20 Wis. 412 | Wis. | 1866
The practice of receiving the account books of a party in evidence varies greatly in the different states. In some, the oath of the party is received in authentication and support of Ms books ; in others, the books are received, when verified by a disinterested witness, and the oath of the party is not received; in some a limited admission is given by statute; and in some the practice does not seem to exist at all. See 1 Smith’s Leading Cases, 5th Am. ed., Price v. The Earl of Torrington, 407, inwMch the American decisions are collected, pp. 407 to 432. In tMs state the practice in relation to this species of evidence is regulated by statute. R. S., ch. 137, secs. 88, 89. It will be found, upon comparing the provisions of our statutes with the rules governing this kind of evidence in some
We are furthermore of opinion that the court erred in rejecting the testimony of the witness Ernest Schettler. If the books were not admissible as evidence to be submitted to the jury, they certainly were sufficient as memoranda to assist the
But upon this point we are inclined to go somewhat further, and to hold that the subsequent offer of testimony by this witness was improperly rejected. The charges were not mere private memoranda made by the witness for his own convenience, but entries in the books of the plaintiff in the regular course of business. In such cases we think the sounder and better rule to be, that if the witness can swear positively that the memo-randa or entries were made according to the truth of the facts, and consequently that the facts did exist, that is sufficient, though they may not remain in his memory at the time he gives his testimony. He may testify from the entries, and when he does so he swears positively to the truth of the facts stated in them. TMs rule has been applied to the record books of notaries kept by themselves and their clerks (Sharpe v. Bingley, 1 Mill’s Const. Rep. S. C., 373; Haig v. Newton, id., 473); to entries in the ledger of a town clerk, where he kept the accounts of the town (Columbia v. Harrison, 2 id., 213); to an affidavit drawn up by the witness at the time of the transactions about wMch he was called to testify (State v. Rawls, 2 Nott & McCord, 331); to the memorandum of a witness who measured and superintended the measurement of a quantity of work done (Cleverly v. McCullough, 2 Hill S. C. Law R., 445); to the notes of judges and counsel taken upon the trial of causes (Rogers v. Benton, Peck, 108; Downer v. Rowell, 24 Vemont,
By the Court. — Judgment reversed, and a new trial awarded.