Kendall v. Field

| Me. | Aug 15, 1836

The opinion of the Court was delivered the same term by

Weston C. J

The plaintiff’s intestate was employed by the defendants to hew timber for them in the woods. While there, the intestate entered daily on a shingle, the quantity hewn by him each day. It was taken away by the defendants, without being surveyed, and mingled with other timber. Considering the nature of his employment, and the place where he was, and that the shingle contained the daily minutes of the business in which he was engaged, we think it was legally admissible. It was a substitute for a memorandum book, which answered the purpose at the time, and was, perhaps, as little liable to alteration or erasure, without being detected by the eye, as if made on paper. And we are of opinion, that it was proper evidence to be submitted to the jury, and to be weighed by them, in connexion with the other testimony.

The witness rejected was clearly inadmissible on the ground of interest. If the defendants, for whom he was called, had prevailed, their land, which has been conveyed to him since this action, and which he has reconveyed with warranty, would be liberated from attachment. That a witness so circumstanced, is incompetent, although he may have taken a covenant of warranty from bis grantor, was decided in Schillinger v. McCann, 6 Greenl. 364, to which we refer.

Judgment on the verdict.