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56 Mass. 27

Waters v. Gilbert

Massachusetts Supreme Judicial Court

Decided September 15, 1848

Massachusetts Supreme Judicial Court · decided 1848-09-15

<p>Where, in an action for slander, in charging the plaintiff with altering and forging the records of a religious society, the defendant specified the truth of the charge in his defence, and set forth in his specification the entries alleged to be forged, it was held, that he might prove the forgery, by first introducing the book of records of the society, showing therein the entries alleged to be forged, and then proving by the testimony of the person who acted as chairman, and who also made minutes of the proceedings, what actually took place at the meeting.</p> <p>A clerk pro tempore being appointed, who performs the duties of his appointment, and, through inadvertence, omits to enter the doings of the meeting in the book of records; the testimony of the chairman, who also took minutes for such clerk, is admissible, as secondary evidence, to prove the proceedings of the meeting.</p> <p>Where a clerk pro tempore takes brief notes of the proceedings of the meeting at which he is appointed, for the purpose of a more extended record being made therefrom, until such extended record is made, the minutes are evidence in the nature of a record.</p> <p>A deposition, with a paper annexed, being offered in evidence and objected to gen erally, and the objection being overruled, and the deposition and paper read to the jury; it was held, on exceptions, that, as no specific objection was taken at the trial to the use of the paper, such objection could not afterwards be made.</p>

Decided 1848-09-15

Shaw, C. J.

¶1This is an action on the case for slander, brought by the plaintiff as the minister of a Baptist church and society in Amherst, against the defendant, for charging the plaintiff with having altered and forged a vote of the church, fixing the plaintiff’s salary, to a larger sum than that established by the vote as actually passed. The defendant pleaded the general issue, and specified in his defence the truth of the words spoken.

¶2It appears by the bill of exceptions, that, in the course of the trial, in the court of common pleas, it became necessary for the defendant to prove, that certain proceedings, which by the records appeared to have taken place, at a particular time, *31did not take place, at that time, but that certain other proceedings then occurred. The records being produced, and there being no entry therein of the last mentioned proceedings, the question was, whether the existence and votes of the meeting, at which they were alleged to have taken place, could be proved by secondary evidence. Such evidence was admitted, and this court are of opinion that it was properly admitted. We are not to expect the same exactness and fulness in such records as in those of a court, or of a corporation, competent to employ and retain, and also to make an adequate compensation to, a secretary or clerk of skill and experience. The clerk may be absent, and a clerk pro tempore may be appointed, who may perform the duties of clerk, for the time being, an entry of which, through inadvertence, may not be made on the book. Such appears to have been the fact in the present case, from the testimony of Chase, who acted in that capacity. This testimony is competent as secondary evidence ; the book of records, which contains no notice of such a meeting, having been first introduced.

¶3The second exception is to the paper annexed by Chase to his deposition, which, it was contended, could be used only as a memorandum to refresh the memory of the witness, and ought not to have been read in evidence.

¶4We are inclined to think that the memorandum was not a mere memento made by the witness for the purpose of refreshing his own recollection, as contemplated in the objection ; but that it is to be regarded as brief notes taken by the witness in his official capacity, as clerk pro tempore of a corporation, from which notes a more extended record might have been made up and entered with the records of the corporation. If so, until such extended record is made, the minutes are evidence per se in the nature of a record. Pruden v. Alden, 23 Pick. 184.

¶5But the ground, upon which the exception is overruled, is, that, at the trial, no specific objection was taken to the use of this memorandum, and a general objection to the use of the deposition is not equivalent. If such specific objection had *32been made to the paper, it might have been withdrawn ; and perhaps the evidence would have been quite sufficient without it. The objection now comes too late.

¶6 Exceptions overruled.

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