Dodge v. Bache

The opinion of the court was delivered, by Sharswood, J. The 1st error assigned is as to the admission of the testimony of Ezra Chandler. One of the questions in the cause, if not the principal one, was whether McDougall, the agent of the defendants, had cut the slash-boards of the dam at the Marsh creek pond, by which an artificial freshet was caused in the stream below, and the plaintiff’s logs were carried away and lost. It was offered to prove by Chandler that McDougall had declared that he intended to do this, before the dam was let off. It was objected’to on the ground that such declaration of the agent was no part of the res gestee, and, therefore, upon the familiar and well-settled rule of evidence, not admissible against his principal. But clearly this rule had no application. The declaration was offered not as in itself affecting the principal, but in corroboration of the other testimony in the cause that McDougall and Charles Grinnell, his workman, were seen to go to the mill together — that Grinnell soon after was observed on the dam with an axe and that he appeared to be chopping something. Now, when the question is whether a person has done a particular thing, and some evidence of it has been given, it is surely competent to show in corroboration that he had avowed his purpose beforehand. His principals would not have been affected by his mere intentions unexecuted. But to confirm other evidence of the act itself, his declarations were unquestionably admissible — not as the declarations of an agent but of the individual whose act was in question. We think, therefore, that there was no error in the admission of this evidence. We will consider the 2d and 3d assignments of error together. It became material to show that Charles Grinnell, who was said to have been seen on the dam with an axe chopping something some time in December 1855, was not then in the employment of McDougall, Eor this purpose Grinnell himself was called and testified that he went to work for a Mr. Dickinson in the fore part of November 1855, and continued in his service until February 1856. Dickinson was then called and stated that Grinnell had worked for him at different times, but he could not recollect when or how long. It was then offered to show by the witness that, having refreshed his recollection from his own book and entries therein in his own handwriting, he believes that Grinnell worked for him between the said dates: this for the purpose of fixing the time when Grinnell worked for him and in corroboration of Grinnell’s testimony. This was objected to because it was belief and [425] not the recollection of the witness, which was offered. The court rejected this testimony, and in this we think there was error. We may assume that the witness, having looked at the entries, was still unwilling to testify that he recollected the dates, but was willing to say that he believed them to be correct. On what was such a belief necessarily founded ? It could only be on his knowledge that the entries were a truthful record of his transactions made at the time. In general it is true that a witness must testify to facts in his personal knowledge and recollection, but it is not an universal rule. . On questions of the identity of persons and handwriting, it is every day’s practice for witnesses to state that they believe the person to be the same or the handwriting to be that of a particular individual, although they will not speak positively, and the degree of credit to be attached to the evidence is a question for the jury: Starkie on Ev., ed. of 1860, p. 173; Watson v. Brewster, 1 Barr 381. It is impossible for any man to testify from his own knowledge how old he is. In the nature of things he has no personal recollection of when he was born. But who doubts that he can state his belief as to the fact ? In all these cases indeed he must give the grounds of his belief, and then the credit to be attached to it will be for the jury. In Heart v. Hummel, 3 Barr 414, it was held that a witness may state the number of days on which men were employed, from a book kept by himself, in which he knows he correctly entered the days they were at work, about the time at which the work was done. See Insurance Company, 15 Maryland 54; Russell v. Hudson River Railroad Co., 17 N. Y. 134; Seavy v. Dearborn, 14 N. H. 351; Webster v. Clark, 10 Foster 245; State v. Colwell, 3 R. I. 132. This was in substance the same as that which was proposed in this case. We think that these assignments of error are sustained. As to the 4th error assigned to the charge, in stating to the jury positively that none of the logs, as shown by the evidence, were reclaimed, that part of the charge was unquestionably erroneous, though it is most probable that the judge meant to refer only to the logs washed away, not to those lodged on the hank, which were recovered, and that the jury so understood him. As the case goes back this will, of course, be remedied on another trial. Judgment reversed, and a venire facias de novo awarded.