Sargeant v. Pettibone

The opinion of the Court was delivered by Hutchinson, J. This is an action brought upon book-account, which has been submitted to auditors, who have reported a balance in favour of the plaintiff. The questions now to be decided arise upon exceptions filed by the defendant to the report of the auditors. The first exception is taken to the allowance of plaintiff’s account without a production of the original book, which was called for by the defendant. Upon the case and affidavits, the fact appears to be, that the original book was produced, but sundry items had been altered since the original charge was made. In a legal sense, this was the original book, [358] an(t the erasures and alterations would diminish the testimony furnished by the book. Whether these were rationally accounted for or not, by other testimony, was a matter of evidence with f-;le auditors, and presents no question of law whatever. The original book might show a charge made against a different person, yet evidence fully satisfy the auditors, that such charge was a mistake, and the present defendant the true debtor. In such case, the most correct way would be, to make a regular transfer from one account to the other, instead of erasing and correcting. But if done either way, and it appears clearly to be now as it should be, there remains no objection to the allowance. Some of the exceptions are not fully supported by the affidavits. It does not appear that any of the charges for postage accrued when the plaintiff was not postmaster, and there seems no sound objection to the charges while he was postmaster. He was of course debtor to government for the postage; and if he delivered the letters and charged the postage at the defendant’s request, it is right he should recover it. So of the money paid to Whiting and to John Sargeant. The charge on book is regular enough, provided the auditors are satisfied by proof, that the payments were made for the benefit and at the request of the defendant. Nor does it make any difference that the debt to John Sargeant was due from the defendant’s testator. It is virtually borrowing money by the defendant of the plaintiff, to pay the debt due from the testator. The presumption is, that the defendant had assets, or he would not have anticipated them by requesting the plaintiff to pay the money to the creditors of the deceased. But whether the defendant had assets or not, it is money borrowed by him, and he is holden to pay it the same as though any other use had been made of it.' The point raised by the fifth exception was correctly decided. An attorney is not, of course, liable to pay witnesses in his client’s suits. They may refuse to attend till their fees are paid, or some person whom they will trust becomes personally holden. And, if the attorney thus undertakes, he will be holden; but that must be proved by proper testimony; the parties’ oath will not be sufficient. The decision complained of in the sixth exception is well warranted by the testimony. A justice of the peace is entitled to his legal fees, but the practice is to take fifty cents in each action in mere collections, and the original charges being all made conformable to that practice, is very stsong evidence of an agreement or undertaking of parties, that these services should be paid for in that proportion. The twenty-five cents mentioned in the seventh exception, does not affect the cause beyond its amount. The report might be accepted, under a rule to deduct it, if such deduction would do justice. But it does not appear that the execution was so delivered as that the plaintiff had the benefit of it; and if he had not, he should not be compelled to pay for it. Milo L. Bennett and L. Sargeant, for the plaintiff. Defendant, pro se. With regard to the eight exception, the Court consider the report, with the accounts in detail, and minutes which items are allowed and which are disallowed, to be a compliance with the statute. . The exceptions are, therefore, all overruled, and judgment must bé entered according to the report.