Heart v. Hummel

Gibson, C. J. The evidence consisted not merely of a' shop-book authenticated by the oath of the plaintiff, but of the testimony of a witness whose recollection, invigorated by the entries; enabled him to swear to the facts stated in them. Even ifhe could not, what would have prevented him from proving that he knew the facts to be accurately stated at the time, in order to introduce the entries as authenticated memoranda which may be independent evidence ? Our rule in regard to shop-books, differs from the English rule no further than to allow the oath of authentication to be made by the plaintiff instead of a clerk; and this only when the plaintiff was his own book-keeper, as appears in the leading case; and entries authenticated by the oath of a clerk who has forgotten the transaction, are no more nor less than authenticated memoranda, yet they are competent evidence. It is fallacious to suppose that the law prefers memory to writing for the preservation of evidence; or that a memorandum which fails to move the memory of him who made it, cannot be introduced as independent proof, preceded by ins oath, of its accuracy when it was written. The contrary was decided in Doe v. Perkins, 3 Term Rep. 749, and Tanner v. Taylor, there cited; where it was held, that if the witness cannot eventually swear- from his own knowledge, the memorandum itself must be produced. Accordant, is State v. Rawle, 2 Nott & McCord, 331, in which it was determined that a memorandum proved by a witness who can swear to no more than that it was accurately made by him at the time to perpetuate the memory of; the fact, is competent evidence in both civil and criminal cases. Nor is Smith v. Lane, 12 Serg. & Rawle, 82, inconsistent with it. In that case, the bookkeeper had not sworn to all the entries; and Chief Justice Tilghman said, that if the book had been corroborated by his oath, he would not say that they might not have been evidence. Perhaps the book was properly rejected for that reason; but I am far from giving up the principle on which I insisted. In every aspect, the entries were properly received in the case before us. Judgment affirmed.