Godding v. Orcutt

44 Vt. 54

• Court: Supreme Court of Vermont
• Decided: August 15, 1871
• Status: Published

Opinion

The opinion of the" court was delivered by

Redfield, J.

Memoranda on an execution, in the hand-writing of the intestate, “ stating that cattle bid off by him on the execution had gone back to the defendant, and also an endorsement on the execution of the Daniel Beckwith note, in the hand-writing of the intestate,” were admitted in evidence against the objection of the defendant. Also certain diaries, in which were memoranda made by the intestate, which purported to be invoices of property and “ included the note in suit, with the endorsement of the town order,- and the execution, with the endorsement of the Beckwith note.” These were not entries made by a public officer in the discharge of a duty, like the return of a sheriff, or the memoranda of a notary in the. discharge of an official duty, but a private entry, and in favor of the party making it.

We think the admission of these memoranda, as independent evidence, made in his own interest, was error. Books of account, and entries therein showing a debt, like goods sold or labor performed, are made evidence by statute. And it has been held that an entry, in regular course, by a deceased clerk, of labor done, was admissible as independent evidence. Bacon v. Vaughn, 34 R., 75. And even though such clerk be living, and not produced. Cummings v. Fullam, 13 Vt. R., 434. But it was distinctly decided in Lapham v. Kelley, 35 Vt. R., 195, on a thorough and full examination of all the authorities on this subject, that an entry in a pass-book, of like character, was not admissible as independent evidence. And we are aware of no well considered case that would warrant a party to make evidence in Ms favor, by private memoranda in a pass-book or elsewhere.

The judgment of the county court is reversed, and the case remanded.