Gibson v. Bailey

54 Mass. 537

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1847
• Status: Published

Opinion

By the court.

In Mathes v. Robinson, 8 Met. 270, it was held that, “as the law has prescribed no mode in which a book shall be kept, to make t evidence, the question of competency must be determined by the appearance and character of the book, and all the circumstances of the case, indicating that it has been kept honestly, and with reasonable care and accuracy, or the reverse.” The same, in substance, was said by the court, in Cogswell v. Dolliver, 2 Mass. 217, the first reported case on this subject. We must presume, in the present case, that the appearance and character of the plaintiff’s book indicated, to the satisfaction of the judge at the trial, that it was kept honestly, carefully and accurately.

It was decided, in Faxon v. Hollis, 13 Mass. 427, that a book was admissible, though kept in a ledger form; that is, where all the charges against the defendant were entered on the same leaf of the plaintiff’s book, with no intervening charges against others.

The objection, that the entries in the book were made in pencil, was not a cause for rejecting it. Under the statute of frauds, which requires certain agreements to be in writing, it is held that such agreements need not be written with ink, but that it is a sufficient compliance with the statute if they are written with a pencil. Merritt v. Clason, 12 Johns. 102. Clason v. Bailey, 14 Johns. 484. So an indorsement upon a promissory note, written with a pencil, is valid. Geary v. Physic, 5 Barn. & Cres. 234, and 7 Dowl. & Ryl. 653. So d will, written in pencil, is valid, if the court be satisfied that the testator intended that it should operate as his last will. Rymes v. Clarkson, 1 Phillim. 35. Dickenson v. Dickenson, 2 Phillim. 175. In re Dyer, 1 Hagg. Ecel. Rep. 219.

Exceptions overruled.