Porter v. Lee

16 Pa. 412, 1851 Pa. LEXIS 112

• Court: Supreme Court of Pennsylvania
• Decided: June 30, 1851
• Status: Published

Opinion

The opinion of the court was delivered June 80, by

Coulter, J.

The ordering on the trial, and the refusal to continue the cause, was a matter within the discretion of the court below, and is not examinable for error here. But for aught that appears, the court exercised its discretion on that subject with due regard to the rights of all parties, and not with a particular regard to the convenience and laches of one of them.

The pass-book, as it is called, which Colonel Lee kept and sent to the store of Porter & Holland, and in which was entered every thing got from the store by his hands or by his order, was, as his nephew, who attended at the trial, deposed, at his uncle’s residence in Luzerne county. The notice to produce it was given two days before the trial, to Mr. Alricks, his attorney, in Harrisburg. No facility of travel nor mode of' communication could have brought it in that time. The plaintiff came to try on the plea of payment; he could have had no notice or legal warning that it was necessary for him to carry this hook to the trial. But, as alleged, it was a mere transcript, or equivalent in its entries to the partnership books of Porter & Holland. Why then did they not bring on their own books; they were the proper evidence of the account, or the alleged balance was admissible under ■ the pleadings. The part of the deposition therefore of William Stewart, which relates to the contents of the pass-book, and its alleged equivalent, the store-books of Porter & Holland, was properly rejected. He says that “ in superintending the mines, he also had a supervision over the store and store-accounts. Colonel Lee had a running account in the store. He kept a pass-book, which was kept to correspond with his store-account. The balance due on his account amounts to $>1869 and some cents, up to October 1848.” He does not say who made the entries, what the nature of the charges was nor that he knew the handwriting, or made the entries himself.

It is true that Mr. Greenleaf in sec. 93, vol. 1, of his Evidence, says “that a witness who has inspected the accounts of the party, though he may not be permitted to give evidence of their particular contents, may be allowed to speak of the general balance without producing the accounts.” But he must be understood to mean when that general balance is incidentally involved in the investigation, and not to extend or embrace cases where that general balance is spoken of or testified to as a distinct charge against the opposite party, and the ground of claim and recovery. Because it is clear that a witness may not speak of particular facts appearing on the books or deducible from the entries without producing the books. Eor where the writing or entries were not made by the witness himself, his testimony, so far as founded on it, is no more than hearsay. And why should a witness be allowed to give evidence of his inference rather from what a third person has written, than from what a third person has said. These entries in the pass-book and store-book may, besides, have covered things or money which are not the subject of evidence by book-entry, and such evidence, if admitted, would destroy and overturn all the safeguards which the law has thrown around this kind of testimony.

Judgment affirmed.