1833. GLEADOW v. ATKIN William Pybus, who was an attesting witness to it with one William Jackson, at whose office Pybus said he and Others thought the bond was executed; and in order to rebut the presumption of payment arising from and Another. the age of the bond, a witness proved that in Dec. 1826 he had applied to the deceased Atkin on behalf of Margaret Thew, for payment of interest due to her on a bond, and was present when a payment was made about that time by him to her of such a sum as would be due for interest on it. To prove that payment to have been made on account of the bond in question, the following matter indorsed on it was offered in evidence: "I, the within-named Robert Gleadow, do hereby acknowledge that the within-mentioned principal sum of 2501. is not my own proper money, but trust money under the will of the late Cuthbert Thew, to be placed out by myself and the within-named John Atkin. As witness my hand, 17th September 1805. "Witness, William Pybus." "Robert Gleadow, Pybus was recalled, and proved his signature to the indorsement as attesting witness, saying he should not have put his name to it had he not seen it signed by Gleadow, but whether it was signed on the same day as the bond, or where, he could not recollect. It did not appear distinctly that the obligor (Atkin) had ever seen the indorsement. The dates of the bond and indorsement were the same. Both were written by Jackson, the other attesting witness to the bond. The bond and indorsement appeared to be in different inks. The proposed evidence having been objected to, the plaintiffs had a verdict for principal and interest, with leave to move to enter a nonsuit. A rule was obtained accordingly by F. Pollock, against which R. Alexander showed cause. The indorsement on the bond was admissible in evidence,-1st, As an act cotemporaneous with the execution of the bond, and forming part of the original transaction: 2dly, As a declaration against the interest of the party who made it, having peculiar means of knowledge of the subject matter. On the first point the rule is thus stated in Phillipps on Evidence (a):-" Hearsay is often admitted in evidence, as constituting a part of the transaction which becomes the subject of inquiry; the meaning of which seems to be, that where it is necessary in the course of a cause to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible in evidence, for the purpose of showing its true character." Thus, declarations of a trader at the time of absenting himself from home, or immediately after, are evidence to prove the motive of his absence; letters written by the payee or indorsee of a note to the maker cotemporaneously with the making it, and forming part of the original transaction, are evidence to prove a consideration between the parties; Kent v. Lowen (b). In Thompson et ux. v. Trevanion (c), Lord Holt suffered what the wife said at the time of the defendant's assault on her to be given in evidence for the plaintiffs. So what a party assaulted has said to his surgeon is evidence to show his sufferings (d). In Aveson v. Lord Kinnaird (e) the state of health of a party deceased, on the day she obtained a certificate of health, being the (a) 6th edit. 220. (b) 1 Camp. 179, 180 n. (d) Per Lawrence J. 6 East, 198. (c) Skinner, 402. (e) 6 East, 194. 1833. GLEADOW and Others V. ATKIN and Another. 1833. GLEADOW and Others 3. ATKIN matter in question, a declaration made by her, some days after having got it, as to her state of health before that time, was held admissible in evidence. Those cases show, that if this indorsement was an act coand Another. temporaneous with the execution of the bond, it is admissible in evidence. Then, was it cotemporaneous? The dates of both instruments are the same, and the presumption is, that all was rightly done. Gleadow had no interest in adding the indorsement at any time subsequent to its date. The difference of inks does not prove that it was written at a different time. As the bond was not to be executed by the obligee Gleadow, he might have been absent then, but if the indorsement was written at his house on the same day by agreement with Atkin, that would be a cotemporaneous act. Again, if it was written on the bond before its execution it would be part of its condition, and evidence as a cotemporary act, explanatory of the parties intention respecting its operation. See per Popham J. in Broke v. Smith (a), relied on by the court in Burgh v. Preston (b). On the second point, Gleadow's declaration is admissible in evidence as a declaration against his own interest. The rule in Phillipps (c) applies:-" The declarations or statements of deceased persons have been admitted in many cases where they appear to be made against their interest; as entries in their books charging themselves with the receipt of money on account of a third person, or acknowledging the payment of money due to themselves. In either case the entry is to their own immediate prejudice." Sir T. Plumer says, in Short v. Lee (d), the principle is, that the entry (a) Moor, 679. (b) 8 T. R. 483, 486; and see Steadman v Purchase, 6 id. 787, is made by an individual conusant of the fact at a time when it was not in dispute, having no interest to make a false entry, and making one tending to charge himself. In Ivatt v. Finch (a), the question being whether certain horses seized under heriot custom belonged to the plaintiff or A., a deceased tenant of the defendant, the declaration of A. that she had given up her stock to the plaintiff, being against her interest had she survived, were held to be evidence for the defendant to prove the property to be in the plaintiff. Again, this indorsement, adverse to the interest of Gleadow who made it, yet remained in his, possession. In Roe d. Brune v. Rawlings (b) a paper preserved among the muniments of the person against whose interest it operated, was admitted in evidence; Lord Ellenborough saying (p. 289), "The contents of the paper (a rental) were adverse to the title of the person who had possession of it (viz. a tenant for life); it diminished his interest in the fine on renewal, in the same proportion as it raised the rent to be reserved." And afterwards (p. 290), "Then at this distance of time, with the means of knowledge he had of the fact and his interest in declaring it the other way, we think that his declaration (by indorsement on the rental) is evidence of the fact to go to the jury." So the date this indorsement bears is at least primâ facie evidence of the time when it was made. Searle v. Lord Barrington (c) was an action on a bond by the administratrix of the obligee against the administrator of the obligor. The defendant relied on the presumption of payment arising from the date of the bond, being twenty-seven years before the action brought. The plaintiff then (c) Stra. 826, S. C. 8 Mod. 279; 2 Ld. Ray. 1370; 3 Brown's P. C. 593; best compiled from the various reporters, in 2 Phill. Evid. 6th edit. 138. 1833. GLEADOW and Others บ. ATKIN and Another. 1833. GLEADOW and Others υ. ATKIN offered in evidence two indorsements of the obligee on the bond, one dated two years, the other nine years after the date of the bond, purporting that the whole interest had been paid up to the respective dates of those and Another. indorsements. Pratt C. J. at the first trial in 1724, rejected the evidence, on account of the opportunity afforded to the obligee, having possession of the bond, to make such indorsements on it at any time. But it was afterwards held in K. B. and finally in Dom. Proc. that the indorsements should have been left to the jury, who might have reason to think they were made with the privity of the obligor, and for his greater security against the loss of other evidences of payment, viz. receipts, &c. That was so held, though (as was argued in Dom. Proc.) there was no other direct evidence when the indorsements were made, or that they were made within twenty years after the date of the bond (a). Bosworth v. Colchett (b) established, that when indorsements were made on a note by the payce of the half-yearly payment of interest thereon, down to his death, within six years from its date, similar indorsements by his exccutor, for more than six years after, were evidence after the executor's death to answer a plea of the statute of limitations. In Sanders v. Meredith (c) the date of the indorsement, purporting to be made by the obligee on a day within 20 years, and acknowledging the receipt of interest on the bond due at a previous day, was relied on by the court to prove it a valid bond within 20 years. [Bayley B. asked if the indorsement was there attested.] It was not; but a witness proved the fact of payment of interest. In (a) See now 9 G. 4. c. 14. s. 3. as to writings not specialties. (b) 2 Phill. Ev. 145, Dom. Proc. 1826. (c) 3 M. & R. 116. |