
    Sebeus C. Maine vs. Edward Harper.
    A defendant’s cash book, containing entries of sums of money received and paid out by him, is not competent as independent evidence of payments made by him upon a demand for which he is sued.
    Contract to recover for services as an attorney at law. The defendant relied upon payment, and having been sworn as a witness, at the trial in the superior court, testified to certain payments made by him to the plaintiff He then offered in evidence his cash book, (described in the opinion,) which he testified was the only book kept by him in his business, and contained entries of his daily cash transactions made at the time of their occurrence; but Lord, J. ruled that it was not a book of charges competent to prove payment. The defendant was permitted to testify that at the time of making the several payments he entered the same upon a book, and he read to the jury what he entered on the book, and his mode of entering it. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.
    
      W. L. Burt, for the defendant.
    
      T. Willey, for the plaintiff.
   Metcalf, J.

Upon inspecting the defendant’s book, it is clear that the judge correctly ruled that it was not competent evidence of payments made to the plaintiff. It was a mere cash book. At the head of the left hand leaves was written, throughout the book, “ By cash received,” and at the head of the right hand leaves, “ To cash paid,” or on the left, “ Cash received in,” and on the right, “ Cash paid out.” Such is not a book of accounts or charges that was ever held admissible, in this commonwealth, even in proof of a claim made by a plaintiff. And though we do not doubt that a defendant’s books are admissible in evidence, when offered to prove a set-off against a plaintiff’s claim, yet it can be only such a book as the plaintiff may introduce in support of his claim.

But if the defendant’s book had been, generally, such a book of accounts or charges as is admissible, yet the particular charges therein of payments made to the plaintiff would not have been competent evidence. No book kept by a party ever was legal evidence, in this commonwealth, of payment of money made by him. Exceptions overruled.  