Richardson v. Emery

23 N.H. 220 | Superior Court of New Hampshire | 1851

Gilchrist, C. J.

The ruling of the court, in this case, rejecting the book was correct. There is no principle on which such extremely loose papers as those offered by the plaintiff., are admissible in evidence, as a book of accounts. They do not possess that intrinsic evidence of their truth, without which the admission of account books is extremely dangerous to the cause of justice.

In the first place, the charges in the hand-writing of the party, must appear in such a state that they may be presumed to have been his daily minutes of his transactions and business. Eastman v. Moulton, 3 N. H. Rep., 156. The papers offered to substantiate this claim are confessedly not such minutes. The plaintiff was engaged in buying and selling lots of wood, and he kept different books for the different lots. He did not keep one book of original entries on which his daily charges were made, so as to afford some security against interpolations, but the matters relating to each transaction were separately recorded. It would be much easier to manufacture a book containing the plaintiff’s statement of a single transaction, than a regular account book containing the minutes of his business from day to day.

The charges, with the single exception of that against the defendants, purport to be only for money received and. for money paid. This doas not accord with our experience of the nature of the daily transactions between man and man. Ordinary business does not consist so exclusively of such subjects, and this is a matter proper to be considered in connexion with others,, in determining whether the book can be considered a daily record of business transactions. We cannot presume that the business of the plaintiff was so entirely of this character.

The evidence furnished by the memoranda, is likewise uncertain. The plaintiff and Sawyer owned the Colt lot together. It does not appear whether this wood did,- or did not, come from the Colt lot, and whether the plaintiff owned it alone, or with Sawyer. If the plaintiff should recover, on the evidence furnished by these charges, and if the wood should have come from the Colt lot, and Sawyer should be entitled to a’ share of the proceeds of it, the defendant might be called on to pay again for what he had already paid; a result which, of course, should be avoided if practicable-.

The ease of Cogswell v. Dolliver, 2 Mass., 217, by no means comes up to the standard established by Eastman v. Moulton, and since invariably recognized: as authority by this court. In the case in Massachusetts, Sewall, J., holds that the objections to the competency of a book are of two kinds only: one, that it does not contain the first entries by the party, made at or near the time of the transactions to be proved, the other, that it presents fraudulent appearances. Sedgwick, J., says that a book “ ought to appear suited to aid the oath of the party which it is brought to fortify and confirm.” This is different from the doctrine of this court: In the case of Little v. Wyatt, 14 N. H. Rep., 26, it is said “it,is the book which is the evidence*, and the party testifies in chief only to verify it. The party is not a witness who testifies to facts, and then appeals to his book in corroboration of his story, but the book is the source of information.” Sedgwick, J., aIsovheld that the determination of the court, before whom the case is tried, that the book is proper to be admitted, renders it competent evidence. Undoubtedly the practice has been very lax on this point, and numerous decisions are to be found in the reports in this country irrecomcilable with any principle. In Curren v. Crawford, 4 S. & R., 8, the words and figures “II 15 B. Marpal, 60, Thermity Coren,” were admitted as evidence of a charge of lime, and in Prince v. Smith, 4 Mass., 455, it is held that regard may be had to the degree of education of a party. We have before had occasion to comment on these singular decisions; Woodes v. Dennett, 12 N. H. Rep., 512; and the explanation of them, as was then said, is to be found in the fact that the great cheapness and convenience of this mode of proof had insensibly introduced a laxity in the practice, which the courts in question found it difficult to limit to the cases for which such evidence was originally designed.

We have already held that there is no particular form in which the account book of a party must be kept; Cummings v. Nichols, 13 N. H. Rep., 420 ; and we are desirous of adapting the rule regulating the admission of it to the practical business of life, so far as that may be done without violating the principle that a party shall not be a witness in chief in his own case.

Judgment for the defendant.