Ward v. Leitch

RobiNSON, J., delivered the opinion of the Court. The paper offered in evidence to refresh the recollection of the witness, possessed none of the elements recognized as essential to constitute a memorandum for that purpose. It was a mere copy taken from the original entries in the store book of the plaintiff; and it does not appear by whom, or at what time the entries were made, or that the witness ever saw and recognized them to be correct. If in Green vs. Caulk, 16 Md., 556, it was held that “a copy made by a witness from his own original memoranda,” was inadmissible; upon what principle is it proposed to offer a copy made from the memo-randa of a stranger ? The second and third exceptions present substantially the same question. The plaintiff offered in evidence his original ledger book, containing the entries in the handwriting of the defendant’s testator, and afterwards his day-books, containing daily entries against deceased and other parties, but all in the handwriting of the testator. Now although these entries would not have been admissible for the purpose of charging a third person, because not made by a clerk in the ordinary discharge of his duty, and contemporaneous with the transactions to which they relate, yet they were admissible as declarations or admissions made by the party against his interest. The fact that he was not a clerk in the store, but employed merely to post the books of the plaintiff, cannot exempt such evidence from the operation of the general rule, which permits the declarations of a party against his interest to be offered in evidence. The relation which he occupied to the plaintiff, [334] did not compel him, nor furnish any reason why he should make false entries of debits and credits against himself. (Decided 11th March, 1869.) The Court was right in excluding the affidavit of the plaintiff made in pursuance of the 43.d section of Art. 37, of the Code. If it be conceded that the word store keeper as used in that section, embraced the plaintiff, a question which it is unnecessary in this case to decide, it does not appear that the additional affidavit was made which the same section requires, whenever a suit is brought. Nor is this defect cured by the Act of 1864, ch. 109, which, whilst it makes the parties to a suit competent as witnesses, does not embrace within its provisions ece parte affidavits such as are authorized by the 43d section of Art. 37, of the Code. We also concur with the ruling of the Court as presented in the fifth exception. The objection to the competency of the witness, was made before his examination in chief, and was therefore in time. Being of opinion that the Court erred in excluding the evidence offered in the second and third bills of exception, the judgment must be reversed and a procedendo awarded. Judgment reversed and procedendo awarded,