41 N.H. 365 | N.H. | 1860
Tbe entries are not admissible as being against tbe interest of tbe parties making them, who are now deceased; nor as a return of a returnable process, as is settled in Davis v. Clements, 2 N. H. 390. But tbeir admission is placed upon tbe ground that tbe persons making them bad knowledge, at tbe time, of tbeir truth; and being now called, testify that they then knew them to be correctly made, and to indicate tbe true state of each individual’s indebtedness, and that they have now no doubt that tbe entries show all tbe payments made, though they have no present recollection of tbe fact whether tbe person in question did or did not pay bis taxes. It appears that
In Hoit v. Wilson, 2 Wend. 513, the entry, by a clerk, in a register containing a copy of the note, of the residences of the indorsers, with the testimony of the clerk that it expressed to his understanding that he made and addressed the notices, though he then had no memory of it, was held to be admissible as evidence of protest. So in Alvord v. Coffin, 20 Pick. 431, the posting of an advertisement of sale was proved by a certificate upon the advertisement, signed by the party posting it, who testified to the correctness of the certificate, though he then had no memory of it. To the same effect is Spaun v. Battzell, 1 Florida 302, 321. In Smith’s Leading Cases (5th Am. Ed., vol. 1, pages 397— 400) it is stated that in case the party making such entries testifies to their correctness, though he cannot remember the facts now, they are admissible as primary evidence; and to that point are cited many authorities. In Bank of Monroe v. Culver, 2 Hill 531, it was held that entries made by a clerk in the usual course of business, which he testifies were in accordance with the uniform practice, and has no doubt were truly made, though he has now no recollection of the facts, were admissible evidence. The same doctrine is distinctly laid down in Merrill v. Ith
So far, the cases cited are of entries made in the usual course of business, as in the case before us. But the same principle has been extended to entries and other memo-randa not made in the course of business, but merely for the convenience of the party making it, and to assist his memory, as in Haven v. Wendell, 11 N. H. 112 ; Webster v. Clark, 30 N. H. 245; Pillsburg v. Locke, 33 N. H. 96; Tut-tle v. Robinson, 33 N. H. 104; 1 Gr. Ev., sec. 437; Halsey v. Sinsebough, 15 N. Y. (1 Smith) 485; Russell v. Hudson River Railroad, 17 N. Y. (3 Smith) 134. The doctrine of these cases has been questioned, but it is too well established in this State to be overthrown, although the court might not be inclined to extend it.
These entries, therefore, under the circumstances of this case, are, upon the views we have taken, admissible, if, in connection with the testimony of the surveyors, they may legally tend to throw light upon the questions at issue. Against the taxes in question no entry whatever was made, except in one instance ; and therefore it is claimed, with some plausibility, that there is no entry respecting the matter in controversy. If such were really the fact, we should hesitate long before holding that the testimony of the surveyors should be received; for that would be but the expression of an opinion, and not the statement of a fact. But it must be considered that the surveyors testify that the entries indicate the true state of each person’s indebtedness, and they have no doubt they show all the
These views are sustained by the case of Nourse v. M’ Coy, 2 Rawle 70, where, to show a deed to be a forgery, the account of a deceased magistrate, containing a charge for the acknowledgment of three deeds on the same day, but not of the deed in question, was held to be admissible. Indeed, the omission to make an entry when the course of duty would require it, would sometimes be as significant as an entry itself. 2 Smith L. C. (5th Am. Ed.) 397.
Upon the whole we are inclined to hold the evidence admissible, and therefore there must be
Judgment on the verdict.