Winne v. Nickerson

By the Oow% Whitost, C. J. On the trial of this case before the jury, the plaintiff below, (Nicker-son,) offered his account book in evidence under the statute, and after he had been examined on oath in the manner prescribed by the statute, the book was received. The defendant (Winne) objected to the introduction of the book, on the ground that the plaintiff disclosed, on his cross-examination, that he had another book (in which he made entries occasionally, when his other book, produced in court, was not at hand,) which he did not produce at the trial; but the justice overruled the objection. The facts disclosed by the plaintiff, on his cross-examination, wefhink do not show, that the book which was not produced, was properly an account book. He states that it was a book in which he sometimes made charges, when the book produced in court was not at hand; that he made in it, the original entries of his [6] »torse account, and called it his “ horse hook that he always carried it with him ; and that he sometimes transferred the entries contained in it to the one produced in court, He stated further, that the hook contained no charge against the defendant. We think the justice decided correctly in receiving the book which was produced, although it appeared that the plaintiff had another, of the kind he described. Admitting that the position taken by the counsel of the plaintiff in error is correct, that where there are two booksin which original entries had been made, they must both be produced, in order to 'enable the party to introduce either of them in evidence, yet it does not appear that the one which was not produced, was of such a character as would have authorized its introduction as evidence, if it had been offered. It was a book in which entries were made, occasion ally only, and contained only entries of a particular kind, except those which were made when his other book was not at hand ; it was carried about the person of the plaintiff, and appears not to have been such a book as the statute allows a party to use as testimony. It appears from the return of the justice, that after the account book of the plaintiff had been received, the defendant offered to prove that the character of the plaintiff' for truth andr veracity, was bad. This testimony was offered for the purpose of impeaching the account book of the plaintiff which the justice had received in evidence. The plaintiff objected to the introduction of the testimony, and the justice sustained the objection. We think the testimony admissible upon general principles, and the authorities seem to sustain that position. (Barber vs. Bull, 7 Watts & Sergeant, 391. Greenlf. Ev. § 118.) But our statute [7] (islev. Stat. chap. 98, § 81,) so completely changes the law applicable to the subject, as to justify the rejection of the testimony by the justice. This section provides that when certain facts are satisfactorily established by the examination on oath of the party offering the book, it shall be received as prima facies evidence, in proof of the charges therein contained. The testimony offered to impeach it, was, therefore, immaterial, for it must have the same effect whether impeached or not. There is no evading this consequence. If the statute had merely provided that the book should be received as testimony, there is no doubt that the evidence offered to impeach it would have been admissible ; but by providing that it shall be received as ptdma facia evidence in proof of the charges contained in it, the legislature have determined before hand, what the effect of its introduction shall be. Of course, it is subject to be rebutted, but it cannot be impeached without destroying the effect ' which the legislature have determined it shall have. If a bill in equity requires the answer of the (¡Lefend" ant on oath, and the defendant answers as he is required, the answer, so far as it is responsive to the bill, has an effect given to it as testimony, irrespective entirely of the character of the defendant who swears to it; and the legislature have determined with precision what effect shall be given to account books, when received as evidence, without regard to the character of those who keep them. If the statute operates harshly, and prevents the introduction of testimony necessary to a correct determination of the rights of parties litigant, the legislature, and not the courts, is the proper tribunal to apply a remedy. [8] The judgment of the County Coui’t, affirming the judgment of the justice, must he affirmed. Judgment affirmed with costs.