seventeenth avoids contracts not made in the manner there prescribed. Accordingly, though no action can be brought upon a parol guaranty, the courts have been known to enforce one against an attorney, by virtue of their summary jurisdiction over their own officers, see * Evans v. Duncan, 1 Tyrwh. 283; Senior v. Butt; and Payne v. Johnson, there cited. However, it is not necessary in order that the statute should apply that the action should be brought on the agreement; it is enough if the effect of the action is to "charge" the defendant by means of the agreement. Thus in Carrington v. Roots, 2 M. & W. 248, trespass for asportavit of a cart, plea removal of it damage feasant, replication that defendant had sold a crop of grass to plaintiff with liberty to take it, quare, &c., traverse of agreement; parol evidence of such a sale was held inadmissible, and plaintiff nonsuited.

When, to an action brought upon a guaranty or other instru

For

ment falling within the fourth section of the statute of frauds, the defendant pleads that there is no such note or memorandum in writing as that act requires, it is unnecessary to set out the memorandum in the replication, though once it was considered unsafe not to do so. Wakeman v. Sutton, 2 Ad. & Ell. 78; Lysaght v. Walker, 2 Bligh, N. S. 1. Nor is it necessary, in declaring on such an instrument, to state it to have been been in writing. Anon., Sal. 519; per Yates, J., 3 Burr. 1890. it is a general rule in pleading, that when a statute regulates the mode of performing an act which was valid at common law, the same certainty of allegation is sufficient after the statute as before; but it has been said to be otherwise in a plea. Case v. Barber, T. Raym. 450; sed quære, and see Peacock v. Purvis, 2 B. & B. 362, where a sale of growing crops was pleaded, without any averment that it was in writing, and held sufficient, though Case v. Barber was cited and relied on.

*

making a gratuitous charge against himself, knowingly against his own interest, and without any equivalent, repels every supposition of fraud. A disposition to commit fraud would have tempted him to suppress altogether the fact of his having received anything, or to misrepresent the amount of the sum, but not to mis-state the ground or consideration upon which it was received; that is, not to mis-state the only fact sought to be established by the proposed evidence. On the other hand, the declaration of the tradesman's servant is given in evidence to prove the fact of delivery, and as he gives the account not against his own interest, which is some security for the truth of the statement in the other case, the probability of his account being true or false is neither greater nor less than the probability of his being honest or dishonest, which is nothing more than may be said in every case of hearsay. The circumstance of his thereby acknowledging the receipt of goods, which, it may be said, would be evidence in an action against him, seems to amount to little or nothing. It was the least he could say. To have said nothing at all would, as he must have known, necessarily lead to inquiry.

Price v. Lord Torrington falls within the class of cases thus described by Mr. Justice Taunton. “A minute in writing, made at the

time when the fact it records took

139-140 *

place, by a person since deceased, in the ordinary course of his business, corroborated by other circumstances, which render it probable that the fact occurred, is admissible in evidence." Doe v. Turford, 3 B. & Ad. 898. In that case, a landlord instructed B. to give the defendant notice to quit, and B. communicated it to his partner P., who having prepared three notices to quit, two of them to be served on other persons, and three duplicates, went out, returned in the evening, and delivered to B. three duplicates, one of which was a duplicate of the notice to the defendant indorsed by P. It was proved that the other notices were delivered as intended, that the defendant had afterwards requested not to be compelled to quit, and that it was the invariable practice of the clerks of B. and P., who usually served the notices to quit, to indorse, on a duplicate of such notice, a memorandum of the fact and time of service. The duplicate in question was so indorsed; and it was admitted, after the death of P., to prove the service of the third notice on the defendant.

The former cases on this subject will be found cited and discussed in Doe v. Turford, it will therefore be unnecessary to advert to them at length in this note. See Pitman v. Maddox, 2 Salk. 690; Hagedorn v. Reid, 3 Camp. 379; Champneys v. Peck, 1 Stark. 404; Pritt v. Fairclough, 3 Camp. 305,

et notas. In Poole v. Dicas, 1 Bingh. N. C. 649, a bill became due and was left with a notary to demand payment; M. the notary's clerk went out, returned, and, in one of the notary's books into which the bill had been previously copied, wrote in the margin no effects; another clerk made a similar entry in another book from M.'s dictation; all this was done in the regular course of business: the court held that after the death of M. the entry made by him was admissible to prove the dishonour of the bill.

"We think it," said

Tindal, C. J., "admissible, on the ground that it was an entry made at the time of the transaction, and made, in the usual course and routine of business, by a person who had no interest to mis-state what had occurred."

Mr. J. Parke, in delivering his judgment in Doe v. Turford, remarks a distinction between the admissibility of an entry of this description, and of an entry admitted in evidence because against the interest of the party making it. "It is to be observed," said his Lordship," that in case of an entry falling under the rule as being an admission against interest, proof of the handwriting of the party and his death is enough to authorise its reception; at whatever time it was made, it is admissible. But in the other case, it is essential to prove that it was made at the time it purports to bear date; it must be a contem

poraneous entry." 3 B. & Ad.

898.

An entry admissible after the maker's death because made in the course of business is, however, evidence of those things only which, according to the course of that business, it was the duty of the deceased person to enter. In Chambers v. Bernasconi, 1 Tyrwh. 342, 4 Tyrwh. 531, in error, a distinction was engrafted upon the rule laid down in Doe v. Turford. In that case it became material to ascertain the place at which one Chambers had been arrested. The under-sheriff of Middlesex being called produced the writ, and stated that by the course of his office the bailiff * making an arrest was required immediately afterwards to transmit to the office a memorandum or certificate of the arrest, and that for the last few years an account of the place where the arrest took place had also been required from him; it was then proved that the bailiff who arrested Chambers was deceased, and the following memorandum in his handwriting, taken from the files of the office, was tendered in evidence to prove the place where he made the arrest.

"9 November, 1825.

"I arrested A. H. Chambers the elder only in South Molton Street, at the suit of William Brereton.

"THOMAS WRIGHT." The memorandum was held by the Court of Exchequer inad

missible for the purpose for which it was offered, and afterwards in the Exchequer Chamber whither the point was carried by a bill of exceptions. "The ground," said Lord Denman, C. J., delivering the judgment of the Exchequer Chamber, "on which the Attorney General first rested his argument for the plaintiff in error was not much relied on by him, viz. that the certificate was an admission against the interest of the party making it, because it renders him liable for the body, arrested. He had recourse to a much broader principle, and laid it down as a rule, that an entry made by a person deceased, in the course of his duty, where he had no interest in stating an untruth, is to be received as proof of the fact stated in the entry, and of every circumstance therein described which would naturally accompany the fact itself. The discussion of this point involved the general principles of evidence, and a long list of cases determined by judges of the highest authority, from that of Price v. Torrington, before Holt, C. J., to Doe d. Patteshall v. Turford, recently decided by Lord Tenterden in the Court of King's Bench. After carefully consider ing however all that was urged, we do not find it necessary, and therefore we think it would not be proper, to enter upon that extensive argument; for as all the terms of the legal proposition above laid down are manifestly essential to

render the certificate admissible, if any one of them fails the plaintiff in error cannot succeed; and we are all of opinion that whatever effect may be due to an entry made in the course of any office, reporting facts necessary to the performance of

duty, the statement of other circumstances, however naturally they may be thought to find a place in the narrative, is no proof of those circumstances. Admitting then for the sake of argument that the entry tendered was evidence of the fact, and even of the day when the arrest was made, (both which facts it might be necessary for the officer to make known to his principal), we are all clearly of opinion that it is not admissible to prove in what particular spot within the bailiwick the caption took place, that circumstance being merely collateral to the duty done."

It is difficult, in perusing this case, to avoid remarking, that, although professing to steer wholly clear of the doctrine promulgated in Doe v. Turford, it still seems hardly reconcilable in its facts with that decision; for it was proved in Chambers v. Bernasconi, and is indeed stated in the judgment of the L. C. J., that the course of the office of the Sheriff of Middlesex is, to require a return in writing of the arrest, and of the place where it is made, under the hand of the officer making it. Now it certainly, in ordinary parlance, would be said to be the officer's duty to comply with the course of the