Sheehan v. Hennessey

• Decision Date: 26 July 1889
• Citation: 65 N.H. 101,18 A. 652
• Parties: SHEEHAN v. HENNESSEY.
• Court: New Hampshire Supreme Court

18 A. 652

65 N.H. 101

SHEEHAN

v. HENNESSEY.

Supreme Court of New Hampshire. Rockingham.

July 26, 1889.

Exceptions from Rockingham county.

Assumpsit by an executor for goods sold and delivered to defendant by deceased, and charged by him upon his books of account. Plaintiff did not testify, except to identify the books. The defendant offered to testify that she did not owe the deceased for the goods. The offer was excluded, and defendant excepted. The defendant also asked leave to recall plaintiff, and show by her that defendant employed a clerk in his store more or less. The request was denied, and defendant excepted.

S. W. Emery, for plaintiff. Calvin Page and John Hatch, for defendant.

ALLEN, J. Before the statute of 1857, permitting parties to actions to testify, except where the adverse party is an administrator or guardian not electing and refusing to testify, books of account were made evidence by the suppletory oath of the party, and in case of his death by the oath of his administrator. Dodge v. Morse, 3 N. H. 232. Since that statute, books of account of persons deceased and of those under guardianship are introduced in evidence in the same way and by the same mode of proof as before, without regard to the exceptions, (Bailey v. Harvey, 60 N. H. 152, 155;) for the statute was designed to enlarge and not narrow the field of evidence, and nothing is excluded under the exception which was admissible before. Page v. Whidden, 59 N. H. 507, 511. The identification by the plaintiff of her intestate's books of account in the mode always practiced was not an election by her to testify, nor a waiver of the right to object to the defendant's testifying generally. The defendant offered to testify to no fact which might not have been within the knowledge of the plaintiff's intestate, and the exclusion of her testimony was in accordance with a uniform rule established by numerous decisions. No injustice appears to have been done, and if any were done it would only be shown by other evidence than the defendant's own testimony, (Harvey v. Hilliard, 47 N. H. 551; Cochran v. Langmaid, 60 N. H. 571,) and there was no error in excluding it.

The defendant's request for leave to call the plaintiff, and inquire of her, against objection, whether the deceased did not employ a clerk in his store, was an attempt to compel the plaintiff, an administratrix, to testify against her will, and was properly refused. Whether any witness should be recalled is a question...