President of the Townsend Bank v. Whitney

Bigelow, C. J. 1. The testimony of the president of the bank was clearly competent. It tended to prove facts which were part of the res gestee in connection with the discount of the two notes out of which the mistake in making an overpayment of the money to the defendant arose. The time and manner of the discovery of this mistake were relevant and material, as circumstantial proof bearing on the question of the defendant’s liability in having received money belonging to the plaintiffs to which he was not entitled, and for which he had given no consideration. 2. The defendant’s cash book was rightly rejected. It was nothing more than a private memorandum made by the party himself in his own favor. The entries of third persons are admissible only when they were made contemporaneously with the transaction to which they relate, in the ordinary course of business and in cases in which there was no apparent and special motive to pervert the fact. But a party is never permitted to introduce entries made by himself in support of his own case, [456] except where they are offered to prove charges in shop books; and then only with limitations as to the amount which can be thus proved, if the subject of the charge is the payment of money. 3. The questions put to the witness Hoar were properly ruled out. He had previously stated all the facts within his knowledge which were competent and relevant concerning the amount of money received by the defendant from the bank. He could have known nothing else in relation to the transaction, unless his information had been derived from statements made by the defendant or other hearsay sources. The questions propounded, although correct in form, were calculated to bring out incompetent evidence, and were, therefore, rightly rejected after the witness had stated all the facts of which he had sufficient knowledge to enable him to testify in the case. Exceptions overruled.