Pembroke v. Allenstown , 41 N.H. 365 ( 1860 )

Bellows, J.

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 these entries were made in the regular course of business;, by sworn public officers, whose duty it was to keep an account of all sums collected by them; and the same were returned to the proper place of deposit, and kept among the town papers. Whether, in case of the decease of the surveyor, such entries could be read unless shown to be against the interest of the maker, it is not necessary now to decide, although the authorities are numerous which hold that they might be. We, however, regard the principle as settled, that such entries, when verified by the persons making them, as in this case, may be read in evidence. Indeed, the defendants’ counsel seem not disposed seriously to deny that they may be read as evidence of what they do state, if it be relevant.

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. Ithaca Owego Railroad, 16 Wend. 586, 594-599, where the point was much considered by Cowen, J., and the American cases cited. So in Clark v. Vorce, 15 Wend. 193, the notes of a deceased witness’ testimony taken by counsel, who could not then testify except from his notes, were admitted to be read; and this accords with the settled practice in New-Hampshire. And the same principle is familiarly applied to the proof of the execution of deeds and other instruments by the subscribing witnesses.

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 payments made; and it is substantially a statement oí a fact that they entered upon the lists all the payments made, and that the lists, with the entries upon them, are true accounts. And we think that these statements correspond with the inferences to be drawn from the lists and entries themselves, regarded as made in the course of a public duty which requires such an account to be kept, and that therefore the statements of the surveyors are rather to be regarded as verifying and explaining the account, as in the ease of the Bank of Monroe v. Culver, 2 Hill 531, before cited, where the clerk was permitted to testify that the entry of the residences of the indorsers indicated that he had sent notices to them. In the case of a memorandum of a conversation made by a witness who had since forgotten the particulars, but who states that it contained the whole, it would have some tendency to disprove other particulars not stated, though its weight would depend upon circumstances to be weighed by the jury. And so in respect to notes of the testimony of deceased witnesses, as is well put by the plaintiffs’ counsel.

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.