Bunker v. Shed

49 Mass. 150

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1844
• Status: Published

Opinion

Dewey,

J. The evidence as to the delivery of the execution 1 to the defendant was competent evidence. The book or register produced may not be entitled to the same degree of credit as the book of an officer of a bank, containing memoranda of notices to makers and indorsers of promissory notes, discounted at the bank, or placed there for collection. Such books have an established character as evidence, and, as was held in cases cited by She plaintiff’s counsel, may be used in case of the death or the absconding of the person making such entries. The entry now relied upon may be well sustained without attributing so much weight to the register itself. It is sufficient for the present case to say, that it derives its efficacy from, and is made competent evidence by, the oath of the person who made the entry; not, indeed, testifying directly that he has any recollection of the fact stated in the registry, but from his statement, on oath, that he should not have made the entry upon the register, if he had not delivered the execution himself, or known such delivery to have taken place. Shove v. Wiley, 18 Pick. 558.

Upon the other point also, we think the ruling of the court was correct. The making of the writ was, prima facie, the commencement of the action. Gardner v. Webber, 17 Pick. 407. The date of the writ was, therefore, in the first instance, to be taken as the period from which the computation of the six years was to be made feuch writ must have been made with the intention to have the same seasonably served, and the delay in procuring such service, in the present case, was proper evidence for the consideration of the jury; but this fact imposed no new burden on the plaintiff. The whole matter was properly left to the jury to consider, and under such instructions as seem to us conformable to law

Exceptions overruled.