
    Brown & Others v. The Administratrix of Thomas Brown Deceased.
    October Term, 1795.
    -Evidence — Guardian—Entry in Administrator’s Books." —An entry by an administrator in bis books, of money paid over by bim to tbe guardian, admitted as evidence against tbe guardian, under all the circumstances of tbe case, tbe administrator being dead, and bis band writing proved.
    This was an appeal from the High Court of Chancery’, in which the only question was, whether the master ought to have allowed an item in an account upon the evidence offered to prove it. The appellants who were the plaintiffs below are the children of Samuel Brown, to whom Wentworth was administrator. He settled his accounts of that estate under an order of the County Court, admitting himself to be a debtor to the amount of ,£386: 10: 1. After his death, his wife was appointed his administratrix, and at the same time, Thomas Brown was appointed guardian to the appellants. After the death of Mrs. Wentworth, John Day qualified as administrator de bonis non &c. of Wentworth, whose estate was by a decree of the County Court in an amicable suit commenced for that purpose, divided amongst his children, one of whom was the wife of Thomas Brown. On Wentworth’s books is an entry made by Day in the lifetime of Mrs. Wentworth the administratrix, charging Thomas Brown with ¿£386: 9: 1, paid him as guardian of the plaintiffs on account of Wentworth’s estate. Day is dead, and his hand writing proved. Thomas Brown on his day book debits himself with ,£155: 9: 1, received by him on account of his wards. But tho’ all other entries from this day book are posted on his ledger, the sum of ,¡£155: 9: 1, is not carried to account there. It appears that an order was made by the County Court, directing a summons to issue to the said Thomas Brown, to settle his guardianship accounts, but nothing farther was ever *done in the business. The defendant’s exceptions to the master’s report which allowed this sum of ,£386: 10: 1, to the debit of Thomas Brown’s estate, with interest thereon from 1768, when the credit was entered by Day being sustained by the High Court of Chan-cerjr, an appeal was prayed from the decree founded thereon to this court.
    Ronold for the appellant.
    Day, if living would have been a good witness at the time he made the entry, and his evidence is not destroyed by his afterwards becoming the administrator. But if I am wrong in this, the law is well settled, that if a witness were once competent, and afterwards becomes interested, his hand writing may be proved. In this case, the hand writing of Day being established, his entry ought to have been considered as evidence. Besides, if Brown, when summoned to settle his accounts had done so, there would have been no necessity of resorting to this evidence, and consequently slighter proof should be received to charge him.
    Marshall. The rule is, that the best evidence which the nature of the case will admit shall be required, and not as Mr. Ronold supposes, the best evidence which it is in the power of the party to produce. This case from its nature admits of conclusive testimony. Wentworth, it is admitted, once had this money in his hands; — it is contended that he is discharged of it, and that Brown is chargeable because he was appointed the guardian, and in Wentworth’s books an entry was made byr Day, of the money being paid over to Brown. How this is a case where Wentworth might, and as a prudent man ought to have taken a receipt, and therefore the entry is not the best evidence which the- nature of the case would have admitted. Wentworth himself could not have been examined as a witness to discharge himself and to charge another. Can his entry then be admitted, or is the case stronger, because the entry is made by Day? The evidence of his hand writing proves only that he made the entry, but it does not establish the fact to which the entry relates. As to Brown’s misconduct in not settling up his guardianship accounts, he might have been punished for not doing so, but it does not authorise the establishment of a principle as to him, which is repugnant to the rules of evidence when applied to general cases.
    Ronold in reply.
    I do not contend that the entry of the party himself would be evidence ; but it is sufficient if made by a third, person, and his hand writing proved. It is like the case of a book keeper, whose hand writing may be proved after his *death, to establish entries, with which perhaps he was himself totally unacquainted.
    The Court delivered the following opinion and decree viz. “The court is of opinion, that the exhibits stated in the record are not only corroborative of the entry made in Wentworth’s books by John Day, the clerk, or agent of Mary Wentworth the administra-trix; but are abundantly sufficient independent of that entry, to charge Thomas Brown with the whole ¿386: 10: 1. The demand against Wentworth’s estate was ascertained by his administration account duly settled and recorded, so as not to admit of doubt or litigation: Thomas Brown the same day, on which administration of that estate was obtained, is appointed guardian to Samuel Brown’s children with a view, it would seem, to the receiving of this money before that estate was divided. There appears to have been so little doubt of the personal estate (of which there is no account) being sufficient to pay this, and all other demands, that Brown himself who married a daughter of Wentworth, with the husbands of the others, immediately commenced an amicable suit in Chancery to have a division of the lands and slaves: an order for such division is accordingly made and carried into execution, comprehending 17 slaves, which at their stated value, amounted to much more than this demand of Samuel Brown’s orphans, and were liable thereto if the personal estate were not sufficient. Hence it appears that this money either was received by Thomas Brown the guardian, or he was guilty of gross neglect of duty, either of which would be a proper ground for charging him therewith. That he did receive it, is highly presumable from the circumstances before stated, and from that of his having entered in his memorandum book, the receipt of so considerable a parlas ,£155: 9: 6, without having returned an account thereof to court as his duty required, or even carrying it to account in his own books, either to the credit of a general account with Samuel Brown’s estate, or to the credit of each individual child, although such accounts appear to be open on his books, and although it is stated that he had posted from the memorandum book all other entries made at the same time. That therefore his estate ought to be charged with the whole ¿£386: 10: 1, as received in May 1768, accountable to each child for one third thereof, with interest. But since the accounts of disbursements for their maintainance, appear to be inadequate to that purpose, and probably defective, *and the interest of the money a very moderate allowance, the court is of opinion that the interest with each ■child shall commence from the time when he or she attained the age of 21 years or married, till which period the interest shall be set against the maintainance, and all the accounts of his disbursements for the latter discarded, unless the plaintiffs can make it appear before the commissioner, that they derived part of their maintainance from some other source than from their said guardian, in which case the charge of interest is to be made against him, and he to be allowed his accounts for maintainance. The decree is reversed with costs, and the cause to be remanded to have the accounts reformed, and a final decree made according to the principles of this decree.”
    
      
      Evidence — Books of Merchant — Entries by Deceased Clerk. — In Gale v. Norris, 9 Fed. Cas. 1079, tbe court said: "It is now fully settled, that tbe entries of bis deceased clerk, in tbe books of a merchant, are evidence in bis behalf, tbe handwriting being proved. Clark v. Magfuder, 2 Har. & J. 77; Welsh v. Barrett, 15 Mass. 386: Brown v. Brown, 2 Wash. 151; Union Bank v. Knapp, 8 Pick. 96; Patton v. Craig, 7 Serg. & B.. 126; Hood v. Reeve. 3 Car. & P. 53B; Holli-day v. Martinet, 20 Johns. 168; Wilbur v. Selden, 6 Cow. 162.”
    
     