1 Ala. 517 (Ala. 1840), Holmes v. Gayle

Citation1 Ala. 517
Opinion JudgeCOLLIER, C.J.
Party NameHOLMES v. GAYLE & BOWER.
AttorneyB. CLARK, for the plaintiff in error. HOPKINS, contra.
CourtSupreme Court of Alabama

Page 517

1 Ala. 517 (Ala. 1840)

HOLMES

v.

GAYLE & BOWER.

Supreme Court of Alabama

June Term, 1840

B. CLARK, for the plaintiff in error.

HOPKINS, contra.

COLLIER, C.J.

It is argued for the plaintiff in error, that by a settled rule of evidence, facts must be established by the best proof of which they will admit; and that in the present case as the witness could not testify to the correctness of the account from his own unassisted recollection, it was necessary that the books of original entries should be adduced, as evidence of a higher grade than mere copies, however carefully compared. This argument would be well founded, had the witness been called on to testify as to facts of which he possessed no personal knowledge, but with which he became acquainted, from having seen them in, or copied them from books. The rule touching this point is thus laid down: a witness may refresh his memory by any book or paper, if he can afterwards swear to the fact from recollection; but if he cannot so swear any farther than as finding it in the book or paper, the book or paper must be produced. Phil. Ev. 221 and note, 3d vol. 550, 1 Starkie's Ev. 128. Here the witness was not required to state what appeared charged on the books of the defendants in error, to the debit and credit of the plaintiff, but merely to identify an account which he had drawn off, and to prove its admission. Clearly it is competent for a witness to identify the copy of a paper which he himself had copied, and to show what one whose interest is affected by it, said in relation to it: in such a case, the admission of a party against whom the paper is offered, is regarded as quite as good evidence to fix upon him a liability, as if the book of original entries was produced, and each specific item shown by proof.

It was not only competent for the witness to state that he had copied one account from the books of the defendants in error, but he might prove that he had copied several, and thus having copied them, testify that they contained similar items. Such evidence did not tend in itself to prove the correctness of what was shown by the books, nor are we informed that it was offered for that purpose; and in the state of the record it is entirely unobjectionable.

So much of the evidence as related to the practice by commission merchants in Mobile of accepting and advancing for their customers, and as to the defendants handing to their debtors the...

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16 practice notes
  • 96 So. 266 (Ala. 1923), 8 Div. 558, Tennessee River Nav. Co. v. Walls
    • United States
    • Supreme Court of Alabama
    • April 26, 1923
    ...the number of cross-ties at the several landings. Tennessee River Nav. Co. v. Walls, 204 Ala. App. 285, 92 So. 202, 205; Holmes v. Gayle, 1 Ala. 517; Hamilton v. Cranford Merc. Co., 201 Ala. 403, 78 So. The conversation with Mr. Whitaker, captain of one of defendant's boats on said line, wa......
  • 77 So. 323 (Ala. 1917), 6 Div. 441, Floyd v. Pugh
    • United States
    • Supreme Court of Alabama
    • November 15, 1917
    ...v. Doe ex dem. Smith, 184 Ala. 199, 63 So. 949; Riley v. Fletcher, 185 Ala. 570, 64 So. 85; Bondurant v. Bank, 7 Ala. 830; Holmes v. Gayle, 1 Ala. 517. The trial court committed no error, on the predicate laid by the plaintiff as a witness in his own behalf, in permitting the paper to be ta......
  • 3 Kan. 217 (Kan. 1865), Butcher v. Auld
    • United States
    • United States State Supreme Court of Kansas
    • Invalid date
    ...v. State, 6 Id. 288; Reynolds v. Ex. of Rogers, 5 Ohio 171; May v. State, 14 Id. 467, 502; Whidden v. Seeley, 40 Me. 256; 2 Comst. 98; 1 Ala. 517; Nash Pr., 550; 17 Ohio 495; 7 Id. 212; 5 Id. 509; 7 Iredell 243; 12 Wend. 404; 6 Duer 102; 2 E. D. Smith, 58, 4th. They are technical, 1 Ohio 35......
  • 9 Ohio St. 1 (Ohio 1858), Hollister v. Reznor
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...is this rule peculiar to Ohio. See Whidden v. Seelye, 40 Me. 256; Onondaga M. Ins. Co. v. Minard, 2 Comst. 98; Holmes v. Gale & Bowers, 1 Ala. 517. In State v. Cowen, 7 Iredell 243, evidence of certain declarations or admissions had been improperly admitted; but the bill of exceptions d......
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16 cases
  • 96 So. 266 (Ala. 1923), 8 Div. 558, Tennessee River Nav. Co. v. Walls
    • United States
    • Supreme Court of Alabama
    • April 26, 1923
    ...the number of cross-ties at the several landings. Tennessee River Nav. Co. v. Walls, 204 Ala. App. 285, 92 So. 202, 205; Holmes v. Gayle, 1 Ala. 517; Hamilton v. Cranford Merc. Co., 201 Ala. 403, 78 So. The conversation with Mr. Whitaker, captain of one of defendant's boats on said line, wa......
  • 77 So. 323 (Ala. 1917), 6 Div. 441, Floyd v. Pugh
    • United States
    • Supreme Court of Alabama
    • November 15, 1917
    ...v. Doe ex dem. Smith, 184 Ala. 199, 63 So. 949; Riley v. Fletcher, 185 Ala. 570, 64 So. 85; Bondurant v. Bank, 7 Ala. 830; Holmes v. Gayle, 1 Ala. 517. The trial court committed no error, on the predicate laid by the plaintiff as a witness in his own behalf, in permitting the paper to be ta......
  • 9 Ohio St. 1 (Ohio 1858), Hollister v. Reznor
    • United States
    • Ohio United States State Supreme Court of Ohio
    • Invalid date
    ...is this rule peculiar to Ohio. See Whidden v. Seelye, 40 Me. 256; Onondaga M. Ins. Co. v. Minard, 2 Comst. 98; Holmes v. Gale & Bowers, 1 Ala. 517. In State v. Cowen, 7 Iredell 243, evidence of certain declarations or admissions had been improperly admitted; but the bill of exceptions d......
  • 92 So. 202 (Ala.App. 1921), 8 Div. 865, Tennessee River Nav. Co. v. Walls
    • United States
    • Alabama Court of Appeals
    • November 15, 1921
    ...recollection of the number of ties, and hence this testimony was illegal, and the objection should have been sustained. Holmes v. Gayle, 1 Ala. 517; 12 Michie's Dig. 1208, § 180 All of the conversation had between plaintiff and the captain of the vessel with regard to the contract of shipme......
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