Smith v. Smith's Ex'x.

Superior Court of Delaware

Smith v. Smith's Ex'x.

4 Del. 532

DecidedJuly 5, 1847

StatusPublished

This text of 4 Del. 532 (Smith v. Smith's Ex'x.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Smith's Ex'x., 4 Del. 532 (Del. Ct. App. 1847).

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Opinion

The Court

said that long practice, and perhaps necessity, required the admission of such evidence. (a)

(a)

Joshua Hall vs. N. Field and A. Wiltbank. March 18, 1795, Supreme Court, Sussex. Covenant for the hire and one-third value of the schooner Polly Hall, on charter party of affreightment. Ridgely and Bayard, for defendant; Miller and Wilson, for plaintiff.

Defendant’s counsel offered the book (being a sheet of paper sewed together in octavo,) of one of the defendant’s, (Field,) together with his oath in evidence.

Plaintiff’s counsel objected that this was not a book regularly and fairly kept; here appears to be only one account; it appears! o have been written all at once, it is agreed that at least many of the charges were written long after the transaction.

Per Curiam. Read, Chief Justice.—The book is tobe read. ' We are under a necessity, considering the irregular practice under the act of assumptions, to admit the book, though not such as that act requires: the practice under an act is the best construction of the act. One instance, thirty years back, occurs to me; since which I have not objected to such exhibits. It was a bit of paper about two inches square and entered sometime after the transaction but was the only eivdence, and it was admitted on argument at Dover. There is a similar act in Pennsylvania, and there a closet door with chalks, &c., was admitted. It appears from the book several of the charges were entered long after the transactions; but the jury will give it its credit. (Wilson's MS. Rep. 64.)

Verdict for plaintiff.

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The Court

said that long practice, and perhaps necessity, required the admission of such evidence. (a)

(a)

Joshua Hall vs. N. Field and A. Wiltbank. March 18, 1795, Supreme Court, Sussex. Covenant for the hire and one-third value of the schooner Polly Hall, on charter party of affreightment. Ridgely and Bayard, for defendant; Miller and Wilson, for plaintiff.

Defendant’s counsel offered the book (being a sheet of paper sewed together in octavo,) of one of the defendant’s, (Field,) together with his oath in evidence.

Plaintiff’s counsel objected that this was not a book regularly and fairly kept; here appears to be only one account; it appears! o have been written all at once, it is agreed that at least many of the charges were written long after the transaction.

Per Curiam. Read, Chief Justice.—The book is tobe read. ' We are under a necessity, considering the irregular practice under the act of assumptions, to admit the book, though not such as that act requires: the practice under an act is the best construction of the act. One instance, thirty years back, occurs to me; since which I have not objected to such exhibits. It was a bit of paper about two inches square and entered sometime after the transaction but was the only eivdence, and it was admitted on argument at Dover. There is a similar act in Pennsylvania, and there a closet door with chalks, &c., was admitted. It appears from the book several of the charges were entered long after the transactions; but the jury will give it its credit. (Wilson's MS. Rep. 64.)

Verdict for plaintiff.

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Bluebook (online)

4 Del. 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smiths-exx-delsuperct-1847.