
    The Corporation of Columbia against Benjamin Harrison.
    In an action for dues to a corporation, against one of the corporators, the treasurer produced his ledger, which contained only aggregate sums, made up from time to time of small details, but always adjusted between the treasurer and the party — this, with the oath of the treasurer, was admitted as sufficient evidence, without producing the details, though some of the items consisted of penalties under the corporation.
    This was an action of assumpsit, brought to recover, among other things, certain penalties for obstructing the streets in the town of Columbia; also certain taxes imposed by the Town Council on the defendant, for each beef sold in market.
    Mr. Chapman, the Town Clerk, proved that the defendant had frequently acknowledged to him the amount of the penalties, or street taxes, as they are sometimes called; that he had paid apart; for some he had given his notes, and the sum now sued for was the balance due. He had made the entry in his ledger, where he kept the accounts of the town, according to an estimate made between the defendant and himself. That with regard to the market money, he usually kept memorandums of it, and at the end of the year, after comparing his accounts with the defendant’s, he carried the amount, as adjusted, into this hook. That he had had frequent settlements, and compared accounts with him, and that the balance appearing due was just. This evidence was objected to. As to the first charge, it was contended that some higher evidence than the defendant’s acknowledgment was necessary, and; that, to establish the second, the original books or entries of the clerk ought to be produced. These objections were both overruled-The defendant then offered an account against the Town Clerk, in his individual right, as a set-off against the demand of the Corporation. This also was overruled. The Clerk was, nevertheless, asked if he had not agreed to receive that account in payment ? He said he had not. Every ground of defence being overruled, the plaintiff obtained a verdict.
    The cause was tried in Columbia, Spring Term, 1817, before Mr. Justice JYott.
    
    A motion was now made for a new trial, on the following grounds:
    1st. Because the items in the account, consisting of street fines to the amount of 61 dollars, ought not to have gone to the Jury on the evidence of S. Chapman, there being higher evidence, if the items were true.
    2d. That if such fines were imposed by the intendant and wardens, they exceeded their jurisdiction.
    3d. Because the witness, Chapman, was permitted to support his testimony by referring to his ledger, in which he entered, once a year, a lumping charge for said items.
    4th. Because the discount was rejected.
   The opinion of the Court was delivered by

Mr. Justice Nott.

The counsel in this case was allowed to take a much more extensive range in the argument, than could have been claimed from the grounds taken in the notice of a motion for a new trial. I shall, however, confine myself to the grounds taken in the brief. ■

p.¿°yníf^0e"h^h!

The law implies a promise, on the SNidSaievofy¿y due co$S£d are entitled to the aid this court to

Te47“"T S to aS°ib"m” mory at the trial.

The confession of a party is, in most cases, the highest evidence that can be given against him. A person may be convicted of the highest known to our laws on his own confession. On an indictment or action of debt, for a fine imposed by the state, no better evidence is required than the confession of the party that he had incurred the penalty. The law implies a promise * a a on the part of every member of society, or corporation, to pay all the sums required by the rules and by-laws of that society or corporation; - - , _ n _ and where they have not the means ox enforcing payment, they are entitled to the aid of Court. The testimony in this case was fully competent to establish the demand.

2d. The Corporation has not exceeded its jurisdiction. The sum sued for is the aggregate amount of several penalties added together, each of which is confessedly within its jurisdiction.

3d. The witness was properly permitted to recur to his ledger, or any other memorandum, to assist his memory; or, rather as the evidence a fact which he knew to exist, by referring to it, although he might have lost all recollection of the fact itself. When accounts are adjusted, the amount settled and recorded, what higher evidence can exist of the fact, than a memorandum, supported by the oath of the party who mac^e it? Bonds and notes furnish but little higher evidence of the facts they contain, for the witnesses by whom they are proved seldom re- or know any thing more of the transaction, than that their names are subscribed in their own handwriting to the paper; the books themselves, in this case, were not evidence. The witness might have proved the amount from recollection; but the memorandum was better.

r,untt,contra.

4th. The set-ofF was properly rejected. Demands can only be set-off between parties in the characters in which they sue and are sued. The defendant had no right to set-off against a demand due the Corporation, an account against the clerk of that body. Mr. Chapman had no right to make any such contract. It would have been a fraud upon the Corporation, and would not have been permitted by the Court. But in fact there was no such contract. The motion for a new trial must be refused.

Colcoch, Cheats, and Johnson, J. concurred.

Mr. Justice Gantt

dissenting, gave the following opinion.

The ordinance imposes a fine for obstructing the streets. Now a contract could not legally be entered into in contravention thereof. An action may be sustained for a fine, but without the evidence of the fact, properly adduced, the mere evidence of a contract, which, if made, would have been in violation of the ordinance itself, ought not to have been admitted.  