McCloy v. Maffett's Administrator

The opinion of the court was delivered, November 16th 1868, by

Williams, J.

The rule of court under which the plaintiff helow was permitted to read in evidence the sworn copy of the account annexed to the affidavit of claim filed in this case, as taken from the books of original entry of his intestate, was intended to dispense with the production of the books at the trial, and to allow the sworn copy to be given in evidence in all cases where the books of original entry, if produced and proved, would be evidence of the items charged therein. The meaning of the rule is as obvious as the purpose for which it was intended. Its language is free from all doubt or ambiguity, and admits of but one construction. The rule provides in express terms that the sworn account as taken from the plaintiff’s books of original entry, “ shall be admitted as evidence, unless the defendant, by affidavit filed with or before his plea, shall state that he had no such dealings with the plaintiff as those stated in the account filed, or that he verily believes the production of the plaintiff’s books of original entry on the trial is necessary to a just decision of the cause.”

It is -true that the defendants below, in their affidavit of defence, objected to the prices of two of the items as charged in the plaintiff’s account, and alleged that the prices charged therefor were too much, specifying the amount of the excess on each of the items; but they did not allege that they had no such dealings with plaintiff’s intestate as those stated in the account, or that the production of the intestate’s books of original entry on the trial, was necessary to a just decision of the cause; on the contrary, the affidavit of defence impliedly admits that the defendants had such dealings with him, and, therefore, the court properly admitted the sworn copy of the account as taken from his books in evidence. And there was no hardship in this of which the plaintiffs in error, who were defendants below, had a right to complain. If the books of original entry had been produced and offered in evidence on the trial, they would have been primd facie evidence, not only of the items themselves, but of the prices charged therefor; and the burden of showing that the prices charged exceeded the amount agreed to be paid, or that they were excessive, would have been on the plaintiff in error. The admission of the sworn copy of the account did not impose upon them any additional burthen of proof in order to make out their alleged defence. It merely superseded the necessity of producing and proving the intestate’s books, thereby answering the very purpose intended by the rule.

The other rule, cited in the paper-book of the plaintiffs in error, which provides that “ if the plaintiff shall file, with his praecipe, a specification of the items of his claim and statement of facts necessary to support it, verified by affidavit, such items of the claim and material averment of facts as are not directly traversed or denied by the affidavit of defence shall be taken as admitted,” has no relevancy or application to the question raised in this case. It was not intended to embrace a case where the demand may be proved by books of original entry, and where the plaintiff files with or before his declaration a sworn copy of his account as taken from his books of original entry. If the plaintiff, instead of filing a sworn copy of his intestate’s account, had filed a specification of the items of his claim, and a statement of the facts necessary to support it, in accordance with this rule, the affidavit of the defendants would have been sufficient to prevent the items objected to from being taken as admitted. But as the rule under which the plaintiff filed the sworn copy of his intestate’s account, clearly authorized its admission in evidence, the judgment must be affirmed.

Judgment affirmed.