67 Ala. 386 | Ala. | 1880
— The original entries made by a party himself in his own shop-books, are generally held to be admissible in evidence in his own behalf. But to be admissible, they must have been made in the ordinary course of business, contemporaneously with the facts to which they relate, and by one having personal knowledge of the facts ; and must further be corroborated by the testimony of the party, if living, or by proof of his handwriting, if dead, or insane, or out of the jurisdiction of the court trying the cause Chaffee v. United States, 18 Wall. 516; 1 Greenl. §§ 118-120; Union Bank v. Knapp, 3 Pick. 96; 15 Amer. Dec. 181, and note, 191; Batre v. Simpson, 4 Ala. 304; Avery’s Ex’rs v. Avery, 49 Ala. 193: 1 Whart. Ev. § 678-9.
The question presented for decision in this-case is, whether, in a suit brought by an administrator of a deceased person against a defendant, the latter is competent, under section-3058 of the present Code (1876), to prove for himself certain-entries made by him, which had reference to a transaction with the deceased during his life-time. The above section removes all incompetency based upon the fact of the witness being a party, or interested in the issue, in other than criminal cases, “except that neither party shall be allowed to-testify against the other, as to any transaction with, or statement by, any deceased, person whose estate is interested in the result of such suit, or when such .deceased person, at the time of such statement or transaction, acted in any representtive or fiduciary relation whatever to the party against whom-
The reason upon which this statute is based seems to be, that there should be no admissibility unless there is mutuality; that when the lips of one party to a transaction are sealed by death, those of the other must in like manner be sealed by law. — 1 Whart. Ev. § 466; Kumpe v. Coons, 63 Ala. 448. Its purpose and policy is to exclude the living from testifying against the dead, because the latter cannot be heard in explanation or contradiction, and it has been held to apply to all cases involving a direct, immediate conflict of interest between the proposed witness and the estate of a decedent, where the purpose or effect of such evidence is to diminish the rights of the decedent, or of those claiming in succession under him. — Insurance Company v. Sledge, 62 Ala. 566; Key v. Jones, Adm’r, 52 Ala. 238; Beadle v. Graham’s Adm’r, (present term, MSS.)
Applying these principles, we do not think that the defendant, Tolson, was a competent witness, under the statute, to prove the various book entries to which he was permitted to testify in the court below. These entries were a mere written declaration of the fact that the defendants had paid for the corn which they purchased from the deceased in his life-time. They were contemporaneous with the principal fact of payment, and are regarded in the eye of the law as verbal ads, being part and parcel of the res gestee. — 1 Greenl. Ev. § 120. They clearly constituted a part of the transaction with the deceased, and come within the statutory prohibition. To allow a defendant to prove such entries by his own oath, against the estate of a decedent, would be to permit him to accomplish indirectly what he is prohibited from doing .directly by the express mandate of the statute.
Reversed and remanded.
