62 N.J.L. 518 | N.J. | 1898
The opinion of the court was delivered by
On the trial on December 20th, 1897, of a suit against an administrator cum testamento annexo, the plaintiff, despite objection and exception, was permitted to prove and offer in evidence as her account against the intestate, a paper writing made up from cards she had destroyed. This account was as follows:
July 16, 1896. Money advanced............$250 00
u 27, <( Gash received ........... ,50 00
#200 00
(( Aug. 3, Money advanced. 75 00
« Sept. 25, 25 00
(6 Oct. 17? “ 25', 20 00 20'00
(( Nov. 13, 100 00
« “ 14, 1 25 One-half gallon whiskey...........
(( “ 10, 55 Medicine...............................
<( Dec. 10, 55 Medicine...............................
(( “ 24, 1 00 Fare and time........................
Jan. 18, 1897. 8 45 Eire insurance.........................
Oct. —, 1896. Advanced to Clarence Edwards, at request of James Edwards....... 17 00
Jan. 21, 1897. Money advanced to Clarence Edwards for railroad.................. 20 00
“ 25, “ Money advanced for one ton of coal.................................. 5 00
“ 29, “ Money advanced to Clarence Edwards................................. 5 00
“ 30, “ Money advanced to S. Edwards for railroad fare................... 10 00
“ 30, “ Money advanced for underwear shirts and tie...................... 3 25
#512 05”
After admitting the paper in evidence the trial judge said that unless the items were proved it was worthless and would be stricken out. In his charge he adverted to the paper as in evidence and to his qualifying remark. He told the jury that there was no evidence to support certain items of the account and that those must be deducted, but that for the others if proved there might be recovery with interest. The items thus submitted to the jury are the first six and last of the series. The following is a synopsis of all pertinent testimony
We agree with the trial judge that, unsupported, the account was worthless as evidence. Therefore it should not have been submitted to the jury. Indeed, it should not have been received at all. The items were not of a character to be proved even by a regular book account (Inslee v. Prall, 3 Zab. 457; S. C. affirmed, 1 Dutcher 665; Oberg v. Breen, 21 Vroom 145), and the plaintiff was not a competent witness to prove them. Gen. Stat., p. 1407, pl. 53.
There must be a reversal and a venire de novo.