23 Ga. 582 | Ga. | 1857
By the Court. —
delivering the opinion.
We think not, most clearly. The plaintiff had already made the preliminary proof required by law, to let in his books as evidence. He had gone further, and in reply to a question propounded to him by the defendant’s counsel, he had stated that a great part of the work charged in the account was done within his own knowledge, and that some of the items in the account were made from the report of the smith. That some of the work done was brought by the defendant to the shop, and that he had seen his cart there sometimes. Now, it will be observed that all of these facts were brought out in the preliminary examination before the Court and at the special instance of the defendant. We repeat that more was already extorted from Barnelly than the rules of evidence required, and of course he was entitled to arrest this course of examination, whenever he saw fit, unless it was suffered to go to the jury.
It does not appear in the report of this case, whether the sawyer was a white or a black man; nor should it make any difference. Were the entries made cotemporaneous with the work performed ? If so, they were a part of the res gestee, and competent. In Ingraham vs. Boekins, 9 S. & R. 285, it was held that where the goods were delivered by the servant during the day and entry made by the master at night or on the following morning, from the memorandum made by the servant, it was sufficient. So in Price vs. Lord Torington, 1 Salk. 285, 2 Ld. Reymond, 873 S. C., one of the earliest reported cases, illustrative of this subject, being an action of assumpsit for beer sold and delivered, the plaintiff being a brewer, the evidence given to charge the defendant was that in the usual course of the plaintiff’s business, the draymen came every night to the clerk of the brewhouse, and gave him an account of the beer delivered during the day, which he entered in a book kept for that purpose, to which the dray-men set their hands. This entry with proof of the drayman’s hand-writing and of his death, was held sufficient to maintain the action. I am aware that the Courts of England have
So in the case of Fielder and others vs. Collier, 13 Ga. Rep. 497, this Court decided that the book-keeper and account of sales clerk were competent witnesses to testify from the entries and memoranda made by them respective^, as to the amount of sales, expenses, &c., and that it was not necessary to go behind the books and examine the weigher, wharfinger and other employees, who transacted the business. We ask, “ shall this proof be received, or shall the plaintiff be compelled to go behind the books thus verified by the clerks who kept them, and resort to each of the sub-agents who participated in the transaction and sale of this produce ? Are not the entries thus made in the usual course of the business of this trading establishment, and as a part of the proper employment of the witnesses who prove them, not only the best, but the only reliable evidence which it is practicable to produce ? We have no hesitation in holding that propriety, justice and convenience require this proof to be admitted. The weighers, wharfingers and numerous subordinates, who handle this cotton, keep no books. They report to the clerks who keep the books of the concern, and their functions are performed. It is not reasonable to suppose that they can remember the multitude of transactions occuring every day. After the lapse of a very brief period, the clerks themselves could only call to mind what had been done by referring to their entries and memoranda. How could these sub-agents be expected to do so without the means of refreshing their memory ? The actual salesmen in none of the great mercantile establishments keep the books. They report to the clerk who does, and he makes the entries. And yet these books are always received to prove the sale and delivery of goods.”
These cases establish that entries made at second hand are admissible, as original entries. But it is said that the books are made up in all these cases, from the report of white men.
Lastly, we admit tírese books because Bailey well knowing, as he did, how this shop was kept and conducted, did impliedly agree to be charged in the manner against he is now contending; and this alone woplr1 ing upon which to rest this doctrine
Judgment affirmed.