Green, Judge,
announced the opinion of the Court:
The main question in dispute before the jury on the trial of this case was, “whether or not the two tanks of one thousand barrels and eight hundred barrels respectively and the boiler at the Banner well were included in the property, which was turned over by Gilman and Shakely to B. G. Compton, as the agent and manager of the West Virginia Oil and Oil Land Company. The defendant Gilman insisting, that these items of property were not in point of fact so turned over, and the plaintiff insisting, that they were. To prove that they were not the defendant, Gilman, offered evidence tending to prove, that at the time of the turning over of said property to B. G. Compton, as agent of said company, a schedule in writing of the property was made out and signed by Gilman and Shakely and delivered to Compton as such agent, and that it had been lost and the defendant, Gilman, proved the contents of this paper stating, that these two tanks and boiler were not in tins schedule of the property, which was signed by Gilman and Shakely.
The plaintiff himself then testified, that Compton was and for some time past had been a non-resident of the State; that he had procured a statement from Compton of the invoice of the property, which was so turned over by Gilman and Shakely to him as agent of said company, which invoice [308]*308was produced and shown to the jury, and on it was mentioned these two tanks and this boiler of the Banner well; that this invoice thus produced was taken from a book, which Compton had in his possession containing the inventory made at the time this property was so turned over, and that the witness saw this invoice on said book and knew that the invoice produced and shown to the jury, was an exact copy of the original list of said property as kept in this book.
The defendant, Gilman, objected then to the reading of this invoice to the jury, but the court permitted it to be read, and the only question presented by the record for our decision in this case is, did the court err in thus permitting this invoice to be read.
To determine this question, we must determine the character of this entry in this book made by Compton of this invoice. Was it an original entry or was it a copy of the inventory of this property, which liad been signed by Gilman and Shakely when they turned over this property to Compton, as the agent of said company? This, it seems to me, is satisfactorily answered by the paper itself, which was produced. It commences: “Invoice of Woods & Boyd’s property turned over to West Virginia Oil and Oil Land Company, B. G. Compton agent, by Gilman and Shakely.” Then follows a simple list of the property not signed at all. This paper is on its face not a copy of the schedule signed by Gil-man and Shakely and handed over by them to B. G. Compton, and it does not profess to be a copy of such a paper. It professes to be an original invoice of this property made out it is proven, in the handwriting of Compton, and as he had the possession and control of this property, it must be regarded as having been made out from inspection of the property, as other invoices are made out; he being the agent and clerk of this company and having the charge and control of this property, it was obviously in his line of duty as such agent to make out in a book, in which the other property of this company in his charge was listed, a list of this property which then for the first time came under his charge as the agent of the company; and it is presumed, that this was an entry in this book in the regular and proper discharge of his duty as such agent. It was not only not a copy of the paper, [309]*309which Gilman and Sliakely had signed, but it was not even a private memorandum of B. G. Gilman; it was a regular business entry made by him as agent of the West Virginia Oil and Oil Land Company, in the regular transaction of business at the time the transactions occurred, which is recorded in such entry. Such an entry stands on a very different footing from a private memorándum or entry, which has been made by a witness of any transaction. Though the party who made such private memorandum or entry bo dead, it can never be used as evidence; and under no circumstances is such private memorandum or entry held to be in itself evidence.
But when the witness is living, it maybe examined by him to refresh his memory though it is never itself evidence, which can be submitted to the jury to prove the facts recorded in such memorandum. When it is permitted to be examined and read by the witness, still it is the statement of the witness and not the private memorandum or entry, which is the evidence. See Kensington v. Inglis et al., 8 East. 274; Harrison v. Middleton, 11 Gratt. 544; O’Neale v. Walton, 1 Rich. 234; Sasseer v. The Farmers Bank, 4 Md. 418; Maungham v. Hubbard & Robinson, 8 Barn. & Cres. 14. It is otherwise when the memorandum or entry is not a private one, but is one made in the usual course of business by a clerk or agent. For such memorandum or entry is held to be admissible as evidence, after the death of such clerk or agent, on proof of his hand-writing eArnn though the entry be not contrary to the interest of the party who made the memorandum or entry.
It is sufficient, that the entry was made at the time of the occurrence in the usual course of business, to make it evidence on proof of the hand-writing of the party who made it, and that he is dead. See Doe v. Turford, 3 B. & Ad. 890; Price v. The Earl of Torrington, 1 Salkel 285, and notes thereon in Smith Leading Cas. vol. 1, side page 390; Lewis v. Norton, 1 Wash. 76; Welsh v. Barrett, 15 Mass. 380. And when the party is living, who made such an entry in the regular course of business, though he remembers and can testify nothing about the facts recorded in the entry, but simply testifies that he made the entry in the usual course of [310]*310business at the time of the transaction, such entry is of itself primary evidence of the facts recorded, though the witness be living and testifies in court if he knows, that he made the entry in the regular course of business. See Spann v. Baltzell, 1 Fla. 302-321; Farmers & Mechanics Bank v. Boraef 1 Rawle 152; Bank of Monroe v. Culver, 2 Hill N. Y. 532.
Upon these and other authorities I think it is clear, that if B. G. Compton had been dead, this memorandum book kept by him as the agent and manager of the West Virginia Oil and Oil Land Company, could have been produced and on the proof of his hand writing, this invoice and entry could have been read as evidence to the jury to prove the facts recorded in this entry.
The next enquiry is, whether the fact that B. G. Compton was a non-resident of this State, and could not therefore be compelled by the plaintiff to attend at the trial as a witness, would when proven, have justified the introduction of the invoice and entry as though ho were dead. It has in many cases been held by courts — or intimated by dicta of Judges, that under such circumstances the book so kept and the entry in it, may be produced in court and submitted to the jury as evidence of the facts recorded in the entry, on the proof of the hand writing of the book-keeper, though he be not dead, if he resides and is out of the State. Elms v. Chevis, 2 McCord (S. C.) 349; Trun. v. Rogers, 1 Bay 480;
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Green, Judge,
announced the opinion of the Court:
The main question in dispute before the jury on the trial of this case was, “whether or not the two tanks of one thousand barrels and eight hundred barrels respectively and the boiler at the Banner well were included in the property, which was turned over by Gilman and Shakely to B. G. Compton, as the agent and manager of the West Virginia Oil and Oil Land Company. The defendant Gilman insisting, that these items of property were not in point of fact so turned over, and the plaintiff insisting, that they were. To prove that they were not the defendant, Gilman, offered evidence tending to prove, that at the time of the turning over of said property to B. G. Compton, as agent of said company, a schedule in writing of the property was made out and signed by Gilman and Shakely and delivered to Compton as such agent, and that it had been lost and the defendant, Gilman, proved the contents of this paper stating, that these two tanks and boiler were not in tins schedule of the property, which was signed by Gilman and Shakely.
The plaintiff himself then testified, that Compton was and for some time past had been a non-resident of the State; that he had procured a statement from Compton of the invoice of the property, which was so turned over by Gilman and Shakely to him as agent of said company, which invoice [308]*308was produced and shown to the jury, and on it was mentioned these two tanks and this boiler of the Banner well; that this invoice thus produced was taken from a book, which Compton had in his possession containing the inventory made at the time this property was so turned over, and that the witness saw this invoice on said book and knew that the invoice produced and shown to the jury, was an exact copy of the original list of said property as kept in this book.
The defendant, Gilman, objected then to the reading of this invoice to the jury, but the court permitted it to be read, and the only question presented by the record for our decision in this case is, did the court err in thus permitting this invoice to be read.
To determine this question, we must determine the character of this entry in this book made by Compton of this invoice. Was it an original entry or was it a copy of the inventory of this property, which liad been signed by Gilman and Shakely when they turned over this property to Compton, as the agent of said company? This, it seems to me, is satisfactorily answered by the paper itself, which was produced. It commences: “Invoice of Woods & Boyd’s property turned over to West Virginia Oil and Oil Land Company, B. G. Compton agent, by Gilman and Shakely.” Then follows a simple list of the property not signed at all. This paper is on its face not a copy of the schedule signed by Gil-man and Shakely and handed over by them to B. G. Compton, and it does not profess to be a copy of such a paper. It professes to be an original invoice of this property made out it is proven, in the handwriting of Compton, and as he had the possession and control of this property, it must be regarded as having been made out from inspection of the property, as other invoices are made out; he being the agent and clerk of this company and having the charge and control of this property, it was obviously in his line of duty as such agent to make out in a book, in which the other property of this company in his charge was listed, a list of this property which then for the first time came under his charge as the agent of the company; and it is presumed, that this was an entry in this book in the regular and proper discharge of his duty as such agent. It was not only not a copy of the paper, [309]*309which Gilman and Sliakely had signed, but it was not even a private memorandum of B. G. Gilman; it was a regular business entry made by him as agent of the West Virginia Oil and Oil Land Company, in the regular transaction of business at the time the transactions occurred, which is recorded in such entry. Such an entry stands on a very different footing from a private memorándum or entry, which has been made by a witness of any transaction. Though the party who made such private memorandum or entry bo dead, it can never be used as evidence; and under no circumstances is such private memorandum or entry held to be in itself evidence.
But when the witness is living, it maybe examined by him to refresh his memory though it is never itself evidence, which can be submitted to the jury to prove the facts recorded in such memorandum. When it is permitted to be examined and read by the witness, still it is the statement of the witness and not the private memorandum or entry, which is the evidence. See Kensington v. Inglis et al., 8 East. 274; Harrison v. Middleton, 11 Gratt. 544; O’Neale v. Walton, 1 Rich. 234; Sasseer v. The Farmers Bank, 4 Md. 418; Maungham v. Hubbard & Robinson, 8 Barn. & Cres. 14. It is otherwise when the memorandum or entry is not a private one, but is one made in the usual course of business by a clerk or agent. For such memorandum or entry is held to be admissible as evidence, after the death of such clerk or agent, on proof of his hand-writing eArnn though the entry be not contrary to the interest of the party who made the memorandum or entry.
It is sufficient, that the entry was made at the time of the occurrence in the usual course of business, to make it evidence on proof of the hand-writing of the party who made it, and that he is dead. See Doe v. Turford, 3 B. & Ad. 890; Price v. The Earl of Torrington, 1 Salkel 285, and notes thereon in Smith Leading Cas. vol. 1, side page 390; Lewis v. Norton, 1 Wash. 76; Welsh v. Barrett, 15 Mass. 380. And when the party is living, who made such an entry in the regular course of business, though he remembers and can testify nothing about the facts recorded in the entry, but simply testifies that he made the entry in the usual course of [310]*310business at the time of the transaction, such entry is of itself primary evidence of the facts recorded, though the witness be living and testifies in court if he knows, that he made the entry in the regular course of business. See Spann v. Baltzell, 1 Fla. 302-321; Farmers & Mechanics Bank v. Boraef 1 Rawle 152; Bank of Monroe v. Culver, 2 Hill N. Y. 532.
Upon these and other authorities I think it is clear, that if B. G. Compton had been dead, this memorandum book kept by him as the agent and manager of the West Virginia Oil and Oil Land Company, could have been produced and on the proof of his hand writing, this invoice and entry could have been read as evidence to the jury to prove the facts recorded in this entry.
The next enquiry is, whether the fact that B. G. Compton was a non-resident of this State, and could not therefore be compelled by the plaintiff to attend at the trial as a witness, would when proven, have justified the introduction of the invoice and entry as though ho were dead. It has in many cases been held by courts — or intimated by dicta of Judges, that under such circumstances the book so kept and the entry in it, may be produced in court and submitted to the jury as evidence of the facts recorded in the entry, on the proof of the hand writing of the book-keeper, though he be not dead, if he resides and is out of the State. Elms v. Chevis, 2 McCord (S. C.) 349; Trun. v. Rogers, 1 Bay 480; Reynold’s adm’r of Alex. Paul v. Manning, Stimpson & Co., 15 Md. 523, 524; Alter v. Berghans, 8 Watts 77; Crouse et al. v. Miller, 10 Serg. & Rawle 158; Chaffee & Co. v. United States, 18 Wallace 541; Cummings v. Fallum, 13 Vt. 434; Cummings & Manning v. Fallum, 13 Vt. 440; Burton v. Driggs, 20 Wallace 134; Bartholomew v. Farwell, 41 Con. 107.
It has been held, that the temporary absence from the State of the party who made the entry, though he was a resident of the State, would justify the reading of the entries from the book if the hand-writing of the book-keeper was proven. See Hay v. Kramer, 2 Watts and Serg. 138; and in Holbrook v. Gay, 6 Cush. 215, it was held that such entries could be read if the book-keeper was insane. See also, Chaffee v. United States, 18 Wal. 541, and Union Bank v. Knapp, 3 Pick 96. But, there are decisions of courts or [311]*311obiter dicta of Judges to the contrary and which hold, that if the book-keeper be not dead but only absent from the State, whether as a non-resident or temporarily, the entries in a book can never be read as evidence when he is not produced as a witness at the trial or when his deposition has not been taken. See Cooper v. Marsden, Esp. 1; Welsh v. Barrit, 15 Mass. 380 (top page 306); Merrill v. The Ithaca & Oswego Rail Road Co., 16 Wend. 600; Brewster v. Doane et al., 2 Hill 537; County of Mahaska v. Ingalls, 16 Ia. 95; Monroe v. Andrews & Brothers, 5 Porter (Ala.) 107.
These cases proceed upon the basis, that the rule, which permits the introduction of entries as evidence in any case, is based only on the necessity of permitting it, in order that the ends of justice may not be defeated and when it is impossible in the nature of the case to produce better proof, as when the person, who kept the book and made the" entries in the regular course of business, is dead; but that, when he is living, it is necessary to produce him or take his deposition in all cases, because it would be dangerous to dispense with his evidence and might lead to frauds, when there could be no responsibility for false entries, which then would be, if they were testified to by him on oath, as his testimony would then be given under the liability of being punished, if he should commit perjury; and that it would therefore be unsafe to admit books as evidence in any case where it could possibly be avoided, unless the parties had the opportunity of examining the bookkeeper on oath.
There is considerable force in this reasoning, and certainly the rule permitting books to be used as evidence should be carefully confined within proper limits. But it is not true, that the allowing of original entries in books, made at the time the transaction occurred in the usual and regular course of business by a party having personal knowledge of the transaction recorded, is permitted only from necessity; on the contrary other and very strong reasons are given for the admission of such entries as evidence; first, they are a part of the res gestae-, secondly, general convenience is much promoted by their admissions as evidence. These reasons would lead to the conclusion, that such entries as above described, being proven to possess all these qualities, might properly be [312]*312admitted as evidence, whether the person who made them is produced in court or not, or whether his absence be accounted for or not, especially if it were proven, that his books were generally correctly kept. These entries are a part of the res gestae whether he be present at the trial or not, and the general rule is, that all the res gestae may and should be proven to promote the ends of justice. All the requisites of such an entry, which we have specified above, may be proven by others to exist as well as by the book-keeper. Others may prove the entry to have been an original entry, made at the time and in the regular course of business by one acquainted with the transaction recorded in the entry. Surely such an entry, as a part of these res gestae, is in itself valuable evidence in our search for truth, even when unaided by the evidence of the book-keeper; and it is regarded by the courts, as the decisions show, as legitimate evidence, though the bookkeeper in no manner supports it by his testimony, as when he testifies he has no recollection of the facts which are recorded in the entry, and only testifies to its having been made by him under the circumstances we have pointed out. This could of course have been proved by others.
It would, it seems to me, be going too far to admit such entries as evidence when the book-keeper was living within the jurisdiction of the court, and no sufficient reason such as insanity or some other, was shown to them why he was not produced as a witness. For if it were allowed, such bookkeeper might be purposely kept from being at the trial, the parties wanting to use the entries in the book knowing or believing that his testimony in connection with such entries would weaken his case. To prevent such conduct, which approximate to fraud, the courts have uniformity required the testimony of the book-keeper to accompany the production of the entries in such book as evidence, whenever the book-keeper was within the jurisdiction of the court, that is, within the State, and no sufficient reason is shown why he does not testify in. connection with such entries.
I am not prepared to say that the temporary absence of the book-keeper from the State ought to dispense with the receipts of his being produced, though there is some authority therefor, It seems to me, however, that as this temporary [313]*313absence may be readily brought about for the very object of obtaining the. advantage of using such entries, without the accompanying statement and explanation of the book-keeper, it would be probably unwise to relax the rule so far as to dispense with the presence of the witness when he was only temporarily absent from the State, especially as the alternative of a temporary continuance of the cause till his return to the State, might be but a small inconvenience.
If the party 'is a non-resident of the State and permanently absent from it, the case is far different, for in such case no suspicion can exist as to his being kept away for the purpose of obtaining an unfair advantage; his absence being shown to arise from his permanent non-residence. When this is tire case, I can see no reason for requiring his deposition to be taken, before such an entry as I have described, can be used as evidence.
In a large majority of cases, his evidence would neither add to nor detract from the value of the entry as evidence itself-, and the obtaining of his deposition in connection with the entry, that is with the original book of entries before him, as it would have to be to make his testimony of any value, would be often very costly and inconvenient and sometimes almost impossible, as when the book containing the entries was still being used as an account book. And if the bookkeeper chose to do so, he would have it in his power to prevent the entries made by him from being used at all, no matter how essential their use ivas to the ends of justice. For in this State, and I presume in most if not in all of the States, the law provides no mode of compelling a witness to give his deposition in a suit pending in another State or in a foreign country. If the witness be in this State, the court may compel his attendance or may compel him to give his evidence, but if he be residing out of the State the court cannot compel him to testify, and for this reason if for none other, the original book of entries containing all the requirements I have specified, ought to be allowed to be used though the book-keeper’s deposition has not been taken and he is not presumably present as a witness, when he is a nonresident of this State. This conclusion is sustained by the weight of authority, though vre have seen that there is con[314]*314siderable conflict among the cases. For a review of these authorities we note two. Union Bank v. Knapp, 3 Pick. 96, in American Decision Vol. 15 p. 192, 193 and 194.
Of course if the original book containing such entry is in the possession of any person, who is a resident in the State, its production should be required, as it could be compelled by the court, but if this book be in the possession of one not residing in the State, its production could not be compelled by the court, aud in such a case on general principles, a copy taken from the original book, compared with the original entry and proven by a witness on the trial, is -‘the very-best secondary evidence that can be obtained in the nature of the case, and should therefore bo received as evidence; nor is it necessary in such case to prove, that any special efforts have been made to induce the person, who has the original book in his custody and who lives out of the State, to produce it at the trial. In most cases all such efforts would be failures, aud as their success would not depend on the action of the party offering to introduce such entries as evidence, he is under no obligation to prove that he has made an effort to get the original book of entries.”
In the case before us it is claimed, that it was not proven that this entry had all the requisites, which the law requires in order to make it evidence in itself. The first, requisites is, that book must be a book of original entries. The court certifies that it was proven, that this invoice of property turned over by Gilman and Shakely, was copied from B. G. Compton’s book of -original entries, which was a memorandum book kept by B. G. Compton, the agent of the West Virginia Oil aud Oil Land Company', and that it contained this list and inventory made at the time when the property was turned over by Gilman and Shakely to said company'. The second requisite is that the entry should be made when the transaction occurred. It bears date on the book as of the time, at which the transaction took place; the witness says, that it was made at that time, and there is no room to doubt that this was a fact. The third requisite is, that the entry must be made in the regular course of one’s business, duty' or employment. The bill of exception shows, that it was proven that this property thus listed in this book kept by B. G. [315]*315Compton, was turned over to him by Gilman and Shakely, he receiving it as the agent of the West Virginia Oil and Oil Land Company, as stated on the face of this book. Obviously, this book containing a list of all the property of this company in his charge, was kept not for his private use, but as a book of the company; and assuredly these entries, from their very nature and from the relations which 13. G. Compton held to said company, were business entries made by him as a 'part of his regular business, whereby he admitted and charged himself with having this property so listed in his custody, as the agent of said company. The last requisite is, personal knowledge of the transactions on the part of the one making the entry. This entry is proven to have been made by B. G. Compton, it being in his hand-writing and he being the person, as was proven, to whom this property was turned over by Gilman and Shakely; he of course knew this fact when it was done and what property was so turned over, and these are all the facts appearing by this entry.
This entry thus being one which was in itself evidence, and the original book of entry being, when it was last seen, in the hands ot B. G. Compton a non-resident of this State, the presumption is of course, that it was still in his hands and therefore the copy produced of this entry, which had been compared with the original entry by the witness, who testified that it was au exact copy, was properly permitted to go to the jury as evidence. The only ground on which a new trial was asked for was, that the court erred in permitting the copy of this entry to go to the jury as evidence, and there being no error in his so doing, the motion for the new trial was properly overrulad, and judgment entered against the defendant in accordance with the verdict of the jury.
The judgment of the circuit court of Wood county rendered May 24, 1881, must be affirmed; and the defendant in error John IP. Vinal, special receiver, must recover of the plaintiff in error, J. C. Gilman, his costs about his defense in this Court expended and damages according to law, and the same must be certified to the clerk of the circuit court of Wood county.
Judges Johnson and Green Concurred.
Judgment Affirmed.