14 Ala. 63 | Ala. | 1848
The circuit court properly rejected the affidavit of Burton as evidence to prove the account. It is true that books of account, kept by deceased clerks, and me-moranda,'and entries made in the course of business, by any one whose duty it was to make such entries, or memoranda, and who, at the time, would have been competent to prove the facts thus registered, are admissible as evidence, if the person making such entries, or memoranda, be dead. See Batre v. Simpson, 4 Ala. Rep. 305, and the cases cited in Gowen & Hill’s Notes to 2 Phil. Ev. 675.
But the rule is too well settled, now to be shaken, that memoranda, entries ex parte, affidavits, certificates, or other papers framed by private persons, are of themselves, merely hearsay, aud cannot become evidence against third persons-.. .See the cases collected in 2 Phil. Ev., C. &. H.’s Notes, 674.
The voluntary affidavit of Burton, is of this character.. It is true he was the book keeper of the plaintiffs, but the law did not require that the affidavit should be made, and it was therefore voluntary, and ex parte, and not a necessary duty in the course of his employment as book keeper. Even if it had been shown that he was dead, although the original entries in the books in his handwriting might have become evidence, yet his death could not have rendered this affidavit legal proof.
Let the judgment be affirmed.
