Moore v. Andrews & Bros. , 5 Port. 107 ( 1837 )

COLLIER, J.

The defendants in error sued the plaintiff, in the County Court of Madison, and declared for goods sold and delivered, money lent and advanced, and money paid, &c.

On the trial, the defendants proved a portion of their account, by shewing that some of the goods charged, as sold and delivered to the plaintiff, were charged on their books in the hand writing of a former clerk, then in Tennessee. To the admission of this evidence, the plaintiff in error excepted, and here assigns the same as error.

The bill of exceptions does not inform us that this, witness does not reside within the State, and rather authorises the conclusion that he does, as it speaks of him as now in Tennessee, and again he is mentioned as absent. We, however, lay no stress upon the want of precision in the bill of exceptions, in this particular; for though the non-residence of the witness, had been conclusively shewn, we should yet think that the testimony was improperly admitted. We are not aware of any adjudged case, unless it be influenced by a statute, in which it has been hidden, that the entries of a clerk, in the books of his employer, are allowed to go to the jury in an action to recover for goods, sold, &c. unless a foundation be first laid by shewing his death. His temporary absence from, or even removal without the ■State, are not sufficient to authorise the entries to jje used as evidence. Under such circumstances, our laws afford ample means for obtaining his testimony by deposition.

In Kennedy vs Fairman,^* proof of the hand writing of the plaintiff’s clerk, who made the entries, and had afterwards gone abroad, was ruled not to be evidence to support an action for goods sold and delivered.

The rule which allows of this description of secondary evidence, is one, resulting ex necessitate, viz: the impracticability of procuring better proof, and should be confined within proper limits.

In argument, it has been attempted to assimilate the proof of private entries by third persons, to the proof of hand-writing of a subscribing witness to a paper, when absent from the State. The mere temporary absence of a subscribing witness, will not be sufficient to let in proof of his hand-writing; in such case the party should continue, to await his return.^†

One reason, and the chief, why secondary evidence in the case of the subscribing witness, where he resides without the reach of the process of the Court, is allowable, is the great danger of losing the instrument attested, if sent abroad to be proved by deposition. This reason has no application in the case at bar; it was both convenient and proper to have shewn by the deposition of the absent witness, that he sold and delivered the articles charged on the books, in his hand-writing, and then to have proved his hand-writing, by a witness present.

In some of the States, statutes have been enacted, facilitating -the proof of merchants, and other. book accounts, and many of the decisions rest on these statutes. In this State, the admissibility of proof in such cases, depends upon the common law rules of evidence.

The judgment is reversed, and the cause remanded.

HOPKINS, O. J, not sitting.

* 1 Hayw. 458.

† 1 Greenleaf’s R. 57,