Holmes v. Gayle

COLLIER, C. J. — It is argued for the plaintiff in error, that by a settled rule of evidence, facts must be established by the best proof of which they will admit; and that in the present case as the witness could not testify to the correctness of tbe account from his own unassisted recollection, it was necessary that the books of original entries should be adduced, as evidence of a higher grade than mere copies, however carefully compared. This argument would be well founded, had the witness been called on to testify as to facts of which he possessed no personal knowledge, but with which he became acquainted, from having seen them in, or copied them from books. The rule touching this point is thus laid down: a witness may refresh his memory by any book or paper, if he can afterwards swear to the fact from recollection; but if he cannot so swear any farther than as finding it in the book or paper, the book or paper must be produced. Phil. Ev. 221 and note, 3d vol. 550; 1 Starkie’s Ev. 128. Here the witness was not required to state what appeared charged on the books of the defendants in error, to the debit and credit of the plaintiff, but merely to identify an account which he had drawn off, and to prove its admission. Clearly it is competent for a witness to identify the copy of a paper which he himself had copied, and to show what one whose interest is affected by it, said in relation to it: in such a case, the admission of a party against whom the paper is offered, is regarded as quite as good evidence to fix upon him a liability, as if the book of original entries was produced, and each specific item shown by proof. [520] It was not only competent for the witness to state that he had copied one account from the books of the defendants in error, but he might prove that he had copied several, and thus having copied them, testify that they contained similar items. Such evidence did not tend in itself to prove the correctness of what Was shown by the books, nor are we informed that it was offered for that purpose; and in the state of the record it is entirely unobjectionable. So much of the evidence as related to the practice by commission merchants in Mobile of accepting and advancing for their customers, and as to the defendants handing to their debtors the vouchers in proof of their accounts, cannot be said to have been inadmissible, though it is difficult to conceive what valuable purpose was subserved by its introduction. The account of the defendant we infer, was intended to be established mainly by the plaintiff’s admission, and not by proof of the course of dealing by the commission merchants of Mobile. The bill of exceptions informs us that the plaintiff in error upon notice, produced the vouchers which he had previously received from the clerk of the defendants, or Bower, so that the evidence in regard to the defendants’ manner of making settlements was immafeiial. As to the discrepancy in the two copies of the account current, we consider them so entirely unimportant, as not to have required explanation. In the one the defendants charge the plaintiff with two thousand dollars; so much paid in extinguishment of his note; in the other, with two thousand dollars paid him to pay his own note. Again: In the one the plaintiff is credited by a sum of money “received from” him; while in the other he is credited by the same sum “ remitted” by him. The legal effect of the entries in each copy of the account, is precisely the same. Yet, conceding that evidence to this point was necessary, and we think that which was given is free from objection, the witness undertakes to explain the discrepancy not by a reference to what appears from the books of the defendants, or what he learned from their deceased clerk, but seemingly from his own knowledge. [521] That the plaintiff in error may not have been injuriously affected, by the admission of some of the evidence to which he objected, is what we cannot say; but if the fact be so, the bill of exceptions does not inform us. Error in the abstract it has been repeatedly adjudged, furnishes no ground for the reversal of a judgment; the party excepting must at his peril, place so much in his bill, as shows that the court did err to his prejudice, for the presumption is in favor of the correctness of its proceeding, and all decisions made will be presumed to be correct until the contrary appear.[(Duffee v. Pennington, use &c. supra,) and cases there cited. This view disposes of the questions presented, and our conclusion is, that the judgment of the circuit court must be affirmed.