge himself cannot be made a witness as to what took place at the former trial; and, even if this were allowed, his presence would only serve the purpose of authenticating his notes, to which he would necessarily refer, and which he would follow literally; every argument of public policy seems to be in favour of receiving such notes as evidence per se. But there appears to be no express English decision on the point; and Mr. Phillipps and Mr. Taylor speak doubtfully on it, the former inclining to the affirmative, on the dictum of Mansfield, C.J., and the latter to the negative, according to Greenleaf and some American authorities.1

It appears to be understood that a judge cannot be called to give evidence of the substance of a former trial, but that he may be called to prove anything collateral or incidental to it.2 In R. v. Gazard, Patteson, J., recommended the grand jury not to examine one of their number, who had been chairman at the quarter sessions on the trial in which the prisoner had committed an alleged perjury. His lordship said: "It is a new point, but I should advise the grand jury not to examine [the gentleman]; he is the president of a court of record, and it would be dangerous to allow such an examination, as the judges of England might be called upon to state what occurred before them in court." But in a trial for perjury, under a committal by a county court judge, Byles, J., held that the judge ought to have been called to prove the perjury from his notes; and that the rule prohibiting the calling of judges as witnesses is confined to judges of the superior courts. His Lordship said: "If you had called

1 1 Phill. 307; Tayl. 352; Greenleaf, 197; 2 Russ. Cr. 650. 2 R. v. Gazard, 8 C. & P. 595; R. v. Earl of Thanet, 27 How. St. Tr. 845 to 848.