Heiskell v. Rollins

McSherry, J., delivered the opinion of the Court. During the last April term of this Court an appeal in this case was dismissed, because it had been prematurely taken. The record is again before us upon a subsequent appeal entered in due season, and the questions that it brings up, or purports to bring up, are contained in two bills of exception. The suit below was instituted by the appellants against the appellee, upon two promissory notes and an open account.

Several pleas were filed, and upon these issues appear to have been joined. The verdict of the jury and the judgment thereon were in favor of the appellant, for the amount of but one of the promissory notes. During the progress of the trial the appellant, to establish the items of the open account, produced a witness to prove the handwriting of the clerk who had made the entries on the plaintiff’s day-book. This witness testified that he had been informed the clerk was in England; that an effort had been made to produce him as a witness, and that when last in this country he was beyond the jurisdiction of the Court.

The defendant objected to any proof of the clerk’s handwriting; the Court sustained that objection and the plaintiff excepted. This is the ruling complained of in the first bill of exception. We think there was error in this ruling. The proffered evidence falls within one of the well-recognized exceptions to the general rule excluding hearsay evidence.

It has been long held that entries made by a clerk in the regular course of business, he having no interest at the time in stating an untruth, should be received in evidence after the clerk’s death on proof of his handwriting. 1 Smith’s Lead, cases, 142. The rule has been extended to cases of insanity. Holbrook v. Gay, 6 Cush. 216 ; and several of