Everly v. Bradford , 4 Ala. 371 ( 1842 )

COLLIER, 0. J.

It is conceded that where a clerk who has made entries in the books of his employer is dead, proof of his handwriting is admissible to show, not only that the entries were made as they appear, but also that they are correct. Clemens v. Patton, Donegan & Co. [9 Porter’s Rep. 289,] is directly to the point. But it is insisted that the instruction asked to be given to the jury, not only asserts the admissibility of the evidence, but its legal conclusiveness. This argument we think cannot be maintained. We understand from the bill of exceptions that no evidence was offered by the defendant, at the trial, so that the cause was submitted to the jury on the proof adduced by the plaintiff alone; this appears from the statement that there was “no evidence to disprove plaintiff’s account.” Now the case cited affirms that the evidence was prima facie sufficient to establish the account; this being the case, upon principle, it would seem, the jury were bound to accord to it credence. The Court were requested thus to declare the law in effect.

It is true that the jury are to judge of the credibility of witnesses, but there was nothing in the deposition before them to discredit it, or cast the slightest shade of suspicion over the witness. The entry made by the deceased clerk, supposing the beads to have been sold at thirty cents the dozen, was incorrectly carried out; but this should be intended to be a mistake of tne commissioner who took the deposition, or of the scrivener who wrote it. And the fact that the plaintiff declares for one hundred dollars only, shows that the charge should have been twenty cents the dozen. If the facts were submitted to a Court as a case agreed, or as a special verdict, there could be no hesitancy as to the proper judgment, and we eannot doubt the correctness of the instruction prayed.

The judgments rendered, both b^ the County and Circuit Courts are reversed, and the cause remanded to the Circuit Court, that it may be thence remanded to the County Court.