Craft

42 Conn. 146 | Conn. | 1875

Pardee, J.

The statute, (Rev. of 1866, p. 35, sec. 168,) provides,-that “in suits by or against the representatives of deceased persons, the entries and written memoranda of the deceased relevant to the matter in issue, may be received as evidence; subject in regard to weight and credit to the rules under which the testimony of parties and other interested evidence is received.”

A conversation occurred between the appellant and the deceased on the 18th day of June, 1871, concerning the note in controversy. Of this conversation the deceased made a memorandum upon his slate two days after it occurred, and subsequently made another upon paper, which is the one offered in evidence. The statute is quite comprehensive; it puts no limit to the number of memoranda which a man may make concerning a particular transaction, and leave behind him; as many as he leaves are admissible in evidence, each for what it weighs. Every memorandum so left is an original; it is admissible by reason of its own existence; not because it is the first of a series, nor because it is a copy of a previous one; but simply because the deceased made and left it. If there be several memoranda concerning the same transaction, and each varies from every other, or if all are in exactly the same language, all are alike admissible, and counsel will draw such inferences from and base such arguments upon the variance or the coincidence as the facts will support. Therefore, as the relation, of original and copy is not established by statute between the memorandum on the slate and the one upon paper which was offered in evidence, the law which governs that relation is not applicable here.

Nor does the statute put any limit to the length of time which may elapse between the doing of an act and the making of a memorandum concerning it. Days, weeks, even years may intervene. If made and left it must be admitted and weighed in view of all the circumstances attending it.

And we are of opinion that the appellant has suffered nothing by reason of any thing contained in or omitted from the charge of the judge upon either of the two points presented in it, namely, bad faith and gross negligence. Upon the latter language could not strengthen the charge, unless indeed the adjective “ gross ” had been again applied to the word “negligence” in the last paragraph; but the two had been so distinctly joined in the preceding sentónce as to leave no doubt in the mind of any hearer that they were to be considered as connected for all the purposes of the charge.

This conclusion renders it unnecessary for us to determine, or even consider, the claim made by the appellee, that the charge is too favorable to the appellant.

A new trial is not advised.

In this opinion the other judges concurred, except Phelps, J., who did not sit.