Pargoud v. Guice

Martin, J., delivered the opinion of the court. The defendant resisted the claim against the estate on the ground that the plaintiff was not a creditor of one thousand fifty-four dollars and twenty-nine cents, as he stated, but was a debtor of the deceased for four thousand six hundred sixty-nine dollars and fifty-five cents; and on these grounds the plaintiff had judgment, and the defendant appealed. His counsel took two bills of exceptions in the court below; the one was to the court allowing the plaintiff’s books to be introduced for reference, by his clerk, who was offered as a witness to establish the items in plaintiff’s account; and the other was to the refusal by the court to receive in evidence certain documents, by which the defend ants wished to prove that the plaintiff owed to the estate. We think the court erred in permitting the use of the plaintiff’s books, and permitting the witness to resort to them to refresh his memory. There is not a clearer rule of evidence, than that which dec lares the plaintiff’s books not to be evidence for him; and that a paper which could not be read in evidence, may be resorted to by a witness to refresh his memory, as a memorandum made by himself. It is not pretended that the entries in the plainiiff’s books, to which the witness was permitted to recur, had been made by himself. They might have been made by another clerk, or the plaintiff himself, or by his order and direction. But we think the Court of Probates consistently rejected the documents by which the defendant sought to prove claims on the estate of the plaintiff.. These claims were not pleaded in compensation or re-convention, nor set up in such a manner as to enable the plaintiff to be informed of their nature or amount. So to be able to disprove or admit them. A general allegation of the plaintiff’s being indebted in a gross sum without any certificate of the trial, plan [78] or manner in which the claim accrued, is too vague to authorise the admission of proof in support of it. x x x It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and the case remanded, with directions to the judge not to allow the plaintiff’s witness to refresh his memory by a reference to the plaintiff’s books; the costs of appeals to be borne by the appellee.