59 Mass. 145 - Henshaw v. Davis — 59 Mass. 145

Charles C. Henshaw vs. Eben Davis. Three months’ service, in one item, is not a proper subject of book-charge, ff a party’s book of account is not objected to. when offered in evidence, but ir suffered to go to the jury, the judge may nevertheless instruct them, that it ia not competent evidence. In this case, which was an action of assumpsit, tried before Bigelow, J., in the court of common pleas, to recover the amount of a promissory note signed by the defendant, and indorsed to the plaintiff by Perley R. Slater, after the same •had become due and payable, the defendant filed an account against Slater, in set-off, consisting of various items, among which was a charge for three months’ labor, $90; a charge for a promissory note of David Olmstead, $86; and a charge for cash lent, $50; in proof of which, he offered his book of original entries, supported by his suppletory oath. The plaintiff objected to the admission of the book in evidence to prove the second and third items of charge, and the judge sustained the objection; and, when the case was closed on both sides, the judge instructed the jury, that the book was equally incompetent to prove the charge for three months’ labor ; and that unless they should be satisfied by other evidence, that the charge for work was true, they ought not tv allow it in set-off in favor of the defendant. The jury returned a verdict for the plaintiff, and the defendant excepted. W. Hilliard, for the defendant. S. G. Nash, for the plaintiff, cited, to the incompetency of the evidence, Wilson v. Wilson, 1 Halst. 95; Eastman v. Moulton, 8 N. H. 156; Cummings v. Nichols, 13 N. H. 420; Cogswell v. Dolliver, 2 Mass. 217; Lynch v. Petrie, 1 Nott & McC. 130; Leighton v. Manson, 2 Shep. 208; Winsor v. Dillaway, 4 Met. 221; Prince v. Smith, 4 Mass. 455. — By the Court. (majority) By the Court. The book-charge for three months’ service, as one item, was inadmissible, according to all the authorities ; and, in proof of the other two items, it is hardly claimed that the account-book was legal evidence. It was time enough for the judge to pronounce his judgment as to the competency of the book at tíie time he did so. It is sometimes competent to introduce the book, if corrobo rated, otherwise not; and it might be supposed, if not ob jected to in the outset, that corroborating evidence would be offered. The judge could not know, until the end of the trial, what corroborating evidence there would be; and after the evidence was all in, it was proper for the court to decide upon the competency of the book. This is a species of evidence peculiar in its nature, of the competency of which, in each case, the court must decide. Exceptions overruled.