Dwinel v. Pottle

31 Me. 167 | Me. | 1850

Howard, J.

Where a person has charged another, upon his books of account, with goods, or with labor and services, which may be the proper subjects of such charge, he is admitted in our courts, as a competent witness to support his claim for the account by his suppletory oath, generally, when better evidence, from the nature of the subject, is not attainable. But in order to render his books admissible as evidence, when the entries are made by himself, and supported by his oath, only, he must swear that he made them at, or about the time they purport to have been made ; that they are his original entries of the transaction ; and that the articles and services were respectively delivered, and performed, as there charged. Cogswell v. Dolliver, 2 Mass. 217; Prince v. Smith, 4 Mass. 455; Faxon v. Hollis, 13 Mass. 427; Dunn v. Whitney, 10 Maine, 12; Mitchell v. Belknap, 23 Maine, 477; Leighton v. Manson, 14 Maine, 213; 1 Greenl. Ev. § 118, and notes; Pothier on Obl., part 4, ch. 1, art. 2, § 4; 1 Smith’s Leading Cases, 142; Eastman v. Moulton, 3 N. H. 157.

To prove his claim, the plaintiff relied solely upon, the evidence furnished by his book, and his suppletory oath. He did not, however, swear to a delivery of the articles charged by him, and did not, therefore, present a case in which his book was competent evidence to be submitted to a jury.

The exceptions are sustained and a new trial granted.