Inhabitants of Augusta v. Inhabitants of Windsor

19 Me. 317 | Me. | 1841

The opinion of the Court was delivered by

Shepley J.

The first exception taken is to the admission of the testimony of Artemas Kimball. His testimony is in substance, that he made inquiries for the residence of the pauper, and made service of a writ upon him by leaving a summons at a house in Windsor, on the fifteenth day of March, 1821. He did not state the answers of any one respecting his residence. The argument is, that the jury would infer, and be improperly influenced by such inferences. And so they might, perhaps, if he had stated only the fact of service, have inferred, that he made inquiries for his residence, and the answers. In deciding upon the admissibility of testimony, the Court cannot be governed by any consideration that an improper use may possibly be made of it. That can only be guarded against by the counsel in argument, or by the Court in committing the cause to the jury. The testimony proved circumstances which might be considered by the jury, with the other conflicting testimony as to the time when the pauper’s residence was changed.

The second exception relates to the admission of the book of Dr. Neal, containing charges against one Linscott, for services as a surgeon upon his fractured leg. A witness for the defence, had testified, that the pauper resided in Pittston before the twenty-first day of March, while he was at work for Linscott during the winter of 1820-21, and that the leg was broken before he went to work for Linscott. It became material to show, that the witness had made a mistake in the year; and this could be shown by proving that the leg was not injured until the month of September, 1821.

In what cases, entries made by persons deceased on their books and papers in the course of their business, should be •admitted as testimony, and on what precise principles, has occasioned no little discussion. It will be difficult to reconcile all the' decided cases. In the leading one of Warren v. Greenville, 2 Stra. 1129, the book of a deceased attorney, containing charges relating to a common recovery, was admitted as tending to prove the surrender of a life estate. It appeared by the book, that the charges had been paid. And this fact seems to have been regarded, in many of the subsequent English cases, as an important consideration in the admission of like testimony. While in the report of that case the fact that the charges were marked paid, is not noticed in stating the reasons for the decision.

In the case of Patteshall v. Turford, 3 B. & Ad. 890, the plaintiff was desirous of proving the delivery of a notice to quit, and a memorandum of the fact and time of delivery had been made on a duplicate in the handwriting of an attorney deceased. And the question arose on its admission as testimony. It could not be received on the principle that it was made against the interest of the person who made it. Mr. Justice Taunton says, “ a minute in writing, like the present, made at the time when the fact it records took place, by a person since deceased, in the ordinary course of his business, corroborated by other circumstances, which render it probable that the fact occurred, is admissible in evidence.”

Mr. Justice Parke states, that such an entry is to be received in two cases only: “ first, where it is an admission against the interest of a deceased party, who makes it; and secondly, where it is one of a chain or combination of facts, and the proof of one raises a presumption that another has taken placo.” The case now under consideration would come within the rule as stated by Justice Taunton, and be included in the second class of cases named by Justice Parke; for the breaking of the limb, and the services of Dr. Neal, had been proved, and it would be reasonable to expect, that the time of performing them would appear from his books.

Whether the entry, to bo admissible, should appear to be against the interest of the deceased person, who made it, is discussed by Mr. Starkie in his treatise upon evidence, and his reasons for concluding,' that this circumstance does not “ afford a sufficient test for the admission of such entries, and the rejection of all others,” are very satisfactory. 1 Stark. Ev. 299, 300, 301, Met. ed. The Court say, in Nicholls v. Webb, 8 Wheat. 337, “We think it a safe principle, that memoranda made by a person in the ordinary course of his business of acts or matters, which his duty in such business requires him to do for others, in case of his death, are admissible evidence of the acts and matters so done.”

It has been considered in several of the States, that neither the best administration of justice, nor any well established rule required the adoption of the limitation, that the entry must appear to have been made against the interest of the person making it; and the decisions in this country are more in accordance with those of Warren v. Greenville, and Palteshall v. Turford, than with the most of the other English cases. This Court is not satisfied with the reasoning upon which that limitation was introduced, and does not feel obliged to adopt it.

Exceptions overruled.