Holbrook v. Gay

60 Mass. 215 | Mass. | 1850

Dewey, J.

The books of a party, accompanied by his suppletory oath, are legal evidence to prove charges appropriately the subject of book charge. So if the party is dead, his books may be offered by the executor or administrator, accompanied by the proper statement, under oath, of the party offering them. 1 Greenl. Ev. § 119, and notes; Dodge v. Morse, 3 N. H. 232. The further inquiry is, whether the like use may be made of the account-books of one, who has since making the charges become insane, and whose guardian offers them in evidence.

We perceive no difference in principle in the two cases, at the time the evidence is offered. The case assumes, that the party has not the exercise of his mental powers, and that to all practical purposes, these are for the time being extinguished. This as substantially disqualifies the party from giving his own suppletory oath, as actual death. The same necessity which justifies the introduction of the. books of the party, and especially the various cases of modification of the rule as to such entries, and its adaptation to the circumstances and mode of keeping the accounts, alike seem to require and justify the admission of them, where the party has become incapacitated to take the oath by reason of insanity.

Where the case is one of permanent insanity, it seems quite clear, that such should be the rule. The only difficulty, that would seem to arise, will be in deciding upon the degree of insanity, that must be shown to justify the admission of this evidence. That, we think, must, from the nature of the case, 'be left to the sound discretion of the presiding judge. A supposed temporary insanity of a party should only operate as a postponement of the case, until sufficient time has elapsed for due restoration. But when no such restoration can be reasonably anticipated, evidence like that offered in the present case should be admitted.

The case of the death of a witness, and that of his becoming insane, have been alike treated as cases where it was competent to introduce his entries as evidence, or to prove his handwriting as an attesting witness. Union Bank v. Knapp, 3 Pick. 96, 109. Exceptions sustained.