Missisquoi Bank v. Evarts

The opinion of the court was drawn up by Barrett, J. Mr. Hubbell as a witness, without objection, had testified to the manner of his conducting the business of loaning money and receiving payment of such loans for the plaintiff bank; from which it appeared that he was accustomed to enter on a cashbook the money paid out by him when a note was discounted, and also the money when received by him in payment of a note on which book was entered the money paid to defendant when the note was discounted, but there was no entry of the payment of money on the note. In addition to this, he testified that defend [298] ant did not pay the money due on the note, as defendant had testified that he did. Thereupon, on cross-examination, the manner of the questions, and the answers of the witness, made the impression that his denial of the alleged payment by the defendant, resulted mainly from the fact that said book contained no entry of such payment. In this conjuncture, obviously, it was made by such cross-examination, both important and legitimate to show fully the manner in which the business was done — in the doing of which, and as part of it, was the keeping and making entries in the book ; not that the book by itself would constitute affirmative evidence of the non-payment of the money, but it would, in connection with the mode of keeping it, as a part of the modus operandi of doing the business, bear upon the reliableness and effect of the testimony of the witness, in his denial that defendant had paid the money at the time alleged and testified by defendant. If, by the cross-examination, the reliableness of his testimony had not been forced to depend on the book showing what had taken place in relation to the payment of the money by defendant as he had testified, it would have been unimportant to go into that detail of testimony to which objection was made, and also to have given the book in evidence. But when such a questionable condition of the witness’s testimony was made by the defendant to depend on the entries and manner of doing the business of the bank, in connection with the book, certainly, upon common principles, the book, and its minute history, should be laid before the jury, to enable them to determine the value of the testimony of the witness, in denying that the payment was made as the defendant had testified. This is consonant with both text-books and decided cases. We are unable to discover any thing improper in the remarks of the judge to the jury. It seems to us that in those remarks the true province was assigned to that book, viz: as bearing on • the reliableness of Hubbell’s testimony in denying the payment by the defendant. It is the weight of witness’s testimony, that the court was presenting for the consideration of the jury, as touching the issue on trial: the court expressly declining even to advise them as to the weight of evidence afforded by the book [299] in its subordinate and ancillary character. The comments of the judge, giving some intimations to the jury how the hook has significance as evidence at all, are both sensible and proper, and such as would naturally occur to the mind of one experienced in the principles of evidence, and in the just apprehension of the instruments of evidence and their, legitimate use. The idea that it is the duty of the court' to leave the jury to such light as may be shed upon them by counsel in the argument of cases, without intimations as to the true light in which, under the law, the mate-x’ials of evidence are to be considered and used, not only is not px'oper to be countenanced, but is counter to the pi’actice of the best class of judges. In the present case the jury were left free, not only to construe, but to weigh and apply, the evidence, and find the questionable facts from it. It would be a noticeable innovation if it should now be held that the court could not lawfully state to the jury his impressions and understanding as to how a witness meant- to be understood in the testimony he had' given, when some question had arisen on that subject, and indicate how such impression and understanding were derived — especially when the court close by telling the jury that, “ it is all a matter of fact for you to determine upon examination of the testimony.” We x’egard the criticisms in the ai’gument on this ground of exception as not warranted by principle or usage, and without adequate occasion in the present instance. Judgment is affirmed.