Mathes v. Robinson

49 Mass. 269

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

Opinion

Shaw, C. J.

So long as the rule of law is allowed to prevail, that the account books of a plaintiff, verifiéd by his oath, may be admitted to prove charges for services done and goods sold, much must depend upon the appearance and character of the book offered as evidence, and the view taken of it by the judge who tries the cause. It is true that the question, whether a book is competent to go to the jury, is a question of law; but as the law has prescribed no mode in which a book shall be kept, to make it 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. In the present case, the court can perceive no conclusive objection to the admission of the book called a time book. It is a book kept in a tabular form, in which the days of the month are placed at the head of the column, and the name of the workman on the side; and at the end of each day, or near it, a figure is put down at the place of intersection, say 1, £ or indicating thereby, that the person has worked the whole or a fraction of that day. It cannot be objected that the time is put down in figures, for that is the case in all modes; nor that it was not an original entry, because that fact must depend, as in other cases, on the oath of the party, to prove that it was made at or about the time it purports to be made, and by the prope» party. It appears to us to be intelligible, and not more liable to fraudulent fabrication or alteration than entries kept in ledgei form, which have been held to be good. Faxon v. Hollis, 13 Mass. 427. Rodman v. Hoop, 1 Dali. 85.

The objection to the book, so far as it tended to prove sei vices of the apprentice, because the apprentice might have been called as a witness, seems to us untenable, and founded on a mistaken view of the nature of this species of evidence. The use of one’s own books, verified by his oath, is not secondary evidence, nor is it necessary to its admission first to show the loss of other evidence. It is original, but feeble and unsatisfactory evidence. When such evidence is offered, and it is apparent from the case that the party producing it could probably furnish better evidence, and he fails so to do, or to account for its absence, it must greatly diminish the credit due to the feeble evidence. But this is a consideration which goes to its credit, and not to its competency, and is for the jury, and not for the court. Holmes v. Marden, 12 Pick. 169.

Exceptions overruled.