Bailey v. Barnelly , 23 Ga. 582 ( 1857 )

By the Court. —

Lumpkin, J.

delivering the opinion.

[1.] Was the Court right in refusing a continuance ? Not-a material fact necessary to a continuance of the cause was verified. The defendant, Bailey, stated to his counsel that he left the Court in consequence of the dangerous illness of one of his slaves. He declared it to be his intention to return, if it were possible for him to do so, and that if he did not, his attorney might know that it was because he could not leave home. But not one of these facts were sworn to by the defendant. Two persons claimed to be witnesses for Bailey, Hill and Battle, were absent and the docket showed that subpmnas had issued for both, but there was no proof that either had been served. We think the motion was properly refused.

[2] Did the Court err in not allowing defendant’s counsel to ask the plaintiff, when examined upon his voire dire, what part of the smith-work was done of his own knowledge; and what part was charged upon the report alone of the negro, unless the answer should go as testimony to the jury?

We think not, most clearly. The plaintiff had already made the preliminary proof required by law, to let in his books as evidence. He had gone further, and in reply to a question propounded to him by the defendant’s counsel, he had stated that a great part of the work charged in the account was done within his own knowledge, and that some of the items in the account were made from the report of the smith. That some of the work done was brought by the defendant to the shop, and that he had seen his cart there sometimes. Now, it will be observed that all of these facts were brought out in the preliminary examination before the Court and at the special instance of the defendant. We repeat that more was already extorted from Barnelly than the rules of evidence required, and of course he was entitled to arrest this course of examination, whenever he saw fit, unless it was suffered to go to the jury.

[3.] Are the books of a blacksmith admissible in evidence when proven in the usual mode, it appearing that some portion of the account was charged upon information received from a slave, who did the work ?

In Taylor vs. Tucker, 1 Kelly 231, this Court say: “It is also objected that a part of the entries were made, as proven by the plaintiff, from memoranda furnished by the sawyer, who delivered the lumber. The sawyer was the agent of the plaintiff for delivering it and no more. He kept no books? but reported to the plaintiff the transactions as they occurred; and from these reports, according to the testimony, he made his entries. This fact constitutes no departure from the rule. The delivery of the lumber by the plaintiff’s agent, his memoranda reported to him, and the plaintiff’s entries made at once from these memoranda, all make up the res gestee. Entries transcribed from a slate have been admitted as original entries. 13 Mass. Rep. 428. The reason given is that entries on a slate are mere memoranda, not designed to be permanent.”

It does not appear in the report of this case, whether the sawyer was a white or a black man; nor should it make any difference. Were the entries made cotemporaneous with the work performed ? If so, they were a part of the res gestee, and competent. In Ingraham vs. Boekins, 9 S. & R. 285, it was held that where the goods were delivered by the servant during the day and entry made by the master at night or on the following morning, from the memorandum made by the servant, it was sufficient. So in Price vs. Lord Torington, 1 Salk. 285, 2 Ld. Reymond, 873 S. C., one of the earliest reported cases, illustrative of this subject, being an action of assumpsit for beer sold and delivered, the plaintiff being a brewer, the evidence given to charge the defendant was that in the usual course of the plaintiff’s business, the draymen came every night to the clerk of the brewhouse, and gave him an account of the beer delivered during the day, which he entered in a book kept for that purpose, to which the dray-men set their hands. This entry with proof of the drayman’s hand-writing and of his death, was held sufficient to maintain the action. I am aware that the Courts of England have manifested an indisposition to extend the doctrine of this case. See 11 M. & W. 773, 775, 776.

So in the case of Fielder and others vs. Collier, 13 Ga. Rep. 497, this Court decided that the book-keeper and account of sales clerk were competent witnesses to testify from the entries and memoranda made by them respective^, as to the amount of sales, expenses, &c., and that it was not necessary to go behind the books and examine the weigher, wharfinger and other employees, who transacted the business. We ask, “ shall this proof be received, or shall the plaintiff be compelled to go behind the books thus verified by the clerks who kept them, and resort to each of the sub-agents who participated in the transaction and sale of this produce ? Are not the entries thus made in the usual course of the business of this trading establishment, and as a part of the proper employment of the witnesses who prove them, not only the best, but the only reliable evidence which it is practicable to produce ? We have no hesitation in holding that propriety, justice and convenience require this proof to be admitted. The weighers, wharfingers and numerous subordinates, who handle this cotton, keep no books. They report to the clerks who keep the books of the concern, and their functions are performed. It is not reasonable to suppose that they can remember the multitude of transactions occuring every day. After the lapse of a very brief period, the clerks themselves could only call to mind what had been done by referring to their entries and memoranda. How could these sub-agents be expected to do so without the means of refreshing their memory ? The actual salesmen in none of the great mercantile establishments keep the books. They report to the clerk who does, and he makes the entries. And yet these books are always received to prove the sale and delivery of goods.”

These cases establish that entries made at second hand are admissible, as original entries. But it is said that the books are made up in all these cases, from the report of white men. I ask what difference is there in principle in this respect. True, the defendant might resort to the original parties for proof to discredit the account. But the foregoing reasoning shows that he could derive but little relief from this source. And that the allowance of this species of evidence depends upon other considerations than that upon the difference in the status of the employee, as to whether he be bond or free. They are admitted because they are the register of the party’s daily business. Because they are verbal acts, and therefore, part of the res gests¡) being made dum fervet opus. They are admitted ex necessitate rei. Because to reject them, is to enact that shops kept by negro smiths cannot collect their accounts — a startling proclamation to make to the country. This Court has repeatedly admitted the sayings of a slave to the attending physician, as to his symptoms, and under other circumstances. True, it is the privilege of a freeman only, to give testimony in Courts of justice, and the disability of bondage, affixed by the common law, has never been removed, in this State, only as to those of their own caste and colour. But the admissibility of the sayings of a slave, under certain circumstances, and in the case before us, stand on a wholly different foundation, as has been again and again demonstrated by this Court. We admit these books because it was proven by the customers of the shop who had had their work done there by the same smith for a quarter of a century, that the accounts were kept correctly. And we fully concur in the profound and philosophical views urged by the able counsel for the defendant in error, in this branch of the argument, namely: that it was reasonable to rely upon the habits even of the blackman, for honesty, which were formed, and thus firmly fixed for such a length of time.

Lastly, we admit tírese books because Bailey well knowing, as he did, how this shop was kept and conducted, did impliedly agree to be charged in the manner against he is now contending; and this alone woplr1 ing upon which to rest this doctrine

No point was made to the Court below as to the comparison of the bill of particulars with the book of original entries, by two of the jurors, at the instance of plaintiff’s attorney. It was done without objection. It is too late to except to it now.

[4.] in addition to the corroborative testimony of the plaintiff’s customers, as to the probity of his shop books, was it incumbent to prove that the charges for the work done were usual and reasonable ? Here the course of dealing had been established, the books of the plaintiff were before the jury, why insist on other aliunde evidence? We see no necessity for it. The proof as it then stood was sufficiently full to establish the plaintiff’s demand.

Judgment affirmed.