Crayton v. Collins

Mr. Justice Nott delivered the opinion of the court: 1st. If the book offered in, this case had been a regular kept book, containing the transactions of the drawer and payee of the note, and had contained entries made before the note was transferred, showing that it had been paid, it Would appear to me that it ought to have been admitted in evidence ; but it was a mere private memorandum book,, only intende/1 as a check upon the bank. The entry exhibited. to the court was not made in the usual method of [459] making entries, even in books of that description, hut was a loose memoradum of doubtful import, having the appearance of a calculation supposed to relate to this note. But even the memoradum, such as it was, was not in the hand ■writing of one of the payees, but was made by a stranger who was within the reach of the court, and whose testimon3^ might have been procured. It was not, therefore, such evidence as ought to have been .admitted, and was properly rejected. Martin, for the motion. Patterson, contra. 2nd, The evidence offered in the second instance was much of the same character. It was the decl ration of a person respecting a fact of which he might have been called to give evidence. That the endor- er of a note may be a witness to prove that it was endorsed after it became due, was decided in the case of Smith <§• McDow, (I Con. Rep. 277.) Declarations of the payee qf a note before he has endorsed it, when he'alone is interested ancf against his interest, have been allowed to be given in evidence ; but his declarations, after endorsement, which go fo effect the interest of third persons, cannot be received. The motion, therefore, must be refused. Justices Gantt, Richardson and Johnson, concurred.